Sambo's Restaurant, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1980

247 N.L.R.B. 777 (N.L.R.B. 1980)

SAMBO'S RESTAURANT, INC.
Sambo's Restaurant, Inc. and Hotel and Restaurant
Employees and Bartenders Union No. 340. Cases
20-CA-12252 and 20-RC-13800
February 4, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On December 23, 1977, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and Respondent filed cross-exceptions and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, with the additions
described below.
AMENDED REMEDY
The Administrative Law Judge, despite his numer-
ous findings of violations of Section 8(a)(1) of the Act,
recommended that Respondent cease and desist from
"[I]n any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act."
(Emphasis supplied.) In our recent Decision in Hick-
mott Foods, Inc.,2 we set forth our new policy for
determining whether a broad order requiring a respon-
dent to cease and desist from "in any other manner "
interfering with, restraining, or coercing its employees
in the exercise of their Section 7 rights to organize and
bargain collectively or to refrain from such activities is
warranted. We stated:
[S]uch an order is warranted only when a
respondent is shown to have a proclivity to
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
We agree with the Administrative Law Judge's finding that at the height of
its organizing campaign the Union had obtained 14 out of 41 valid union
authorization cards, not counting the card of Pat Craig. which on the record
247 NLRB No. 122
violate the Act, or has engaged in such egregious
or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental
statutory rights. Accordingly, each case will be
analyzed to determine the nature and extent of
the violations committed by a respondent, so that
the Board may tailor an appropriate order.
Applying this standard to Respondent's violations
in this case, we conclude there is no doubt that
Respondent's misconduct was both widespread and
egregious. In arriving at this conclusion we do not rely
solely on the fact that Respondent committed numer-
ous violations but also in accordance with Hickmott
Foods, supra, on the nature of Respondent's violations.
On October 1, 1976, the union filed a representation
petition. A scant 3 days later on October 4, Respon-
dent's manager held a meeting with at least 80 percent
of the restaurant's employees and as found by the
Administrative Law Judge, whose finding we adopt,
threatened the employees that Respondent would
reduce the waitresses' wages and discharge part-time
employees, as well as those under 18, if the employees
supported the Union.' Other violations of Section
8(a)(1) followed which we need not enumerate. But
there is one which deserves mention because of its
impact on the employees' freedom of choice. In late
October or early November, Manager Walters notified
employees she wanted them to sign a petition repudi-
ating the Union, and 24 or 25 employees signed the
petition in the presence of a notary public who
witnessed their signatures. We agree with the Admin-
istrative Law Judge that in the "context of . . .
Walters' illegal threats to impose a number of diverse
economic reprisals upon the employees if they sup-
ported the Union, Walters' solicitation of the employ-
ees' signatures on the Union repudiating petition
plainly operated to deny the employees' freedom of
choice [in the upcoming election.]"'
The Administrative Law Judge found it unneces-
sary to decide whether the Respondent's unfair labor
practices were outrageous or pervasive.' We conclude
they were. Therefore, inasmuch as Respondent's
unfair labor practices are such that they are likely to
have a countinuing coercive effect on the free exercise
by employees of their Section 7 rights long after the
violations have occurred, we shall require additional
remedial action designed to dissipate as much as
evidence he found invalid. We do not pass on the finding as to Craig,
inasmuch as her card clearly could not have altered the Union's lack of
majority status.
' 242 NLRB 1357 (1979).
'See ALJD, sec. V.A.5,d.
'AUD, sec. E.
See AUD, fn. 34, in response to the General Counsel's request for a
remedial bargaining order even though the Union at no time represented a
majority of the employees in an appropriate unit.
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible the lingering atmosphere of fear created by
Respondent's unlawful conduct and to insure that if
the question of union representation is placed before
employees in the future they will be able to voice a free
choice. To achieve these ends we shall require Respon-
dent to take the following affirmative steps in addition
to the remedies recommended by the Administrative
Law Judge:6 (1) in addition to posting at its San
Bruno, California, facility copies of the attached notice
marked "Appendix," mail a copy of the notice to each
individual current employee at his or her home
address and to all employees on the payroll at the time
the unfair labor practices were committed, and include
a copy in appropriate company publications. All such
notices, both mailed and posted, to be signed personal-
ly by Respondent's district manager, Richard Carver,
who shall also read the notice to current employees
assembled for that purpose (Respondent shall afford
the Board a reasonable opportunity to provide for the
attendance of a Board agent at any assembly of
employees called for the purpose of reading such
notice); (2) upon request, grant the Union and its
representatives reasonable access for a period of 6
months to its bulletin boards and all places where
notices to employees are customarily posted; (3) upon
request grant the Union reasonable access for a 6-
month period to its facilities in nonwork areas during
employees' nonwork time; (4) supply the Union, upon
request made within 1 year of the date of this Decision
and Order, the names and addresses of its current
employees; (5) give notice of, and equal time and
facilities for the Union to respond to, any address
made by Respondent to its employees on the question
of union representation; (6) afford the Union the right
to deliver a 30-minute speech to employees on
working time prior to any Board election which may
be scheduled in which the Union is a participant.
Provisions (3), (4), (5), and (6), above shall apply for a
period of 2 years from the date of the posting of the
notice provided by the Order herein, or until the
Regional Director has issued an appropriate certifica-
tion following a fair and free election, whichever
comes first.
In our view, the above remedies insure that each
employee will be made individually aware of his
statutory rights and will personally be assured by a
high-ranking representative of Respondent that those
rights will be represented. In addition, the Union will
be afforded a substantial period of time to present its
views to employees off company premises in an
atmosphere relatively free of restraint and coercion
and, by requiring that the Union be given access to
' Similar remedial measures were ordered in The Loray Corporation. 184
NLRB 557, 558 (1970); . P Stevens and Ca. Inc.. 157 NLRB 869, 878
(1966), enfd. as modified 380 F.2d 292 (2d Cir. 1967), cert. denied 389 U.S.
1005. See also H. W Elson Bottling Company, 155 NLRB 714 (1965), enfd. as
Respondent's plant in nonwork areas during employ-
ees' nonwork time, employees will be further reassured
that Respondent will respect their Section 7 rights.
Finally, by requiring Respondent to furnish the names
and addresses of all current employees, the Union will
be afforded an opportunity to present its view not only
to employees on the payroll at the time the unfair
labor practices were committed, but to reach, in
addition, those employees who have not yet had a
chance to formulate their desires with regard to
representation but who are nonetheless affected by the
lingering effects of Respondent's violations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Sambo's Restaurant, Inc., San Bruno, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge if they
support Hotel and Restaurant Employees and Bar-
tenders Union No. 340, or any other labor organiza-
tion.
(b) Threatening employees that if they support the
above-named Union or any or any other union they
will be treated more strictly or more stringent work
rules will be imposed or waitresses' wages will be
reduced or the size of the work force will be reduced
or employees will be discharged for being just a little
bit late for work or existing benefits will be eliminated.
(c) Interrogating employees about their union sym-
pathies and activities and about the union sympathies
and activities of other employees.
(d) Giving the employees the impression that their
union activities are being kept under our surveillance.
(e) Soliciting employees to sign a petition repudiat-
ing the above-named Union or any other labor
organization.
(f) Granting employees improved benefits of em-
ployment for the purpose of discouraging them from
supporting the above-named Union or any other
union.
(g) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their right
to self-organization, to form, join, or assist Hotel and
Restaurant Employees and Bartenders Union No. 340,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
modified 379 F.2d 223 (6th Cir. 1967), cert. denied 390 U.S. 904: United
Dairy Farmers Cooperative Association. 242 NLRB 1026 (1979); Haddon
House Food Products, Inc.. and Flavor Delight, Inc.. 242 NLRB 1057 (1979).
778
SAMBO'S RESTAURANT. INC.
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Mail a copy of the attached notice marked
"Appendix"' to each and every employee at his or her
home address, post copies thereof at its location in San
Bruno, California, and include a copy in appropriate
company publications. Copies of said notice, on forms
provided by the Regional Director for Region 20, shall
be personally signed by Respondent's district manag-
er, Richard Carver. Copies of said notice shall be
mailed by Respondent to each and every employee
working at its San Bruno, California, location on the
date on which such notice is mailed, as well as each
and every employee who worked at that location
during the period of Respondent's unfair labor prac-
tices, and additional copies shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Convene during working time all employees at
its San Bruno, California, location, either by shifts or
departments, or otherwise, and have Respondent's
district manager, Richard Carver, read to the assem-
bled employees the contents of the attached notice
marked "Appendix." The Board shall be afforded a
reasonable opportunity to provide for the attendance
of a Board agent at any assembly of employees called
for the purpose of reading such notices.
(c) Upon request of the Union made within I year
of the issuance of the Order herein, without delay
make available to the Union a list of names and
addresses of all employees employed at the time of the
request.
(d) Immediately upon request of the Union, within
2 years from the date on which the aforesaid notice is
posted, grant the Union and its representatives reason-
able access to the bulletin boards at its San Bruno,
California, location, and to all places where notices to
employees are customarily posted for a 6-month
period.
(e) Immediately upon request of the Union, within 2
years from the date on which the aforesaid notice is
posted, permit a reasonable number of union represen-
tatives access during a 6-month period amounts of
time to nonwork areas, including but not limited to
rest areas and parking lots, within its San Bruno,
' In the event that this Order is enforced by a Judgement of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
California, location, so that the Union may present its
view on unionization to the employees, orally and in
writing, in such areas during changes of shift, breaks,
mealtimes, or other nonwork periods.
(f) In the event that, during a period of 2 years
following the date on which the aforesaid notice is
posted, any supervisor or agent of Respondent con-
venes any group of employees at Respondent's San
Bruno, California, location, and addresses them on the
question of union representation, give the Union
reasonable notice thereof and afford two union repre-
sentatives a reasonable opportunity to be present at
such speech, and, upon request, give one of them equal
time and facilities to address the employees on the
question of union representation.
(g) In any election which the Board may schedule at
Respondent's San Bruno, California, location, within a
period of 2 years following the date on which the
aforesaid notice is posted, and in which the Union is a
participant, permit, upon request by the Union, at
least two union representatives reasonable access to
the plant and appropriate facilities to deliver a 30-
minute speech to employees on working time, the date
thereof to be not more than 10 working days, but not
less than 48 hours, prior to any such election.'
(h) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
December 3, 1976, among Respondent's employees be,
and it hereby is, set aside, and that Case 20-RC-13800
be remanded to the Regional Director for Region 20
for the purpose of conducting a new election at such
time as she deems that circumstances permit the free
choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER PENEI.LO, concurring in part and dissenting
in part:
I join my colleagues in adopting the Administrative
Law Judge's unfair labor practice findings. I also join
my colleagues in adopting the Administrative Law
Judge's recommendation that a bargaining order not
issue here. In so doing,'however, I do not agree with
all of the Administrative Law Judge's discussion of the
question, particularly his interpretation of N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1979). Rather,
I rely upon my separate opinion in United Dairy
Farmers Cooperative Association, 242 NLRB 1026
(1979), wherein I stated that the Board lacks the
authority to issue a bargaining order in the absence of
a showing of union majority status. Finally, while I
'Subpars. (d). (e). (, and (g) herein shall be applicable only so long as the
Regional Director has not issued an appropriate certification following a fair
and free election
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree that a broad cease-and-desist order is warranted
here, I would not, in the circumstances of this case,
grant the extraordinary remedies which my colleagues
have included in the Board's Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all the parties participated,
the National Labor Relations Board has found that we
have violated the National Labor Relations Act. We
have been ordered to post this notice and to abide by
its terms.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
or restrains or coerces employees with respect to
these rights. More specifically:
WE WILL. NOT threaten employees with dis-
charge if they support Hotel and Restaurant
Employees and Bartenders Union No. 340, or any
other labor organization.
WE WILL NOT threaten employees that if they
support the above-named Union or any other
union they will be treated more strictly, more
stringent work rules will be imposed, waitresses'
wages will be reduced, the size of the work force
will be reduced, employees will be discharged for
being just a little bit late for work, or existing
benefits will be eliminated.
WE WILL NOT interrogate employees about
their union sympathies and activities and about
the union sympathies and activities of other
employees.
WE WILL NOT give employees the impression
that their union activities are being kept under
our surveillance.
WE WILL NOT solicit employees to sign a
petition repudiating the above-named Union or
any other union.
WE WIL. NOT grant employees improved
benefits of employment for the purpose of dis-
couraging them from supporting the above-
named Union or any other union.
WE WIL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights to self-organization, to form, join,
or assist Hotel and Restaurant Employees and
Bartenders Union No. 340, or any other labor
organization to bargain collectively through rep-
resentatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
WE WILL send to all our employees copies of
this notice; WE WILL. read this notice to all our
employees; and WE WILL include a copy of this
notice in an appropriate company publication.
WE WILL, upon request of the Union made
within I year of issuance of the Board's Decision
and Order, make available to the Union a list of
names and addresses of all our employees cur-
rently employed.
WE WILL, immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our bulletin boards and all
places where notices to employees are customari-
ly posted.
WE WILL, immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our San Bruno, California,
location, in nonwork areas during employees'
nonworktime in order that the Union may
present its views on unionization to employees,
orally and in writing, in such areas during
changes of shift, breaks, mealtimes, or other
nonwork periods.
WE WIll, if we gather together any group of
our employees on worktime at our San Bruno,
California, location, and speak to them on the
question of union representation, give the Union
reasonable notice and give two union representa-
tives a reasonable opportunity to be present at
such speech and, on request, give one of them
equal time and facilities also to speak to you on
the question of union representation.
WE WILL, in any election which the Board
may schedule at our San Bruno, California,
location, in which the Union is a participant,
permit, upon request by the Union, at least two
union representatives reasonable access to the
facility and appropriate facilities to speak to you
for 30 minutes on working time, not more than 10
working days, but not less than 48 hours, prior to
the election.
WE WIt. L apply the four paragraphs immedi-
ately preceding this one for a period of 2 years
from the date of posting of this notice, or until the
Regional Office of the National Labor Relations
780
SAMBO'S RESTAURANT, INC.
Board certifies the results of a fair and free
election, whichever comes first.
SAMBO'S RESTAURANT, INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
consolidated hearing held in these cases on August 23 and
24, 1977, is based upon an unfair labor practice charge filed
in Case 20-CA-12252 on December 10, 1976, and objections
to conduct affecting the results of a representation election
filed in Case 20-RC-13800 on December 9, 1976, by the
Hotel and Restaurant Employees and Bartenders Union No.
340, herein called the Union. On May 19, 1977, the Regional
Director for Region 20 of the National Labor Relations
Board issued a complaint in the unfair labor practice case on
behalf of the National Labor Relations Board's General
Counsel and on the same date issued an order consolidating
the Union's objections in the representation case with the
unfair labor practice case for hearing before an administra-
tive law judge.
The complaint, which was amended at the hearing, alleges
in substance that Sambo's Restaurant, Inc., herein called
Respondent, has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the National Labor Relations
Act, as amended, herein called the Act.
The Union's objections in substance allege that Respon-
dent engaged in conduct which interfered with the holding
of a free and fair election and warrants setting aside the
election.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent, Sambo's Restaurant, Inc., a California
corporation, with its principal office located in Santa
Barbara, California, owns and operates a chain of retail
restaurants, including the one involved in this case, which is
located in San Bruno, California. During its most recent
calendar year, Respondent received gross revenues in excess
of $500,000 and purchased goods and supplies valued in
excess of S5,000 directly from suppliers located outside the
State of California.
Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
Hotel and Restaurant Employees and Bartenders Union
No. 340, the Union, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
All dates herein unless otherwise specified refer to 1976.
The Union secured a total of 15 signed cards. but the one signed by
IIl. BACKGROUND ANt) ISSUES
This case involves the Union's campaign to organize the
employees employed at Respondent's San Bruno restaurant.
In September 1976' the Union commenced its organizing
campaign and, by September 30, 14 of the 41 employees
employed at the restaurant had signed valid cards authoriz-
ing the Union to act as their collective-bargaining represen-
tative.: On October I the Union filed a representation
petition with the Regional Director of the Board seeking to
represent all of the employees employed at the San Bruno
restaurant. On December 3 the Board, with the agreement of
all of the parties, conducted a secret-ballot election in this
voting unit. The official tally of ballots shows that of the
approximately 38 eligible voters 27 cast ballots of which 11
were for and 16 were against the Union.
The ultimate questions to be decided are whether between
the date the Union filed its representation petition and the
representation election Respondent violated Section 8(a)(l)
of the Act by giving employees the impression that their
union activities were being kept under surveillance, interro-
gated employees about their union sympathies and activities,
threatened employees with numerous economic reprisals if
they supported the Union, solicited employees to sign a
petition disavowing the Union, granted one employee a wage
increase, and paid employees for overtime side work to
discourage them from supporting the Union; and, if Respon-
dent committed these unfair labor practices, in whole or in
part, whether they are sufficient not only to set aside the
representation election lost by the Union, but warrant the
imposition of an order requiring Respondent to recognize
and bargain with the Union even though the Union at no
time represented a majority of the restaurant's employees.
IV. RESPONDENT'S RESPONSIBILITY FOR THE CONDUCT
OF MARY HUTH
Since some of the allegations involved herein attribute acts
of misconduct to Assistant Restaurant Manager Mary
Heuth, I must first examine the General Counsel's conten-
tion, opposed by Respondent, that Heuth is a statutory
supervisor or that, even if she was not, Respondent would
still be responsible for her conduct because it placed her in a
position where employees could reasonably believe she spoke
on behalf of management.
The principal witnesses presented by the General Counsel
to testify concerning Mary Heuth's supervisory status were
waitresses Carla Cheney, Patricia Craig, Kathy Markakis,
and Beatrice Weathers. Each one impressed me as a sincere
and reliable witness. Heuth, Respondent's principal witness,
was not convincing. In bearing and demeanor she impressed
me as an unreliable and an untrustworthy witness. Whenev-
er Heuth's testimony conflicts with the testimony of one of
the other witnesses I have rejected it.
Heuth was employed by Respondent at its San Bruno
restaurant from July 17 until December 31. She was first
employed as a cook, then in early September was reassigned
by Restaurant Manager Walters to the position of assistant
restaurant manager and given a $1-per-hour increase in pay.
waitress Patricia Craig is not valid because. when solicited to sign the card.
she was told it would be used "only" to get an election.
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are certain factors which militate against a finding
that in her capacity as assistant manager Heuth was a
statutory supervisor. She spent a substantial amount of her
worktime performing rank-and-file work. The nature of the
work performed by the employees she directed was routine.
The record does not indicate that her working conditions
differed substantially from those of the employees,' and she
voted without challenge in the representation election.4
On the other hand there are a number of indicia, set out
below, which indicate that Heuth, as assistant manager, was
a supervisor within the meaning of Section 2(11) of the Act.
(a) In approximately early September Manager Walters
introduced Heuth to the employees as their new assistant
manager and advised them she was in charge of the
graveyard shift and had the authority to hire and fire
employees.'
(b) Heuth directed the work of the employees employed
on the graveyard shift, assigned the waitresses to their work
stations, and settled complaints between the waitresses and
the cooks. Moreover, Heuth testified she was "in charge" of
the graveyard shift and further testified that Manager
Walters did not normally give her any instructions in
connection with the supervision of the graveyard shift, but
left its supervision to Heuth's independent judgment.'
(c) Heuth made up the work schedules for the employees
employed on the graveyard shift; she determined the days
and hours they worked, their days off, and whether they
could deviate from the work schedule by leaving work early.
(d) Heuth criticized the employees employed on the
graveyard shift when she felt they did not conduct them-
selves properly; i.e., talking too loud in the customers' area
or taking too long to perform their work.
(e) Heuth evaluated the work performance of the employ-
ees employed on the graveyard shift and regularly communi-
cated her evaluations to Walters.
(f) Heuth hired two employees whom she allowed to start
work subject to Walters' approval' and in two or three other
cases, when she needed personnel on the graveyard shift, she
brought Walters the employment application of the appli-
cant she wanted to employ and indicated she felt the
applicant was qualified for the job opening. In each instance
Walters told Heuth to employ the applicant, which she did.
(g) Once when Walters indicated she intended to dis-
charge a cook, who worked days, Heuth recommended that
the cook be given another chance. Walters accepted the
Heuth worked more overtime than the employees she supervised,
however, like the employees Heuth was paid by the hour and shared the same
employee benefits. Although she received a $l-perhour pay raise whenpromoted to assistant manager, at least one cook earned a higher hourly rate
than Heuth.
' In searching the record for factors which indicate Heth was not astatutory supervisor. I have carefully considered the estimony of Respon-dent's district manager. Richard Carver. that Heuth's appointment to theposition of assistant manager by Manager Walters was an improper act donewithout Carver's permission, The testimony of Carver, who did not impress
me as a credible witness. does not ring true. Heuth served as assistant managerfor approximately 4 months. Her appointment, as found infra. was publicly
announced to the employees. The pay raise she received when she assumedthis position was presumably authorized by W alters' supervisors, and Heuth,as found infra. was placed in charge of the restaurant for 2 or 3 days whenWalters was absent on a company-sponsored holiday. These circumstances
belie Carver's testimony. At the very least, even if Heuth was appointed
without Respondent's approval. it is clear from the fact that Heuth openlyserved as assistant manager for 4 months and received a substantial pay raise
recommendation. The cook, as a result, remained in Respon-
dent's employ.
(h) In connection with a company-sponsored holiday
Walters notified the employees that Heuth would be in
charge of the restaurant during her 2- to 3-day absence and,
in fact, left Heuth in charge of the restaurant.
(i) No one with greater supervisory authority than Heuth
was present on the graveyard shift; thus, absent such
authority in Heuth the employees on this shift would have
no supervision.' In fact, on the rare occasion when Walters
was present on the graveyard shift she refused to supervise
the employees, but told them to go to Heuth for supervision."
(j) Heuth was regarded by the graveyard shift employees
as their supervisor.
In summation, during Heuth's 4 months as assistant
manager, she was responsible for the operation of the
graveyard shift and directed the work of the employees on
that shift using her independent judgment. In addition, she
evaluated their work performance, criticized them for failing
to perform properly, made out their work schedules, and
assigned the waitresses to their work stations. She also
played a significant role in the hire of 5 employees,
effectively recommended that I employee not be discharged,
and was placed in charge of the restaurant when Manager
Walters was absent. These circumstances, plus Manager
Walters' public announcement that Heuth was in charge of
the graveyard shift with authority to hire and fire and
Walters' refusal to supervise the graveyard shift's employees
when Heuth was on duty, led the employees quite naturally
to regard Heuth as their supervisor. Finally, absent Heuth
the graveyard shift's employees would have no supervisor. It
is for all of these reasons that despite certain nonsupervisory
indicia, described supra, I am of the opinion that the whole
record on balance preponderates in favor of the conclusion
that Heuth, as assistant manager, was a supervisor within
the meaning of Section 2(11) of the Act.
In any event, even if Heuth was not a statutory supervisor,
Respondent would still be responsible for her conduct
because it placed her in a position where the employees,
particularly the employees employed on the graveyard shift,
could reasonably believe that she spoke on behalf of
management. See Helena Laboratories Corp., 225 NLRB 257
(1976), enfd. in pertinent part 557 F.2d 1183 (5th Cir. 1977);
Broyhill Company, 210 NLRB 288, 294 (1974), enfd. 514
F.2d 655 (8th Cir. 1975). Heuth regularly directed the
that Walter's superiors must have discovered what Walters had done, yet did
not rescind the appointment. In short, at the very least, the record supports
the inference that Walters' superiors ratified Heuth's appointment as assistant
manager.
' Based upon the testimony of Beatrice Weathers who, as I indicate infr.
was an extremely impressive witness.
' Occasionally Heuth served as a conduit for instructions from Walters to
the graveyard shift's employees and, in this regard, supervised the work which
Walters wanted them to perform; i.e.. cleaning the customers' tables.
·The fact that Walters. in the case of one of these new hires, upon learning
the applicant had misrepresented her past work experience, discharged the
employee does not detract from Heuth's role in the hire of employees.
' During weekdays the employment complement on the graveyard shift
consisted of 2 waitresses, I cook, and I dishwasher. During weekends 2 or 3
additional waitresses and an additional cook were added to the normal
employment complement. Also there is an indication from Heuth's testimony
that on occasion the graveyard shift also employed a hostess and a busboy.
However in emergency situations Heath phoned Walters for advice.
782
SAMBO'S RESTAURANT. INC.
employees employed on the graveyard shift and criticized
them when they failed to conduct themselves properly. In
addition, it was her responsibility to make out the employ-
ees' work schedules and assign the waitresses to their
workstations. Also, when Heuth was appointed assistant
manager, the manager of the restaurant, Walters, introduced
Heuth to the employees as being in charge of the graveyard
shift with authority to hire and fire and thereafter indicated
to the employees on the graveyard shift they should go to
Heuth for supervision rather than to Walters. In light of
these circumstances Respondent is accountable for the
actions of Heuth, even if she is not a statutory supervisor,
since it placed her in a position whereby the employees, in
particular the ones employed on the graveyard shift, would
have just cause to believe she was acting for and on behalf of
Respondent.
V. THE ALLEGED UNFAIR l.ABOR PRACTICES
A. Walters' October 4 Meeting With the Employees
On or about October 4 at least 80 percent of the
restaurant's employees met with Restaurant Manager Wal-
ters, at Walters' request, in the restaurant's dining room
where Walters spoke to them about the Union."' Waitresses
Beatrice Weathers, Joy Moss, Patricia Craig, Susan Colun-
ga, Kathy Markakis, Beronica Bunch, and cook Robin
Bunch testified for the General Counsel about this meeting.
Assistant Manager Mary Heuth testified for Respondent. On
the basis of my observation of the demeanor of the witnesses,
while testifying, I am persuaded that all except Heuth were
honest witnesses making a sincere effort to accurately
describe what Walters stated." Heuth did not impress me as
a trustworthy witness and I have rejected her testimony
whenever it conflicts with the testimony of the other
witnesses.
I find that during the October 4 meeting Walters engaged
in the following pertinent conduct.
1. The threat to discharge employees
Walters told the employees that she was opposed to
representation by the Union and warned them that if the
Union succeeded in its organizational campaign Respondent
would discharge the employees.'" This is a blatant threat that
employees would be discharged by Respondent if they
supported the Union. It is a threat to take action solely
within the power of Respondent and obviously not based on
any economic prediction. By engaging in this conduct
Respondent violated Section 8(aX 1) of the Act.
"' Assistant Manager Heuth testified that "just about all" of the restaurant's
41 employees attended this meeting. Waitresses Weathers and Veronica
Bunch credibly testified that approximately 35 orthe 41 employees attended.
" In reaching this conclusion I have considered very carefully the attack
made in Respondent's post-hearing brief upon the credibility of Weathers and
Moss, panicularly Weathers. Mo s' and Weathers' testimony, however.
seemed to have been given with genuine conviction. Nor was there anything in
their version of what Walters stated or their demeanor while testifying to
suggest that their testimony was fabricated. Indeed Weathers, who on the date
of the hearing was still in the employ of Respondent, impressed me in bearing
and demeanor as an extremely conscientious witness.
2. Walters threatens to act like a "bitch"
Walters told the employees that if they thought she was
currently acting like a "bitch" in dealing with them then
they could expect her to be even more of a "bitch" if the
Union succeeded in organizing the restaurant." This consti-
tutes a veiled threat that if the employees supported the
Union Walters would treat them more strictly. It is a threat
to take action solely within the power of Respondent and
obviously not based on any economic prediction. By engag-
ing in this conduct Respondent violated Section 8(a)(l) of
the Act.
3. The interrogation
Walters told the employees she had learned about the
Union's organizing campaign and asked them to tell her
which employees were responsible for the Union's campaign
and specifically asked Weathers if she was the employee
responsible for the Union." This interrogation took place in
the context of Walters' unfair labor practices described
herein, it was not accompanied by any explanation as to its
purpose, nor was any legitimate purpose readily apparent,
and the employees were not given any assurances against
reprisal. In view of these circumstances, by asking the
employees to reveal the identities of the employees responsi-
ble for the Union and by asking whether Weathers was
responsible for the Union, Respondent violated Section
8(a)(1) of the Act. However, I reject the General Counsel's
further contention that by informing employees she was
aware of the Union's organizing campaign Walters created
the impression that Respondent was keeping the employees'
union activities under surveillance. See South Shore Hospital,
229 NLRB 363 (1977).
4. The threat to impose stricter work rules
Employee Weathers testified that Walters stated at this
meeting that if the Union came in that an employee who was
only a few minutes late for work could be dismissed and that
any employees who failed to complete their assigned side
work could also be dismissed and warned there were many
grounds which Respondent co.ld use to justify an employ-
ee's discharge.
Employee Moss testified that Walters stated she would
make it rough on the employees if the Union was successful,
explaining to the employees that if they were 1 minute late
she would have a reason to terminate them.
Employee Markakis testified Walters said that with a
union employees could be terminated for the least little
cause-for not having their side work done or for being late
for work by only I or 2 minutes.
' Based upon Weathers' testimony which was substantially corroborated by
Moss' testimony.
" Based upon the testimony of employees Craig, Markakis. Moss, Weather.
Robin Bunch, and Veronica Bunch
" Based upon a composite of the credible testimony of employees Colunga.
Markakis. Moss, Weathers., and Veronica Bunch. I recognize that my finding
of Walters' interrogation of Weathers is based upon Weathers' uncorroborat-
ed testimony. However, as I have indicated previously Weathers was an
extremely impressive witness. Nor was her testimony in this respect
specifically contradicted by any of the employee witnesses nor by Respon-
dent's witness, Assistant Manager Heuth.
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Craig testified Walters stated she would termi-
nate any employee who was 5 minutes late for work because
with the Union the restaurant would install a timeclock as
union restaurants maintained timeclocks.
Employee Colunga testified Walters told the employees
that if the Union organized the restaurant she would "play
everything by the book" and if an employee was 5 minutes
late it would be cause for discharge because, as she
explained, this was what happened under a union contract.
Veronica Bunch testified Walters said that if the employ-
ees went union Respondent would install a timeclock to
make sure they were on time as it was common to have
timeclocks in union restaurants.
Robin Bunch testified that Walters said if the Union came
in and any employee was a minute late they would be fired.
Although the various employees' recollections of the
meeting are not precisely the same concerning this topic, I
think it is clear from their testimony that Walters, in effect,
warned them that if they supported the Union Respondent
would impose more stringent work rules governing their
employement, in particular for tardiness, for the violations
of which they would be discharged. By engaging in this
conduct Respondent violated Section 8(a)(1) of the Act. In
so concluding I have taken into account the testimony of
some of the employees, supra, that Walters sought to lay the
blame upon the Union, rather than Respondent, for the
imposition of more stringent work rules. This does not
detract, however, from the unlawful nature of Walters'
remarks where, as here, there is no evidence that Walters
had a reasonable basis to suggest to the employees that union
representation would mean the imposition of stricter work
rules nor was the accuracy of this suggestion factually
supported by Respondent during the hearing. See N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969);
Southwest Regional Joint Board, Amalgamated Clothing
Workers of America, AFL-CIO [Levi Strauss & Co.] v.
N.L.R.B., 441 F.2d 1027 (D.C. Cir. 1970); Hertzka &
Knowles v. N.L.R.B., 503 F.2d 625 (9th Cir. 1974). 1 also
note that Walters' remark concerning the imposition of more
stringent work rules was voiced at the same time she was
illegally warning the employees that if they supported the
Union she would be more of a "bitch" and Respondent
would discharge them. In view of the above circumstances, I
do not believe Walters' remarks were "carefully phrased on
the basis of objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control,"'
but instead would be reasonably understood by the employ-
ees as a threat of economic reprisal by Respondent for the
purpose of discouraging them from supporting the Union.
5. Other threats of economic reprisal
a. The threat to reduce waitresses wages
Robin Bunch credibly testified that at the October 4
meeting Walters told the employees that if the Union was
successful the waitresses would receive a cut in their pay
" N.L.R.B. v Gissel Packing Co.. Inc.. supra.
" Bunch's testimony was uncorroborated. However. he impressed me as a
sincere and reliable witness. Also. his testimony was uncontradicled by the
testimony of any of the other witnesses. Indeed Respondent's witness. Heuth,
did not specifically contradict Bunch's testimony.
because a union contract contains a set scale of wages and
the waitresses were currently earning more than the "union
scale."'"
b. The threat to discharge employees who are under 18
years of age
Robin Bunch testified that at this meeting Walters said
that with the Union she could not hire anyone under 18
because the Union would not let anyone work for the
restaurant if they were under 18 years of age.
Vernica Bunch testified that Walters stated no one under
18 could work "for the Union" explaining to the employees
that a requirement of union membership was that the
employees be at least 18 years old.
Kathy Markakis testified that Walters stated the employ-
ees under 18 would probably be terminated.
Beatrice Weathers testified that at this meeting Walters
said that if the employees went union no employee under 18
would be allowed to work in the restaurant because the
Union would not accept them as members.
Patricia Craig testified Walters told them that if the
employees went Union the employees under 18 would be
terminated and explained to the employees that this is what
happens in a union restaurant.
Although the various employees' recollections are not
precisely the same of what was stated by Walters about
employees under 18," think it is clear from their testimony
that Walters stated, at the least, that if the Union came in
Respondent would terminate all of the employees under 18
because they were ineligible to become union members.
c. The threat to discharge part-time employees
Robin Bunch testified that at this meeting Walters said
that if the restaurant went union she would not be able to
continue to employ part-time employees because she would
not be able to pay them the "union scale," explaining to the
employees that under the terms of the Union's contract she
would have to pay part-time employees a higher rate of pay.
Veronica Bunch testified Walters said that if the restau-
rant went union most of the emlployees would be full-time as
part-time employees could not work for the restaurant
because, due to the terms of the union contract, there were
usually mostly full-time employees employed in a union
restaurant.
Patricia Craig testified Walters stated that if the employ-
ees went Union Respondent would not employ part-time
employees because this is what happens in a union restau-
rant.
Kathy Markakis testified that Walters said that with the
Union she would have to pay more for part-time employees
or used words to that effect. Beatrice Weathers testified that
Walters said there would be no part-time employees because
the Union would not allow them.
Mary Heuth testified that Walters told the employees that
with the Union part-time employees would have to be
It is undisputed that Respondent employed a number of employees under
18.
784
SAMBO'S RESTAURANT, INC.
partially eliminated because it would cost more to employ
them. Heuth also testified that during the meeting, in
connection with the wage differential between full time and
part-time employees, she [Heuth], not Walters, referred to a
"little black book" which the Union had mailed to the
employees which contained the wage scale for full-time and
part-time employees. '
Although the various employees' recollections of what
was stated by Walters about part-time employees are not
precisely the same, I think it is clear from their testimony as
well as from the testimony of Assistant Manager Heuth that
at the very least Walters stated that if the Union was
successful Respondent would have to terminate a substantial
number of part-time employees because under the terms of
the wage scale included in the Union's contract Respondent
would not be able to afford to employ part-time employees.'9
d. Conclusionary findings
Based upon the foregoing I find that at the October 4
meeting Walters warned the employees that if the Union was
successful the following consequences would occur: Wai-
tresses' wages would be reduced because the wage scale in
the Union's contract was less than the waitresses' current
rate of pay; employees under 18 would be terminated
because they were ineligible to become Union members; and
employees employed part time would be terminated because
Respondent would not be able to afford to employ them
under the wage scale in the Union's contract. I am of the
view that each one of these remarks constitutes an implied
threat that Respondent would impose economic sanctions
upon the employees if they supported the Union. Specifical-
ly, I find that Walters in effect threatened the employees
Respondent would reduce the waitresses wages and dis-
charge part-time employees, as well as those under 18, if the
employees supported the Union. By engaging in this conduct
Respondent violated Section 8(a)( 1 ) of the Act.
I rejected Respondent's contention that Walters' remarks
are noncoercive predictions protected by Section 8(c) of the
Act. In this regard, the standard to be used in evaluating an
employer's predictions as to the probable effects of unioniza-
tion was established by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., where the Court stated (395 U.S. at
618):
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a "threat of reprisal or
force or promise of benefit". He may even make a
prediction as to the precise effect he believes unioniza-
tion will have on his company. In such a case, however,
the prediction must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol.
" Heuth did not testify about what she said on this subject. The so-called
black book was not introduced by Respondent into evidence and Heuth, who
admitted it was not a collective-bargaining contract, did not describe its
contents other than to testify it contained only a wage scale.
" During the time material between one-third and one-half of the
restaurant's employees were part.time employees.
I am of the opinion that Walters' remarks concerning the
reduction of waitresses wages and the discharge of part-time
employees and employees under 18 do not satisfy this test.
Nowhere in Walters remarks is it made clear that the
predicted reduction of waitresses wages or the increase in the
wages of part-time employees or the ineligibility of employ-
ment of employees under 18 would necessarily be a subject
of negotiation between the Union and Respondent and
would only occur if the Union and Respondent agreed after
bargaining. Nor were any of these representations factually
supported. Indeed Respondent made no effort to support the
basis for any one of these predictions. Moreover, there is no
evidence that the Union had given any indication that it
would make such demands on Respondent at such time as it
obtained bargaining rights. Nor is there otherwise any
evidence to support a conslusion that Walters had a
reasonable basis in fact for her representation that the Union
would make contractual demands which would cause
Respondent to reduce the waitresses wages or to terminate
part-time employees and those under 18. 1 also note that
Walters' remarks were made at the same time she was
threatening the employees, in violation of Section 8(a)(1),
that if they supported the Union Walters would act like a
"bitch" and Respondent would discharge them.
In view of the above circumstances, I do not believe that
Walters' remarks were "carefully phrased on the basis of
objective fact," but instead would reasonably be understood
by the employees as implied threats of economic reprisals for
the purpose of inducing them to refrain from supporting the
Union. Accordingly, I find that Walters' above described
remarks interfered with, restrained, and coerced employees
in violation of Section 8(a)(1) of the Act. See Treadway Inn.
217 NLRB 51, 51-52 (1975); Vincent's Steak House. Inc..
216 NLRB 647, 649 (1975); Yankee Trader. Inc.. d/b/a
Treadway Inn, 184 NLRB 715 (1970).
B. Walters Speaks With Employee Weathers2"
On October 4, immediately after Walters' meeting with
the employees had ended, Walters called waitress Beatrice
Weathers into the restaurant's office where, by themselves,
they talked briefly. Walters asked how Weathers could allow
something like the Union to get started. Weathers denied she
was responsible for the Union's organizational campaign and
pointed out that the other employees did not follow her
directions, but acted as they pleased. Walters stated she had
a list of the names of the employees who had signed union
cards and warned that if the Union was voted in they would
all be terminated. Weathers, who testified she was "a little
scared at the time," indicated she could not do anything
about this and, in substance, told Walters "what has to
happen, has to happen." At the conclusion of this conversa-
tion Weathers returned to the restaurant's dining room
where between 8 and 12 of the employees who had attended
the earlier meeting were still gathered. Weathers told them
about Walters' remarks.
2" The fact that Walters spoke to Weathers about the Union and the
description of their conversation is based upon Weathers' testimony, who as I
have indicated previously. was in Respondent's employ when she testified and
whose demeanor was that of an honest witness.
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon the foregoing I find that Respondent, as
alleged in the complaint, violated Section 8(a)(1) of the Act
as follows: (I) By Walters' threat to discharge all employees
who had signed union cards if the Union won the representa-
tion election, and by Walters' statement that she had a list of
the names of the employees who had signed union cards,
Walters engaged in the type of conduct which was calculated
to give Weathers the impression that Walters was keeping
the employees' union activities under surveillance; and (2) in
the context of Walters' other unfair labor practice, by
placing Weathers in the position of having to involuntarily
reveal her feelings and attitude toward the Union by asking
how Weathers could allow the Union to get started in the
restaurant, Walters coercively interrogated Weathers.
C. Heuth s October 5 Meeting With Employee
Markakis:'
Kathy Markakis worked as a waitress on the graveyard
shift. Her immediate supervisor was Assistant Manager
Heuth. During the night of October 5 Markakis initiated a
conversation with Heuth about the remarks Manager Wal-
ters had made at the meeting held the previous day.
Markakis spoke alone with Heuth in the backroom of the
restaurant.
Markakis told Heuth she had never worked in a restau-
rant whose employees were represented by a union and
asked for an explanation about some of the consequences
that Walters had told the employees would result from
unionization. In response to Markakis' question Heuth
stated that with a union Respondent could terminate
employees for being just a little late for work. Also that
union representation would make it too costly for Respon-
dent to employ part-time employees so Respondent would
probably have to terminate them. In addition, Heuth stated
union representation would increase Respondent's operating
costs because of increased wages and benefits which in turn
would lead to a reduction in the work force. Lastly, Heuth
warned Markakis that Walters had a list of the names of the
employees who had signed union cards and would probably
fire them.
By Heuth's statement that Walters had a list of the names
of the employees who signed union cards and would
probably fire them, Respondent violated Section 8(a)(1) of
the Act as this statement is a blatant threat to discharge
employees for supporting the Union and it was also
calculated to create the impression that Respondent was
keeping its employees' union activities under surveillance.
Likewise I find that the remainder of Heuth's remarks
violated Section 8(a)( 1) of the Act as they constitute threats
that if the Union was successful Respondent would penalize
the employees by discharging part-time employees, reducing
its work force, and discharging employees for being just a
little bit late for work. I recognize that in connection with
the remarks concerning the part-time employees and the
reduction in the size of the work force that Heuth stated that
union representation would lead to increased costs which
' The description of what took place on October 5 when Heuth spoke to
Markakis about the Union is based upon Markakis' testimony. Heuth gave a
different version of the conversation: however. Markakis impressed me as the
more credible witness.
: The facts pertinent to this allegation are based upon Markakis' credible
testimony which was not denied by Heuth.
would make it necessary for Respondent to discharge part-
time employees and reduce the work force. However, as the
Supreme Court stated in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. at 618:
[An employer's prediction about the consequences of
unionization] must be carefully phrased on the basis of
objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his con-
trol . . . in case of unionization.
Here the record does not establish that Heuth had any way
of knowing what demands the Union might make or how
Respondent might attempt to compensate for any increased
expenses arising from union demands. Thus, since Heuth's
predictions were not based on "objective fact . . . as to be
demonstrably probable consequences," they were violative of
Section 8(a)(1). See Yankee Trader, Inc., d/b/a Treadway
Inn, 184 NLRB 715; Vincent's Steak House, Inc., 216 NLRB
647, 649; Southwest Regional Joint Board v. N.L.R.B., 441
F.2d 1027; Hertzka & Knowles v. N.L.R.B.. 503 F.2d 625.
D. Heuth Threatens Employee Markakis With the Loss
of an Existing Benefit of Employment2
Markakis was allowed by her immediate supervisor,
Assistant Manager Heuth, to perform a number of duties,
such as cooking, which were not a part of her duties as a
waitress. On approximately five separate occasions between
October 5 and the December 3 election, Heuth spoke to
Markakis while she was performing these nonwaitress tasks
and, without any explanation, told her in substance that if
the employees were represented by the Union she would not
be able to perform this type of work, but would only be
permitted to perform duties which were within her waitress'
job classification. I am of the opinion that, absent any
explanation as to a factual reason which prompted Heuth to
make this representation, that the representation was reason-
ably calculated to be taken by Markakis as a threatened loss
of an existing employment benefit which would be enacted
unilaterally by Respondent as a reprisal for the employees
having selected the Union. This conclusion is especially
warranted where, as here, the statement was voiced in the
context of Heuth's other illegal threats of economic repri-
sals, described supra, which were directed toward Markakis.
By engaging in this conduct Respondent violated Section
8(a)( I) of the Act.
E. Waiters Solicits the Employees To Sign a Petition
Disavowing the Union"
In late October or early November Walters notified
employees she wanted them to sign a petition which she said
stated that "the employees did not want to go union." In
addition, Walters told employees she had arranged for a
notary public to witness the employees' signatures. Thereaf-
ter, at a table located next to Walters' office, at least 24 to 25
employees signed the petition in the presence of this notary
"' The facts pertinent to this allegation are based upon the testimony of
Beatrice Weathers and Robin Bunch. They impressed me as honest and
reliable witnesses.
786
SAMBO'S RESTAURANT, INC.
public who witnessed their signatures. The petition in
substance stated that the employees no longer wanted a
union election. Robin Bunch, a cook, did not sign the
petition. As he left work while other employees were signing
the petition, Walters asked him whether he intended to sign
the petition. When Bunch replied that he was not sure,
Walters stated "so you want the Union" and, after voicing
an obscenity, left Bunch.
The law is settled that Section 8(aX 1) of the Act makes it
unlawful for an employer to solicit employees to sign any
form of union repudiating document particularly where the
solicitation occurs in the context of illegal express or implied
threats of reprisal. N.LR.B. v. Birmingham Publishing Co.,
262 F.2d 2, 7 (5th Cir. 1958). Here, in the context of
Restaurant Manager Walters' illegal threats to impose a
number of diverse economic reprisals upon the employees if
they supported the Union, Walters' solicitation of the
employees' signatures on the union repudiating petition
plainly operated to deny the employees' freedom of choice in
violation of Section 8(aX l) of the Act.
F. Walters Threatens Employee Cheney That Part-Time
Employees Will Be Terminated"'
On the evening of December 2 Carla Cheney a part-time
waitress enmployed on the graveyard shift overheard Manag-
er Walters speaking to customers about the restaurant's
part-time employees. Later that evening, in the presence of
another employee, Cheney spoke to Walters and asked for
an explanation about the statement Walters had made to the
customers about part-time workers. Walters stated that the
restaurant would not employ any part-time employees if the
Union came in. Cheney asked for a further explanation.
Walters responded: "If the Union came in she [Walters]
would have to pay [part-time] employees more per hour than
[full-time] employees, therefore, they would have to be fired
and only full-time employees used."25 It was Cheney's
understanding that in stating "she would have to pay [part-
time] employees more per hour than [full-time] employees"
that Walters was referring to the wage scale contained in a
union contract.
I am of the opinion that Walters' aforesaid remark to
Cheney constitutes an implied threat that Respondent would
discharge Cheney and the other part-time employees if they
supported the Union. Accordingly, this conduct violated
Section 8(a)(1) of the Act. I reject Respondent's contention
that the remark constitutes a noncoercive prediction protest-
ed by Section 8(c) of the Act. The record does not establish
that Walter's representation, "if the Union came in [Walters]
would have to pay [part-time] employees more per hour than
[full-time] employees, therefore, they would have to be fired
and only full-time employees used," was factually supported
or even that Walters had a reasonable basis for voicing it.
I This allegation was added to the complaint during the hearing as the
result of a motion to amend which was granted over Respondent's objection. I
granted the motion because the identical issue posed by the amendment was
specifically included in the Union's objections to the representation election
which were filed December 10. The Regional Director in her Report on
Objections issued March 9, 1977, and her order consolidating cases in this
proceeding issued May 19, 1977, specifically advised Respondent that this
particular objection was one of the issues to be litigated in this consolidated
proceeding. Thus, for at least 3 months prior to the instant hearing
There is no evidence that if the Union succeeded in
organizing the employees it would necessarily insist that
Respondent sign a contract requiring it to pay part-time
workers a wage scale higher than full-time workers or that
even if such a wage differential was proposed and accepted
by Respondent that it would have made it economically
unfeasible for Respondent to continue to employ part-time
workers. See N.L.R.B. v. Gissel Packing Co.. Inc.. supra;
Hertzka d Knowles v. N.LR.B.. supra; Southwest Regional
Joint Board v. N.LR.B.,supra; Yankee Trader, Inc., d/b/a
Treadway Inn, supra. Moreover, Walters' remarks were
made to Cheney at a time when Respondent had already
blatantly threatened the employees, in violation of Section
8(aXl), with economic consequences including discharge if
they supported the Union. In the light of all of these
circumstances I do not believe that Walters remarks were
"carefully phrased on the basis of objective fact," but instead
would reasonably be understood by Cheney as an implied
threat of economic reprisal for the purpose of discouraging
Cheney and the other part-time workers from supporting the
Union rather than merely as a prediction that if the Union
was successful the part-time workers would be discharged
for legitimate economic reasons.
G. Robin Bunch's Pay Raise
Robin Bunch was the assistant restaurant manager from
November 15, 1975, to August 1976. Previously he worked
as a cook in the restaurant. In August, shortly after being
reassigned to cook, Bunch asked Manager Walters about a
pay raise. Bunch, who earned S4 per hour, asked Walters to
raise his pay to S4.35 per hour. Walters turned him down for
the reason that he was too "messy" and told him she would
consider his request only when he "cleaned up his act."
Thereafter Bunch maintained a clean work area, but did
not receive a pay raise, so, in the middle of September he
asked Walters why he had not been granted a pay raise.
Walters told him that he had just resumed cooking and was
not really ready to receive a pay raise. Bunch disagreed
stating he should be earning $4.35 an hour. Walters stated
she would see what could be done. The subject was raised
again, in early October, when Bunch asked Walters why he
still had not received a pay raise. Walters granted him a 20-
cent-per-hour raise.
In November, on the day Walters was advising the
employees she intended to circulate her union repudiating
petition, supra, she summoned Bunch into her office and
offered him a 30-cent-per-hour pay raise." Walters told
Bunch she would raise his pay from $4.20 an hour to $4.50 if
he kept an inventory of the stock in the freezer and watched
the other cooks to make sure they did not waste food and
performed their jobs properly. Bunch indicated the proposal
Respondent knew that the issue raised by the amendment to the complaint
was already involved in this proceeding. It is for this reason that I granted the
General Counsel's motion to amend the complaint.
"The facts herein are based upon Cheney's testimony. She impressed me as
an honest and reliable witness.
z Employee Weathers credibly testified Walters notified her about the
petition 2 days prior to its actual circulation, and Bunch credibly testified he
received the pay raise 2 days prior to the petition's actual circulation.
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was acceptable, so, Walters granted him the 30-cent-per-
hour pay raise.
Previously to receiving this pay raise Bunch had been
performing most of the duties which Walters stated he
would have to perform as a condition for receiving the pay
raise.
The following factors-the timing of Bunch's 30-cent
hourly pay raise coming as it did simultaneously with
Walters circulation of the union repudiating petition, one
month earlier Walters had only reluctantly granted Bunch a
pay raise,27 the 30-cent-per-hour raise was 15 cents an hour
more than Bunch had requested, and the raise was granted
in the context of Walters' unfair labor practices designed to
discourage the employees from supporting the Union-
establish a prima facie showing that in granting Bunch the
pay raise in November Walters was motivated by a desire to
discourage Bunch from supporting the Union. Hence, it
became incumbent upon Respondent to rebut the General
Counsel's case and come forward with a legitimate business
reason for its conduct.
Respondent urges that the record establishes that the
November pay raise was simply a quid pro quo for Bunch's
agreement to assume additional official duties. This does
not, however, satisfactorily answer the essential question
posed by the General Counsel's prima facie case. Why did
Walters, in the context of the Company's antiunion cam-
paign marked by unfair labor practices, suddenly decide to
give Bunch a pay raise in an amount substantially greater
than Bunch had requested when Walters had just recently
reluctantly given Bunch a pay raise smaller than the one
Bunch requested. The fact that the increase was conditioned
upon Bunch performing additional duties does not detract
from the General Counsel's case inasmuch as Bunch had
previously been performing most of the additional duties. In
short the ostensible reason given to Bunch to justify the pay
raise has all the earmarks of a pretext. And the record
contains no explanation as to why Walters suddenly decided
to add to Bunch's official duties or why, despite an earlier
reluctance to grant Bunch a pay raise, Walters abruptly
granted a raise greater in amount than the one requested."
Based upon the foregoing, I find that in granting the 30-
cent-per-hour pay raise in November to Robin Bunch,
Respondent was motivated by a desire to discourage Bunch
from supporting the Union; thus, by engaging in this
conduct Respondent violated Section 8(a)(l) of the Act.
:' In August and September Walters rejected Bunch's requests for a pay
raise. She refused Bunch in September even though he had remedied the work
deficiency which Walters had advanced for refusing his first request in
August. Thereafter, in October, Walters in response to Bunch's third request
for a pay raise granted him a 20-cent-per-hour increase which was substantial-
ly less than the raise Walters knew Bunch was requesting.
' I have not drawn an adverse inference from Respondent's failure to call
Walters as a witness where, as here. Walters had left the area and Respondent
had attempted to subpena her to testify. However, in order to rebut the
General Counsel's prima facie case Walters was obviously an important
witness for Respondent's case-in-chief whose absence hurt Respondent's case.
In this regard Respondent chose to rest its case-in-chief without Walters
rather than to have me recess the proceeding so that Respondent could take
H. Respondent Pays Employees for Side Work Performed
After Their Regular Working Hours
The cooks and waitresses as a part of their regular duties
performed what is known as side work. Waitresses refill salt
and pepper shakers and napkin holders, replace stock, and
reset their tables for the next shift. Cooks clean and restock
their workstations for the next shift. Normally employees
are able to perform the side work during regular hours, but
when it is very busy this is not possible and they must
remain after their normal departure time to complete the
side work. 9 The employees historically have not been paid
for performing overtime side work. Manager Walters and
her predecessor, Manager Triblett, made it plain to the
employees that they were expected to finish their side work
during the regular work shift and if they failed would not be
paid for performing this work after regular hours. The
employees were unhappy about this state of affairs. As
waitress Weathers credibly testified, one of the employees'
biggest grievances was the company's refusal to pay them
when they found it necessary to remain after their regular
working hours to finish their side work. Indeed, as waitrees
Moss credibly testified, when Walters at the meeting of
October 4, supra, asked why the employees wanted union
representation one of the replies was that the employees were
not happy about the restaurants' policy of not paying
employees on the occasions when they had to work overtime
to finish their side work.
It is undisputed that Respondent's practice at the San
Bruno restaurant of not compensating employees for work-
ing overtime to finish their side work came to an abrupt end
December 1 under the following circumstances.
On December 1 a meeting took place in the restaurant's
dinning room between a majority of the employees and
Restaurant Manager Walters, Assistant Manager Heuth,
Respondent's District Manager Carver, Respondent's Labor
Relations Director Mitchell and Respondent's Vice Presi-
dent in Charge of Personnel Staub. The essential purpose of
this meeting was to allow management to speak to the
employees about the Union prior to the union election
scheduled for December 3. Staub was the spokesperson for
management. It is undisputed that when Staub spoke to the
employees about the employment benefits which the employ-
ees had been receiving without union representation that at
least one of the employees complained to Staub that the
employees were not being paid for performing side work
after their regular working hours. Staub in reply in effect
assured the employees they would be paid for doing such
overtime work explaining that it was the company's policy
steps to determine whether Walters had been served with its subpena and, if
so, to secure compliance.
'' Waitress Weathers testified she averaged between one-half hour and I
hour each week, and sometimes more, performing overtime side work.
Waitress Moss testified she averaged 2-% hours a week performing overtime
side work.
788
SAMBO'S RESTAURANT. INC.
to pay employees for working overtime. "' Thereafter the
employees were in fact paid for performing overtime side
work whenever they marked such overtime on their time-
cards.
The record, as described supra, establishes that on
December I Respondent began to pay the employees at its
San Bruno restaurant for overtime side work. This was a
change in Respondent's long standing practice of not
reimbursing the employees for this type of work. The change
took place immediately prior to the union election and was
announced to the employees at a meeting where Respondent
was attempting to persuade the employees to vote against
union representation and occurred in the context of Respon-
dent's unfair labor practices which were calculated to
discourage the employees from voting for the Union. In view
of these circumstances, the timing and the context in which
the change in the employees' working conditions took place,
I am satisfied the General Counsel has established a prima
facie showing that Respondent on December I commenced
to reimburse the employees for overtime side work in order
to discourage them from supporting the Union.
In rebuttal Respondent urges that this is simply a
situation where Respondent did something that it was
required to do by existing company policy and the law.
Respondent urges that Restaurant Manager Walters' refusal
to pay the employees for performing overtime side work
violated company policy as well as the law and that
Respondent had no knowledge of this state of affairs until
December I at which time Walters was directed to conform
to company policy and the law, which she did.
I reject Respondent's contention that it was ignorant of
the practice concerning overtime side work as it existed at
the San Bruno restaurant. Thus. for at least over 2-'/. years
the managers of this restaurant, Walters and her predecessor
Triblett, maintained a policy of not paying employees for
performing overtime side work absent an emergency situa-
tion. This policy was announced by both Triblett and
Walters to the employees. Under the circumstances, absent
convincing evidence to the contrary, I will not find that
other members of management were unaware of this
longstanding publicized practice. In this regard neither Vice
I reject Heuth's testimony that Saub responded to the complaint about
the restaurant's failure to pay employees for overtime side work by stating: "It
was management's position that you should be able to get it done in the time
alloted you unless there is an emergency like you are short of help or
something like that." This testimony is inconsistent with the testimony of
everyone of the other witnesses called by Respondent. and by the General
Counsel's witnesses. Likewise I reject the testimony of Mitchell and Carver.
neither of whom impressed me as a trustworthy witness. that Sauh worded
his reply in terms of Respondent's policy to comply ith Srtau law concerning
the payment of overtime. It should be noted that this is not a case where the
employees were complaining that they were not being paid premium pay when
they worked overtime rather it was a complaint about not being paid at all.
But more important. neither Respondent's witness Heulh or the four
employee witnesses who testified about this meeting, and who impressed me
as more credible witnesses than Mitchell and Carver, attributed such a
statement to Staub. At the very best I am convinced that when Staub
indicated that the employees' overtime side work grievance would be
remedied his explanation was worded, as employee Weathers testified, in
terms of a company policy to pay employees for working overtime.
Staub, the person who in effect announced the disputed change in
restaurant practice and who apparently is responsible for the Company's
personnel policies, did not testify. The fact that Staub was engaged in
company business on the day of the hearing is hardly an excuse for his absence
where, as here, the complaint placed Respondent on notice that the matter of
the payment for overtime side work. instituted on December I was an issue in
President in Charge of Personnel Staub" nor Manager
Walters': testified for the Respondent. And the witnesses
Respondent did call, District Manager Carver and Director
of Labor Relations Mitchell, were not convincing witnesses.
Rather they were unimpressive in demeanor. Thus, insofar
as their testimony indicates management did not know that
for a period of over 2 and ,' years its managers at the San
Bruno restaurant had been failing to pay employees for
performing overtime side work," I reject it.
Based upon the foregoing I find that Respondent has
failed to rebut the General Counsel's prima cie case.
Accordingly, I further find that Respondent violated Section
8(a)(l) of the Act when on December 1, 1976, it commenced
to pay the employees for their side work in order to
discourage them from supporting the Union.
VI. HE REPRESENTA'IA'IION CASE
The Union's objections to the election encompass the
subject matter of the unfair labor practice violations found
herein and, accordingly, as such conduct took place during
the relevant period between the filing of the petition and the
holding of the election, I conclude that those unfair labor
practices interfered with the employees' free choice in the
election. Therefore. I shall recommend that the election
herein be set aside and that the Regional Director shall hold
a second election to determine the question of representation
when he deems that a fair election can be held.
VII. 'rH: REMEI)Y
Having found Respondent has engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) of the
Act. I shall recommend that Respondent cease and desist
therefrom and to post a notice to its employees.
In considering a proper remedy to effectuate the policies
of the Act I have considered the contention of the General
Counsel and the Charging Party that the unfair labor
practices found herein warrant the imposition of a remedial
bargaining order even though the Union did not at any point
of time represent a majority of the employees in an
this proceeding I note Respondcnt did ot request a continuance until it was
convenient for Staub to to estify.
I hate not drawn ian adverse inference from Respondeit's failure to call
Walters as a witness Io upport its claim that managemetcl had no kiowledge
of the longstanding practice of not paying employees for overtime side work
where, as here. Walters had left the area and Respondent had attempted Ito
subpena her to testify hIowecer, in order to rebut the General Counsels
primafaciw case Walters was obs iously an important witness for Respondenti's
case-in-chief, whose absence detracts from Respondent's case. I note Respon-
dent chose to rest its case-in-chief without Walters rather than have me recess
the proceeding so that Respondent could take steps to determine whether
Walters had been served with its subpena and, if so, to secure compliance
"Carver did not unequivocally testify that he was unaware of Triblett's and
Walters' failure to reimburse employees for performinlg overtime side work
Rather he testified that the company's policy regarding side work is "to
comply with State law if a employee stas, over his or her scheduled shift,
then she had to be paid for it." and that following the December I meeting he
told Manager Walters, "it would be to [Walters'] interest to rectify any
situation that was irregular as far as paying employees for the work they
perform." Mitchell who has been director of labor relations only since
October 197 testified that prior to the December I meeting he had never in
his 2 months of employment "personally been told that the employees at the
San Bruno restaurant were not being paid for side work perfiormed outside
their normal eighl-hour shift"
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate bargaining unit. The General Counsel more
specifically urges that Respondent's unfair labor practices
fall within the category of "outrageous" and "pervasive" as
defined by the Supreme Court in N.L.R.B. v. Gissel Packing
Co., 395 U.S. at 613-614; thus, they warrant a remedial
bargaining order. This is a troublesome question. I recognize
that the Supreme Court in Gissel, as pointed out by the
General Counsel, did indicate that a bargaining order would
be appropriate, even absent majority status, where an
employer's unfair labor practices are so "pervasive" and
"outrageous" that a bargaining order is the only effective
means of remedying those practices. But the National Labor
Relations Board before and after Gissel has consistently held
that for the Board to issue a remedial bargaining order it
must first be established that the Union at some point of
time represented a majority of the employees in an appropri-
ate bargaining unit. South Station Liquor Store, Inc. d/b/a
Berenson Liquor Mart, 223 NLRB 1115 (1976). Recently,
however, there was an indication that two members of the
current Board are prepared, in an appropriate case, to issue a
remedial bargaining order even absent a showing of majority
status. Herbert Halperin Distributing Corp., 228 NLRB 239,
fn. 3 (1977). Nevertheless, until such time as the Board
changes its existing policy I am constrained to reject the
General Counsel's request for a remedial bargaining order
where as here the Union at no time represented a majority of
the employees in an appropriate unit."
CONCLUSIONS OF LAW
I. Sambo's Restaurant, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Hotel and Restaurant Employees and Bartenders Union
No. 340 is a labor organization within the meaning of
Section 2(5) of the Act.
" In view of this conslusion I have made no determination whether the
unfair labor practices found herein are so outrageous or so pervasive as to
3. By threatening to discharge employees if they support-
ed the Union, by threatening to discharge part-time employ-
ees if the employees supported the Union, and by threaten-
ing to discharge employees under 18 if the employees
supported the Union, Respondent violated Section 8(a)(1) of
the Act.
4. By threatening to treat the employees more strictly if
they supported the Union, by threatening employees with
more stringent work rules if they supported the Union, by
threatening to reduce waitresses wages if the employees
supported the Union, by threatening to reduce the size of the
work force if the employees supported the Union, by
threatening to discharge employees for being just a little bit
late for work if they supported the Union, and by threaten-
ing to eliminate an existing employment benefit if the
employees supported the Union, Respondent violated Sec-
tion 8(a)( 1 ) of the Act.
5. By interrogating employees about their union sympa-
thies and activities and about the union sympathies and
activities of other employees, Respondent violated Section
8(a)(l) of the Act.
6. By giving the employees the impression that it was
keeping their union activities under surveillance, Respon-
dent violated Section 8(a)(1) of the Act.
7. By soliciting employees to sign a petition repudiating
the Union, Respondent violated Section 8(a)(1) of the Act.
8. By granting an employee a pay raise for the purpose of
discouraging the employee from supporting the Union,
Respondent violated Section 8(a)( I) of the Act.
9. By paying employees for performing overtime side work
to discourage them from supporting the Union, Respondent
violated Section 8(a)( 1 ) of the Act.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
justify a bargaining order even in the absence of a showing that the Union
achieved majority status.
790