Sans Souci Restaurant

National Labor Relations Board - Board Decisions

Apr 3, 1978

235 N.L.R.B. 604 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
726 Seventeenth Inc., t/a Sans Souci Restaurant and
Local 25, Hotel & Restaurant Employees Union,
AFL-CIO. Cases 5-CA-8604 and 5-CA-8656
April 3, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 25, 1977, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed an answering brief, and the Charging Party filed
cross-exceptions and a supporting 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, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, 726 Seventeenth
Inc., t/a San Souci Restaurant, Washington, D.C., its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and positions of the parties.
2 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 credibili-
ty 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
3 We agree with the Administrative Law Judge that a bargaining order is
warranted here to remedy the unfair labor practices committed by
Respondent. However, in accordance with our decision in Trading Port,
Inc., 219 NLRB 298 (1975). our remedy will require Respondent to bargain
with the Union as of April 27, 1977, the date the Union made its initial
235 NLRB No. 89
demand for recognition. See also Drug Package Company, Inc., 228 NLRB
108 (1977).
Without passing on the rationale underlying the decision in Trading Port,
supra, Member Truesdale would order Respondent to bargain as of April 27,
1977, the date or. which the Union, with a card majority, initially requested
recognition from Respondent which was refused.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: Upon
charges filed on May 6 and 31, 1977, by Local 25, Hotel &
Restaurant Employees Union, AFL-CIO (herein the
Union), a complaint issued by the Regional Director for
Region 5 of the National Labor Relations Board (herein
the Board) on June 27, and thereafter amended and
consolidated on July 18, and at hearing, and timely filed
answers by 726 Seventeenth Inc., t/a Sans Souci Restau-
rant (herein Respondent),' a hearing was held on August
31 and September 1, 1977, in Washington, D.C.
At issue was whether Respondent violated Section
8(a)(1) and (3) of the Act by interrogating and threatening
employees concerning their union activities, by discharging
Charles LeMorzellec and Antonio Machado, and by
reducing the wages of William Nolan. Further at issue was
whether Respondent, by the foregoing conduct and its
refusal to bargain collectively with the Union, rendered a
free election impossible and thereby violated Section
8(a)(5) of the Act. Respondent denied the commission of
any unfair labor practices and maintained that a majority
of the employees in the bargaining unit had not knowingly
designated the Union as collective-bargaining representa-
tive. In the alternative, it contended that the unfair labor
practices, if any, were not sufficiently serious to warrant
the issuance of a bargaining order.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed by all parties.
Upon the entire record, including my careful observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent, a District of Columbia corporation, is
engaged in the operation of a restaurant in Washington,
D.C. Jurisdiction is not in issue. I find and conclude that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The name of the Respondent appears as amended at hearing.
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SANS SOUCI RESTAURANT
I find and conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Bernard Gorland is Respondent's president and, for 14
years, has been responsible for its day-to-day operation.
His maitre d', a statutory supervisor, is Paul DeLisle. At
the time at issue, Respondent had 30 employees, 27 of
whom were the dining room and kitchen employees the
Union sought to represent.
Union organizational activities among Respondent's
employees began in April 1977.2 Employees Charles Le
Morzellec, a waiter, and William Nolan, a handyman, lead
the activity, passing out union authorization cards. By
April 18, they had secured signed cards from 18 of the 27
unit employees. Both Le Morzellec and Nolan spoke to
DeLisle about the Union; Le Morzellec told Delisle that he
favored the Union and the benefits he believed he could
derive from it. Nolan, who was questioned by DeLisle
about the Union, professed ignorance.3
B. The Response to the Union Activity
Gorland learned of the union activity on April 21. He
held a meeting with the dining room employees, after work,
on Saturday night, April 23. This was the first such meeting
held in Gorland's 14 years at Sans Souci. Gorland told the
assembled waiters and busboys that anyone could speak,
without fear of reprisals. He expressed his dislike for the
Union, commenting that it was "like a cancer," which he
did not need at his age. He spoke of the money the dining
room employees were able to make. According to the
credibly offered testimony of Le Morzellec, Gorland told
the employees that "he didn't want a union and if the
union were to come then possibly we might have extra
waiters .... It was straight and clear that there would be
extra waiters if we had a union." 4 Gorland asked the
employees what they hoped to gain from unionization.
LeMorzellec and Antonio Machado, another waiter, were
the only ones to respond. They referred to dental insurance
and other benefits, such as split shifts.
Respondent's dining room employees derive the greatest
portion of their earnings from gratuities which are pooled
and divided among those employees. An increase in the
number of employees sharing in that pool would, of course,
decrease each individual share. Thus, Gorland's statement
that he would hire additional waiters in the event of
unionization, was a threat of reduced income, in violation
of Section 8(a)(1) of the Act.5
General Counsel's complaint alleges that at this meeting
Gorland disparaged the employees because of their union
membership and support, in violation of Section 8(a)(1).
Other than Gorland's reference to the union as a "cancer,"
2 All dates hereinafter are 1977 unless otherwise specified.
3 The complaint does not allege this questioning to be unlawful
interrogation. DeLisle did not testify.
4 Gorland admitted that he told the employees that they were making
more money than similar employees in other area restaurants in part
because the restaurant did not use captains or extra busboys. He told them.
he said, that he could have used captains or more busboys or loaded the
there is no evidence of what might be deemed disparage-
ment. Gorland's "cancer" statement, while indicative of
union animus, was his lawfully held and expressed opinion;
it did not rise to the level of a violation of the Act and I
recommend that this allegation be dismissed.
On that same Saturday, Gorland had called William
Nolan into his office and asked him what was going on.
Nolan said he did not know. Gorland then asked him
whether he liked his job and pressed him for what he knew
about the Union. Nolan professed ignorance. Gorland and
Nolan argued about Nolan's failure to tell Gorland about
the union activity and Gorland accused Nolan of having
"stuck a knife in his back."
On April 25, prompted basically by the union situation,
Gorland called each employee into his office in the kitchen,
where he spoke to them individually. He testified:
I asked them to do me a favor if they did not like to
work for the Sans Souci and quit. It was a free country.
They could do anything they wanted to and if they did
not like working there, they could leave.
LeMorzellec testified credibly and without contradiction
that when called into Gorland's office Gorland referred to
him as a union man and told him that it might be better for
him to look for another job. Waiter Alain Wampouille was
told that, if he did not like the way Gorland was running
things, he might as well give Gorland 2 weeks' notice and
find another job. Employee Jackie Gorrisen was asked if he
knew about the union cards and whether he had signed
one. Similarly, Ronald Nash was asked whether he knew of
something going on concerning the Union; he admitted
that he did. William Nolan was again called into Gorland's
office and told, without explanation, that his workweek
and pay would be cut back from the 6-day-per-week basis
on which he had been working for many years to a 5-day-
per-week schedule.
General Counsel contended that, by the foregoing
conversations, Respondent unlawfully interrogated its em-
ployees. I agree. As the Board stated, in P.B. and S.
Chemical Co., 224 NLRB 1, 2 (1976):
[T]he basic premise in situations involving the ques-
tioning of employees by their employer about union
activities is that such questions are inherently coercive
by their very nature.
In the instant case, there were no circumstances present
which might have justified some limited inquiry into the
union activities; rather, the circumstances were heavy with
animus. Employees were questioned in locus of authority,
by Respondent's president, and antiunion statements were
made. The employees were not told of any justification for
the questioning or given any assurances of their freedom
from reprisal should they choose to answer or to refrain
from answering Respondent's questions. Cf. Johnnie's
floor with waiters, but had not done so. This, he explained to them, was "a
fact of ife." Noting Gorland's admissions and the comparative demeanors
of these witnesses, I find LeMorzellec's recollection of this statement to be
the more accurate.
5 The statement, as related by Gorland. that he could take such action,
but had not done so in the past, was still an implied threat, hardly less
coercive as he descnbed it than as LeMorzellec related it.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poultry Co. and John Bishop Poultry Co., Successor, 146
NLRB 770 (1964), enforcement denied 344 F.2d 617 (C.A.
8, 1965). See also Chauffeurs, Teamsters and Helpers, Local
633 (Bulk Haulers, Inc.), 509 F.2d 490 (C.A.D.C., 1974).
I further agree with General Counsel's contention that
Gorland's suggestion that the employees who favored the
Union seek employment elsewhere constituted an implied
threat of discharge. Little else can be inferred from such a
suggestion. See Rabco Metal Products, Inc., 221 NLRB
1230, 1233 (1975). Moreover, these statements, and Gor-
land's "knife in the back" remark to Nolan, convey to the
employees a message that the employer equates employee
union activity, protected by statute, with employee disaf-
fection and disloyalty. The Board has held that such
statements tend to interfere with, restrain, and coerce
employees in the exercise of those statutory rights, and
violate Section 8(a)(1). Oscar Enterprises, Inc., 214 NLRB
823 (1974).6
On April 26, Gorland instructed DeLisle to poll the
employees to determine the Union's strength and learn
whether his earlier activities had brought some of them to
his side. DeLisle instructed employees to write on a slip of
paper whether they wanted the Union or not, and to
deposit those slips in a bowl. Few, if any, of the employees
complied with the request. LeMorzellec told DeLisle that
he did not intend to comply. Later that same evening,
Gorland called LeMorzellec into his office and told him
that if, by 11 p.m., he did not have their ballots both
LeMorzellec and Tony (Antonio Machado) would be
working 3 days per week.
Respondent's attempt to further determine its employees'
union sympathies, or to force an expression of antiunion
sympathies, through this poll, following so closely on its
other coercive conduct, together with the threat of a
reduced workweek in order to compel participation in the
poll, clearly had a tendency to interfere with, restrain, and
coerce employees in the exercise of their Section 7 rights.
This conduct, I find, violated Section 8(a)(l) of the Act.
At the end of his shift on April 26, LeMorzellec asked
DeLisle what schedule he would be working on the
following day. DeLisle referred him to Gorland. Gorland
told him that he was discharged. Shortly thereafter,
Gorland came back to LeMorzellec and told him "that
there was no use to look for any job in town, that no matter
where I would go, he would call them and tell them that I
was a union man." At about the same time, Gorland also
discharged Machado.
Gorland testified that he discharged LeMorzellec and
Machado, not because of their union activities, but because
they had failed to comply with a request he had made of
them to provide him with a list of the benefits being offered
by the Union. He sought the list, he said, so that he could
either accept or reject the requests, and he discharged them
because they had ignored him.
Whether Respondent discharged LeMorzellec and Ma-
chado for refusing his request for information regarding the
Union's promised benefits or, more generally, for their
6 This issue, I find, was fairly encompassed within the complaint
allegations and, in any event, was fully litigated.
I In reaching this credibility resolution, I have considered Gorland's
admission of conduct clearly violative of the Act, Brown's admission that
union activities, as the timing, animus, LeMorzellec's
leadership role in the organizational activities, and Gor-
land's postdischarge statement to LeMorzellec would
indicate, those discharges violated Section 8(af3) of the
Act. Employees are protected both in their union activity
and in their refusal to circumvent the Union and bargain
directly with their employer. I further find that Gorland's
threat to blacklist LeMorzellec with other area restaurants
violated Section 8(a)(1) of the Act.
On the following evening, April 27, on the suggestion of a
prominent labor lawyer who, fortuitously, was dining at
Sans Souci, Gorland called both LeMorzellec and Macha-
do. He offered them immediate reinstatement and ac-
knowledged to them that he had been told that their
discharges were unfair labor practices. They returned to
work on the next day. Gorland testified that the employees
were told that they would be paid for the day they lost;
they had not, at the time of this hearing, received those lost
earnings.
About 11 p.m., on April 27, Ronald Richardson, execu-
tive secretary-treasurer of the Union, and Robert Ades,
counsel to the Union, went to the restaurant and met with
Gorland. At that time, they had 17 signed authorization
cards and offered them to Gorland. He did not look at
them. They requested that he sign an agreement for a card
check and recognition, which he refused. Gorland told
them that his attorney, retained earlier that day, had
advised him that he should request an election under the
auspices of the National Labor Relations Board. The union
representatives rejected this request, informing Gorland
that, in their opinion, his unlawful conduct precluded the
holding of a free and fair election. They threatened to
strike on the following day unless Gorland agreed to
recognize the Union. Richardson telephoned Gorland's
attorney and then he and Ades left the restaurant.
Richardson returned to Sans Souci on the following
morning, April 28. He offered Gorland another opportuni-
ty to sign the recognition agreement. When Gorland
refused, he pulled the employees out on strike.
At the outset of the strike, there was boisterous conduct
by the pickets, chanting, verbal encouragement of potential
customers to honor the picket line, and verbal abuse of
some of those who chose to cross the line. There was also
press coverage of the strike. On the first day, at the
suggestion of a member of the press, the parties agreed to
an immediate election, to be conducted by a reporter. On
advice of counsel, Gorland subsequently refused to partici-
pate and insisted on an National Labor Relation Boare
election.
One of those striking employees whom Gorland de-
scribed as making the most offensive remarks to the
restaurant's clientele, including predictions of adverse
effects on their health if they ate there, was James Brown.
Brown admitted chanting and calling customers scabs, but
denied telling them that the food would make them sick or
that he hoped it would. I credit Gorland. 7 Gorland spoke
to Brown several times while on the picket line. Some of
shouting at customers was the purpose of the picket line, Brown's omission
of any reference to the picket line incidents from the affidavit he gave the
Board in May, and their comparative demeanors.
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SANS SOUCI RESTAURANT
these conversations were obvious bantering; others might
be considered more serious. On one occasion, Gorland told
Brown, "[I If I were 25 years younger, I would close his ugly
fat mouth." Brown related a similar remark, made subse-
quently. According to Brown, he asked Gorland whether it
was because of his picketing that Gorland made this
statement and Gorland told him, "No," that it was because
of Brown's "big mouth."
In the context of the picket line, the remarks being made
there, their disturbing effect on Gorland and his clientele,
and the tentative nature of the alleged threat- "If I were
25 years younger," a proposition impossible of fulfill-
ment-I do not deem Gorland's statement to have been a
real threat or one that an employee would reasonably have
perceived as such. Accordingly, I recommend that the
allegation that these statements by Gorland violated
Section 8(a)(1) be dismissed.
During the strike, Respondent prepared a letter which
Gorland distributed to the employees. He believed that all
employees received it; however, he did not personally give
it to each of them. The record reflects that not all of the
employees actually received it. The letter was only in
English, although many of the employees were not literate
in that language. In that letter, Gorland stated, inter alia:
When I found out about the (union) campaign, I
expressed my strong objection to the Union. The Union
now claims that I have committed unfair labor prac-
tices. I cannot comment on that except to say I have no
intention of doing anything wrong. However, I do want
to tell you my strong feeling that you do have the right
to engage or not to engage in Union activity if you
chose. I will not threaten you if you engage in Union
activity. I will not interrogate you about your Union
activity or interest in the Union. I will not discriminate
against any of you because of your Union activity; and
I will not in any manner interfere or coerce you in the
exercise of your rights under the law. This is my firm
commitment.
The letter discussed the picket line and the Union's refusal
to agree to a National Labor Relations Board conducted
election. It stated: "Why are they afraid to let you vote? It
would rather try to force us to bargain with it by having
you go out on strike. Do you want to destroy the Sans
Souci?" It discussed an employer's right to continue
operations with replacements, which it stated it was
reluctant to do, and questioned what the employees would
live on during the strike. It solicited the employees to ask
the Union to take down the picket signs and agree to a
National Labor Relations Board election.
The employees returned to work shortly thereafter. The
Union, however, has continued to maintain a picket line at
the restaurant.
William Nolan was Respondent's most senior employee,
having begun at the Sans Souci in 1962. He was hourly
paid and, each week since 1971, had received an additional
$10, in cash, from the bookkeeper. He signed a petty cash
slip for this money each week. Since returning to work
from the strike he has received his regular wages, but has
not received this weekly $10 payment.
Gorland, who testified that the $10 per week that Nolan
had received came from his pocket rather than from petty
cash, admitted that he ceased giving Nolan this money
since Nolan returned from the strike. He did so, he
testified, "Not necessarily because he went out on strike,"
but because they had had a very close relationship- like
father and son he described it- and Gorland believed that
"as good as I had been to him" he "should. .. have had
the decency to come to me and let me know what was
happening." Respondent's brief concedes that the payment
was terminated because Gorland felt that their special
relationship was gone and that Nolan had been disloyal to
him. Gorland further testified that he had frequently given
gifts to Nolan, including clothing and cigarettes, and had
underwritten some of his medical expenses. Respondent
contends that, like the clothing and cigarettes, the weekly
$10 payment was a gift, and not part of Nolan's wages. It
therefore contends that termination of that weekly pay-
ment did not violate the Act. I must reject Respondent's
contention and, in agreement with the assertion of the
General Counsel, find this change in Nolan's remuneration
to be unlawful. It is clear that this payment, uniformly and
regularly paid, unrelated to the financial condition of the
employer or to any special need by or favors performed by
the employee, became part of the employee's wage struc-
ture. See Gas Machinery Company, 221 NLRB 862 (1975);
N. LR.B. v. Wonder State Manufacturing Company, 344
F.2d 210 (C.A. 8, 1965). It is equally clear that reduction of
an employee's wages because of his union activity, or
because the employer deemed him disloyal for failing to
report that union activity, discourages such union activity.
It thus violates Section 8(aX3), as discrimination in a term
or condition of employment.
On the evening of August 15, Gorland spoke with
LeMorzellec as LeMorzellec was leaving work. It had been
a poor day, from the standpoint of the tips earned, and
Gorland asked LeMorzellec what he had made. He told
LeMorzellec that he was not threatening or intimidating
him and pointed out that "this whole situation could go on
for months and months before it was settled...."
Gorland said that both the restaurant and the waiters were
being hurt and asked whether the waiters had as much
money to live on as he had to remain open. He told
LeMorzellec that "[h ]e had no intention of signing with the
union," and asked what they expected to gain by maintain-
ing the picket line. He suggested that it would be best if
they could get together and get rid of it. The foregoing
testimony by LeMorzellec is uncontradicted.
General Counsel alleged that by the foregoing conduct
Respondent threatened employees with reduction of in-
come and loss of employment unless the picketing ended
and the dispute was resolved. I do not see such threats in
Gorland's remarks. However, his statement that he had no
intention of signing with the Union tended to impress on
employees the futility of their continued support for the
Union. Such a statement interferes with employee exercise
of their statutory rights. Red Barn System, Inc., 224 NLRB
1586 (1976); American Medical Insurance Company, Inc.,
224 NLRB 1321 (1976). As this incident was fully litigated
and was clearly related to the allegations of the complaint,
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent violated Section 8(a)(1) of the Act
by this conduct.
C. The Refusal To Bargain
I. The unit
The following unit, as stipulated by the parties, is
appropriate for the purposes of collective bargaining:
All employees of the Sans Souci Restaurant at its
Washington, D.C. location, excluding office clerical
employees, guards and supervisors as defined in the
Act.
As of April 27, there were 27 employees in this unit.
2. Demand and refusal
The record is clear that on April 27, and again on April
28, the Union demanded recognition and bargaining. It is
equally clear that Respondent rejected that demand and
insisted upon a National Labor Relations Board election.
3. The Union's majority status
When Richardson presented the Union's demand to
Gorland, he possessed 17 signed authorization cards. 8
The cards were clear and unambiguous designations of
the Union as collective-bargaining agent. Respondent,
however, contended that some of the cards were not valid
because they were printed in English only; four of the
employees (Carrero, Zapata, Mendez, and Zorro) were not
sufficiently fluent in English to testify without the aid of a
Spanish-speaking interpreter; and, therefore, the employ-
ees could not have known the purpose of the cards which
they signed. The use of single language authorization cards
was compared to the Board's practices requiring bilingual
notices and ballots where necessary in Board-conducted
elections.
The comparison of the election situation to the reliance
on authorization cards does not require rejection of English
language cards signed by foreign language speaking em-
ployees. There is a presumption that a person will not sign
something he does not understand. There is no presump-
tion that an employee will read and understand a notice or
even a ballot. Moreover, the cards are frequently, as here,
distributed by fellow employees who can explain their
meaning. A further distinguishing factor is that the election
situation is totally within the Board's control. The card
signing situation is not.
In the instant case, the Spanish-speaking employees were
further aided in their understanding of the cards by a
pamphlet, in both English and Spanish, which was given
out with each card. That pamphlet made clear the purposes
to which the card may be put.
I Richardson so testified credibly. Respondent sought to establish the
possibility that two cards, those of Varre and Mendez, were signed
subsequent to the demand. Both employees testified to their belief that they
signed prior to the start of the strike. If they did so, the timing of events
herein would establish that they were signed before the demand. Consider-
ing their testimony in conjunction with Richardson's, and with the timing of
the organizational activity, I find that these cards were timely signed.
As to these specific employees, I must conclude that
there was no evidence that they were misled as to the
purposes of the cards or that they did not have an
opportunity to understand the nature of what they signed.
Thus, in addition to their receipt of the pamphlets, I note
that Zorro read the card, that Zapata was fluent enough in
English to respond to some questions and to fill out
virtually the entire card, and that all four employees were
told and understood that the purpose of the card was to
secure additional benefits. While such an explanation is an
oversimplification, additional benefits is what unionism is
about.
Finally, Respondent contended that Varre's card was
invalid because Nolan told him that everyone in the
restaurant had to sign a card. However, he read the card
and understood that it was "for the union." Nash was told
that he was signing the card to see if there were enough
employees to see if they "could do a little something about
it." Nash, an English-speaking employee, received and read
the brochure and was told about seeking increased bene-
fits. Campbell, who was also English-speaking, testified
that he was told to fill out the card if he was interested in
talking to a union representative. He read the card and
discussed it with other members of his family before
signing it. Nothing which was told any of these employees
rendered the cards they signed invalid. See Toltec Metals,
Inc., 201 NLRB 952 (1973).
Based on the foregoing, I conclude that at the time of the
demand, the Union possessed 17 valid union authorization
cards, a clear majority of the unit employees. N.LR.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969); Cumberland
Shoe, 144 NLRB 1268 (1963).
4. Whether a bargaining order is warranted
I have found that Respondent violated the Act by threats
of discharge, blacklisting, reduced earnings and shortened
workweeks, interrogations, an attempted poll, statements
equating union activity and support with disloyalty, and
other statements indicating that selection of a union
representative would be futile. I have further found that
Respondent discriminatorily discharged two employees
and reduced the wages of a third. The question is whether
such conduct must be remedied by mandating a bargaining
order. The Supreme Court stated in N.LR.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 614 (1969):
[We ] approve the Board's use of the bargaining order in
less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes. The Board's authority to issue such-an order
on a lesser showing of employer misconduct is appro-
priate . . . where there is also a showing that at one
point the union had a majority; in such a case, of
course, effectuating ascertainable employee free choice
Respondent further pointed out that someone, other than the signatories,
dated the cards of Varre and Mendez. While the better practice, of course, is
for a signatory to date his own document, it is not uncommon for people to
forget to perform such ministerial tasks. Where, as here, other evidence
establishes the timely signing of the card, the fact that someone else dated
that card does not render it invalid.
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SANS SOUCI RESTAURANT
becomes as important a goal as deterring employer
misbehavior. .... If the Board finds that the possibility
of erasing the effects of past practices and of ensuring a
fair election . . . by the use of traditional remedies,
though present, is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order, then such an
order should issue.
Applying these standards to Respondent's conduct, I
must conclude that the possibility of insuring a fair election
is, at best, slight. See E. S. Merriman & Sons, 219 NLRB
972 (1975), where, as here, there was interrogation, threats,
polling of employees, and discriminatory terminations. See
also Gibson Products Company, 185 NLRB 362 (1970). In
reaching this conclusion, I have considered Respondent's
reinstatement of LeMorzellec and Machado and its at-
tempted recantation of the unfair practices. However, I
deem these to have insufficiently cleared the air so as to
permit a free and fair election. Neither LeMorzellec nor
Machado were paid for the day which they lost; that loss
was not insubstantial and cannot help but have a lingering
effect on the employees. The letter distributed by Gorland
only imperfectly assured the employees of their rights; it
presented its assurances in the context of continuing
opposition to the Union and projections of adverse
consequences to the employees if the strike in progress
were to continue. Moreover, the letter was in English only
and did not reach all employees. In this regard, Respon-
dent here did less than the employer in E. S. Merriman,
supra, who posted a National Labor Relations Board
preelection notice, advising employees of their statutory
rights, and personally advised employees of their statutory
rights. The Board, in that case, held that those efforts did
not neutralize the effect of the unfair labor practices.
Finally, unlike the employer in E. S. Merriman, supra,
Respondent did not cease its unfair labor practices with the
publication of its attempted recantation. Almost immedi-
ately thereafter, when the employees returned to work,
William Nolan, Respondent's most senior employee, suf-
fered a discriminatory reduction in his wages, for his
"disloyalty," a discrimination which continued at least
until the date of the hearing. Such an action speaks more
clearly of the employer's attitude toward his employees'
exercise of statutory rights than any printed or verbal
assurances. So too does the statement made to LeMorzel-
lec, as late as August 15, that Gorland had no intention of
signing with the Union.
Therefore, based upon all of the foregoing, I find that a
bargaining order is warranted as the possibility of a free
and fair election being conducted with the application of
less stringent remedies is slight, and that Respondent has,
by the foregoing conduct, violated Section 8(a)(5) of the
Act.
CONCLUSIONS OF LAW
1. All employees of the Sans Souci Restaurant at its
Washington, D.C., location, excluding office clerical em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. At all times relevant herein, the Union has been and
is now the exclusive representative of the employees in said
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
3. By interrogating and attempting to poll employees
concerning their union activities; by threatening employees
with reduced earnings, shortened workweeks, and dis-
charge; by threatening employees with interference with
their efforts to seek employment elsewhere; by telling
employees that Respondent considered them disloyal
because of their support for the Union; and by telling
employees that their support of the Union would be futile,
Respondent has interfered with, restrained, and coerced
said employees in the exercise of the rights guaranteed
them in Section 7 of the Act, in violation of Section 8(a)(1)
of the Act.
4. By discharging Charles LeMorzellec and Antonio
Machado, and by reducing the wages of William Nolan,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. By refusing to bargain with the Union on and after
April 23, 1977 (the date on which it embarked on its course
of unlawful conduct), Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act.
6. Respondent has not engaged in any unfair labor
practices not specifically found herein.
7. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily dis-
charged Charles LeMorzellec and Antonio Machado and
subsequently reinstated them, but without backpay, I shall
recommend that Respondent be required to make them
whole for any loss of earnings, including gratuities, they
may have suffered by reason of the discrimination against
them. And, having found that Respondent discriminatorily
reduced the wages of William Nolan, I shall recommend
that it be required to reinstate the supplementary payment
he had received each week and to make him whole for any
loss of earnings he suffered as a result of the discrimination
against him. The backpay provided herein shall be comput-
ed, with interest, in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977). 9
Having found that Respondent has been obligated since
April 23, 1977, to bargain with the Union, I shall recom-
mend that it be required to recognize and bargain with the
Union, upon request.
I See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's unlawful activities, including discriminato-
ry discharges and wage reductions, make appropriate an
order requiring Respondent to cease and desist from in any
manner impinging upon the statutory rights of employees.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941);
Ann Lee Sportswear, Inc., 220 NLRB 982 (1975).
The Charging Party, contending that Respondent's de-
fense was frivolous, sought litigation expenses and attor-
neys' fees. While I have found for the General Counsel on
most of the complaint's allegations, I cannot consider
Respondent's defense frivolous. Accordingly, I must reject
this request. Hecks, Inc., 215 NLRB 765 (1974). Neither do
I deem the other extraordinary remedies requested, includ-
ing mailing of the notice to the homes of the presently
employed employees, and reading of the notice by Gor-
land, to be warranted herein.
Finally, Respondent will be ordered to post notices
indicating compliance with the requirements of this Order.
It will be left for the compliance stage of this proceeding to
determine in what languages these notices must be pub-
lished so that all employees will be fully apprised of their
statutory rights.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '0
The Respondent, 726 Seventeenth Inc., t/a Sans Souci
Restaurant, Washington, D.C., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating or attempting to poll its employees
concerning their union activities, sympathies, or support.
(b) Threatening employees with discharge, reduced earn-
ings, shortened workweeks, or interference with their
efforts to seek employment elsewhere, because of their
union activities.
(c) Telling employees that it considered support for the
Union to be disloyalty to the employer.
(d) Telling employees that support for the Union would
be futile.
(e) Discriminating against employees because of their
union activities by discharging them or by reducing their
wages.
(f) Refusing to bargain collectively with Local 25, Hotel
& Restaurant Employees Union, AFL-CIO.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Reinstitute the weekly supplementary payment to
William Nolan and make William Nolan, Charles LeMor-
zellec, and Antonia Machado whole for the loss of earnings
they suffered by reason of the discrimination against them,
with interest, in the manner described in the section of this
Decision entitled "The Remedy."
(b) Upon request, recognize and bargain with Local 25,
Hotel & Restaurant Employees Union, AFL-CIO, as the
exclusive representative of all employees in the unit
described above, with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
written, signed agreement.
(c) Post at its place of business in Washington, D.C.,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due under the terms of
this Order.
(e) No'tify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
'0 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
IL In the event that this Order is enforced by a Judgment of the 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive 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,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT question or poll our employees
concerning their union membership, activities, or sup-
port.
WE WILL NOT threaten our employees with discharge,
reduced earnings or reduced workweeks, or interfer-
ence with their efforts to secure other employment,
because of their union activities.
610
SANS SOUCI RESTAURANT
WE WILL NOT tell our employees that we believe that
they are disloyal to us if they engage in union activities
or support the Union.
WE WILL NOT tell our employees that engaging in
union activities would be futile because we would never
sign a contract with the Union.
WE WILL NOT discriminate against our employees
because of their union activities or support by discharg-
ing them or by reducing their wages.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL reinstitute the weekly supplement to Wil-
liam Nolan's pay and WE WILL make William Nolan,
Charles LeMorzellec, and Antonio Machado whole for
any loss of earning the may have suffered because of
the discrimination against them.
WE WILL, upon request, bargain collectively with
Local 25, Hotel & Restaurant Employees Union, AFL-
CIO, as the exclusive bargaining representative of all
employees in the unit described below with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an agreement is
reached, embody such understanding in a written,
signed agreement. The bargaining unit is:
All employees of the Sans Souci Restaurant, in
Washington, D.C., excluding office clerical em-
ployees, guards, and supervisors, as defined in the
Act.
726 SEVENTEENTH INC., T/A
SANS SOUCI RESTAURANT
611