The Cincinnati Penthouse Club, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1967

168 N.L.R.B. 969 (N.L.R.B. 1967)

CINCINNATI PENTHOUSE CLUB 969
The Cincinnati Penthouse Club, Inc . and Gerda
Gabel. Case 9-CA-4087
December 20,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 10, 1967, Trial Examiner Melvin Pollack
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in other unfair labor
practices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief. The General Counsel filed cross-
exceptions and a supporting memorandum to which
the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
cross-exceptions, the briefs and memorandum, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
for any loss of pay suffered as a result of the dis-
crimination against them:"
Dolores Green Charlotte Grisham
Beverly Hoosier Darlene Mitchell
Wanda Schwing Darlene Klontz
Gerda Gabel Ginny Danzinger
Joyce Kneisel Patty Large
Bonnie Noel Doris Malody
Philis Meadows Mari Jane Hall
Judie Guttadauro
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was
heard at Cincinnati, Ohio, on February 20, 21, and 22,
1967, upon a complaint issued on December 23, 1966, al-
leging that Respondent, The Cincinnati Penthouse Club,
Inc., had violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. The issues presented
were whether Respondent reacted to the union and con-
certed activity of its "Bunnies" in presenting grievances
over working conditions by: (1) threats of discharge,
coercive interrogation, and a retaliatory work assign-
ment; (2) discharging Dolores Green; and (3) discharging
12 employees who struck because of the foregoing
conduct.
The General Counsel thereafter moved to amend the
complaint to add Mari Jane Hall and Judie Guttadauro as
discriminatorily discharged employees, alleging that they
had filed charges on March 29, 1967, and that investiga-
tion of these charges disclosed that they had been
discharged under the same circumstances as the 12 per-
sons named as discriminatees in the complaint. I granted
the General Counsel's motion to amend the complaint
and reopened the hearing on May 23, 1967.
Upon the entire record,' my observation of the wit-
nesses, and consideration of the briefs filed by Respond-
ent and the General Counsel, I make the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, The Cin-
cinnati Penthouse Club, Inc., Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and substitute the following
therefor:
"(a) Offer the following persons immediate rein-
statement to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, operates a
"Playboy" nightclub and restaurant in Cincinnati, Ohio,
under license from Playboy Clubs International; Inc., a
Delaware corporation. During 1965, a representative
period, Respondent's gross revenue exceeded $500,000.
During the same period, Respondent purchased over
$10,000 worth of liquor and other commodities from en-
terprises in Ohio which had received these goods from
points outside Ohio. I find, as Respondent admits, that
Respondent is engaged in commerce within the meaning
of the Act.
i Respondent's unopposed motion to correct the record is granted. A
stipulation dated April 6, 1967, between the Respondent and the General
Counsel concerning the withdrawal in December 1965 of unfair labor
practice charges filed on behalf of two discharged Bunnies is received into
evidence as TX Exh. 1.
168 NLRB No. 125
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. THE LABOR ORGANIZATION INVOLVED
Hotel & Restaurant Employees and Bartenders Inter-
national Union , AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The employees involved in this proceeding are young
women who were employed by Respondent at its
"Playboy Club" as "Bunnies ." The Bunnies , who wear
a distinctive costume , serve food and beverages , operate
the checkroom and gift shop , sell cigarettes , take photo-
graphs, and greet patrons at the door . Pursuant to a card
check conducted on December 30, 1964 , Respondent
recognized the Union as the collective-bargaining
representative of its employees , excluding supervisors,
office employees , "Key Room" employees , and conces-
sionaire employees , but including Bunnies.2 Thereupon,
a collective-bargaining agreement , effective August 1,
1964 , between the Union and the International Playboy
Club became applicable to Respondent 's operations. This
"National Agreement" contained union-security and
dues-checkoff clauses and called for the amicable settle-
ment of all disputes .3 It provided specifically as to Bun-
nies that their "complaints or grievances " should be han-
dled by an organizer designated by the Union but that the
International Playboy Club, at its option , could take
Bunny complaints up directly with the "International
Union at its Cincinnati office ." The parties agreed to sub-
mit to arbitration any dispute which they were unable to
resolve.
B. Sequence of Events
The Cincinnati Playboy Club began operations in Sep-
tember 1964 with William Scatchard as club manager and
Jeannine Van Der Veer as the Bunny supervisor ("Bunny
Mother"). Van Der Veer resigned in January 1966 and
was replaced by Karen Sunderhaus. Scatchard was trans-
ferred to the New Orleans Playboy Club in June 1966
and was succeeded as club manager by William Attick. A
number of Bunnies were dissatisfied with Sunderhaus and
on Sunday, September 18, 1966, following a wedding
reception , met at Heidi Mitchell' s house and drew up a
memorandum listing 16 "grievances" against Sun-
derhaus, including lack of punctuality, "unavailable for
bunny inspection ," changing work schedules without
notice, dismissals "without sufficient reason," and requir-
ing "uniformity [of] appearance ." Brian Hymes, a room
director and the club's day manager , was present for part
of the meeting , and helped the Bunnies with the wording
of their complaints . Of about 28 Bunnies employed at the
club, 23 signed their names to a sheet of paper attached to
the list of complaints . Heidi Mitchell mailed a copy of the
list to Head Bunny Mother Toni Roma at the Interna-
tional Playboy Club's main office in Chicago.
On Monday morning, September 19, seven Bunnies
visited the office of Waitresses ' Local 276, gave the
original list of complaints with signatures attached to Pre-
sident Smith , and requested that she and Business
Representative Rothring4 attend a Bunny meeting with
Club Manager Attick to be held on Friday, September
23.
At a so-called "Bunny council meeting" on Wed-
nesday , September 21 ,5 the four Bunnies present handed
Sunderhaus a copy of the list of complaints against her.
Sunderhaus said she would like to read the list "in her
own privacy" and the Bunnies left . Sunderhaus called
Joyce Kneisel back to her office and asked Kneisel who
had written up the complaints and where . Kneisel replied
that the girls had prepared the complaints at a meeting
while she was out of town but that she had signed the
"document" because she agreed with it. Sunderhaus
"went through a few of the different points" and asked
Kneisel if she "agreed with them ." Kneisel said she did
but added that she "really didn't want" to talk alone to
Sunderhaus and that it would be better to discuss the
matter later that week at a Bunny meeting.6
Later that Wednesday, Club Manager Attick showed
Jerry Burton, the night manager and a room director, a
copy of a letter dated September 19 and signed "A Bun-
ny" advising Attick that the movement to have Sun-
derhaus resign was the result of a meeting held by Bun-
nies Dolores Green and Heidi Mitchell but that many of
the girls had joined in only because they were afraid of
"repercussions ." Attick also showed Burton the list of
complaints handed that day to Sunderhaus and remarked
to Burton and Day Manager Brian Hymes that, if the
Bunnies wanted to act like children , he would treat them
like children and would "get them one by one," beginning
with Bunnie Carrie (Beverly Hoosier Dessauer) because
she had handed the list of complaints to Sunderhaus.7
On Friday , September 23, Attick , the Bunnies, and
Smith and Rothring of Waitresses' Local 276 met at the
club to consider the complaints against Sunderhaus. At-
tick took full responsibility for Sunderhaus' conduct and
said she "was doing what he told her tado." For example,
concerning the complaint that Sunderhaus was away too
much, he said Sunderhaus was a salaried employee
without scheduled hours, it was not the Bunnies' business
2 By Decision and Order datedJanuary 30, 1964, the Regional Director
for Region 2 included Bunnies in a Playboy Club bargaining unit of
operating employees . On February 25, 1964 , the Board denied the em-
ployer's request for review of the Regional Director 's rulings . Playboy
Club of New York, Inc., 2-RC-13026.
3 A supplementary agreement between Respondent and the Union's
Cincinnati Joint Executive Board provided that the "National Agree-
ment" would exclusively govern the Bunnies' conditions of employment
except that the Bunnies would pay initiation fees and dues to Waitresses'
Union Local No. 276 , one of the Board's five constituent unions. A
number of Bunnies employed in early 1965 were averse to joining the
Union but signed up when told they would not be paid unless they did so.
4 The Bunnies knew Mrs . Fay Rothring Bryant as Mrs. Rothring . _
5 The Bunny Mother and Bunny representatives form a council which
meets regularly to discuss work problems.
6 Sunderhaus largely corroborated Kneisel's version of the incident but
denied that she asked Kneisel for the names of the Bunnies who had
prepared the list of complaints or that Kneisel said she did not want to
discuss the complaints privately with Sunderhaus I consider that Kneisel
had the better recollection of the incident and credit her testimony.
9 Attick subsequently told Burton that he had believed that Burton was
at the meeting "at Bunny Heidi 's house on September 18, but that we
found out that it was Hymes " He said he was glad it was not Burton and
added that he "didn 't give a damn" who Burton brought to a gathering that
Attick planned at his home. Burton gathered from Attick 's remarks that
he could bring Dolores Green to the gathering notwithstanding a Playboy
rule against dating between Bunnies and room directors.
CINCINNATI PENTHOUSE CLUB 971
when she worked and her hours were "entirely up to
him." Rothring brought up some matters such as a free
meal and drink and a paid "break" on Saturday night. At-
tick said "okay" but when pressed by Dolores Green
about breaks in the "Penthouse" said the girls should
"just leave [their] customers." Attick called Sunderhaus
into the meeting after this discussion. Sunderhaus said
she would correct some matters complained about, such
as too early reporting time and "errors" in work
schedules. Attick said he would supply a spindle so that
Bunny notes to Sunderhaus would not be lost.
Attick's attitude toward their complaints reduced some
of the Bunnies to tears. After the meeting, Dolores Green
told Rothring what she had just witnessed was "ridicu-
lous," Attick had made "fools" of them, and the girls
needed stewards "for our protection." Green said she
would like to be a steward and left. Beverly Hoosier Des-
sauer, in the presence of Gerda Gabel,8 Pat Herzog, and
Heidi Mitchell, asked Rothring if "we would be allowed
to go on strike." Rothring said she could not tell them or
ask them to strike and added something to the effect that
the Union was behind them "all the way. "9
About 7 p.m., Wednesday, October 5, Club Manager
Attick called Burton into his office and said that Dolores
Green had to go because "Chicago knows that you two
are dating and I just got finished speaking with Mr. Siegel
and she has to go."1° Burton said he did not want to tell
Green that she was fired for dating him and asked Attick
if it would not "solve your problem" if he quit or resigned.
Attick replied that as general manager he could retain
"which one I feel is most valuable," that he regarded Bur-
ton as the more valuable of the two and hoped he would
not quit, "but regardless of what you do, she still has to
go." Burton remarked, "Well, I guess I don't have too
much of a choice." Attick instructed Burton to use his of-
fice to tell Green of her discharge and also to take her
home. Burton asked Attick if Green would be allowed to
work out the remainder of her checks and Attick said,
"No. She is to hand her checks in. They are to be divided.
She is to be called off the floor and she is to go back into
the Bunny room, clean out her locker, hand in her
costume, and leave by the side door without speaking to
anyone."
Burton had Green called off the floor and told her in
Attick's office that she was fired because "Mr. Attick
says that Chicago had found ou that we are dating."
Green asked if she could finish out her checks and Burton
said she was supposed to give her checks to the girls,
hand in her costume, and have him take her home. Green
asked for a few minutes and went to "the back." She
spoke to Mitchell and Gabel, cleaned out her locker, and
on her way out told Brian Hymes she had been fired. Bur-
ton took her home. Later that night, Hymes asked Attick
about Green's discharge. Attick said, "I told you to stick
around, Brian, you will see. I will get them one by one."
The next morning, Burton asked Attick why "Dolores
had to be fired, as she was ." Attick said , "That's what
Chicago told me to do." Burton said Mr. Danteit had
spoken "differently." Attick replied, "Well, Mr. Dante is
a liar and I will tell him to his face." Burton said either At-
tick or Dante was lying, he had "gone through this two
years ago,"12 he was "fed up," and he was quitting. Attick
said he thought Burton "was being used by Dolores" and
he should not quit as he had a future at the club. He of-
fered to get Green other employment, Burton said he
might be sorry tomorrow "but right now, I don't feel so."
He gave Attick his keys and walked out.
That same day, Wednesday, October 6, Attick called
Heidi Mitchell into his office. He said nothing to her until
Karen Sunderhaus came into the office about 15 minutes
later. He then said, "Heidi, I hear you do not like the way
this club is being operated. You or anyone else that don't
like it, you can just get out." Mitchell replied that she did
not like the way the club was being operated but that she
would have to be fired because she would not quit. Attick
inquired, "Do you think Dolores was fired for breaking
a rule?" He told Mitchell she had a good record but, if he
had to, he could find an excuse to get rid of any girl at the
club.13
Attick spoke to groups of Bunnies at 4 p.m. and 6 p.m.
on Friday, October 7. Attick, Sunderhaus, and about 12
Bunnies attended the 6 p . m. meeting . Attick said a Bunny
told Dante that Burton and Green were dating and that
Green had not been fired but had been asked to resign on
orders from Siegel in Chicago. He said he had learned
since the last meeting on September 23 exactly where he
stood with Chicago, that bickering and incidents like
scratching names off lockers had to stop and, if necessa-
ry, he would get the "troublemakers ... one by one." He
said it was his club, he would run it his way, and "if any of
you little broads don't like it, you can hang up your
tails."14
8 Gerda Gabel, who suffers from "stage fright," testified that Attick,
over her protest, directed her on September 26 or 27 to do show an-
nouncements "tomorrow night " Respondent's records show that Gabel
received a "merit" for announcing a show on September 21. Gabel further
testified that she spoke in a joking manner to Attick after the September
23 meeting, about failing to make her guaranteed pay for the first time in
over 2 years, and that Attick replied, "That's the first time, Gerda. The
second time you're out." Respondent's records show that Gabel received
an "extra" $5.05 on September 14 because she had earned less in tips the
preceding week than her guaranteed hourly rate.
0 I consider it improbable that Rothering promised the Bunnies union
support if they struck and do not credit the testimony of Dessauer, Gabel,
and Mitchell to this effect
10 William Siegel is the International Playboy Club's director of opera-
tions
i l John Dante is assistant to Director of Operations Siegel.
12 Following a complaint to the International Playboy Club by Cincin-
nati Bunnies in February 1965 that Burton and Green and another room
director and a Bunny were dating, Club Manager Scatchard told Bunny
Mother Van Der Veer that Burton and Green could continue to date if
they were "discreet." See section III, C, 2, infra
13 Following this episode, Sunderhaus asked Mitchell if she would like
to be a Training Bunny. Mitchell said she was "very unhappy" over the
situation at the club She told Sunderhaus about 8:30 the next night that
she would be a Training Bunny if she stayed on at the club. Sunderhaus'
offer to Mitchell was consistent with her conciliatory attitude at the Sep-
tember 23 meeting Unlike Attick, Sunderhaus did not participate in the
discharge of Green and she made no remarks indicating that she resented
the Bunnies ' complaints against her In these circumstances , I see no
merit in Respondent's contention that Mitchell's acceptance of Sun-
derhaus' offer is inconsistent with her testimony about Attick's remarks
to her and requires rejection of that uncontradicted testimony and also her
testimony concerning Attick' s similar remarks to a group of Bunnies on
October 7.
14 This summary of the 6 p.m. meeting is based on a synthesis of the
testimony of Heidi Mitchell, Gerda Gabel, Beverly Hoosier Dessauer,
and Patricia Large. The testimony of Joyce Kneisel indicates that Attick's
remarks at the 4 p.m. meeting were substantially the same as his remarks
at the 6 p.m. meeting.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the meeting, Gabel and Bonnie Noel asked
Sunderhaus to discharge the Bunny who had informed on
Burton and Green. Sunderhaus said she would do so if
they found out "for sure who it was."
In telephone conversations on Saturday, October 8,
Heidi Mitchell told Bonnie Noel and Pat Herzog she
might quit that night because she felt that Dolores Green
was discharged for instigating the complaints against Sun-
derhaus and that she was just as much an "instigator" as
Dolores. That evening, a group of Bunnies talked in the
Bunny Room before work and decided to walk out at 9
o'clock.15 About 7:30 p.m., Bonnie Noel called Dolores
Green, said the Bunnies were walking out "due to
management" but had not been able to reach the Union
and were about to go "on the floor." Noel asked Green to
try to call the Union because "we want Mrs. Rothring
here." Green said she would do so.16 Green was unable
to get in touch with Rothring.17 At 9 p.m., 12 Bunnies left
the floor, changed into street clothes, and went to Bur-
ton's apartment. Hymes,and Van Der Veer, a room
director, also walked out and joined the Bunnies at Bur-
ton's apartment. Is
By telegram dated October 9, 1966, Attick notified
each striking Bunny that she was no longer employed at
the club "because of your actions October 8."
On Monday, October 10, the strikers spoke to Rothr-
ing at the Union's office. Rothring told them they should
not have gone out on a "wildcat strike," but that she
would do everything she could to help them. She said she
had a contract to sign with the Holiday Inn but that they
should go home and she would call them later. That even-
ing, Rothring notified the strikers that "the Chicago
lawyers and the Union lawyers were going to have a con-
ference." Rothring called the strikers again the next
morning and said they could apply individually for work
at the club and world be reevaluated. The strikers refused
"to have anything to do with this." Rothring said she
would call them again but that they should not talk to the
newspapers or to "the television men," and that they
should not picket. The strikers heard nothing further from
Rothring that week and got in touch with Attorney
Stephen McMurtry, the husband of former Bunny
Mother Jeannine Van Der Veer.
On Monday, October 17, the strikers returned to the
club and asked to have their jobs back. The club's attor-
ney, Samuel M. Allen, in the presence of Attick and
Dante, said he "guessed not." That same day, the strikers
picketed with signs reading "Playboy Unfair to Bunnies,"
"Stick With Your Bunnies," "Back Your Bunny." The
picket signs stated "Waitresses Union, Local No. 276."
A handbill initially distributed by the pickets stated in
part, that "the matter [was] in the hands of the Union"
but that the club had "imported strikebreakers from other
clubs, some non-union." A second handbill stated, in
part, "We are members of a union, but regardless of this,
Playboy Clubs International imported strikebreakers
from the other Playboy Clubs."
On November 8, 1966, in reply to a letter of October
20, 1966, charging that the strike and picketing were in
breach of contract, Rothring advised Respondent's attor-
neys that the strike and picketing were contrary to the
Union's instructions, and that the Union did not intend
"to process any grievance in regard to this matter," and
had "urged the girls to reapply for their jobs in-
dividually."
C. Analysis and Conclusions
1. Interference, restraint, and coercion
Although Club Manager Attick may have belittled the
complaints against Bunny Mother Sunderhaus at the Sep-
tember 23 meeting with the Bunnies and their union
representatives, he did go over these complaints and he
also called in Sunderhaus, who agreed to make some
changes requested by the Bunnies. Attick said nothing at
this time about the Bunnies quitting if they did not like the
way the club was being run. I therefore find no merit to
the allegation in the complaint that Respondent refused
at this meeting to discuss and consider the Bunnies' com-
plaints against Sunderhaus.
Nor do I find that the record supports the allegations in
the complaint that Attick assigned Gerda Gabel to do
show announcements in retaliation for her participation
in the presentation of complaints against Sunderhaus or
that he threatened Gabel with discharge for such conduct.
The record establishes that the threat to discharge Gabel
for failing to make her guaranteed pay occurred about
September 15, and hence that it did not relate to the com-
plaints against Sunderhaus. The record also establishes
that Attick assigned show announcements to Gabel on
September 21, not after the September 23 meeting as
Gabel testified, and that the Bunny regularly assigned to
announce shows was on her honeymoon at this time. On
these facts, and the lack of evidence that Attick knew that
Gabel had "stage fright," I conclude that Attick's assign-
ment of show announcements to Gabel was not retaliato-
ry or discriminatory as alleged in the complaint.
Attick told the Bunnies on October 7 that he had
learned since their last meeting where he stood with the
International Playboy Club in Chicago, that "bickering"
and other incidents like scratching names off lockers had
to stop, and that if necessary he would get rid of
"troublemakers" one by one. He invited any Bunny who
did not like the way he ran the club to quit. I find that
these remarks - against the background of the September
23 meeting, Green's discharge, and Attick's inquiry of
Mitchell whether she thought Green was really
discharged for dating19 - contained an unlawful threat to
discharge Bunnies if they pursued their complaints
against Sunderhaus or otherwise complained about work-
ing conditions, and that Attick did not, as Respondent
contends, merely threaten to discharge Bunnies for en-
gaging "in malicious bickering and gossiping among
15 Dessauer, Gabel, Kneisel, and Large testified that they struck to get
"Chicago" to pay attention to their complaints. Mitchell testified that the
Bunnies struck because they were afraid that Attick would otherwise
discharge them one at a time as he had threatened the day before.
16 In a telephone conversation that afternoon with Gerda Gabel, Green
told Gabel please not to quit on her account. That same afternoon, Burton
called Hymes and asked him to participate in a walkout at the club that
night. Burton explained that Mitchell had told him she was going to quit
that night and said that if Hymes would "take off his coat," others would
follow him
11 Green notified President Smith of the Union on October 6 that she
had been discharged.
11 Room Director Van Der Veer is related to former Bunny Mother.le-
annine Van Der Veer.
19 As the complaint does not allege this incident as a violation of the
Act, and the incident was not so litigated, I make no finding that Attick's
remarks to Mitchell at this time were violative of the Act
CINCINNATI PENTHOUSE CLUB 973
themselves. "20 In the setting of this threat, and the unlaw-
ful discharges found below, Sunderhaus' inquiry of Joyce
Kneisel on Wednesday, September 21, as to who had
drawn up the complaints against her must be deemed
coercive.21
2. The discharge of Green
The letter of September 19 sent by "A Bunny" to Club
Manager Attick named Dolores Green and Heidi
Mitchell as the leaders behind the complaints against
Sunderhaus. Showing Burton the letter and the list of
complaints handed Sunderhaus on September 21, Attick
said to Burton and Hymes that he would get the Bunnies
"one by one." Green pressed the matter of paid Saturday
night "breaks" at the September 23 meeting after Attick
said he would take care of this and other matters men-
tioned by Business Representative Rothring. Although
Green had an outstanding work record,22 Attick ordered
Burton on October 5 to discharge her immediately and
not to permit her to finish out the evening. The Playboy
Club policy against dating of Bunnies and room directors
is ordinarily satisfied by dismissal or transfer of either
party, yet Attick told Burton that Green had to go even if
Burton resigned. That same night, Attick reminded
Hymes that he had said he would get the complaining
Bunnies "one by one." The next day, Attick asked Heidi
Mitchell if she thought Green was really fired for dating
and remarked that he could find an excuse to discharge
anyone who did not like the way he was running the
Club.23
John Dante, assistant to William Siegel, the Interna-
tional Playboy Club's director of operations, testified that
the International Club learned in February 1965 that Bur-
ton and Green were dating, that he took the matter up
with Club Manager William Scatchard, who subsequently
informed him that he had Burton's assurances that the
dating would stop. According to Dante, he did not find
out until he visited the Cincinnati Club on October 3 that
Green and Burton were still dating. 14 He ordered Attick
to discharge Green rather than Burton because he con-
sidered Burton more valuable to the club as Attick was
inexperienced. When Attick protested that Green was
one of the better Bunnies, Dante spoke to Siegel over the
telephone. Siegel agreed with Dante that Green should be
discharged.
I do not credit Dante's explanation for the discharge.
The record shows that Burton and Green's dating after
February 1965 was known to Scatchard, Attick, and Sun-
derhaus, Dante's testimony ignores the condonation by
these supervisors of this breach of the International
Club's rules against the dating of Bunnies by room
directors. It reveals no disciplinary action against them
for ignoring the dating, or for failing to notify the Interna-
tional Club of the dating. The explanation for their con-
duct is found, I believe, in the uncontradicted testimony
of former Bunny Mother Jeannine Van Der Veer that
after Scatchard had several conversations in February
1965 with Dante and Keith Hefner of the International
Club about Green and another Bunny dating room
directors, he told her "to take the pressure off the girls"
because "They're in no danger of being fired. I am going
to allow them to date as long as it is done discreetly." I
find that Scatchard took this action with the consent of
the International Club's officials and reject Dante's
testimony that he did not know until October 1966 that
Burton and Green were still dating.
In view of the foregoing, I conclude that Respondent's
purported discharge of Green for dating was a pretext and
that it discharged her for her participation in the Bunnies'
complaints over working conditions. As Union Represent-
ative Rothring and Smith participated in the September
23 meeting with Attick over the Bunnies' complaints, I
find that the Bunnies' efforts to improve working condi-
tions constituted union as well as concerted activity for
mutual aid and protection. I therefore conclude that
Respondent's discharge of Green on October 5 violated
Section 8(a)(1) and (3) of the Act.
3. The discharge of the strikers
After the meeting with Attick on `September 23, the
Bunnies asked Rothring if they could strike in support of
their complaints over working conditions. Rothring
replied in effect that she could not authorize a strike. The
record shows no further strike talk among the Bunnies
until Green's discharge on October 5 and Attick's threat
on October 7 to discharge any Bunny who did not like the
way he ran the club. On Saturday, October 8, Heidi
Mitchell told Bonnie Noel and Pat Herzog that she was
convinced by Attick's remarks that Green had been
discharged for "instigating" the complaints against Sun-
derhaus and that she felt like quitting because she was an
instigator too. That same day, Green told Gerda Gabel
not to quit on her account. That evening, Bonnie Noel
called Green to tell her the Bunnies were walking out
"due to management" and to try to get in touch with
Rothring. After they walked out, the Bunnies went to
Burton's apartment. I find from these events that the
Bunnies were convinced by Green's discharge and At-
tick's threat that they could not pursue their complaints
over working conditions without risking discharge, and
that they walked out, as several Bunnies testified, to get
the International Playboy Club to intercede and to adjust
their complaints. As Respondent's unlawful conduct was
the proximate cause of the strike, I find that the Bunnies
20 Respondent contends that any testimony concerning threats of dis-
charge by Attick at the October 7 meetings for engaging in the presenta-
tion of complaints is belied by Mitchell's subsequent acceptance of
Sunderhaus' offer of a Training Bunny position, by the request of Gabel
and Noel that Sunderhaus discharge the Bunny who had informed on
Burton and Green, and by a conversation in which Sunderhaus remarked
that the meetings seemed to have "bleared the air" and she hoped "every-
thing is settled now," and Joyce Kneisel said, "Yes, I hope so, too." As
Sunderhaus did not controvert the Bunnies' testimony on Attick's
remarks, I find no merit in Respondent 's contention See In. 13, supra.
21 Anderson Air Activities, Inc., 128 NLRB 698, 699-700, cited by
Respondent in its brief, is distinguishable, for the interrogation in that
case occurred in a noncoercive setting.
22 Green was given a free trip to Venezuela in 1965 as "Bunny of the
Year "
23 Unlike Respondent, I find nothing inherently improbable in the
testimony of Burton, Hymes, and Mitchell about their conversations with
Attick, who did not testify at the hearing. Burton's detailed testimony is
consistent with undisputed events, such as the September 19 letter to At-
tick, the list of grievances handed to Sunderhaus, the summary dismissal
of Green, and his resignation. Hymes was uncertain about dates but gave
testimony consistent with that of Burton. Mitchell's testimony ties in with
Attick's similar remarks at the October 7 meetings.
24 Dante said he was so advised by a Bunny. He could not recall who
she was.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who walked out on October 8 were unfair labor practice
strikers.
Respondent defends its discharge of, and refusal to
reinstate, the strikers on the ground that the strike was an
unprotected activity because: (1) It was in violation of the
grievance and arbitration provisions of the collective-bar-
gaining agreement applicable to the Bunnies; (2) it was a
wildcat strike; and (3) it took place at an unreasonable
time deliberately designed to inflict injury on Respondent.
The "National Agreement" applicable to the Bunnies
provides a special grievance procedure for them cul-
minating in arbitration of any dispute which the contract-
ing parties cannot settle themselves.25 Such grievance-ar-
bitration provisions constitute an implied no-strike
clause, Local 174, Teamsters v. Lucas Flour Co., 369
U.S. 95, 105. The Supreme Court has held, however, that
even an express no-strike clause does not waive the right
of employees to strike against an employer's unfair labor
practices. Mastro Plastics Corp. v. N.L.R.B., 350 U.S.
270, 281. The Board construes Mastro Plastics to immu-
nize "only strikes in protest against serious unfair labor
practices ... from general no-strike clauses." [Emphasis
supplied.] Arlan's Department Store of Michigan, Inc.,
133 NLRB 802, 807. Attick's discharge of Green for en-
gaging in a concerted protest overworking conditions and
his threat to discharge other employees for such conduct
were "among the most serious and fundamental unfair
labor practices proscribed by the Act." Ford Motor Com-
pany (Sterling Plant), 131 NLRB 1462, 1490. I find that
the walkout on October 8 was not in conflict with the im-
plied no-strike provision in the National Agreement and
did not lose its protected character.
I further find that as unfair labor practice strikers, the
Bunnies who walked out were not required to obtain prior
union authorization. See Mastro Plastics, supra, 350
U.S. 270, 273, footnote 4. I also reject Respondent's con-
tention that the walkout was unprotected because the
Bunnies acted unreasonably in striking without notice on a
Saturday evening, the busiest time of the week, Respond-
ent's reliance on Dobbs Houses, Inc. v. N.L.R.B., 325
F.2d 531 (C.A. 5), is misplaced, for that case involved an
economic rather than an unfair labor practice strike.
Moreover, the Board has rejected the Dobbs Houses
standard of "reasonableness" as declared by the Fifth
Circuit. See Plastilite Corporation, 153 NLRB 180, 185.
I therefore conclude that Respondent violated Section
8(a)(1) and (3) of the Act by discharging the Bunnies who
walked out on October 8.26
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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. Respondent violated Section 8(a)(1) of the Act by
threatening to discharge employees for engaging in a con-
certed protest over working conditions and by interrogat-
ing an employee concerning such activity.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Dolores Green on October 5, and 14
unfair labor practice strikers on October 9, 1966.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In order to remedy the unlawful discharge of Dolores
Green, I shall recommend that Respondent be ordered to
reinstate Green to her former or substantially equivalent
position of employment, without prejudice to her seniori-
ty and other rights and privileges, and make her whole for
any loss of earnings suffered as a result of Respondent's
unlawful action. I shall similarly recommend that
Respondent reinstate the 14 strikers discharged on Oc-
tober 9, and make them whole for any loss of earning suf-
fered in consequence of Respondent's refusal to reinstate
them on October 17, 1966.27 Backpay shall be computed
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289, with interest added thereon in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and pursuant to Section 10(c) of the
Act, I hereby recommend that Respondent , The Cincin-
nati Penthouse Club, Inc ., its officers , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about , and discharging
and threatening to discharge employees for, engaging in
conduct which constitutes union and concerted activity
protected by Section 7 of the Act.
(b) In any other manner interfering with , restraining,
or coercing its employees in the exercise of the right to
self-organization , to form labor organizations, to join or
assist Hotel & Restaurant Employees and Bartenders In-
ternational Union , AFL-CIO, or any other labor or-
ganization , to bargain collectively through representa-
25 The record shows that the Union invoked the arbitration provisions
with respect to two Bunnies discharged before the events in this case and
obtained reinstatement and backpay for one of them.
26 Rothring helped the Bunnies present their grievances to Attick on
September 23, pursued the question of their reinstatement after the walk-
out on October 8, and did not formally repudiate the strike and picketing
until November 8. 1 therefore find that the strike was a union as well as a
concerted activity at all relevant times.
27 Respondent contends that it properly refused to reinstate the strikers
on October 17 because their picket signs and handbills falsely represented
that the strike was supported by Waitresses' Local 276 and that the club
was operating with nonunion "strikebreakers " Respondent also claims
that the strikers told prospective customers that drinks were watered and
checks padded at the club The record does not indicate that Rothnng or
any other union representative instructed the strikers, who were members
in good standing, to delete references to the Union from their picket signs
and handbills. The characterization of replacements as "strikebreakers"
by strikers is not uncommon and the striking Bunnies ' use of this term
scarcely warrants a finding that they caused serious harm to Respondent's
reputation Respondent offered to prove by remarks allegedly made by
customers to employees that the pickets told them that drinks were
watered and checks padded at the club. I rejected the offer as it related to
hearsay testimony by employees which neither identified the customers
nor the pickets alleged to have made such remarks. I conclude that the
discharged strikers did not engage in misconduct which would warrant
withholding from them the usual remedy of reinstatement and backpay.
Respondent's refusal to reinstate the strikers on October 17 clearly en-
compassed all the strikers. Therefore, although they first requested rein-
statement through their attorney by letter dated October 19, I find that
Hall and Guttadauro are entitled to an offer of reinstatement on October
17.
CINCINNATI PENTHOUSE CLUB 975
tives of their own choosing, and to engage in any other ac-
tivity for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Reinstate and make whole Dolores Green and the
other employees named in the attached notice marked
"Appendix" in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify any of the employees if presently serving in
the Armed Forces of the United States of her rights to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(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 Recommended Order.
(d) Post at its Cincinnati, Ohio, place of business, co-
pies of the attached notice marked "Appendix."28 Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by the
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.29
28 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 9, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that :
WE WILL NOT interrogate , discharge , or threaten
to discharge employees for engaging in conduct
which constitutes union and concerted activity pro-
tected by Section 7 of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the rights to self-organization, to form labor or-
ganizations, to join or assist Hotel & Restaurant Em-
ployees and Bartenders International Union,
AFL-CIO, or any other labor organization, to bar
gain collectively through representatives of their o n
choosing, and to engage in other concerted activ ties
for the purposes of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all
such activities, except to the extent that such rights
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer the following persons immediate
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result of
the discrimination against them:
Dolores Green Charlotte Grisham
Beverly Hoosier Darlene Mitchell
Wanda Schwing Darlene Klontz
Gerda Gabel Ginny Danzinger
Joyce Kneisel Patty Large
Bonnie Noel Doris Malody
Philis Meadows Mari Jane HP"
Judie Guttadauro
Dated By
THE CINCINNATI
PENTHOUSE CLUB, INC.
(Employer)
(Representative) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3 683.