The Catalyst

National Labor Relations Board - Board Decisions

Jun 21, 1977

230 N.L.R.B. 355 (N.L.R.B. 1977)

THE CATALYST
Randall P. Kane, Inc., d/b/a The Catalyst and Hotel,
Motel, Restaurant Employees & Bartenders Inter-
national Union Local 483. Case 20-CA-11333
June 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On March 15, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel submit-
ted his brief in support of that decision.
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,1 and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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, Randall P. Kane,
Inc., d/b/a The Catalyst, Santa Cruz, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We affirm the Administrative Law Judge's finding that Respondent
should be required to bargain, but modify the date of the bargaining order
to the date of demand, April 19, 1976, rather than the date Respondent
began its unlawful course of conduct, April 5, 1976, since all the violations
committed prior to that date are otherwise remedied by our adoption of the
Administrative Law Judge's Order. Trading Port, Inc., 219 NLRB 298
(1975). Chairman Fanning agrees with this result for the reasons set forth in
his concurrence in Beasley Energy, Inc.. d/b/a Peaker Run Coal Company,
Ohio Division #1, 228 NLRB 93 (1977).
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Santa Cruz, California, on January
10, 11, 12, and 18, 1977. The charge was filed on April 19,
1976, and amended on May 17 and 25 and June 1, by
Hotel, Motel, Restaurant Employees & Bartenders Inter-
national Union Local 483 (Union). The complaint issued
230 NLRB No. 54
on August 19 was amended during the hearing and alleges
violations by Randall P. Kane, Inc., d/b/a The Catalyst
(Respondent), of Section 8(aX)(1), (3), and (5) of the
National Labor Relations Act (Act), as amended.
The parties were permitted during the hearing to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Posttrial briefs were filed by
the General Counsel, by Respondent, and by the Union.
I. ISSUES
The issues are whether Respondent:
1. By admitted Supervisor/Agent DePew (Eddie)
McShan and alleged Supervisor/Agent Robert Widin,
made various statements in April and May 1976 that were
violative of Section 8(a)(1).
2. Discharged Tony Rice and Peter Puhl on April 14,
1976; and, if so, whether those discharges violated Section
8(aX3) and (1).
3. Violated Section 8(aX3) and (1) by its discharge of
Peter Puhl on May 5, 1976.
4. Violated Section 8(aX)(5) and (1) by refusing to
recognize the Union as the bargaining agent of its
employees.
n. JURISDICTION
Respondent is a California corporation engaged in the
operation of a bar and restaurant in Santa Cruz. Its annual
gross income exceeds $500,000, and it annually purchases
directly from out of State goods and materials valued in
excess of $10,000. It is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
m. LABOR ORGANIZATION
The Union is an organization in which employees
participate and which exists for the purpose of representing
employees in collective bargaining with employers con-
cerning terms and conditions of employment. It is a labor
organization within the meaning of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The events in question occurred during the "shakedown"
period following Respondent's move to new and larger
quarters. The new place opened for business on St.
Patrick's Day, March 17, 1976. About 86 employees were
employed at relevant times in the performance of the
various services that go with a bar/restaurant/live-enter-
tainment operation.
In late March, one of the employees, alleged discrimina-
tee Tony Rice, inquired of an official of the Union about
union representation; and, on April 1, Rice and alleged
discriminatee Peter Puhl, along with coworker Jack
Ryerson and a couple former employees, met with Robert
Gamberg, the Union's business manager, to pursue the
matter. Gamberg provided Rice, Puhl, and Ryerson with
blank union pledge cards and instructed them to solicit the
signatures of their fellow employees.
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some 51 employees signed cards between April I and
13.1 On April 19, Gamberg sent a letter to Randall Kane,
Respondent's president and owner, asserting that the
Union "represents a majority of the employees working in
your establishment," and "requesting a meeting to negoti-
ate a collective bargaining agreement." Gamberg's letter
closed by asking that Kane contact him "to arrange a
mutually convenient time and place to meet." Kane did not
reply.
B. The Alleged Independent Violations of Section
8(a)(1)
1. The first and second allegations
Paragraphs 6(a), 6(b), and 12 of the complaint allege
that, on April 5, DePew (Eddie) McShan, Respondent's
general manager, "threatened employees with discharge of
fellow employees because of their support for the Union,"
and "created the impression that employees' union activi-
ties were under surveillance by telling them that Respon-
dent was aware of their union activities," thereby violating
Section 8(a)(X) in each respect.
Facts: The aforementioned Peter Puhl was responsible
for customer admissions the night of April 4-5. After
closing, McShan commented to Puhl that there was a
discrepancy of about 200 between those admitted that
night and the number of admissions recorded by the
counting device Puhl had used. McShan stressed the need
to comply with fire code restrictions on crowd size; and
reminded Puhl that, because of the high cost of acts being
booked into the new place, Respondent had abandoned its
former policy of permitting each employee to invite one
guest to the shows free of the cover charge.
Thinking that McShan was "questioning my integrity,"
Puhl took umbrage. The conversation became heated. Puhl
attacked the new policy on guests as well as the general
erosion of employee rights since the move. This prompted
McShan, as Puhl recalled, to say something about Puhl's
"going around and unionizing the busboys." McShan
added, according to Puhl, that the employees did not need
a union and Puhl disagreed, saying that they did not even
get overtime pay. Puhl's version continued that McShan
presently said:
We'll fire all the busboys and hire Mexicans and
Filipinos and they can work for $1.30 an hour and do
twice the work.
Frank Ryerson, also previously mentioned, testified of a
conversation with McShan during the first week in April in
which McShan mentioned that Puhl has "been trying to
organize the busboys."
McShan did not address himself, in his testimony, to the
comments attributed to him by Puhl and Ryerson about
Puhl's organizing the busboys. Concerning the alleged
discharge threat, McShan testified that he stated to Puhl
and two others, in a moment of frustration over their lack
of industry:
I The manner in which the signatures were solicited is described later.
2 Par. 6(d) was withdrawn by the General Counsel; and par. 6(e) was
dismissed, without objection, for want of supporting evidence.
All you overeducated honkies back in here think you
are working and don't know what work is. I can go over
there into Mexico and get a bunch of wetbacks and
[sic] don't know nothing and in two days I'll teach
them how to run this place and one of them will be
worth three of you.
According to McShan, this was not part of his conversation
with Puhl after closing on April 5.
Puhl and Ryerson are credited, there being no denial,
that McShan made the references to Puhl's organizational
activities. And Puhl is credited that McShan's statement
about bringing in Mexicans occurred during that portion of
their April 5 discussion concerning Puhl's organizational
activities and related matters. Although both impressed me
as generally conscientious witnesses, Puhl's recall was more
impressive than McShan's.
Conclusions: It is concluded that McShan's comments
about Puhl's organizational activities imparted an impres-
sion of surveillance as alleged, violating Section 8(aX)(). It
is further concluded that either version of McShan's
remark about bringing in foreigners, while probably not
intended or construed to be a literal threat of discharge as
alleged, nevertheless carried an intimidating thrust in the
context made, thereby violating Section 8(aX 1).
2. The third allegation
Paragraphs 6(c) and 12 of the complaint allege that,
between April 5 and 13, McShan "interrogated employees
about their union activities," thereby violating Section
8(aXl).
Facts: McShan testified that, sometime after the organi-
zational onset, he asked an employee, Kevin Samuels, if he
had signed a union card, and Samuels refused to answer.
McShan elaborated that his children and Samuels are
friends; that Samuels frequently was in the McShan home
as a consequence; and that he, McShan, could not recall if
this interrogation occurred at work or in the home.
Conclusion: It is concluded that McShan's questioning of
Samuels, regardless of where it happened and of the
informality that may have obtained because of Samuels'
friendship with the family, violated Section 8(aXl) as
alleged.
3. The fourth and eighth allegations
Paragraphs 6(f),2 6(j),3 and 12 of the complaint allege
that, in April and May, Robert Widin "interrogated
employees about their union activities," and "threatened
employees with cessation of operations if the employees
selected the Union as their collective-bargaining represen-
tative," thereby violating Section 8(aXl) in each respect.
Facts: David Henderson testified that, shortly before a
union meeting in May, Widin asked him if he planned to
attend; and that, later in the conversation, Widin stated
that Kane "would just as soon shut the place down than
have a union."
Widin admitted, in his testimony, that he asked several
of the employees about a union meeting to be held at
3 Errors in the transcript have been noted and corrected.
356
THE CATALYST
McGuire's Tavern in May, adding that he even tried to
attend, but was refused admission. He wished to attend, he
claimed, "because I was prounion and I was curious as to
what was going on." Concerning the conversation of which
Henderson testified, Widin testified that he commented on
the good and bad of union representation in response to
questions by Henderson. Widin denied ever raising the
prospect of Kane's shutting the place down.
The only significant variance between Henderson and
Widin concerns the alleged shutdown remark. Widin is
credited that he said nothing of the sort. Had he been
inclined to such comments, it would seem likely that he
would have made them to others than Henderson, and
there is no testimony that he did. Beyond that, while Widin
did not seem overly committed to the truth, especially in
testimony going to his supervisory status, his overall
demeanor was more favorable than Henderson's.
Conclusions: It is concluded that Widin's queries about
the union meeting violated Section 8(aXI) as alleged.4
There being no credited evidence, however, that he
mentioned the possibility of a shutdown, the allegation that
he thereby violated Section 8(aX1) is without merit.
4. The fifth allegation
Paragraphs 6(g) and 12 of the complaint allege that, on
or about April 14, McShan "threatened employees by
stating it [Respondent] would not rehire its employees
described in Paragraph VII below [alleged discriminatees
Rice and Puhl] unless they abandoned their support of the
Union," thereby violating Section 8(aX1).
Facts: On April 23-some 9 days after his alleged
discharge-Rice delivered a document to McShan setting
forth Rice's idea of changes Respondent should make to
"eliminate a lot of problems giving rise to dissatisfaction in
the work force." The document proposed, among other
things, that a new job description be created for Rice, and
that he receive an hourly wage of $3.50.
Upon leaving the document with McShan, Rice said he
would not return to work until his demands were met.
McShan replied that he had no authority in that regard;
that it was up to Kane. McShan then suggested that Rice
come back and, after the "bugs" had been worked out of
the new operation, "then we'll work out all these things."
McShan continued, as reported in his pretrial affidavit:
4 The complaint alleges and the answer denies that Widin at relevant
times was a supervisor and/or agent of Respondent. Widin's primary
occupation is as a property man for Paramount Pictures in Hollywood. For
some 7 years, however, between assignments at Paramount. he has worked
for Respondent. Thus, from early April through late May 1976, while
waiting for production of a television series, "Serpico," to begin, he worked
for Respondent. He was in charge of the busboys on the day shift during
that time, and "did a little of everything"-bussed tables, put stock away,
tended bar, even washed dishes once in a while. Kane testified that Widin
was responsible for seeing "that the busboys performed all their duties";
that Widin was empowered to make employees remain on a job until it was
finished: and that he had the authority to recommend hiring and firing.
Kane's pretrail affidavit states, moreover, that Widin himself could hire and
fire. Concerning hiring and firing, however, Kane testified that all the
employees had the same authority. Widin testified that he had authority to
tell employees to take baths and what clothes to wear; and his pretrial
affidavit likewise states that he could hire and fire. Widin testified, much as
Kane had in that regard, that he had no more authority "than any other old
I told Rice that if they will drop the union, stop playing
dirty pool, nothing would come of it. They could come
back to work, no one would be fired, there would be no
reprimands. And if the employees wanted an in-house
association, they could have it.
McShan adopted this passage in his testimony, clarifying
that the "they" he referred to was Rice. He could not have
been referring to Puhl, for Puhl was working regularly for
Respondent at the time.5
Conclusions: The overall context of the conversation,
coupled with McShan's seeming insensitivity to verbal
nuance, indicates that it was not his intent to condition
Rice's job status upon dropping the Union, but rather to
assure him that he was welcome to return; that there would
be no reprisals; and that the causes of his dissatisfaction
would be dealt with as circumstances permitted. Even so,
McShan must be held accountable for the literal meaning
of his words, as opposed to his intent, which can fairly be
read as commingling unlawful conditions, threats, and
promises. Respondent therefore violated Section 8(aXI) as
concerns this conduct. 6
5. The sixth allegation
Paragraphs 6(h) and 12 of the complaint allege that, on
or about April 15, McShan "threatened employees with
loss of economic benefits and more onerous working
conditions if employees selected the Union as their
collective-bargaining representative," thereby violating
Section 8(aX)(1).
Facts: McShan admitted in his testimony that David
Henderson and two other employees asked him what he
thought would happen if the Union got in; and that he
replied that "there would be dress codes, rules and
regulations, and everything to go by," that the employees
would be making less than the minimum wage after paying
union dues and for their food, and that the employees
might lose such benefits as free food and drinks.
Conclusion: McShan's remarks must be regarded as more
in the nature of retaliatory threats than good-faith
predictions of the likely result of bargaining, and therefore
violated Section 8(aX)(1) as alleged.
employee." Allowing for a considerable degree of unconventionality in the
way Respondent runs its business, this testimony is rejected as patently
absurd. Indicative that Widin had power to fire, he gave Robert Lie an
ultimatum to improve his personal cleanliness within a week or be fired,
prompting Lie to quit. Kane testified that he had no recall of directing
Widin to do this; and Widin testified: "I did it on my own." It is concluded,
weighing all the evidence, that Widin was a statutory supervisor.
s McShan is credited that the conversation was substantially as related
herein. Rice, interestingly, denied that McShan made the assertions on
which the allegation of violation is based, also denying that he placed
conditions upon his return to work. McShan, as previously noted, came
across as a conscientious, if sometimes imprecise, witness, while Rice
seemed inclined to tailor with an eye to the eventual outcome of the case.
6 Although Rice's employment relationship with Respondent arguably
had ceased by the time this incident occurred, he remained an "employee"
within Secs. 2(3) and 8(a)(1) of the Act. Little Rock Crate & Basket Co., 227
NLRB 1406(1977).
357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The seventh allegation
Paragraphs 6(i) and 12 of the complaint allege that, on
various dates in April and May, Widin "threatened
employees with loss of economic benefits and more
onerous working conditions if employees selected the
Union as their collective-bargaining representative," there-
by violating Section 8(a)(1).
Facts: Frank Ryerson testified that Widin invited him to
the Oak Room Tavern for drinks on April 30, 7 whereupon
Widin raised the subject of unions. Widin stated, according
to Ryerson, that unions in general are "very good," but
that the Union "was really a bad union." Widin added, as
Ryerson recalled, that, should the Union get in, Kane
could make the employees get haircuts and wear suits,
could impose "horrible" work schedules, could eliminate
the employees' free-food privileges, and could require the
employees to pay for every drinking glass that was broken.
Finally, Ryerson testified, Widin said that everyone but the
bartenders would get less money than before. s
Another employee, Lawrence Montoya, testified of three
conversations with Widin in May, all "basically the same,"
in which Widin said it would "be hell" when the Union got
in-there would be less wages for more work, a dress code
would be imposed, and haircuts would be required.
Concerning the Ryerson conversation, Widin testified
that his remarks were in response to Ryerson's asking his
opinion about unions, and that "I told him a lot of what I
thought were good things about unions and what I thought
were bad things as far as The Catalyst goes .... " Widin
assertedly told Ryerson that, if Respondent's employees
had union representation, it was his opinion "that wages
would increase, that maybe, maybe not we would get
health and welfare. .... I said you don't get anything until
you sit down and talk to these guys. You don't know what
you are going to get ... ."
Widin further told Ryerson, according to his testimony,
that the advent of a union "could make things unpleasant";
that it would not mean that Kane "can't place people
where he wants" concerning scheduling and assignments;
and that it "would tend to impersonalize it [The Catalyst],
take away a lot of liberties, a lot of little things that you can
do there that you can't get away with at most jobs .... "
Widin denied saying wages would be less.
Widin could recall only one conversation with Montoya,
testifying that his comments on that occasion also were in
answer to being asked his opinion of unions and what it
was like to work in a union shop. 9 He reputedly stated that
a union "would depersonalize" The Catalyst and cause a
loss of "personal liberties," such as being able to call in on
short notice that one would miss a few days' work; that
wages would go up; that Kane "could possibly put a dress
code into effect"; that the hours of some of the employees
might be cut back; and that, if any of the employees should
be laid off, the Union was not likely to be of help in
locating new work for them. Widin testified that he
qualified his opinions by saying no one could be sure what
I Ryerson placed this conversation on the night of the Ali-Jimmy Young
prizefight. The San Francisco Public Library advises that the fight was on
April 30.
8 Ryerson was a bartender.
9 Widin intimated in his testimony that the employees viewed him as
might happen- "these things could happen when we sit
down and bargain." He denied telling Montoya there
would be less wages for more work.
The chief difference between Widin's testimony and that
of Ryerson and Montoya is that he would have it that he
couched the possible changes in terms of the bargaining
process, while their versions make no mention of this
qualification. Their testimony, in addition, attributes to
Widin the prospect of reduced wages, and he denied saying
that. Although conveying the impression of high compe-
tence, Widin seemed at times to be using his talents to
conceal rather than reveal the truth. This was particularly
shown by the farfetched character of some of his assertions
relating to his supervisory status, previously mentioned.
Ryerson and Montoya, on the other hand, impressed me as
being both reasonably capable and reasonably conscien-
tious witnesses. They are credited in those instances that
their testimony disagrees with Widin's.
Conclusion: It is concluded that Widin's remarks to
Ryerson and Montoya about the adverse consequences of
union representation were more in the nature of retaliatory
threats than good-faith predictions of what bargaining
might bring, and thus violated Section 8(aXl1) as alleged.
7. The ninth allegation
Paragraphs 6(k) and 12 of the complaint allege that, on
or about May 22, McShan "threatened employees that
Respondent would seek to terminate unemployment
benefits of former employees because of their activities in
support of the Union," thereby violating Section 8(aXl).
Facts: Ryerson testified that, in late May as they were
leaving work, he asked McShan why Respondent had
reported to the state agency handling unemployment
compensation that a former employee, Richard Webb, had
quit instead of the fact that he had been laid off. McShan
replied, according to Ryerson, that Webb had been
"behind the Union"; lo and that, if "they play dirty,"
Respondent would use "every dirty trick in the book."
David Henderson testified that, sometime in May,
McShan told him that, if the union campaign continued, he
was going to see to it that Peter Puhl, Larry Montoya, and
Webb were jailed for welfare fraud.
McShan's version of the Ryerson conversation, which he
placed in April, is that Ryerson complained to him that
Kane was "playing politics" against Webb by opposing a
13-week extension of Webb's unemployment benefits; and
that McShan countered that Kane could have done much
worse than that by Webb had he "wanted to play dirty."
McShan denied the remarks attributed to him by Hender-
son.
As is mentioned elsewhere in this Decision, McShan
comported himself credibly on the witness stand, readily
admitting some instances of misconduct. Henderson, as
earlier noted, was not notably impressive in demeanor, and
Ryerson's testimony just related suggests that he miscon-
something of an expert on union representation by virtue of his being
represented by a union in his employment with Paramount.
1' Although not on the payroll at the time, Webb attended the April I
meeting--in fact, provided the facility where it was held-that marked the
organizational onset.
358
THE CATALYST
strued McShan's reference to playing dirty. McShan is
credited in all respects concerning this allegation.
Conclusion: The testimonial base having been discredit-
ed, this allegation is without merit.
C. The Alleged Violations of Section 8(a)(3)
I. Facts
The alleged April 14 discharges of Rice and Puhl. Rice was
hired in August 1975. He began as a busboy, later doing
occasional bartending. When Respondent moved to the
present location in mid-March 1976, Rice was installed as a
barboy. On the second night, professedly "tired of the bar
politics," he asked McShan to switch him to security. His
request was granted, and Rice thereafter did such things as
maintain order on the dance floor, check ID cards to
protect against the infiltration of minors, etc. In the last
several days of his employment, he mainly checked hand
stamps at the door to the dancing area so that no one
escaped the cover charge.
Puhl was hired in June 1974. At the present location, he
was a combination doorman/floorman, collecting cover
charges, checking ID's, wiping tables, bouncing, etc.
The events in question began to unfold after the 1:30
a.m. closing on the night of April 13-14, 1976. One of the
employees, Scott Garvin, informed Kane that Rice and
Puhl "want to start a union." Garvin then sought out Rice
and Puhl, who had just walked out the door, suggesting
that they speak with Kane about the union situation.
Garvin evidently undertook this without suggestion from
Kane." As earlier indicated, and as will be more fully
detailed later in this Decision, Rice and Puhl were among
those to meet with the Union's Gamberg on April 1, and
since had been active in seeking employee signatures on
union cards.
Rice and Puhl reentered the premises and went to see
Kane, only to be told by him that he did not want a
"confrontation" that night. It was decided that they instead
should meet at 9 o'clock that same morning, and Rice and
Puhl again began to leave. They had not gone far, however,
when Garvin caught up with them and said that Kane had
decided to see them than, after all.
The two returned to Kane, who was standing at the bar.
Garvin stood perhaps 5 feet away during the ensuing
conversation, and several other employees were in the
general area. Kane had had about eight bottles of beer that
evening, which he termed "an occupational hazard if you
are a saloon keeper." Kane shook hands with Rice and
Puhl and asked where they wanted to begin. Rice
responded that there was much employee discontent over
"certain inequities" as between the bartenders and the
busboys. He elaborated that, while the bartenders were
" Garvin testified: "I was really feeling upset because a lot of the
employees ... were not getting along with each other... I thought I was
being a mediator or something."
12 This is a selective adoption of the testimony of Rice, Puhl, Kane, and
Garvin. According to Rice and Puhl, Kane further stated, at the end of the
conversation, that they should get a lawyer and sue him. Kane denied
inviting them to sue him, and Garvin testified that there was no such
mention. Garvin admittedly was not sure of all the details of the
conversation because of the passage of time; and it was obvious, apart from
the difficulties inherent in recalling the precise verbiage of an emotionally
allowed to drink "as much as they pleased" without paying,
the busboys had not been permitted, since the move, to
have free beer or to invite their friends into the dancing
area free of the cover charge. Rice continued that the
employees "needed some kind of an organization to be
able to ... deal with grievances and things like this," and
that the Union "would get the whole trip together."
At or about that point, Kane asked what was in the
Union's contract. Rice answered that he was not qualified
to say, but that he knew there was provision for health
insurance. Kane asked where he was "supposed to get the
f-g money" for that, and Rice opined that "half comes
from the union and half from the employer." Rice added
that Kane was "probably getting ripped off"--i.e., being
stolen from-by the bartenders, and that more money
would be available "to pay the people on the bottom" if
Kane "tightened up his act at the top." Rice proposed that
Kane hire a certified public accountant to audit the bar
operation, to which Kane asked if he had any idea how
much CPA's charge after midnight.
Kane asked at length if Rice and Puhl believed that "all
that glitters is gold"; adding that he had built the new place
for fun, as a "toy," not for commerce. Rice responded with
some vague reference to Federal laws; and Kane, admit-
tedly "agitated and exasperated," shouted that they were
"morons and imbeciles," without any concept of money,
and that they should "get the hell out" and go find a job, or
words to that effect. Rice and Puhl promptly left. The
exchange lasted 10 to 15 minutes.' 2
On the afternoon of the same day, April 14, John
Singleton, Respondent's counter manager and an admitted
supervisor, asked Kane if Puhl had been fired. Kane
answered in the negative, and Singleton said: "Well, he
doesn't want to come back unless he talks to you because
he is worried." 13 Kane told Singleton to tell Puhl "to come
talk with me." Singleton conveyed the good news to Puhl,
who came to see Kane later that afternoon. Kane
apologized for "blowing up last night," and assured Puhl
that his job was still there. Kane said he had always done
his best for the employees "as far as distributing the
largesse" of the business, and voiced the hope that the new
place would be a better moneymaker than the old. Puhl
said he was not so concerned about money as medical
coverage, and Kane responded that he had checked into
medical programs and found that they "weren't feasible."
The conversation closed with Puhl asking to be excused
from work that night, explaining that emotional distress
from the previous night's encounter had prevented his
getting proper rest. Kane consented. Puhl returned to work
the night of April 15, missing only the one shift, remaining
until discharged on May 5. That discharge is described
later.
charged exchange, that Rice, Puhl, and Kane were laboring under the same
disability. Regardless, Kane and Garvin are credited that Kane did not
make that particular statement. Kane especially came across as possessive of
fairly good recall and as being disinclined to partake of self-serving
falsehood. The testimony of Randolph Jamal and Thomas Schneider, called
by Respondent to corroborate Kane, is given no weight for this purpose,
neither having been near enough to effectively observe.
13 Earlier in the afternoon of April 14. Rice and Puhl had met with
Singleton to consider an inhouse union for Respondent's employees, as an
alternative to the Union.
359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on April 14, at or about noon, Rice visited McShan
in McShan's office. To Rice's question if he had been fired,
McShan answered: "I don't really know what happened
last night, but as far as I know, you're not fired." Rice
declared that he would not return under existing circum-
stances; that he wanted union representation and union
benefits, and would not return unless he got them. McShan
urged Rice to stay on the job-"we can work things out"--
and the conversation ended.14
McShan then reported to Kane that he had told Rice he
still had his job, asking if that was all right. McShan added
he did not want to lose Rice as an employee. Kane replied
that this was fine with him.
On April 16, not a normal payday, Rice called on Kane,
requesting his pay. Kane prepared a check on the unstated
assumption that Rice was signifying his intention to quit.
The attendant conversation, as Kane recalled, was "mini-
mal." 15
Rice devoted the next several days to the preparation of
a 4-page, single-spaced, typewritten document which
contained, in his words, "a list of changes that, if
implemented in The Catalyst, would eliminate a lot of
problems giving rise to dissatisfaction in the work force."
Rice delivered copies of the document to McShan on April
23, asking that McShan in turn furnish one to Kane. He
also delivered copies to various of the employees to be
affected by his proposed changes. The document proposed,
among other things, that a new job description be created
for Rice, and that he receive an hourly wage of $3.50.
Upon leaving the copies with McShan, as previously
described,16 Rice said he would not return to work until his
demands were met. McShan replied that he had no
authority in that regard; that it was up to Kane. McShan
then suggested that Rice come back and, after the "bugs"
had been worked out of the new operation, "then we'll
work out all these things." McShan continued, as reported
in his pretrial affidavit:
I told Rice that if they will drop the union, stop playing
dirty pool, nothing would come of it. They could come
back to work, no one would be fired. There would be
no reprimands. And if the employees wanted an in-
house association, they could have it.
As earlier mentioned, McShan adopted this passage in his
testimony, clarifying that the "they" he referred to was
Rice.
Rice never did return to work, and there apparently was
no further communication between him and officials of
Respondent.
The May 5 discharge of Puhl: Puhl continued on the job
until May 5, when he was discharged by Kane at the start
of his shift. Sometime before the discharge, possibly earlier
the same day, Puhl and Widin had clashed over Widin's
part in causing Robert Lie and Kevin Samuels to leave the
14 McShan is credited that Rice asked if he had been fired, and that
McShan answered in the negative. Rice testified that he could not recall
asking the question and that McShan did not-"absolutely not"-say he
still had a job. McShan, as earlier noted, was a generally credible witness.
Rice, on the other hand, gave the distinct impression of being less than
candid in the interests of enhancing his case.
1s Rice's testimony that this occurred on April 14 or 15, and that Kane
said "groovy" when Rice asked for his check is discredited. Respondent's
payroll.1 Puhl accused Widin of stabbing Lie and Samuels
in the back, and of "causing a lot of problems around
there." Widin countered that Puhl was "disrupting the
smooth flow of work" by taking busboys aside and "talking
about whatever he was talking about"; that Puhl was
"getting involved in things that didn't concern him"
regarding Widin's activities; and that "that was the kind of
attitude that he [Puhl] could lose his job over."
Widin told Kane of his quarrel with Puhl; and, when
Puhl reported for work the evening of May 5, Kane stated
to him: "Seeing how we feel about each other, let's sever
our relationship." Kane recalled explaining that he was
"really tired of his [Puhl's] interfering with the day-to-day
operations of the place . .. and of his spending all his time
talking when he was supposed to be working." The next
day, when Puhl called for further elaboration, Kane stated
that Widin had every right to fire Lie and Samuels; that he,
Kane, had become annoyed by Puhl's talking to other
employees when he and they were supposed to be working;
and that he "could not stand being vilified" by Puhl. In this
regard, Kane testified that he had reached the conclusion,
based upon reports back to him, that Puhl had been
"buttonholing employees about the union and bad-mouth-
ing" him.
2. Conclusions
The alleged April 14 discharges of Rice and Puhl: The
bedrock issue, concerning this allegation, is whether Kane
in fact discharged Rice and Puhl during the early morning
hours of April 14. It is concluded, in agreement with
Respondent, that he did not; and, therefore, that the
allegation is without merit.
True, Kane was upset by Rice's espousal of union
representation and benefits; true, he disparaged Rice and
Puhl as "morons and imbeciles"; and true, he brought the
conversation to an abrupt end by loudly ordering them to
"get the hell out" and go find a job. Kane's concluding
thrust, in particular, was arguably suggestive of an intent to
discharge. Even McShan and Singleton were prompted to
verify with Kane, later, that Rice and Puhl had not been
fired.
On the other hand, without belaboring semantics, Kane's
word selection was outside the traditional if discharge was
on his mind. It perhaps is equally arguable, then, that his
words carried no jural intendment, but simply were the
cloudburst of a mercurial person, brought on by the
frustrations of the moment in combination with a long day
and a few beers. It is necessary, therefore, to examine the
surrounding events to divine Kane's true meaning.
That examination preponderates against the General
Counsel's discharge argument. Most telling, Kane told
Puhl later on April 14, both directly and through Singleton,
that his job was still there; and Puhl remained on the job,
missing only the April 14-15 shift at his own request.
records reveal that the check issued on April 16, and Kane credibly testified
that "groovy" is "not part of my vocabulary."
's This incident, described above in Sec. IV, B, 4, in the 8(aXl) context,
conflicts in testimony then being resolved in favor of McShan.
17 Lie had quit in pique after being told by Widin that, unless he
improved his personal cleanliness within a week, he would be fired. Samuels
apparently was fired, under circumstances not revealed on the record.
360
THE CATALYST
Similarly, McShan told Rice on April 14 that, "as far as I
know, you're not fired," and later verified with Kane that
this was so.
Rice's conduct, moreover, was scarcely that of one seeing
himself as a discharge victim. He met McShan's April 14
urgings that he stay by saying he would do so only if there
were to be union representation and benefits; and he
thereafter submitted the four-page "list of changes," among
them that a new job description and wage level be
fashioned for him, conditioning his return upon the list's
implementation. This bespeaks the arrogance of one who
believed his services were coveted rather than in discard.
This is not to say that the General Counsel's entire
argument rests upon Kane's inflamed verbiage in the wee
hours of April 14. There was McShan's comment to Rice,
when Rice delivered his list on April 23, that if Rice would:
. . . drop the union, stop playing dirty pool, nothing
would come of it. They [He] could come back to work,
no one would be fired. There would be no reprimands,
and if the employees wanted an in-house association,
they could have it.
McShan's naked language certainly suggests that he was
imposing a condition upon Rice's return, which suggests in
turn that Rice had been discharged, or at least suspended.
But, as concluded earlier, supra, when evaluating this
comment as a violation of Section 8(aX)(1):
The overall context of the conversation, coupled with
McShan's seeming insensitivity to verbal nuance,
indicates that it was not his intent to condition Rice's
job status upon dropping the Union, but rather to
assure him that he was welcome to return; that there
would be no reprisals; and that the causes of his
dissatisfaction would be dealt with as circumstances
permitted.
The General Counsel next cites, as proof of discharge,
McShan's pretrial affidavit, in which it is stated at one
point: "Sometime after he was fired4 Rice told me he
thought he made a mistake in starting the union."
(Emphasis supplied.) The affidavit, however, was not
drafted by McShan, but by an agent of the NLRB, and
McShan credibly testified that he did not give it a fine-
toothed scrutiny when it was presented for signing. Beyond
that, and as mentioned above, McShan's testimony
generally revealed a certain casualness toward linguistic
precision. Finally, the imprecision in this instance, if such
was the case, may have been as much the drafter's as
McShan's. Kane's affidavit, also prepared by an agent of
the NLRB, states that Robert Lie was fired, when the
record is plainly to the contrary. McShan's affidavit, in
short, is worthy of some weight on the discharge issue, but
is anything but dispositive.
The General Counsel makes the additional argument
that Rice, at least, was discharged, as revealed by Kane's
inviting Puhl, but not Rice, to come and talk with him the
afternoon of April 14. This argument ignores that the
invitation to Puhl followed Singleton's disclosure that Puhl
Is By contending in that forum, as well as this, for instance, that the
employee had quit; or by contending that the discharge was for cause rather
than through no fault of the employee.
"doesn't want to come back unless he talks to you [Kane]
because he is worried." No similar sentiment was conveyed
on behalf of Rice.
The General Counsel also argues in his brief that
Respondent's failure to oppose Rice's application for
unemployment benefits was "a highly inconsistent position
for an employer to take with respect to an employee it
claims has quit." This is a dubious premise at best. It could
be argued with equal force that an employer, incensed to
the point of discharging a union-sympathetic employee,
would be moved by that same sense of betrayal to oppose
rather than acquiesce in the employee's claim.18 And, even
accepting the abstract validity of the premise, it does not
necessarily obtain as concerns the employer in question.
The record is replete with intimations that Kane routinely
abetted his past and present employees in their efforts to
maximize unemployment benefits, frustrate creditors, etc.
Lastly, the General Counsel argues that the "final
inconsistency in Respondent's defense to the Rice dis-
charge" is this passage from Kane's pretrial affidavit:
On the day before my conversation with Rice and Puhl,
I had already decided to terminate Rice. Rice was simply
standing in a little doorway between the two bars to
keep people from going from one bar to the other and I
decided that this job could be performed just as well by
a simple gate. [Emphasis supplied.]
Overlooking this argument's self-defeating assumption that
the presumed discharge decision derived from factors
independent of Rice's union sympathies, it fails to
acknowledge Kane's testimony during the hearing, which
put a different light on the situation:
We had Tony [Rice] guarding a little hole in the wall
and it seemed like he could be better used someplace
else. I think what I had decided to do was terminate
that job, not terminate Tony.
It is concluded that Kane's live testimony in this instance,
given under the known and orderly conditions of hearing,
is deserving of greater credence than that in his affidavit,
given under conditions unknown, especially considering
other indications, previously noted, of a possible want of
care by both the NLRB and some of the witnesses in the
preparation of affidavits.
The May 5 discharge of Puhl: That Puhl was discharged
on May 5 is uncontroverted. The question to be resolved is
why. It is concluded, in agreement with the General
Counsel, that the discharge was at least partially motivated
by Puhl's continuing union advocacy to his coworkers; and
that it therefore violated Section 8(a)3).
Kane, himself, as much as admitted the proscribed
motive, testifying that he had grown tired of Puhl's
"interfering with the day-to-day operation of the place ...
and of his spending all his time talking when he was
supposed to be working"; adding that he had determined
that the objectionable talking had consisted of Puhl's
"buttonholing employees about the union and bad-mouth-
ing" him. As the Board stated in Hambre Hombre
361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Enterprises, Inc., d/b/a Pauchito's, 228 NLRB 136 (1977),
an employee's "activity of talking about the Union during
working time" is protected, absent a valid no-solicitation
rule. Respondent had no such rule.
D. The Alleged Violation of Section 8(a)(5)
1. Facts
As previously mentioned, 51 employees signed pledge
cards between April 1 and 13; and the Union made a
written demand for recognition, which went unanswered,
on April 19. The election processes of the NLRB were at
no time invoked. Counsel stipulated that the unit never
exceeded 86 employees. 9s The cards, all identical, stated:
HOTEL, RESTAURANT EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION LOCAL #483
I, the undersigned, agree and respectively designate and
authorize Local #483 separately and/or collectively
through any of its affiliated Locals, agents or represen-
tatives to represent me, and as such representatives for
me, and in my behalf to negotiate and conclude
agreements as to hours of labor, wages and other
employment conditions.
Date
Occupation
Employer
Signature
Address City
Tel. No.
On April 2, to save the time of oral explanation, Rice
took it upon himself to draft and duplicate a written
comment, which was stapled to most of the cards thereafter
distributed. It read:
Once signed, this card gives the AFL-CIO permission
to represent you as an unorganized worker, before the
National Labor Relations Board. This does not mean
you are or have to join a union. This is only the first step
towards free and open discussion with regard to
collective bargaining between Catalyst workers and the
management.
There is absolutely no way for the owner or friends of
the management to find out who has signed one of
these authorization cards, and it is illegal for him to fire
you for doing so.
19 The complaint alleges, the answer as amended during the hearing
admits, and it is found that this is an appropriate unit for purposes of the
Act: "All employees of Respondent at its Santa Cruz restaurant, excluding
all office clerical employees, guards, and supervisors as defined in the Act."
20 Immediately after this testimony, Rice was asked by counsel for
Respondent: "And that was the sole reason that you had them sign the
cards, right?" Rice answered: 'That was the reason, yes." Earlier, Rice had
been asked by counsel for Respondent: "So, you told them that the sole
purpose of this card was so they could get enough support for an election,
right?" Rice answered: "That's about what we were trying to do, yes."
Respondent asserts in its brief, citing this testimony, that "Rice secured the
signatures of a number of employees by telling them that the sole purpose of
signing the cards was to seek an election." (Emphasis supplied.) This
interpretation is rejected. Analyzing the form of the questions and answers,
Rice at most was describing his state of mind, not what he told prospective
signers.
PLEASE FILL OUT AND RETURN IMMEDIATELY TO YOUR
UNION REP.
The solicitation of signatures was done by Puhl, Rice,
and Frank Ryerson. Union Representative Gamberg
explained on April 1, when furnishing them with blank
cards, that card solicitation was "the first step" in
organizing; that, if 30 percent of the employees signed, the
Union could petition for an NLRB election; and that, if 50
percent plus I cast ballots for the Union in the election,
collective bargaining would follow. Rice recalled Gamberg
as saying the purpose of the cards "basically ... was to get
an election."
The lion's share of the soliciting was done by Puhl. He
estimated that he obtained about 50 signatures; and that,
regardless of the presence of the stapled-on addendum
after April 1, he engaged in explanatory conversation with
all but 5 or 10 of those 50. Puhl testified that his standard
explanation took this form:
I would tell them that this is the initial step in trying to
organize a union for collective bargaining, that it's not
joining a union when you sign the card, that when a
percentage of 30 percent was reached that they would
petition for an election, that it would be held secret
ballot. In order to win the election it would take 50
percent plus one. Upon winning it then they would sit
down, the union representatives, and negotiate over a
contract ....
Similarly, Rice testified that he told prospective signers
"that we're trying to get 30 percent of the people to sign so
that we could have an election to decide whether or not we
would have union representation"; 20 and Ryerson testified
of telling would-be signers "that they were not joining a
union by signing that card, that it was leading towards an
election."
To much the same effect, five of the card signers testified
that they were told in substance, when asked to sign, that
the purpose of the cards was to give the employees a
chance to have an election to see if they wanted union
representation.2 Counsel stipulated that an additional 11
signers, identified by name, would have testified in
"substantially the same" way as these 5, if called. 22
The remaining facts pertinent to Respondent's alleged
violation of Section 8(aX5)-namely, its alleged other
violations of the Act-have been previously developed.
21 More specifically, Lee Jackson testified that Puhl told him that
"essentially what we were doing was giving our okay to an election so that
we could figure out whether or not we wanted a union"; Jonathan Eckert
testified that Puhl said "we would vote on whether we wanted to have the
union or not have the union"; Samuel Casson testified that Puhl told him
that he "needed a certain percentage of people employed at The Catalyst to
sign one of the cards, in order for there to be an election to determine
whether or not the employees wanted the union"; Terri Beaudoin testified
that Puhl said "the only thing that it [signingl pertained to is that there
would be an election as to whether or not we wanted a union"; and Sue
Phillips testified that Rice said "it would give us a chance to have an election
to see if we wanted a union."
22 This stipulation is of limited meaning inasmuch as none of the five
whose testimony was incorporated testified identically, and the testimony of
one of the five, Beaudoin, with its "only thing" reference, arguably differed
from that of the others in highly significant fashion.
362
THE CATALYST
2. Conclusions
The organizational drive began April 1. By April 13, the
Union had obtained cards signed by 51 of Respondent's 86
employees. On April 19, the Union sent a demand letter to
Respondent, which was ignored. Meanwhile, as previously
found, Respondent committed assorted violations of the
Act, beginning on April 5 and continuing into May, the
most serious being Puhl's discharge on May 5. Whether
Respondent violated Section 8(a)(5) as alleged turns, then,
on whether the Union's card majority was valid for
recognitional purposes; and, if so, whether Respondent's
misconduct impeded the NLRB's election processes to the
point that the cards are a more reliable expression of
employee sentiment. N.LRB. v. Gissel Packing Co., Inc.,
395 U.S. 575 (1969).
The majority question: Respondent contends, of course,
that the card signatures were induced by representations
that they were for the sole purpose of obtaining an
election; and, therefore, that the Union did not achieve a
valid card majority.
While the issue is hardly open and shut, this contention is
rejected. The three solicitors-Puhl, Rice, and Ryerson-
all testified in essence that they told the prospective signers
that they were trying to obtain enough signatures to enable
an election, and there can be no doubt that they were not
thinking of card recognition as an alternative to an
election. Yet, except for the testimony of one signer,23 there
is nothing to suggest that the cards were represented as
being for the sole purpose of obtaining an election, and the
cards by their terms expressly designated the Union to
represent "the undersigned" in bargaining.24
Walgreen Conpany, 221 NLRB 1096 (1975), involved
representations much like those in question, namely, that:
. . . the purpose of the card was to secure an NLRB
election, and, in the event a majority of the employees
cast ballots at that election favoring representation by
the Union, the Union would then seek to bargain
collectively with the Company .... [221 NLRB at
1102.]
Sustaining the validity of the cards in that situation, the
Board observed, at 221 NLRB 1096:
There is nothing inconsistent between obtaining
authorization cards in order to demonstrate sufficient
employee interest in representation to warrant an
election and in using the cards to demonstrate a union's
majority.
Other cases in the same genre include Levi Strauss & Co.,
172 NLRB 732 (1968), and Cumberland Shoe Corporation,
144 NLRB 1268 (1963). In Levi Strauss & Co., the Board
addressed itself to the solicitor's representation that signing
"didn't mean that we were joining the Union, that we had
our choice when the election came up." 172 NLRB 732, fn.
3. The Board, finding the cards to be valid, stated:
23 As previously related (fn. 21), Terri Beaudoin testified that Puhl told
her that "the only thing that it pertained to is that there would be an election
as to whether or not we wanted a union."
[T hat employees are told in the course of solicitation
that an election is contemplated, or that a purpose of
the card is to make an election possible, provides in our
view insufficient basis in itself for vitiating unambigu-
ously worded authorization cards on the theory of
misrepresentation. [172 NLRB at 733.]
Cumberland Shoe Corporation concerned the representation
that "a purpose of the cards was to secure a Board
election." 144 NLRB at 1269. The Board, again deeming
the cards valid, declared:
[I]t does not appear that they [the signers] were told
that this was the only purpose of the cards. In this case
the cards, on their face, explicitly authorized the Union
only to act as bargaining agent of the employees, and
· .. the failure of the Union's solicitors to affirmatively
restate this authorization does not indicate that it was
abandoned or ignored.
Yet other cases in this vein are The Great Atlantic d
Pacific Tea Company, Inc., Birmingham Division, 210
NLRB 593 (1974), in which the cards were found not to
have been invalidated by the representation that they were
to see if the employees wanted an election and "it would be
left up to the people to vote it [the union] in or out" (210
NLRB at 597); and Federal Stainless Sink Div. of Unarco
Industries, Inc., 197 NLRB 489 (1972), in which the same
result was reached concerning representations that "they
needed so many more cards before they could go ahead
and get an election," and "we need six or eight more
signatures in order for the union to hold an election." 197
NLRB at 494.
As a final piece of enlightenment in this area, there is the
Supreme Court's oft-quoted declaration in N.LRB. v.
Gissel Packing Co., supra at 395 U.S. 606-607:
[E]mployees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words
calculated to direct the signer to disregard and forget
the language above his signature. There is nothing
inconsistent in handing an employee a card that says
the signer authorizes the union to represent him and
then telling him that the card will probably be used first
to get an election.... We cannot agree . . . that
employees as a rule are too unsophisticated to be
bound by what they sign unless expressly told that their
act of signing represents something else.
To summarize, it was necessary for Respondent to prove
the invalidity of at least 8 of the Union's 51 cards to
destroy the Union's majority in the unit of 86. On the
authority just discussed, it is concluded that Respondent
did not succeed.
The reliability of the cards vis-a-vis an election: The Board
consistently has held in cases such as the present, involving
an unlawful discharge in combination with assorted
independent violations of Section 8(a)(1), that "cards
24 The addendum stapled to some of the cards, while not serving its
elucidating purpose particularly weU, cannot be said to have carried a
message at odds with that on the cards.
363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
executed by a majority of the employees . . . in favor of
the Union are a more accurate measure of the free and
uncoerced desire on the issue of representation than a[n]
. . . election would be." Hambre Hombre Enterprises, 228
NLRB 136.
The superior reliability of the cards, together with the
other requisites to an 8(a)(5) violation having been
established, Respondent perforce violated that section as
alleged. It is concluded, moreover, that the duty to
recognize arose April 5, when Respondent embarked upon
its course of unlawful conduct, even though the Union's
demand came some 2 weeks later. Jimmy Dean Meat
Company, Inc. of Texas, 227 NLRB 1012, fn. 2 (1977);
Trading Port, Inc., 219 NLRB 298, 300-301 (1975).
CONCLUSIONS OF LAW
I. By giving its employees the impression that it was
engaging in surveillance of their union activities; by
implying to its employees that they could be replaced by
Mexicans, who would do more work for less money, should
they persist in their union activities; by questioning its
employees concerning their union activities; by telling its
employees that, if they would drop the Union, nothing
would come of it, there would be no reprimands, and they
could have an inhouse association if they wanted it; and by
telling its employees that there would be a dress code,
haircut requirements, a loss of food and drink privileges,
reduced wages, and other more onerous conditions if they
chose to be represented by the Union, in April and May
1976, all as found herein, Respondent in each instance
engaged in an unfair labor practice violating Section
8(a)(1) of the Act.
2. By discharging Peter Puhl on May 5, 1976, as found
herein, Respondent engaged in an unfair labor practice
violating Section 8(a)(3) and (1) of the Act.
3. By refusing to recognize the Union as the exclusive
collective-bargaining representative of its employees in the
appropriate unit on and after April 5, 1976, as found
herein, Respondent engaged in an unfair labor practice
violating Section 8(a)(5) and (I) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not otherwise violate the Act as
alleged.
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 this recommended:
ORDER 25
The Respondent, Randall P. Kane, Inc., d/b/a The
Catalyst, Santa Cruz, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Giving its employees the impression that it is
engaging in surveillance of their union activities; implying
25 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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.
to its employees that they could be replaced by Mexicans,
who would do more work for less money, should they
persist in their union activities; questioning its employees
concerning their union activities; telling its employees that,
if they would drop the Union, nothing would come of it,
there would be no reprimands, and they could have an
inhouse association if they wanted it; or telling its
employees that there would be a dress code, haircut
requirements, a loss of food and drink privileges, reduced
wages, and other more onerous working conditions if they
chose to be represented by the Union.
(b) Discharging any employee because of his union
activity or support, or concerted activity protected by the
Act.
(c) Refusing to recognize and bargain collectively with
Hotel, Motel, Restaurant Employees & Bartenders Inter-
national Union, Local No. 483, concerning the terms and
conditions of employment of the employees in this
appropriate unit:
All employees of Respondent at its Santa Cruz
restaurant, excluding office clerical employees, guards,
and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take this affirmative action:
(a) Upon request, recognize and bargain with the
aforementioned Union as the exclusive representative of all
the employees in the appropriate unit described above and,
if an understanding is reached, embody it in a signed
document if asked to do so.
(b) Offer to Peter Puhl immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings or benefits he may have
suffered by reason of the discrimination against him,
backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Santa Cruz, California, place of business
copies of the attached notice marked "Appendix." 26
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
28 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
364
THE CATALYST
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
APPENDIX
NoTncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which we participated and had a chance
to give evidence, the National Labor Relations Board has
found that we had committed certain unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, and has ordered us to post this notice
and abide by it.
The National Labor Relations Act gives all employees
the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT give our employees the impression that
we are engaging in surveillance of their union activities;
imply to our employees that they could be replaced by
Mexicans, who would do more work for less money,
should they persist in their union activities; question
our employees concerning their union activities; tell
our employees that, if they would drop the Union,
nothing would come of it, there would be no repri-
mands, and they could have an inhouse association if
they wanted it; or tell our employees that there would
be a dress code, haircut requirements, a loss of food
and drink privileges, reduced wages, and other more
onerous working conditions if they chose to be
represented by the Union.
WE WILL NOT discharge any employee because of his
union activity or support, or concerted activity protect-
ed by the Act.
WE WILL NOT refuse to recognize and bargain
collectively with Hotel, Motel, Restaurant Employees
& Bartenders International Union, Local No. 483,
concerning the terms and conditions of employment of
the employees in this appropriate unit:
All of our employees at our Santa Cruz restau-
rant, excluding office clerical employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE WILL, upon request, recognize and bargain with
the aforementioned Union as the exclusive representa-
tive of all the employees in the appropriate unit
described above and, if an understanding is reached,
embody it in a signed document if asked to do so.
WE WILL offer to Peter Puhl immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings or benefits
he may have suffered by reason of the discrimination
against him.
RANDALL P. KANE, INC.,
D/B/A THE CATALYST
365