Scotch & Sirloin Restaurant

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 436 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M.B.K., Inc. d/b/a Scotch & Sirloin Restaurant and
Culinary Alliance & Bartenders Local No. 498,
Hotel and Restaurant Employees and Bartend-
ers International Alliance, AFL-CIO. Cases
31-CA-11628, 31-CA-11796, and 31-RC-5225
28 March 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 November 1982 Administrative Law
Judge Richard D. Taplitz issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' rec-
ommendations, and conclusions 2 and to adopt the
recommended Order.
ORDER3
The National Labor Relations Board adopts the
recommended Order of the administrative law
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a We adopt the judge's conclusion that the Respondent violated Sec.
8(aX3) and (1) of the Act by discharging employee Flaitz. In so doing,
we additionally rely on the uncontroverted testimony that in prior inci-
dences in which the Respondent was apprised that its employees had
called in sick when in fact they were not ill, the Respondent did not dis-
charge them but merely altered their schedules.
Further, in adopting the judge's conclusion that the Respondent con-
structively discharged employee Sargent, we additionally rely on the
judge's finding that, on Sargent's return to work on 13 November 1981
with an ankle injury, the Respondent's owner and manager, Font, as-
signed her to a work station that necessitated her climbing stairs, even
though she was visibly limping. Finally, we note, in connection with the
judge's application of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (Ist Cir. 1981), cert. denied 455 U.S. 989 (1982), that the Supreme
Court, subsequent to the judge's decision, affirmed the test set forth there
by the Board. See NLRB v. Transportation Management Corp., 103 S.Ct.
2469 (1983).
s In setting aside the election in Case 31-RC-5225 and in directing a
second election, we adopt the judge's recommendation in fn. 33 of his
decision that our Order shall not be construed as precluding the Regional
Director from reconsidering the challenged ballots in light of our finding
that employee Flaitz, who cast one of the challenged ballots, was dis-
charged unlawfully. Because Flaitz' challenged ballot, together with the
remaining challenged ballots, now may be determinative of the election
results, the election will not be set aside and the Union will be certified if
the Regional Director's reconsideration should result in a finding that a
majority of the employees voted for the Union.
269 NLRB No. 67
judge and orders that the Respondent, M.B.K., Inc.
d/b/a Scotch & Sirloin Restaurant, Ventura, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order, except
that the attached notice is substituted for that of
the administrative law judge.
IT IS FURTHER ORDERED that the election con-
ducted on 15 December 1981 in Case 31-RC-5225
be, and it hereby is, set aside and this case is
hereby severed and remanded to the Regional Di-
rector for Region 31 for the purpose of scheduling
and conducting a second election at such time as
he deems the circumstances permit a free choice on
the issue of representation.
[Direction of Second Election omitted from pub-
lication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, constructively dis-
charge, or otherwise discriminate against any em-
ployee for engaging in activity on behalf of Culi-
nary Alliance & Bartenders Local No. 498, Hotel
and Restaurant Employees and Bartenders Interna-
tional Alliance, AFL-CIO, or any other union.
WE WILL NOT coercively interrogate employees
concerning their own or other employees' union
activities; promise increased hours or other benefits
to employees to discourage union activities; threat-
en to discharge or take other reprisals against em-
ployees because of their union activities; threaten
to blackball employees because of their union ac-
tivities; threaten to take action that would make
union organization futile; threaten to make life mis-
erable for union employees so as to make them
want to quit; create the impression that we engage
in surveillance of our employees' union activities;
change the schedules of employees because a union
engages in organizational activity; increase the
hours of employees because we believe that they
are antiunion; decrease the hours of employees be-
cause we believe that they are prounion; deny time
off to employees because of their union activities;
change our policy and deny employees a free after-
shift drink and the use of the salad bar because em-
ployees engage in union activities; or prevent em-
ployees from voting or threaten to call the police if
prospective voters remain on our premises to vote
in a Board election.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
436
SCOTCH & SIRLOIN RESTAURANT
WE WILL offer D. Wesley Replogle, Larry Allen
Flaitz, and Sandra Lee Sargent immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and
WE WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL expunge from our files any reference
to the discharge of Replogle and Flaitz and the
constructive discharge of Sargent, and notify them
in writing that that has been done and that evi-
dence of those unlawful discharges will not be used
as a basis for future personnel action against them.
M.B.K., INC. D/8/A SCOTCH & SIR-
LOIN RESTAURANT
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
These consolidated cases were heard at Ventura, Califor-
nia, on September 21 and 22, 1982. The charge in Case
31-CA-11628 was filed on October 22, 1981, by the Cul-
inary Alliance & Bartenders Local No. 498, Hotel and
Restaurant Employees and Bartenders International Alli-
ance, AFL-CIO, herein called the Union. The original
complaint issued on December 30, 1981, alleging that
M.B.K., Inc. d/b/a Scotch & Sirloin Restaurant, herein
called the Respondent, the Employer, or Scotch & Sir-
loin, violated Section 8(a)(l) and (3) of the National
Labor Relations Act. The charge, first amended charge,
and second amended charge in Case 31-CA-11796 were
filed by the Union on January 4, January 28, and Febru-
ary 24, 1982, respectively. An order consolidating Cases
31-CA-11628 and 31-CA-11796, together with an
amended complaint, issued on February 26, 1982. The
complaint was further amended at the opening of the
hearing.
On October 8, 1981, the Union filed a petition for an
election in Case 31-RC-5225. Pursuant to a Decision and
Direction of Election which issued on November 20,
1981, an election by secret ballot was conducted on De-
cember 15, 1981, among the employees of the Respond-
ent in an appropriate bargaining unit.' After the election,
each party was furnished with a tally of ballots which
showed that of approximately 31 eligible voters, 21 cast
ballots, of which 7 were cast for the Union, 10 were cast
against the Union, and 4 were challenged. On December
21, 1981, the Union filed timely objections to conduct af-
fecting the results of the election. On March 3, 1982, the
'The bargaining unit was:
Included: All full-time and regular part-time waiters, waitresses,
hosts, hostesses, dishwashers, busboys, bartenders, cooks, food prepa-
ration employees, cocktail waitresses, cashiers/door personnel.
Excluded: Charter cruise captain, charter cruise deckhands, char-
ter cruise concessionaire, assistant charter cruise concessionaire, rmn-
agerial employees, guards and supervisors as defined in the Act.
Regional Director for Region 31 of the Board issued a
supplemental decision, order consolidating cases, order
directing hearing and notice of hearing. As to the chal-
lenges he sustained one of the challenges and concluded
that it was unnecessary to consider the remaining chal-
lenges as they could not affect the results of the elec-
tion.2 With regard to the objections to the election, the
Regional Director found that the objections raised legal
and factual issues that were closely related to the issues
involved in Cases 31-CA-11628 and 31-CA-11796. As
the conduct alleged in the objections was substantially
similar to the conduct alleged to constitute unfair prac-
tices in the unfair labor practice cases, the Regional Di-
rector ordered that the objections be consolidated with
the unfair labor practice cases for the purpose of hearing,
ruling, and decision by the administrative law judge and
that after such a hearing the representation case be trans-
ferred to and continued before the Board in Washington,
D.C.
Issues
The primary issues are:
1. Whether the Respondent violated Section 8(aXl) of
the Act by coercively interrogating employees, by
making various threats and promises to employees to dis-
courage union activity, by soliciting grievances from em-
ployees, by creating the impression of surveillance of
union activities, and by preventing employees from
voting in a Board election.
2. Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by changing the hours and work
schedules of employees to discourage union activity and
by discontinuing the practice of giving employees com-
plimentary aftershift drinks and food for the same reason.
3. Whether the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging D. Wesley Replogle,
by discharging or constructively discharging Sandra Lee
Sargent, and by denying a day off to and then discharg-
ing Larry Flaitz because those employees engaged in
union activities.
4. Whether the election should be set aside.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and the Respondent.
2 The sustained challenge was to the vote of Larry Flaitz. The deci-
sion indicated that Flaitz was not an employee on the date of the elec-
tion, that no meritorious unfair labor practice charge had been filed alleg-
ing that Flaitz had been unlawfully discharged, and that it was therefore
presumed the discharge had been for cause. As a result of that finding the
challenges were resolved by the Regional Director and were not referred
to an administrative law judge. At the opening of the hearing the Gener-
al Counsel successfully moved to amend the complaint to allege Flaitz'
discharge as a violation of the Act. The challenged ballots could there-
fore be determinative. However, the question of the challenged ballots
was not referred to me, it is not before me for decision, and I have no
jurisdiction in that regard.
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record 3 of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a California corporation with an
office and principal place of business in Ventura, Califor-
nia, is engaged in the operation of a restaurant, bar, and
charter cruise boat. The Respondent annually derives
gross revenues in excess of $500,000 from the operation
of its business. In a stipulation executed in Case 31-RC-
5225 the Respondent admitted that during the past fiscal
or calendar year it purchased goods valued in excess of
$3000 from enterprises located within California, which
enterprises received such goods in substantially the same
form directly from outside California. In that stipulation
the Respondent also admitted that it was engaged in
commerce within the meaning of the National Labor Re-
lations Act and was subject to the jurisdiction of the Na-
tional Labor Relations Board. At the trial of the instant
case the Respondent admitted that it received more than
$3000 worth of goods indirectly from interstate. I find
that the Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.4
I1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Allegedly Unlawful Remarks That Font Made
to Employees
1. Background
The Respondent, Scotch & Sirloin, is a restaurant and
bar which employs approximately 31 employees. Toward
the end of September 1981 the Union began an organiz-
ing drive among those employees. The Union filed the
petition for an election on October 8, 1981.
James Font is the president, manager, and owner of
the Scotch & Sirloin. He learned of the Union's organiz-
ing drive no later than October 10, 1981. On that date
his bartender Bill Fay quit. Fay told Font that Fay was a
union business agent and that he had done all that he
could to organize the store. The complaint alleges, in
substance, that Font responded to that union organizing
drive with a wide variety of unlawful threats, promises,
discharges, and other conduct designed to defeat the
Union.
a The General Counsel's unopposed motion to correct the transcript of
the record is hereby granted by the substitution of "contending" for "pre-
tending" at p. 63, I. 1.
4NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963); Carolina Sup-
plies & Cement Co., 122 NLRB 88 (1958); Bickford's~ Inc., 110 NLRB
1904 (1954).
2. Font's conversations with Sonya Nicely
a. Facts
A number of employees testified that they had conver-
sations with Font in which the Union was mentioned.
With one exception (the conversation with Sandra Sar-
gent which is discussed below) Font, in his testimony,
did not specifically address himself to any of those pur-
ported conversations. He averred that, when he first re-
alized there was a labor union involved, he asked for and
received advice from his lawyer that he was told in sub-
stance that he should make sure he did not discuss any-
thing concerning his approval or disapproval of the
Union with the employees, and that he followed those
instructions to the letter. I believe that Font was less
than candid in that testimony. His demeanor, his "gener-
al denial" as opposed to the specific detailed testimony
of a number of different employees, and the generally
corroboratory nature of the substance of that employee
testimony convince me that those employees rather than
Font should be credited.
Cocktail waitress Sonya Nicely was one the first em-
ployees that Font spoke to after he learned from Fay on
October 10, 1981, that the Union was organizing. That
conversation occurred about 6 p.m. on October 10. Prior
to that time Font had often complained to Nicely that
she was too slow and that he was planning to reduce her
hours or fire her. She had asked for more working time
and he had told her that he could not increase her hours
because of her low sales. On October 10 Font spoke to
her in the restaurant and asked her whether she would
like to work more hours. When she said that she would,
he told her that he was planning to let some of the wait-
resses go. When she asked the reason he said, "Don't
you know what is going under?" She replied that she did
not and he told her to get back to work and not tell any-
body what he had said. If there were any ambiguity as to
what Font meant when he asked Nicely whether she
knew "what was going under" he made it clear when he
spoke to her the following day. On October 11, 1981,
Nicely was at the Scotch & Sirloin as a customer. Font
asked her if she joined the Union and she replied, "What
Union?" Font then said he was going to increase her
hours and that she should be prepared to work hard.
Two days later, on October 13, 1981, Font spoke to
Nicely while she was working. He again asked her
whether she had joined the Union and she once again
said, "What Union?" About an hour later he asked her
whether she was planning to join the Union. She replied
that she did not know and that she was sick and tired of
being cornered by him every chance he had. They dis-
cussed the pros and cons of the Union and Font said
that, if she joined, it would cost her a lot of money to
join, she would have to pay dues, and she would have to
pay for medical insurance.
About 2:15 a.m. on October 14 Font spoke to Nicely
in his office. He told her that he was going to increase
her hours, that everyone had joined the Union except
her, and that she was the only one who was loyal. She
asked him who had signed and how he knew. He replied
that E. Victor Moraga and Larry Flaitz had admitted
438
SCOTCH & SIRLOIN RESTAURANT
joining the Union because of the medical insurance, and
that Regina Tully must have joined because she brought
in Bill Fay to work there. Nicely asked about Sandra
Sargent and Font said that she had signed. Nicely said
that she was Sargent's friend and Sargent never dis-
cussed it with her to which Font replied, "Believe me, I
know she signed."
On November 6, 1981, Nicely overheard a conversa-
tion between Font and cocktail waitresses Roxanne
Negrin and Nancy in Font's office. Font told them that
the restaurant would never be a union house, that he was
going to make life miserable for all the employees who
signed for the Union, and that that way employees
would want to quit on their own.
On November 8 Font spoke to Nicely while she was
working. He told her that if she signed with the Union
she would not be able to stand there with a drink of
coffee and a cigarette. He also told her that she would
have to.go to a bathroom and take her break and smoke
her cigarette there and that, by the time she got out and
came back to her station, he would have someone to
take over her station. He also told her that his legal fees
would be coming out of employees' wages and tips.5
b. Conclusions
In summary, between October 10 and November 8,
1981, Font repeatedly interrogated Nicely about her
union activities. In the context of that interrogation and
also in the context of his statement to her that she was
the only one who would not sign for the Union, he
promised her increased hours. Font's statement to Nicely
on October 10 to the effect that he was planning to let
some of the waitressses go was made in the context of
his interrogation of her union activity and his instruction
to her not to tell anyone what he had said. Font's remark
amounted to a threat to discharge employees because of
their union activity. Font's remark to cocktail waitresses
on November 6 to the effect that he would make life
miserable for the union employees so that they would
quit on their own was a further threat of reprisal against
employees because of union activity. His remark to the
effect that he would make sure that it was never a union
house, when considered in the context of his further re-
marks about making life miserable for union employees,
indicated that Font would take actions against employees
to make their organizing efforts futile. Font's remark to
Nicely on October 14 of "Believe me, I know that she
signed" with regard to Sandra Sargent gave Nicely rea-
sonable grounds for assuming that Font had placed the
union activity of employees under surveillance. Font's
remark to Nicely created the impression that he was en-
gaging in surveillance of his employees' union activities.
I find that the Respondent through Font violated Sec-
tion 8(a)(l) of the Act by coercively interrogating an em-
ployee concerning union activities, by promising benefits
to an employee to discourage union activity, by threaten-
5 The above findings are based on the testimony of Nicely. In evaluat-
ing the possibility that bias against the Respondent affected her testimo-
ny, I have considered the fact that Nicely appeared to be hostile toward
Font, that she is no longer employed by the Respondent, and that she is
pursuing a workmen's compensation claim against the Respondent. After
weighing the possibility I still believe that she was a credible witness.
ing to discharge employees because of their union activi-
ty, by threatening to take action that would make union
organization futile, by threatening to make life miserable
for union employees so as to make them want to quit,
and by creating the impression that he was engaging in
surveillance of its employees' union activities. 6
2. Font's conversations with Ann Galligos
a. Facts
On or about October 12, 1981, Font approached cock-
tail waitress Ann Galligos and asked her if she knew
what was happening. She said that she did not. He told
her that Bill Fay was trying to organize a union. She
told Font that she had not heard about it. Later that
evening she asked Font for an after dinner drink and he
replied by asking whether she was part of the Union.
She said she was not and he said she could have the
drink. Font asked her if she knew of anybody else who
was involved with the Union. She told him that she was
not involved and she did not know of anyone else.
On October 14 Font spoke to Galligos in his office. He
told her that she would be working more hours since she
was not union.
Somtime later in October Galligos suggested to Font
that her friend Brian O'Hagen be hired as a waiter. Font
replied that in a little while they would be needing a lot
of waiters. 7
b. Conclusions
Font's interrogation of Galligos on October 12 con-
cerning her own and other employees' union activities
was coercive and violative of Section 8(a)(l) of the Act.
His statement to her on October 14 that she would be
working more hours since she was not union was a
promise of benefit to discourage union activity. That also
violated Section 8(a)(1) of the Act. In the context of
those other violations, Font's remark to Galligos some-
time in October to the effect that in a little while they
would be needing a lot of waiters constituted a threat to
discharge employees because of their union activity. It
also violated Section 8(a)(1) of the Act.
3. Font's conversations with Larry Flaitz and E.
Victor Moraga
a. Facts
Larry Flaitz was a waiter who worked for the Re-
spondent. When he reported for work on October 10,
1981 (the day Fay told Font that the Union was organiz-
ing), the hostess, Terry Fryman, asked him why he was
not wearing a tie. Font was standing there at the time
and Flaitz asked him whether they had to wear ties.
Font replied, "No, but since you have all become union,
you can all dress the same and be servants and I will call
you by number."
The following day, October 11, Font called Flaitz and
another waiter, E. Victor Moraga, into his office. Font
e Marines' Memorial Club, 261 NLRB 1357 (1982).
7 The above findings are based on the credible testimony of Galligos.
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked them why they had signed for the Union. Flaitz
and Moraga both acknowledged that they had joined
and they both spoke about such things as medical bene-
fits. Font then said, "If you guys weren't happy with the
situation or your working conditions, why didn't you
come to me first instead of going to the Union?" Flaitz
replied that they would have but they probably would
have been fired. Font said that he had dealt with unions
before and that Scotch & Sirloin would not be a union
house. Font said that it did not help the air traffic con-
trollers and it would not help his employees, that the
Union was for weak people and they were not weak,
that employees were going to have to pay for their own
medical benefits and all the Union wanted was their
money. Font also said, "I am going to have to cut your
hours if the house goes union." And as they were leav-
ing, he added, "If you come back to work."8
Prior to the union organizing drive employees of the
Scotch & Sirloin were not required to report their tips
on their timecards. During the week of October 11 Font
told Flaitz that if he went union he would have to de-
clare his tips every day. Flaitz said that that was the way
it should be.
On November 7, 1981, Moraga spoke to Font about a
certain wine list. Font said that they would have a new
wine list but not until the people who were prounion
were out of the restaurant. Font also said that there
would be a lot of changes for the better for the employ-
ees after the people who were prounion were gone.
b. Conclusions
Font's interrogation of Flaitz and Moraga on October
11, 1981, was coercive and therefore violated Section
8(a)(1) of the Act. His question concerning why those
employees had not come to him rather than the Union
about working conditions was a further unlawful coer-
cive interrogations Font's remark that he had dealt with
5 These findings are based on the credited testimony of Flaitz. Moraga,
in his testimony, corrborated much of the substance of Flaitz' testimony.
However, Moraga did not appear to have a clear memory of the incident
and much of his testimony came forth only after leading questions and
the refreshing of his memory by his affidavit. I believe that Moraga's tes-
timony was based on his general impression of what was said rather than
the details of the conversation, while Flaitz' testimony was based on his
ability to recall exactly what was said. I therefore have relied on Flaitz'
testimony where it did not fully correspond with the testimony of
Moraga. As discussed above Font did not specifically address his testimo-
ny to this particular conversation.
o The General Counsel also contends that that remark constituted an
unlawful soliciting of grievances and an implied promise to correct those
grievances. I do not believe that theory to be tenable. It is true that the
solicitation of grievances during an organizational drive carries with it an
inference that the employer is implicitly promising to remedy those
grievances and where that inference is not rebutted by the employer, a
violation of Sec. (aXl) exists. Marines' Memorial Club, supra; Cutting,
Inc., 255 NLRB 534 (1981). However, in the instant case Font was not
asking employees to come to him with their problems. He was asking
them why they had not come to him in the past. It could be argued that
there was an implication that Font was asking employees to come to him
in the future and that there was a further implication that he would satis-
fy their requests if they did come to him. However, I believe that that
calls for one implication too many. The remark is found to be an unlaw-
ful interrogation but not an unlawful solicitation of grievances.
unions before and that the Scotch & Sirloin would not
be a union house constituted a threat that he would take
action to make organization futile and therefore violated
Section 8(a)(1) of the Act. His remark that he was going
to have to cut hours if the house went union constituted
a clear threat of reprisal for union activity and his fur-
ther remark, "if you come back to work," constituted a
threat to discharge employees because of union activity.
Both of those threats violated Section 8(a)(1) of the Act.
Font's remark to Flaitz on October 11, 1981, to the
effect that tips would have to be declared every day if
Flaitz went union also constituted a threat of reprisal be-
cause of union activity in violation of Section 8(a)(1) of
the Act.' 0 Font's remark to Moraga on November 7 to
the effect that there would be a new wine list when the
prounion people were out of the restaurant and that
there would be a lot of changes for the better for the
employees after the people who were prounion were
gone constituted both an unlawful promise of benefits for
employees who remained nonunion and a threat to dis-
charge employees who were prounion. Both the promise
and the threat violated Section 8(a)(l) of the Act.''
B. The Changes in Employees' Hours and Benefits
1. Background
Even before the Union began organizing, Font had
from time to time changed the employees' schedules. He
had moved employees from one station to another, shift-
ed the days worked, and changed the number of hours
worked depending on the needs of the business. Shortly
after the union organizing campaign began there were a
number of changes. Some of those changes were shown
in a posted schedule change. Prior the Union's organiz-
ing, schedules had not been posted. Font had simply told
employees of the changes. Font acknowledged, in sub-
stance, that he made changes because of the union activi-
ty. He averred however that he was simply equalizing
the number of hours worked among the employees be-
cause of the union activity. When asked whether there
were changes in schedules because of union activity he
responded, "Yes, I think I may have made some change
to make sure that everyone was getting equal or approxi-
mately equal hours based on the number of days that
they had. I may have moved people around in a particu-
lar period. And that should reflect on the pay periods
that follow. The purpose was to make sure that I was
not giving more hours to some employees that may have
or may not have had any union activities."' 2 Those
changes were made in violation of Section 8(a)(l) of the
Act. As the Board held in adopting the administrative
'O There may well have been a duty to report tips every day but Font
could not lawfully condition his actions in that regard on whether or not
the employees engaged in union activity.
t The General Counsel contends that several other statements by
Font constituted violations of Sec. 8(aXl) of the Act. Some of those mat-
ters are so interrelated with an evaluation of the allegations that employ-
ees were unlawfully discharged that they are discussed below in that con-
text.
"1 Nicely credibly testified that Font told her that with the "Union
thing" he had to give everybody equal laws and had to rotate stations.
440
SCOTCH & SIRLOIN RESTAURANT
law judge's decision in McCormick Longmeadow Stone
Co., 158 NLRB 1237, 1242 (1966):'3
An employer's legal duty in deciding whether to
grant benefits while a representation case is pending
is to determine that question precisely as he would
if a union were not in the picture. If the employer
would have granted the benefits because of eco-
nomic circumstances unrelated to union organiza-
tion, the grant of those benefits will not violate the
Act. On the other hand, if the employer's course is
altered by virtue of the union's presence, then the
employer has violated the Act, and this is true
whether he confers benefits because of the union or
withholds them because of the union.
Font admitted that changes in hours were motivated by
the Union's presence. Moreover, there was considerable
testimony that changes were used as a carrot to induce
antiunion conduct and as a stick to punish prounion con-
duct.
2. The changes that related to Sonya Nicely
Prior to the union activity Font considered Sonya
Nicely to be a slow employee and he had denied her re-
quests for increased hours. As is set forth in detail above,
on October 11 and 14, 1981, he promised to increase her
hours because of his belief that she had refrained from
joining the Union. In several conversations he made it
clear to her that that was the reason he was going to in-
crease her hours.
Prior to mid-October 1981 Nicely had worked some
Tuesday but that was not her regular day. In mid-Octo-
ber Font called her and told her to work that Tuesday.
That was Sandy Sargent's normal day and Nicely asked
whether Sargent was working. Font replied by asking
whether she wanted to work or not. He told her that he
was giving her the extra day because she had been loyal
to him. She decided to accept the Tuesdays.
Nicely testified that prior to the union activity she
worked an average of about 25 hours a week and that,
after the campaign began, her hours were raised to about
34 to 36 hours a week. The Respondent's employees are
paid on a semimonthly basis. The Respondent's records
show that for the period October 1 through 15, 1981,
Nicely worked 42 hours with only 15 of those hours
during the first week. They also show that for the period
October 16 through 31 she worked 76 hours.' 4 The Re-
spondent's records show a dramatic increase in pay by
Nicely on and after October 16, 1981. As waiters and
cocktail waitresses were paid minimum wage, the
amount of gross pay (which does not include tips) indi-
cated the number of hours actually worked. 1'
Is See also Marines' Memorial Assn., supra; St. Elizabeth Community
Hospital, 240 NLRB 937, 941 (1979); Cutter Laboratories, 221 NLRB 161,
168 (1975).
14 Those were the only payroll records introduced into evidence
which set forth the number of hours worked. More detailed records were
placed in evidence with regard to pay.
15 Nicely's pay rounded off to the nearest dollar was: July 1-15, $183;
July 16-31, $181; August 1-15, S188; August 16-31, $107; September 1-
15, $151; September 16-30, $159; October 1-15, $141; October 16-31,
Font promised to increase Nicely's hours because he
believed Nicely had not joined the Union and he almost
immediately carried out that promise. In the light of the
above circumstances Font's claim that he was merely
trying to equalize hours because of the Union and that
schedules were often changed in the past simply does not
constitute an adequate defense. I find that Font increased
Nicely's hours in order to discourage membership in the
Union and thereby violated Section 8(a)(1) and (3) of the
Act.
3. Changes for Galligos
On October 12, 1981, Font coercively interrogated
cocktail waitress Ann Galligos concerning her and other
employees' union activities. She told him that she was
not involved with the Union. Two days later, on Octo-
ber 14, Font told Galligos that she would be working
more hours because she was not union.
From October I through 15, 1981, she worked 41-1/2
hours and was paid $139. From October 16 through 31
she worked 71-1/2 hours and was paid $240. Except for
the August 16 through 31 period in which she earned
$253, the $240 she earned between October 16 and 31
was the most that she was paid since July 1, 1981.16 Gal-
ligos left the Respondent's employment in early Novem-
ber 1981 and therefore no continuing pattern could be
shown. However, the sharp jump in the number of hours
worked by Galligos from the first half of October to the
second half, taken together with Font's statement to her
on October 14 that she would be working more hours
since she was not union, establishes that Font did carry
out his promise to increase her hours for that reason. I
find that Font increased Galligos' hours in order to dis-
courage membership in the Union and thereby violated
Section 8(a)(1) and (3) of the Act.
4. Changes for Larry Flaitz and E. Victor Moraga
As found above Font coercively interrogated Flaitz
and Moraga concerning their union activity. At that time
both Flaitz and Moraga acknowledged to Font that they
had joined the Union. Font told them that he was going
to have to cut their hours if the house went union. On
the same day, October 11, Font posted a new schedule.
That was the first time that changes had actually been
posted. Flaitz had regularly worked on Wednesdays.
Under the new schedule he no longer worked on
Wednesdays. He was not given any additional hours to
make up that loss. Within a few weeks of October 11
Moraga's hours were cut. Before the union activity he
had regularly worked on Tuesdays and that day was
taken from him.
The Respondent's records show that Flaitz worked 39
hours from October I through October 15 and 36 hours
from October 16 through October 31. He was paid $131
in the October 1 through 15 period and $121 from Octo-
ber 16 through 31. However, his pay was somewhat ir-
regular even before that time. It was as high as $181
$258; November 1-15, $268; November 16-30, S236; December 1-15,
$214; and December 16-30, $214.
1' The records in evidence do not go back before July 1.
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from July 1 through 15 and as low as $139 from Septem-
ber 1 through September 15. Flaitz called in sick on No-
vember I and he did not work for the Respondent there-
after. He is one of the alleged dischargees. The Respond-
ent refused to schedule Flaitz for work for periods after
November 2 but that matter is resolved in the discussion
of the discharge which is set forth below. In view of the
short period between Font's threat to reduce hours and
the discharge of Flaitz, and the inconclusive nature of
the records concerning Flaitz' work patterns, I am un-
prepared to find that Flaitz' hours were reduced because
of his union activities.
Moraga worked 32 hours and was paid $107 for the
period October I through 15. He worked 44 hours and
was paid $145 for the period October 16 through 31. His
pay was $178 for November 1 through 15 and $111 for
November 16 through 30. There are no records in evi-
dence indicating either hours or pay after November 30.
Though Moraga testified that his hours were reduced
within a couple of weeks of October 11, 1981, no records
were put in evidence that would indicate a pattern of
hours or pay after November 30. In view of the vague-
ness of the evidence with regard to Moraga's schedule, I
am unprepared to find that his hours were reduced be-
cause of union activities.
5. Changes for D. Wesley Replogle
Replogle signed a union authorization card on Septem-
ber 26, 1981. He attended from four to six union meet-
ings in late September and October. In addition he spoke
to a number of employees in the restaurant in favor of
the Union in the period between mid- to late September
and his termination on November 11. He passed out a
number of authorization cards at the restaurant. On Oc-
tober 24, 1981, in the context of the discussion about
charging for ice, Font accused him of starting something
that he could not finish. At the time of his discharge
Font told him that Font signed his paycheck and the
Union did not. In view of Replogle's overt union activi-
ty, the small number of employees in the bargaining unit,
the efforts of Font to find out who was active for the
Union by his coercive interrogation of employees, and
that the subsequent admissions by Font to Replogle that
Font knew that Replogle was active for the Union, it
can reasonably be inferred that Font knew at an early
date that Replogle was a union activist.
On September 16, 1981, which was before there was
any indication that Font had knowledge of the union ac-
tivity, he granted Replogle's request to take off from
work on October 16 and 18. Replogle had not been
scheduled to work on October 17. Font learned of the
union activity on October 10 and almost immediately
began interrogating employees about union activities. On
October 12 Replogle received a message from Font that
Font was training a new bartender and that he was not
to report for work that night. He was told that he would
not be scheduled to work until after he returned from his
weekend off. On October 19 he reported for work early
and the restaurant was closed. He tried to telephone the
restaurant but did not get an answer. The next day, Oc-
tober 20, he called the restaurant and spoke to Font. He
asked Font what the schedule was and Font said that he
would call him back. Later Font did call back and said
he still had not worked out the schedule. Late that night
he went to the restaurant where Font told him that the
schedule was not completed and that he would call him
in the morning. Font did not call in the morning. On Oc-
tober 22 Replogle once again called Font and asked
about the schedule. He told Font that he had asked for 2
days off and not 2 weeks. At that point Font told Replo-
gle that Font had hired two new bartenders to replace
Fay and Replogle and that he thought Replogle had
asked for a week off. Font said that he would talk to the
other two bartenders to see if they would go down to 2
or 3 nights a week so that Replogle could have 2 or 3
nights a week. That evening Font called Replogle and
told him that he was scheduled to work at 9 p.m. on Sat-
urday, October 24. He worked 5 hours that night and 5
hours each on October 27, 28, and 31. Before the union
activity Replogle generally worked 5 nights a week from
Thursday through Monday. Beginning October 24 he
only worked 3 days a week and he worked less hours on
each of those days. He was discharged on November 11,
1981, and he is one of the alleged discriminatees. The
Respondent's records show that from October 1 through
15 Replogle worked 46 hours and from October 16
through 31 he worked 20 hours. His pay for September 1
through 15 was $344; for September 16 through 30, $280;
from October 1 through 15, $184; from October 16
through 31, $80; and the records do not list him thereaf-
ter.
The evidence set forth above, considered together
with the evidence relating to Replogle's discharge set
forth in section C, below, establishes that between Octo-
ber 12 and November 11 (the date of his discharge) Font
reduced Replogle's hours of work because of Replogle's
union activities. The Respondent thereby violated Sec-
tion 8(a)(1) and (3) of the Act.
6. The changes for Sandra Lee Sargent
Sargent is one of the alleged discriminatees. She testi-
fied in substance that on October 13 she was rescheduled
so that she lost her regularly scheduled Tuesday work,
that she worked less hours, that she worked at stations
where she received less tips, and that she was assigned to
stations where it would be difficult for her to function
because she had a foot injury. Those matters are dis-
cussed in detail with regard to her discharge. However,
the Company's records indicate that she worked 61
hours from October I through 15 and 66 hours from Oc-
tober 16 through 31. They also show that her pay varied
somewhat during the time she worked. There was a
sharp decline in hours during the pay period of Novem-
ber I through 15, but that was when she started working
for another employer. 7 On the basis of those records I
am unprepared to find that Sargent's hours were reduced
because of her union activity.
'7 Her pay was: July 1-15, 1981, $214; July 16-31, $241; August 1-15,
$249; August 16-31, $266; September 1-15, S266; September 16-30, $288;
October 1-15, $204; October 16-31, $221; and November 1-15, $80.
442
SCOTCH & SIRLOIN RESTAURANT
7. The changes with regard to aftershift food and
drink
Prior to the union activity it was customary in the Re-
spondent's establishment for employees to have a free
drink and free use of the salad bar after they finished
their shift.18 On October 12, 1981, when Galligos asked
for the customary aftershift drink, Font asked her wheth-
er she was part of the Union. When she said that she was
not he told her to go ahead and have one. Sometime
after the union organizing drive began Font told Flaitz
that until the union thing was settled no one was getting
anything to eat. In mid-October 1981 Galligos asked
Font for a drink and Font told her that, until he knew
for sure who was for and who was against the Union, no
one was going to get anything from him. In mid-October
employee Shawna Darby overheard Font telling hostess
Terry Fryman that she could not have a potato after she
finished hostessing.
I find that the Respondent violated Section 8(a)(1) and
(3) of the Act by changing its past policy and denying
employees a free aftershift drink and the use of the salad
bar because the employees engaged in union activities.
C. The Discharge of D. Wesley Replogle
1. The sequence of events
Replogle was hired by the Respondent as a bartender
on August 30, 1981, and was discharged on November
11, 1981. As is set forth in section B he was very active
in organizing on behalf of the Union. He signed a card
on September 26, 1981, attended a number of union
meetings, attempted to organize employees at the restau-
rant, and distributed authorization cards at the restaurant.
Font was aware of Replogle's union sympathies.
During the short period that Replogle worked for the
Respondent he was at best a marginal employee. Sandra
Sargent, who testified for the General Counsel, thought
he was scatterbrained. Sonya Nicely who also testified
for the General Counsel averred that he had a temper
and sometimes liked to argue. The witnesses called by
the Respondent had an even less favorable estimate of
Replogle. Cocktail waitress Negrin described him in
great detail as a terrible bartender, as did Linda Miller.
Font testified that Replogle was very excitable and broke
many glasses. Font also testified, and I believe credibly,
that on two occasions prior to the date of discharge he
saw Replogle fail to ring up a drink as bartenders were
required to do by a standing company policy. On both
occasions Font explained the company policy to Replo-
gle.' 9 Replogle testified that no one from the Respond-
i" This finding is based on the testimony of employees Galligos, Flaitz,
Darby, and Replogle. Roxanne Negrin testified that there was no change
in company policy after the union organizing drive began. She averred
that employees would ask Font for a drink and sometimes Font would
say yes and sometimes no. I do not credit Negrin in this regard.
i' Indeed Replogle's own description of the events that occurred on
November 11 indicates his attitude toward his work. It also sheds some
doubt on Replogle's candor in general. He testified as follows: About
midnight, November 11, waitress Regina Tully gave him an order for a
Seagram 7 and a Seven-Up. After he poured the drink, Tully returned to
him and said that she had made a mistake and she needed a Canadian
Club and soda with a splash of coke instead of the 7 and 7. He did not
want to waste the drink so he put a splash of coke in the Seagram 7 and
ent questioned him concerning the ringing up of drinks
until November 11, the date of discharge. On this matter
I credit Font over Replogle. Font took such matters
quite seriously. There could be a number of innocuous
reasons why a bartender would not immediately ring up
a drink after he poured it, but it was still a matter of con-
cern to Font. There was always the possibility that a
bartender was stealing money from him or giving away
free drinks and the only way that Font had to control
the situation was to keep a close tab on the register and
to insist that drinks be rung up immediately. The failure
of a bartender to immediately ring up a drink could be
attributed to the fact that he was too busy with other
orders or that he was simply replacing a misordered
drink. Font did not consider such a failure to be grounds
for immediate discharge. On the two occasions that he
spoke to Replogle about such matters before the date of
discharge he merely explained the company policy. 20
As set forth in detail in section B,5, above, beginning
on October 12, 1981, which was 2 days after Font
learned of the union activity, the Respondent began re-
ducing Replogle's opportunity to work. For a number of
days he was not called in at all and thereafter he was
given reduced hours. That reduction in hours was moti-
vated by Replogle's union activity and as found above
was a violation of Section 8(a)(1) of the Act. On October
24 Font told Replogle that Replogle had started some-
thing that he could not finish.
Replogle worked the night of November 11, 1981.
About midnight that night waitress Regina Tully gave
him an order for a drink which he made up. He immedi-
ately rang up the drink on the cash register. Later Tully
returned and said that she had made a mistake and she
needed a different type of drink. After unsuccessfully
trying to doctor up the old drink and pass it off for the
correct order, Replogle made a new drink for the cus-
tomer. He did not ring up the new drink.2 1 Font noticed
that Replogle had not rung up the new drink on the reg-
ister and he asked Replogle why he had not collected for
that customer's drink. Replogle responded by saying that
there was a mistake in the order and he had corrected it.
Font then asked Replogle what happened to the old
drink and Replogle said he poured it out. Font asked
whether Replogle was in the habit of throwing out house
liquor. 22
Seven-Up and sent it back to the customer. The customer immediately
returned that drink.
'0 Font was not specific with regard to the dates of those two conver-
sations and it is therefore not possible to determine whether they oc-
curred before or after the beginning of the union activity.
" Cocktail waitress Negrin testified that a bartender should ring up a
new drink in such circumstances because the cocktail waitress should pay
for that drink out of her own pocket. However, there is no indication
that Font considered it to be a dischargeable offense for a bartender to
make up a replacement drink with no charge.
"' These findings are based on the testimony of Replogle. Font testi-
fied that on November 11 he once again saw Replogle ring up a drink
and that he went into his office and got Replogle his check at that point.
Font averred that he did not ask Replogle for an explanation before he
fired him and that Replogle did not tell him that it was a replacement
drink. Bartender Linda Miller, who was a witness for the Respondent,
averred that she heard Font ask Replogle why he had given the drink
away. I credit Replogle's version of the incident and do not credit Font's
where it is inconsistent with Replogle's.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About an hour later Font told Replogle that he was
fired and called him a thief. Font told Replogle to get
the "hell" out of there. He said that he signed Replogle's
paycheck and that the Union did not. He also told Re-
plogle that there was free enterprise and he did not have
to have the Union in his restaurant if he did not want it.
He told Replogle to get the "hell" off his property. Font
followed Replogle to the parking lot and continued yell-
ing at him. He told Replogle that Replogle had gotten
into something that he could not finish and that Font
would make sure that Replogle did not work in Ventura
County. Replogle asked whether he was going to be
blackballed and Font said that that was right.23
2. Analysis and conclusions
The controlling law is set forth in Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 889 (lst Cir.
1981),a4 cert. denied 455 U.S. 989 (1982), in which the
Board applied the "test of causation" that had been ar-
ticulated by the United States Supreme Court in Mt.
Healthy Board of Education v. Doyle, 429 U.S 274 (1977).
In reliance on the Supreme Court decision the Board
held:
Thus, for the reasons set forth above, we shall
henceforth employ the following causation test in
all cases alleging violation of Section 8(a)(3) or vio-
lations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established, the burden will shift to the
as Font did not testify concerning this particular incident, nor did
anyone else other than Replogle. I do not believe that Replogle's testimo-
ny was inherently unbelievable. My observation of Font as he testified
led me to the conclusion that Font was a rather emotional man with
strongly held views who was quite capable of blurting out his feelings
even if they would be harmful to him. That impression was fortified by
the testimony concerning his actions during the course of the election,
which is discussed below, as well as by the findings relating to his antiun-
ion remarks made to employees. Under these circumstances I am pre-
pared to credit Replogle's testimony concerning what Font told him after
the discharge.
24 While the First Circuit Court of Appeals enforced the Board's
order, that court disagreed with the Board with regard to the exact
nature of the employer's burden once the General Counsel had estab-
lished a prima facie case. In the court's language:
Thus, the employer in a section 8(aX3) discharge case has no more
than the limited duty of producing evidence to balance, not to out-
weigh, the evidence produced by the general counsel.
The Board may properly provide, therefore, that "Once ([a prima
facie showingl is established, the burden will shift to the employer to
demonstrate that the same action would have taken place even in the
absence of the protected conduct." 251 NLRB No. 150, at 20-21
(footnote omitted). The "burden" referred to, however, is a burden
of going forward to meet a prima facie case, not a burden of persua-
sion the ultimate issue of the existence of a violation.
The Third Circuit has expressed its agreement with the First Circuit in
Behring International, 675 F.2d 83 (3d Cir. 1982). The Seventh Circuit has
expressed agreement with the First Circuit, NLRB v. Webb Ford, 688
F.2d 743 (7th Cir. 1982). The Ninth, Eighth, Sixth, and Fifth Circuits
have indicated their agreement with the Board's position. Zurn Industries
v. NLRB, 680 F.2d 683 (9th Cir. 1982); NLRB v. Fixtures Mfg. Co., 669
F.2d 547 (8th Cir. 1982); NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442
(6th Cir. 1981); NLRB v. Charles H. McCauley Associates , 657 F.2d 685
(5th Cir. 1981).
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct. 14
14 In this regard we note that in those instances where, after all
the evidence has been submitted, the employer has been unable to
carry its burden, we will not seek to quantitively analyze the effect
of the unlawful cause once it has been found. It is enough that the
employees' protected activities are causally related to the employer
action which is the basis of the complaint. Whether that "cause"
was the straw that broke the camel's back or a bullet between the
eyes, if it were enough to determine events, it is enough to come
within the proscription of the Act.
The threshold question is, therefore, whether the Gener-
al Counsel has by a preponderance of the credible evi-
dence made out a prima facie showing sufficient to sup-
port the inference that protected conduct was a motivat-
ing factor in Replogle's discharge.
Replogle was active in union affairs and the Respond-
ent learned of that activity. The Respondent harbored a
virulent animosity against employees who engaged in
union activities and it expressed that animosity through a
broadside of unlawful activity. As found above that un-
lawful activity included coercive interrogation of em-
ployees concerning their own and other employees'
union activities; promising increased hours and other
benefits to employees to discourage union activity;
threatening to discharge and take other reprisals against
employees because of their union activity; threatening to
take action that would make union organization futile;
threatening to make life miserable for union employees
so as to make them want to quit; creating the impression
that it was engaging in surveillance of its employees'
union activities; changing the schedules of certain em-
ployees because the Union was organizing; increasing the
hours of certain employees because of the belief that
they were antiunion; decreasing the hours of other em-
ployees because of the belief that they were prounion;
and changing its past practice and denying employees a
free aftershift drink and the use of the salad bar because
the employees engaged in union activity.
Beginning on October 12, 1981, just 2 days after Font
learned of the union activity, Replogle's schedule was re-
arranged so that he did not work at all on some days and
on others he worked less hours than he previously had.
As found above, that change was motivated by Replo-
gle's union activity. On October 24 Font told Replogle
that Replogle had started something that he could not
finish. On November 11, about a month after Font
learned of the union activity, Replogle was discharged.
At the time of discharge Font made it clear to Replogle
that Replogle was being discharged because of his union
activity. Font spoke of his signing the paycheck rather
than the Union. He said that it was free enterprise and he
did not have to have the Union in his restaurant if he did
not want to and in the context of that remark he told
Replogle to "get the hell off" his property. Font said
that Replogle had gotten into something that he could
not finish and that Font would make sure that Replogle
444
SCOTCH & SIRLOIN RESTAURANT
did not work in Ventura County. Font said that he was
going to blackball Replogle.25
The General Counsel has made out a strong prima
facie showing sufficient to support the inference that
protected conduct was a motivating factor in the Re-
spondent's decision to discharge Replogle. The next
question to be considered is whether the Respondent has
met its burden of demonstrating that Replogle's termina-
tion would have taken place even in the absence of his
union activity. The Respondent has established that Re-
plogle, an employee who worked for the Scotch & Sir-
loin for less than 2-1/2 months, was a poor employee. It
has also been shown that on two occasions before the in-
cident that occurred on November 11 Font had seen Re-
plogle serve drinks without immediately ringing them up
on the cash register and had informed Replogle that that
was against company policy. On November 11 Font
once again saw Replogle serve a drink without ringing it
up on the cash register. Replogle was fired shortly there-
after. Font contends that it was Replogle's conduct as a
bartender which caused the discharge and that the union
activity had nothing to do with it. The evidence belies
that assertion. Before November 11 Font had twice told
Replogle about the policy of ringing up drinks. Though
it was a serious matter, there was no mention of possible
discharge for a repeat offense. On November 11 when
Font asked why Replogle had served a drink without
ringing it up, Replogle truthfully told him that the drink
was a replacement for a mistaken order. That reason
could have been easily checked by Font by his merely
asking the other bartender, Linda Miller, whether it was
true. Font had previously told Miller to watch Replogle
and apparently he trusted Miller. Miller testified that Re-
plogle was correcting a mistake on that occasion. Instead
of checking out Replogle's assertion, Font used the inci-
dent as a pretext for getting rid of a known union sympa-
thizer. He in effect admitted that to Replogle when he
ordered Replogle off the property, threatened to black-
ball him, and said that he did not have to have the Union
in his restaurant if he did not want it. Evaluating the evi-
dence as a whole, I find that the Respondent has not
demonstrated that it would have discharged Replogle
even in the absence of his union activity. The Respond-
ent has not produced evidence to balance, much less to
outweigh, the evidence produced by the General Coun-
sel. I therefore find that, by discharging Replogle, the
Respondent violated Section 8(a)(3) and (1) of the Act.
D. The Constructive Discharge of Sandra Lee Sargent
1. The sequence of events
Cocktail waitress Sandra Lee Sargent signed a union
authorization card on September 26, 1981. She attended
a number of union meetings and actively sought to orga-
nize employees at the Respondent's premises. Font knew
of her union sympathies. On October 14, 1981, he ac-
knowledged to cocktail waitress Nicely that he knew
Sargent had signed for the Union. As is set forth in detail
above, on October 10, 1981, Font began a wide scale an-
2" That threat to blackball Replogle because of his union activity con-
stituted an additional violation of Sec. 8(a)(l) of the Act.
tiunion campaign that involved numerous violations of
Section 8(a)(1) of the Act. On November 6, 1981, as part
of that campaign, he told several employees that the res-
taurant would never be a union house, that he was going
to make life miserable for employees who signed for the
Union, and that that way employees would want to quit
on their own.
From the time that Sargent began working at the res-
taurant on March 26, 1981, she had regularly worked on
Tuesdays from 5 p.m. until closing at 2 or 2:30 a.m. On
October 13, 1981, Font told her that he was rearranging
her schedule and she was not to report for work that
night. When she asked about the new schedule he told
her that he did not know. After that time she was not
scheduled for Tuesdays. Tuesdays had been a particular-
ly good day for her because she worked her area alone
and received substantial tips. Font scheduled her to work
on Thursdays. When she started to work she had made
arrangements with Font so that she would not have to
work on Thursdays. Before the change she had worked
full time on Fridays, Saturdays, and Sundays, and part
time on Mondays and Tuesdays. After the change she
worked Thursdays, Fridays, and Saturdays, and started
each of those days at a later time. When she reported to
work on Thursday, October 15, Font put her on a new
work station where there were less bar customers and
fewer tips.
On November 6 or the early morning of November 7
Font had a conversation with Sargent concerning a
bottle of champagne. That was the same day that Font
had told some other employees that he was going to
make life miserable for employees who signed with the
Union so that they would quit on their own. Font told
Sargent that she was $12 short because there was a
bottle of champagne that she had not written down. Sar-
gent had served a table three bottles of champagne and
she was not aware that a fourth bottle had been served.
Font kept personal control over the champagne bottles
and they could be served only with his permission. He
sometimes delivered champagne to tables himself. Font
told Sargent to look through the trash and find the addi-
tional bottle there. Sargent dug through the trash con-
tainer and found four bottles of champagne. Font asked
her whether she had found it and she said that she did.
He then told her that he did not like his employees steal-
ing from him. She said that he knew she did not steal
any money from him and he replied, "We know that,
don't we?" She asked him why he was doing this to her
and he replied, "Well, you should never have brought
the Union in here." She told him that everyone was in-
terested in the benefits and she was not the only one. He
then said, "You should be glad that I took you back.
Even your ex-husband didn't want you." a2 Sargent
asked Font why he was hurting her that way and he re-
plied, "I haven't even begun to hurt you yet. I can think
of ways that you haven't even dreamed of."27
26 Sometime before this event Sargent had considered leaving her em-
ployment and reconciling with her exhusband. That attempted reconcilia-
tion did not bear fruit and she returned to work.
2" These findings are based on the testimony of Sargent. Font testified
that he never told Sargent that she was responsible for bringing in the
Continued
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Font assigned Sargent to Thursday work
she began to make inquiries concerning possible employ-
ment wih other employers so that she could obtain addi-
tional hours of work. In the early morning of November
7 Sargent injured her ankle. She called in and told Font
that she would not be able to report for work on Satur-
day, November 7. However, on Monday, November 9,
1981, she began working for another employer, the
Oxnard Hilton. That involved a sitdown job so that the
injury to her ankle did not interfere with her work. Sar-
gent reported for work at the Respondent again on
Thursday, November 12. She also worked Friday, No-
vember 13. She was visibly limping but Font assigned
her to a work station where she would have stairs to
climb.
Sargent was scheduled to work for the Respondent
again on November 14. She called in to say that she was
ill and could not work. Instead she went to work on that
date for the Oxnard Hilton.
On November 14 Font was told by a customer and an
employee that Sargent was seen working at the Hilton.
He called the Hilton and learned that she was in fact
working there, but he did not speak to her. After No-
vember 14 Sargent continued to work at the Hilton. She
never spoke to a management official of the Respondent
after that time and she had no way of knowing from her
own knowledge whether or not she was scheduled to
work at the Scotch & Sirloin.
Font, in a pretrial affidavit, averred that he terminated
Sargent when he learned she was working at the Hilton.
At the trial Font testified in substance that Fridays and
Saturdays were the Scotch & Sirloin's busy periods, that
cocktail waitresses who refused to work on those days
were not allowed to remain as employees, and that, after
he found out that Sargent was working at the Hilton on
a Saturday night, he would not have permitted her to
return to work even if she had tried to do so. Font ter-
minated Sargent on November 14 in the sense that he
had made a mental determination not to accept her back
if she offered to return to work. However, there is no
indication that he did or said anything to terminate her
on that date. His intention to terminate her never ma-
tured into action because Sargent had taken another job
and never came back to work for the Respondent. She
never even made an inquiry concerning her schedule.
Her testimony clearly indicates and I find that she quit
her employment with the Respondent on November 14.
However, consideration must be given to the question of
whether or not the Respondent's illegal activity forced
Sargent to quit under circumstances that should be con-
sidered a constructive discharge.
2. Analysis and conclusions
The Wright Line analysis set forth above with relation
to the discharge of Replogle applies equally to the dis-
charge of Sargent. In addition the law relating to con-
structive discharge must also be considered.
Union and he never said that he was going to make it tougher on her.
Particularly in view of his remark to other employees on the same day
that he was going to make life miserable for union adherents so that they
would quit, I credit Sargent and do not credit Font.
The Board succinctly set forth the law relating to con-
structive discharge in Keller Mfg. Co., 237 NLRB 712,
722-723 (1978), enfd. denied in part 106 LRRM 2546
(7th Cir. 1980), which held:
Conceptually, constructive discharge occurs when
an employee quits "[because] an employer deliber-
ately makes [his or her] working conditions intoler-
able...." J. P. Stevens & Co., Inc. v. NLRB, 461
F.2d 490, 494 (C.A. 4, 1972). It becomes unlawful
when this is done because of an employee's union
activity. Id. Accordingly, when it is shown that an
employer imposed onerous working conditions on
an employee it knew had engaged in union activity,
which it reasonably should have foreseen would
induce that employee to quit, a prima facie case of
constructive discharge is established, requiring the
employer to produce evidence of legitimate motiva-
tion.
Sargent joined and actively supported the Union. Font
knew of her activity. On October 14, 1981, he acknowl-
edged to another employee that he knew Sargent signed
for the Union. Font harbored a virulent animosity
against employees who were prounion. He manifested
that animosity by engaging in the campaign of unlawful
activities set forth in detail above. On November 6 he
openly acknowledged to employees that he was going to
make life miserable for the union employees so that they
would quit. The evidence clearly establishes that that
was just what he did with regard to Sargent. Shortly
after he learned of the union activity Font began to
tinker with Sargent's work schedule so that she would
work days, hours, and stations that she found undesir-
able. On November 6, the same day he told other em-
ployees that he planned to make life so miserable for
union supporters that they would quit, he took particular
aim at Sargent. He made her dig through the trash for a
champagne bottle and accused her of stealing from him.
When she said that he knew she had not stolen, he said,
"We know that, don't we?" When she asked him why he
was doing that to her, he told her that she should never
have brought in the Union. in. He coupled that with a
personal remark about her exhusband not wanting her.
She asked why he was hurting her that way and he re-
plied, "I haven't begun to hurt you yet. I can think of
ways that you haven't even dreamed of."
Sargent looked for another job and a week after Font's
November 6 diatribe, she quit. Font literally drove her to
that action through his unlawful threats 28 and other un-
lawful conduct. I find that Sargent's cessation of employ-
ment with the Respondent on November 14, 1981, result-
ed from the Respondent's constructive discharge of
her.29 In sum, I find that the General Counsel has made
out a strong prima facie showing sufficient to support the
inference that protected conduct was a motivating factor
in the Respondent's constructive discharge of Sargent,
29 I find that in that November 6 conversation Font violated Sec.
8(a)(l) of the Act by threatening to take reprisals against Sargent because
of her union activity.
29 See C. Markus Hardware, 243 NLRB 903, 916 (1979).
446
SCOTCH & SIRLOIN RESTAURANT
that the Respondent has not demonstrated that it would
have constructively or otherwise discharged Sargent
even in the absence of her union activity, that the Re-
spondent has not produced evidence to balance, much
less to outweigh, the evidence produced by the General
Counsel, and that the Respondent violated Section
8(a)(3) and (1) of the Act by constructively discharging
Sargent.
E. The Discharge of Larry Allen Flaitz
1. The sequence of events
Flaitz was employed as a waiter by the Respondent
from March until November 1, 1981. He signed an au-
thorization card for the Union on September 26, 1981. In
addition to attending a number of union meetings, he ac-
tively solicited union support among the Respondent's
employees and he passed out union authorization cards in
the company parking lot. On October 11, 1981, Font co-
ercively interrogated Flaitz and Moraga. He asked them
why they signed for the Union. On that occasion Font
told them that the Scotch & Sirloin would never be a
union house and that he was going to have to cut their
hours if the house went union. In addition he impliedly
threatened to fire them by adding, "if you come back to
work."
In early October, which was before there was any in-
dication that Font knew of the union activity, Flaitz
asked Font whether he could have Sunday, November 1,
off for his birthday. Font agreed to the day off but said
that Flaitz should remind him of it. In mid-October
Flaitz did remind Font about his request and Font re-
plied, "You can have it, you were the ones that are dis-
pleased with me, I am not displeased with you." About a
week after that Flaitz once again reminded Font that he
would be off on November 1 and Font replied that
Flaitz could not have that day off. Flaitz said that he had
never asked for time off before and Font responded by
saying, "No, but you have done other things." Font
scheduled Flaitz to work on November 1.
On October 31, 1981, Font kept finding fault with
Flaitz. Font told Flaitz to perform busboy's duties that
Flaitz would not normally have been asked to do. When
there were no customers at Flaitz' station, Font told him
to get busy so that Flaitz went to help other waiters.
When he did that Font told him to get to his station
even though there were no customers there. After being
harassed most of the day, Flaitz told Font that he was
sick and was going home. Flaitz also said that he was so
sick that he would not be in to work the next day. Font
replied, "Well, then you don't work here anymore."3 0
Flaitz called in on November 1 and told Assistant
Manager Lynn Managos that he was sick and would not
be at work. He called again on November 2 to find out
his schedule and Managos told him that he would need a
doctor's excuse before he could come back to work. His
next scheduled day of work was on November 6. When
he reported for work that day Managos told him that
Font had said that he could not come back unless he had
a doctor's excuse. He did not have such an excuse and
sO These findings are based on the credited testimony of Flaitz.
he was not allowed to work. Flaitz admitted in his testi-
mony that he was not really sick on November 1. He
also acknowledged that he was not sick on October 31
but that he was so upset from Font's harassment that he
was too nervous to deal with the customers.
Sonya Nicely credibly testified that she overheard a
conversation between Font and Linda Miller immediate-
ly after Flaitz left the restaurant on October 31, 1981.
She averred that Font said, "Larry went home sick. He
is too sick to work but he is not too sick to go to a party
.... Well, that is one less to go." She also averred that
at that point Font started laughing.
2. Analysis and conclusions
Once again the Wright Line analysis is applicable.
Flaitz was an active union supporter and Font knew of
that support. Font harbored a virulent animosity against
union supporters and he expressed that animosity
through a number of unfair labor practices. Some of
those unfair labor practices were directed specifically
against Flaitz. On October 11 Font coercively interrogat-
ed Flaitz, threatened to reduce his hours if the house
went union, and impliedly threatened to fire him. As is
detailed above in the discussion of Sargent's discharge,
Font told employees that he was going to make life so
miserable for union adherents that they would quit. Font
constructively discharged Sargent. Before Font knew of
Flaitz' union activity he agreed to give Flaitz time off
for his birthday on November 1. After he learned of
Flaitz' union activity he reneged on that agreement and
impliedly admitted that he did so because of Flaitz'
union activity by saying, "You have done other things"
when Flaitz said that he had never asked for time off
before.s3 On October 31 Font manifested his intention to
make life so miserable that union adherents would quit
by continually harassing Flaitz to the point that Flaitz
said that he was sick and was going to leave. Flaitz also
said that he would be out sick the next day when in fact
he was not really sick. Font replied, "Well, then you
don't work here anymore." Shortly after Flaitz left, Font
laughed and told another employee that that was one less
to go. After November 1, Flaitz was not allowed to
return to work.
The General Counsel has made out a strong prima
facie showing sufficient to support the inference that
protected activity was a motivating factor in the Re-
spondent's decision to discharge Flaitz. The Respondent
did establish that Flaitz called in sick on November 1
when he was not really sick. However, Font had prom-
ised Flaitz November 1 off and then unlawfully with-
drew that promise because of Flaitz' union activity.
Font's activity in general can be fairly described as an at-
tempt to either drive union adherents into quitting or
into taking some action that could be used as a pretext
for discharge. An employer cannot unlawfully push an
employee into taking certain action and then use that
action as a basis for discharge. That is just what hap-
pened here. Evaluating the evidence as a whole, I find
S3 I find that the Respondent violated Sec. 8(aXl) and (3) of the Act
by denying Flaitz the day off because he engaged in union activity.
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent has not demonstrated that it would
have discharged Flaitz even in the absence of his union
activity. The Respondent has not produced evidence to
balance, much less to outweigh, the evidence produced
by the General Counsel. I therefore find that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging Flaitz on November 1, 1981.
F. Font's Activities at the Board-Conducted Election-
Findings and Conclusions
The election in Case 31-RC-5225 was scheduled to be
held 4:30 to 5 p.m. on December 15, 1981, at the Re-
spondent's premises.
At or about 4:30 p.m. on December 15 Sargent, Replo-
gle, and Galligos were at the Scotch & Sirloin waiting to
vote. The Board agent conducting the election told them
about the Board's challenge procedure and said that they
could vote after the other employees. About 4:45 p.m.,
while they were in the polling area waiting to vote, Font
entered the room. He told the three of them that they
had no right to be there and that if they did not leave he
would call the police and have them removed. The
Board agent then told them that it would be best if they
did leave. They left about 4:50 p.m. and did not vote.3 2
As found above the discharge of Replogle and the
constructive discharge of Sargent were unlawful. At the
time of the election they were employees and clearly
were eligible to vote. By preventing them from voting
Font not only interfered with the conduct of the election
but unlawfully interfered with rights guaranteed to em-
ployees under Section 7 of the Act. In doing so he vio-
lated Section 8(a)(1) of the Act. The situation with
regard to Ann Galligos is not quite so clear. She worked
for the Respondent as a cocktail waitress from June to
the beginning of November 1981. Before she left work
she gave Font 2 weeks' notice that she was going to take
off and go with her mother to Florida. The Respondent
certainly had the right to challenge her ballot and claim
that she was no longer an employee as of the date of the
election. The Union could have argued that she was an
employee on temporary leave of absence. That issue was
not before me. If it were it is likely that more evidence
on that subject would have been adduced. The Board
has set forth detailed procedures in its rules and regula-
tions for the resolution of challenged ballots. Font short-
circuited those procedures by preventing Galligos from
voting and threatening to call police if she stayed on the
premises to vote. He did so in the presence of other em-
ployees. I find that conduct interfered with the conduct
of the election and also violated Section 8(a)(l) of the
Act. Cf. S. S. Kresge Co., 229 NLRB 10, 15 (1977);
Grant's Home Furnishings, 229 NLRB 1305 (1977).
s3 These findings are based on the credible testimony of Replogle
which was substantially corroborated by Galligos and Sargent. Font ac-
knowledged in his testimony that he did tell the Board agent that, unless
the Board agent removed Sargent and Replogle, he would call the police.
He averred that at that time he did not know they were there to vote but
in the next breath he stated that he knew that they were not on the list of
people authorized to vote.
IV. THE REPRESENTATION CASE
Conduct that occurs between the date of filing of the
petition and the date of the election can be considered in
determining whether the election should be set aside.
Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). The
petition in Case 31-RC-5225 was filed on October 8,
1981, and the election was conducted on December 15,
1981. Between those dates the Respondent discharged
Replogle and Flaitz and constructively discharged Sar-
gent in violation of Section 8(a)(3) and (1) of the Act.
During the same time period the Respondent engaged in
a massive effort to undermine the Union through threats,
promises, and other unlawful activity that was found to
violate Section 8(a)(l) of the Act. In addition the Re-
spondent unlawfully prevented employees from voting
and threatened to call the police if prospective voters re-
mained on the premises to vote in the Board election. I
find that the Respondent's conduct interfered with the
free and untrammeled choice of the employees in the
election. Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962). I therefore recommend that the election of De-
cember 15, 1981, be set aside, that Case 31-RC-5225 be
remanded to the Regional Director, and that a new elec-
tion be directed by the Regional Director at an appropri-
ate time.3 3
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
lII, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(l) of the Act
by coercively interrogating employees concerning their
own and other employees' union activities; by promising
increased hours and other benefits to an employee to dis-
courage union activity; by threatening to discharge and
take other reprisals against employees because of their
union activities; by threatening to blackball an employee
because of his union activities; by threatening to take
action that would make union organization futile; by
threatening to make life miserable for union employees
so as to make them want to quit; by creating the impres-
sion that it was engaging in surveillance of its employees'
Is This recommendation shall not be construed as precluding the Re-
gional Director from reconsidering the challenged ballots in the light of
the finding that Larry Flaitz was discharged in violation of Sec. 8(aX3)
of the Act. If such a reconsideration results in a finding that a majority of
the employees voted for the Union, then the election will not be set aside
and the Union will be certified.
448
SCOTCH & SIRLOIN RESTAURANT
union activities; by changing the schedules of certain em-
ployees because the Union was engaging in organization-
al activity; by increasing the hours of certain employees
because of the belief that they were antiunion; by de-
creasing the hours of an employee because of the belief
that he was prounion; by denying a day off to an em-
ployee because of that employee's union activities; by
changing its policy and denying employees a free after-
shift drink and the use of the salad bar because employ-
ees engaged in union activities; and by preventing em-
ployees from voting and by threatening to call the police
if prospective voters remained on the premises to vote in
the Board-conducted election.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Replogle and Flaitz and by con-
structively discharging Sargent because of their union
activities.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. By engaging in the conduct described above the Re-
spondent has interfered with the employees' freedom of
choice in the election conducted on December 15, 1981.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act. As the Respondent has engaged in such egre-
gious and widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statuto-
ry rights, I recommend that a broad cease-and-desist
order issue. Hickmott Foods, 242 NLRB 1357 (1979); Cut-
ting, Inc., 255 NLRB 534 (1981).
Having found that the Respondent discharged Replo-
gle and Flaitz and constructively discharged Sargent in
violation of Section 8(a)(3) and (1) of the Act, I recom-
mend that the Respondent be ordered to reinstate and to
make them whole for any loss of earnings resulting from
their discharges by payment to each of them a sum of
money equal to the amount he or she normally would
have earned as wages, tips, and other benefits from the
date of his or her discharge to the date on which rein-
statement is offered, less net earnings during that period.
It is also recommended that the Respondent be ordered
to make Replogle whole for any loss he suffered due to
his reduction in hours between October 12 and Novem-
ber 11, 1981. The amount of backpay shall be computed
in the manner set forth in F. W Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed
in the manner described in Florida Steel Corp., 231
NLRB 651 (1977).34
It is further recommended that the Respondent be or-
dered to preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records nec-
essary to analyze the amount of backpay due.
3' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
On the basis of these findings of fact and conclusions
of law, and on the entire record of this case, I issue the
following recommended36
ORDER
The Respondent, M.B.K., Inc. d/b/a Scotch & Sirlon
Restaurant, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging, constructively discharging, or other-
wise discriminating against any employee for engaging in
activity on behalf of Culinary Alliance & Bartenders
Local No. 498, Hotel and Restaurant Employees and
Bartenders International Alliance, AFL-CIO, or any
other union.
(b) Coercively interrogating employees concerning
their own or other employees' union activities; promising
increased hours or other benefits to employees to dis-
courage union activities; threatening to discharge or take
other reprisals against employees because of their union
activities; threatening to blackball employees because of
their union activities; threatening to take action that
would make union organization futile; threatening to
make life miserable for union employees so as to make
them want to quit; creating the impression that it is en-
gaging in surveillance of its employees' union activities;
changing the schedules of employees because a union en-
gages in organizational activity; increasing the hours of
employees because it believes that they are antiunion; de-
creasing the hours of employees because it believes that
they are prounion; denying time off to employees be-
cause of their union activities; changing its policy and
denying employees a free aftershift drink and the use of
the salad bar because employees engage in union activi-
ties; or preventing employees from voting or threatening
to call the police if prospective voters remain on its
premises to vote in a Board election.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights under the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer D. Wesley Replogle, Larry Allen Flaitz, and
Sandra Lee Sargent full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
other rights and privileges and make them whole, with
interest, for lost earnings in the manner set forth in the
section of this decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
as If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Expunge from its files any reference to the dis-
charges of Replogle and Flaitz and the constructive dis-
charge of Sargent and notify them in writing that that
has been done and that evidence of those unlawful dis-
charges will not be used as a basis for future personnel
action against them.
(d) Post at its Ventura, California place of business
copies of the attached notice marked "Appendix."3
6
Copies of the notice, on forms provided by the Regional
Director for Region 31, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the election conducted
on December 15, 1981, in Case 31-RC-5225 be set aside,
that that case be remanded to the Regional Director for
Region 31, and that a new election be directed by the
Regional Director at an appropriate time.
a6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
450