The Mandarin

National Labor Relations Board - Board Decisions

Oct 31, 1975

221 N.L.R.B. 264 (N.L.R.B. 1975)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M Restaurants, , Incorporated, d/b/a The Mandarin
'and San Francisco Local Joint Executive Board- of
Culinary Workers, Bartenders , Hotel, Motel and
Club Service t Workers, Hotel and Restaurant
Employees rand, Bartenders International . Case 20-
CA-9552
October 31, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS -
FANNING AND JENI£INS
On March 10, 1975, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the 'Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended,' the
National Labor Relations Board' has `delegated its
authority in this proceeding to a three-member panel.
The Board' has considered the record and the
attached Decision' in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended, Order, as
modified below.
For the reasons fully expressed in our dissenting
opinion in GTE Lenkurt, Incorporated, 204 NLRB
921, 922 (1973); we reverse the Administrative Law
Judge and find an additional violation of Section
8(a)(1) based-on Respondent's conduct in promulgat-
ing a rule that reads: "Solicitation on company
premises by -employees after employees' shift has
been completed is prohibited."
We note that even under the rationale advanced by
a majority of the Board in Lenkurt, the rule in the
instant case would be held unlawful. Rule D, the rule
in question in Lenkurt, did not mention employee
solicitation or distribution but rather prohibited off-
duty employees from remaining on or entering the
employer's premises for any purpose. The Board
majority underlined this aspect of rule D in distin-
guishing rule D from other rules that did mention
solicitation or distribution. The majority agreed that
the latter rules were unlawful. Continuing in this
vein, the Lenkurt majority specifically held: 3
i We note the following inadvertent error in the attached Decision,
which does not affect the conclusions reached. In the 16th sentence of sec
IV,A, par. 8, the Administrative Law Judge used the name "Chien" instead
of "Meng." This error is hereby corrected so that the sentence reads, "Meng
pointed out that this requirement placed an employee who was sick on the
job in an impossible situation"
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
221 NLRB No. 48
"... where an employer's- no-access rule is
nondiscriminatory, i.e., it denies off-duty employ-
ees access to the premises for any purpose and is
not disparately applied against union activities, it
is presumptively' valid ....[Emphasis supplied.]
The rule in the instant case was directed solely at
employee solicitation. In fact Respondent permitted
off-duty employees to wait for fellow, employees to
finish work, to pick up their paychecks on their days
off, and to return to the premises to eat with their
coworkers. Under these circumstances and particu-
larly in view of the majority's holding in I,enkurt, it is
evident that even under the standard enunciated in
that case Respondent's no-access rule is presumptive-
ly invalid and unlawful.
AMENDED CONCLUSION OF LAW
In view of the above, the Administrative Law
Judge's Conclusion of Law 3 is amended to read as
follows:
"3. By announcing and granting its employees
wage increases in order to dissuade them from
supporting the Union, by creating an impression of
surveillance of its employees ' union activities, by
promulgating or maintaining a no-solicitation rule
which prohibits employees ,from soliciting for the
Union during their nonwork time, by maintaining a
no-access rule which prohibits solicitation on compa-
ny premises by employees after their, shift has been
completed, and by promising an employee improved
employment benefits and threatening said employee
with reprisal for the purpose of discouraging the
employee from supporting the Union , the Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act."
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, as
modified below, and hereby orders that the Respon-
dent, M Restaurants, Incorporated, d/b/a The
Mandarin, San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so
modified:
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.
3 GTE Lenkurt, supra at 922. See also All-Glass Aquarium Co, Inc., 214
NLRB No. 24 (1974).
THE MANDARIN
1. Insert the following as paragraph 1(f) and
reletter the subsequent paragraph accordingly:
"(f) Maintaining any rule or regulation prohibiting
its employees from soliciting on company premises
after their shifts have been completed unless such
prohibition is demonstrably necessary to maintain
production, discipline, or security."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MURPHY, concurring:
I agree with each of the 8(a)(1) and (3) findings
made by Members Fanning and Jenkins. I disagree,
however, ' with their rationale for finding unlawful
Respondent's rule prohibiting solicitation on compa-
ny premises by employees whose shift has been
completed. Contrary to my colleagues, I do not
consider the rule in dispute to be a "no-access" rule
under the principles set forth in GTE Lenkurt,
Incorporated, 204 NLRB 921 (1973).4 In my view, the
rule is an'' unlawfully broad no-solicitation rule.
Respondent's rule provides that "Solicitation on
company premises by employees after employees'
shift has been completed is prohibited." In contrast,
the Lenkurt rule stated that "An employee is not to
enter the plant or remain on the premises unless he is
on duty or scheduled for work." The difference in
emphasis between the two rules is self-evident: the
instant rule is directly aimed at solicitation while the
Lenkurt rule is directly aimed at employees who
"enter . . . or remain on the premises ...."5
Admittedly, there is some overlapping in terms of
secondary effects. An effect of Respondent's no-
solicitation rule is to deny access to its premises to
employees whose sole reason for being there is to
solicit . Similarly, an effect of the Lenkurt no-access
rule is to prevent solicitation on company premises
by employees who are not "on duty or scheduled for
work." The fact remains, however, that the rule in
this case is first and foremost a no-solicitation rule,
and its validity should be determined in accordance
with the standards applicable to such rules 6
It is now well established that the Act guarantees to
employees the right to solicit union'' support during
nonwork time while on their employer's premises.?
Nonwork time has always been 'viewed as encom-
passing all time "outside working , hours, whether
before or after work, or during luncheon or rest
periods ...." (Emphasis supplied.8) Emplgyer rules
which infringe upon the employees' right to solicit
union support during nonwork time are presumptive-
ly invalid under Section 8(a)(1).
Respondent's rule prohibits solicitation by employ-
ees "after employees' shift has' been completed"-i.e.,
after work. By its terms, the employees are prohibited
from soliciting during such nonwork times as their
265
post-shift clean-up period (if any), as well as during
their walk through Respondent's parking lot to their
cars. In other words, the rule applies even in
situations where the employees have completed their
shifts, but are nevertheless still "lawfully and
properly on the company premises pursuant to the
work relationship." 9 The rule thus restricts union
solicitation during employee nonworking time and is
therefore presumptively invalid. Since Respondent
has not established that the rule is necessary for
purposes of production, safety, or discipline, I find
that it violates Section 8(a)(1).
4 Therefore, I need not, and do not pass on the GTE Lenkurt holding in
this case.
5 See also Westinghouse Electric Corporation, Tampa Division, 199 NLRB
783, 785, ( 1972) (Rule provided, inter alia, that `other than for work duties
.. employees will not be admitted onto the property."); Fiberfil, Division
of Dart Industries, 210 NLRB 1086 (1974) (Rule prohibited "off duty
employees from entering upon company premises.")
6 In light of this conclusion , it is unnecessary for me to determine
whether a no-access rule, in order to be valid under Lenkurt, must deny off-
duty employees access to the employer's premises for any purpose.
T Peyton Packing Co, 49 NLRB 828, 843-844 (1943), enfd. 142 F.2d 1009
(C.A. 5, 1944), cert denied 323 U.S. 730 (1944).
8 Republic Aviation Corporation v. N.LR B., 324 U.S. 793 , 803, fn 10
(1945)
9 See Diamond Shamrock Co. v. NL.RB, 443 F.2d 52 (C.A. 3, 1971).
This fact further distinguishes the rule here from the one in Lenkurt. The
Lenkurt rule applied to employees seeking to "enter the plant or remain on
the premises" when not "on duty or scheduled for work"-i.e., employees
who clearly were not "lawfully and properly on the company premises
pursuant to the work relationship." The distinction is crucial . For here the
employees ' right to self-organization is to be balanced against Respondent's
interest in' production , safety, or discipline, whereas in Lenkurt the
employees' right was balanced against the employer 's private property
rights. See GTE Lenkurt Incorporated, supra at 921.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial at which all parties were permitted to give
evidence, that we violated the National Labor
Relations Act, we have been ordered to post this
notice.
The laws of the United States give all employees
these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through represent-
atives they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any and all these things.
WE WILL NOT promise or give to 'our employees
better terms and conditions of employment to
discourage them from supporting a union.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give the impression to our
employees that we are keeping their union
activities under surveillance.
WE WILL NOT threaten our employees with
reprisals to discourage them from supporting a
union,
WE WILL NOT prohibit our employees while on
our property from soliciting for a union during
their nonworking time.
WE WILL NOT prohibit our employees from
soliciting on company premises after their shifts
have been completed unless such a prohibition is
demonstrably necessary to maintain production,
discipline, or security.
WE WILL NOT discharge our employees or
otherwise discriminate against them because they
engage in protected concerted activities or give
assistance to or join San Francisco Local Joint
Executive Board of Culinary Workers, Bar-
tenders, Hotel, Motel and Club Service Workers,
Hotel and Restaurant Employees and Bartenders
International, or any other union.
WE WILL offer to reinstate Billie Meng 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 previ-
ously enjoyed, and we will make him whole for
any loss of earnings he may have suffered as a
result of his discharge, together with 6-percent
interest per annum.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in exercis-
ing the rights guaranteed to them by the National
Labor Relations Act.
M RESTAURANTS,
INCORPORATED, D/B/A
THE MANDARIN
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO , Administrative Law Judge: The
hearing in this case held on December 17, 1974, is based on
unfair labor practice charges filed by the above-named
labor organization on September 13, 1974, and a complaint
issued on November 13, 1974, on behalf of the General
Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director of the Board,
Region 20 , alleging that M Restaurants, Incorporated,
d/b/a The Mandarin, herein called the Mandarin or
Respondent, has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act, herein called the Act. The Respon-
dent filed an answer denying the commission of the alleged
unfair labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
postheanng briefs submitted by Respondent and the
General Counsel, I make the following:
I. THE BUSINESS OF THE RESPONDENT
Respondent, M Restaurants, Incorporated, d/b/a The
Mandarin, is a California corporation with its principal
place of business located in San Francisco, California,
where it operates a restaurant and cocktail lounge. During
its fiscal year ending December 31, 1973, Respondent
received gross revenues in excess of $500,000 and made
purchases directly from outside the State of California
valued in excess of $5,000. Based on the foregoing, I find
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
San Francisco Local Joint Executive Board of Culinary
Workers, Bartenders, Hotel, Motel and Club Service
Workers, Hotel and Restaurant Employees and Bartenders
International, the Union, is admittedly a labor organiza-
tion within the meaning of Section 2(5) of the Act.'
III. THE QUESTIONS FOR DECISION
The most important question to be decided is Respon-
dent's motivation when it suspended Billie Meng. General
Counsel contends that the suspension was motivated by
Respondent's opposition to Meng's union activities and
sympathies thus violating Section 8(a)(3) and' (1) of the
Act. Alternatively, the General, Counsel urges that regard-
less of Respondent's motivation that Meng's suspension
was unlawful because he was discharged for engaging in
the type of activity protected by Section 7 of the Act.
Additionally, the General Counsel alleges that Respondent
violated Section 8(a)(1) of the Act by maintaining a written
rule prohibiting off-duty employees from engaging in
union solicitation on its premises and by conduct engaged
in by its manager, Linsan Chien. Chien is alleged to have
engaged in the following unlawful' conduct: Announced a
rule prohibiting union solicitation on the Respondent's
premises during an employee nonwork time; 'created the
impression that he was keeping the employees' union
activities under surveillance; granted the employees wage
increases to discourage them from supporting the Union;
and promised an employee improved conditions of
employment and threatened the same employee with
reprisal to discourage the employee, from supporting the
Union.
Respondent urges that the evidence is insufficient to
demonstrate that the suspension of Meng was unlawfully
motivated, rather, it takes the position that the record
proves Meng was discharged because he questioned the
judgment and challenged the authority of Manager Chien
in front of other employees. Regarding the alleged
independent violations of Section 8(a)(1) Respondent urges
that Meng was not engaged in protected concerted activity
and that its no-access rule directed against 'solicitation by
1 The term "Union," as used herein, also refers to the Union's affiliate,
Dining Room Employees Local 9.
THE MANDARIN
off-duty employees is lawful as written and that the wage
increases granted to the employees were motivated by
legitimate business reasons. Finally, Manager Chien in
effect testified that he did not engage in the other alleged
unlawful conduct attributed to him.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts in Chronology
The findings in this portion of the Decision involve
separate conversations between Manager Chien and
employee Meng on September 11, 1974,2 and employee
Hall on September 29, as well as meetings wherein Chien
spoke to groups of employees on August 24, September 7
and September 11. In certain instances the content of these
meetings and conversations, as described by Chien, who
testified for Respondent, does not jibe with the testimony
of employees Rene Hall, George Leung, Karen Wong and
Billie Meng the General Counsel's witnesses. Of the
employee witnesses, all but the alleged discriminatee,
Meng, were employed by Respondent at the time they
testified, and each one impressed me in manner and
bearing as being more trustworthy and reliable witnesses
than Manager Chien, the only witness called by Respon-
dent. This is especially true with respect to Meng who
impressed me as an honest and reliable witness. Nor was
the various testimony of the General Counsel's witnesses
concerning what took place at the various meetings,
between the employees and Chien, inherently improbable
when viewed in the light of the whole record. Accordingly,
the findings in this section are based on the stipulations of
the parties , undisputed documentary evidence, and- the
testimony of the witnesses called by the General Counsel.
Although the rejected testimony of Chien has not been set
out in detail, it has been carefully considered but I have
rejected it in -favor of testimony, which, for reasons set out
above, in my opinion, is more trustworthy and reliable.
The Mandarin during the time material to this case
employed about 46 employees: 13- waiters, 8 busboys, 14
kitchen employees, 9 hostesses, which includes a cocktail
waitress and 2 bartenders. In either 1972 or 1973 the
Union, with no success, tried to organize the employees.
The instant case arises out of the Union's most recent
organizing drive which began in July. The employee who
initiated this campaign was waiter Billie Meng, the alleged
discriminatee . Meng during the week of July 14 invited the
waiters to attend a meeting to discuss unionization and
later that same week, with two other waiters, met with a
union business agent. Thereafter Meng arranged for an
organizational meeting to be held on July 21 which was
attended by approximately 19 employees. During the
meeting Meng solicited the employees to sign union pledge
cards. The next day, July 22, the Union filed a representa-
tion petition with the Board, styled as Case 20-RC-12222,
seeking an election among a unit of Respondent's dining
room employees excluding all other employees. This
petition was amended by the Union on July 29 to expand
the voting unit to include all of the restaurant's employees
including the dining room and kitchen employees. On
2 All dates herein, unless otherwise specified refer to 1974.
3 The remarks made by Chien at the August 24 meeting are based on a
267
August 15 the Union requested that, the Board allow it to
withdraw its petition and the request was granted on
August 19. This did not end- the Union's organizational
drive for the union adherents among-the employees, which
included waiter Meng, continued to hold weekly organiza-
tional meetings at the home of employee Karen Wong, and
on September 10 the Union filed another representation
petition with the Board, styled as Case 20-RC-12335,
seeking an election among a voting unit composed of all of
the Respondent's employees.
After being notified that the Union had withdrawn its
representation petition in Case 20-RC-12222 the Respon-
dent's manager, Linsan Chien, on August 24 met with
Respondent's dining room employees and advised them
that there would be no, election since the Union had
withdrawn, its representation petition. Chien also told the
employees that Respondent was against the unionization of
the restaurant and cautioned them not to be fooled by the
Union's promises and also told them that he did not
believe a union was needed inasmuch as the employees and
Respondent could work together in harmony without a
union pointing out that employees could always discuss
their problems personally with Chien whose office was
always open to them.3 -
On Friday night, September 6, after work, a union
organizational meeting was conducted by Billie Meng at
the home of employee Karen Wong, -where Meng ex-
plained the Union's master collective-bargaining agree-
ment and solicited employees to sign union pledge cards.
Previously that evening during his working hours while he
was eating dinner Meng had asked cocktail waitress Judy
Sanders to attend this meeting. Ms. Sanders declined,
stating she had made arrangements for her husband to
drive her home immediately after work. Meng simply
answered "okay." Nevertheless, Manager Chien testified,
in effect, that later during the evening he was informed that
employee Meng and employee George Leung -had. threat-
ened Ms. Sanders. Chien testified that on September 6,
apparently after the restaurant had closed, the Respon-
dent's president, Cecilia Chiang, received a phone call at
the restaurant from Ms. Sander's husband. Chiang after
speaking to Mr. Sanders told Chien that he had told her
that his wife had been approached by employees Meng .and
Leung as she was leaving work and asked by them to
attend a meeting that night at the home of employee Karen
Wong. When Ms. Sanders explained that she could not
attend because her husband was scheduled to meet her,
Meng and Leung warned-that if she did not go to the
meeting and if the restaurant became unionized "she
[would be], kicked out of the house." Neither President
Chiang,, Mr. Sanders or Ms. ' Sanders was called on to
corroborate Chien's testimony. Meng and Leung convinc-
ingly denied that the conduct attributed to them' ever
occurred, and I find that neither one made any such threat
to Ms. Sanders. I realize that it is conceivable that Ms.
Sanders - concocted the alleged incident and using her
husband passed it along to President Chiang who, as Chien
testified, in turn passed it along to Chien. Chien however
was an extremely unimpressive witness. For this reason
composite, of the undisputed and credible testimony of employees Billie
Meng and Karen Wong.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in view of the unexplained failure of Respondent to
call President Chiang to corroborate Chien's testimony on
this matter I do not' credit Chien's version of what Chiang
told him, rather I find that Chien on the evening of
September 6 was simply informed that Meng had solicited
employee Sanders to attend a union meeting.4
The following evening, September 7, Chien called a
meeting of all the dining room employees which lasted
about 5 minutes .5 Chien reminded them that Respondent
had a no-solicitation rule which prohibited employees from
soliciting in the Mandarin regardless of whether they were
"on a shift or not," and warned the employees if they
engaged in any type of solicitation they would be
dismissed . Chien then stated that the employees were not
allowed to solicit union pledge cards in the Mandarin and
said he had been told that some of the employees were
passing out such cards in the Mandarin. If the employees
were solicited to sign a union pledge card Chien advised
them that they had the right to notify him and that he
would act in accordance with the Respondent's posted no-
solicitation rule. The no-solicitation rule mentioned by
Chien was posted on the Mandarin's bulletin board above
the employees' timeclock with certain other company rules
and had been in effect for over 2 years. The rule reads:
"Solicitation of any type by our employees during working
time is'prohibited."
The same evening he spoke to the employees about
distributing union pledge cards. Chien granted the kitchen
employees a $50-a-month salary increase retroactive to
September 1.
On September 11 waiter Billie Meng was suspended
ostensibly for misconduct engaged in during an employee
meeting called by Manager Chien on September 11 to
discuss the failure of the waiters to share their bar billtips
with Ms. Sanders, the cocktail waitress. When customers
are served drinks before dinner in the cocktail lounge they
frequently instruct Sanders to include the drinks on their
dinner bill. In view of this and to make sure that Sanders is
compensated for her service, the practice is for the waiters
when they serve such customers to give Sanders 10 percent
of the amount of the bar bill. Prior to September 10 the
waiters , at the end of the dinner shift, gave this 10 percent
to the waiters' captain, Captain Steve, who turned the
money over to Sanders. On September 10, for reasons not
relevant to this Decision, the waiters gave this money to
waiter George Leung for distribution to Sanders .6 So, when
Captain Steve came to the waiters on September 10 to
collect the bar bill money and Ms. Sanders' 10-percent
4 I do not credit Chien's further testimony that he was also informed by
Chiang that employee Leung took part in the solicitation or that the meeting
was to ' be held at the home of Wong. In his sworn affidavit given the Board
prior to this hearing Chien in his description of the information he received
from Chiang did not include the names of either Wong or Leung. Moreover,
Meng did not inform Ms . Sanders of the location of the meeting nor did
Leung ever solicit Ms. Sanders to attend this meeting or join the Union.
Under the circumstances, including Chien's poor demeanor, I find that
Chien's admission contained in his affidavit is more accurate than the
admission made during the hearing in the sense that his, pretrial affidavit
indicates that he was informed only of the union activity of Meng. Cf.
Starlite Manufacturing Co., 172 NLRB 68 (1968), and Colonial Knitting
Corp., 187 NLRB 980 (1971).
5 The description of Chien's remarks made at the September 7 meeting is
based on the credible testimony of Karen Wong which was corroborated by
the testimony of Billie Meng and George Leung. Chien testified in
share of the tip the waiters withheld Sanders' tip which
they gave to waiter Leung.? Sometime that evening
Manager Chien and President Chiang, who were out of
town, telephoned the Mandarin and Chien testified that
Captain Steve reported that the waiters had refused, to
share their tips with the cocktail waitress. Chien immedi-
ately scheduled an employee meeting for the next day,
September 11, at,5:30 p.m., the start of the dinner shift.
The meeting was held as scheduled and was attended by
the Mandarin's approximately 13 waiters and President
Chiang and Manager Chien.
Manager Chien and President Chiang spoke to the
waiters. Chien opened the meeting- stating he had been
informed that some of the waiters had refused to share
their tips with cocktail waitress Sanders. Chien asked the
person who represented the waiters to explain what had
happened. When no one replied, Chien asked waiters
"Peter" and "Brian" what they had done with Sanders'
share of the bar bill tip the previous evening. They replied
in substance that they had given the money to waiter
Leung for distribution in the same way they give him tip
money to distribute to the busboys. Chien then asked
waiter Leung about Sanders' share of the tip money and
Leung told him he had already turned over the money to
Sanders. Chien asked what would happen when Leung was
absent from work and Leung stated he would delegate the
responsibility of transmitting the cocktail waitress' and
busboys' share of the tips to another waiter. Chien stated
that this procedure was too confusing and he was
considering including a 10-percent service charge on the
customers' bills in lieu of a tip and that the service charge
would be divided among all of the Mandarin's employees.
At this point President Chiang pounded on a table and
shouted, "We don't want to do this. You force us to do
this," asked, "why are you people doing this behind our
back," and, still shouting, invited the waiters to quit their
employment with Respondent if they thought they were
being treated unfairly. At the end of this tirade, President
Chiang asked the waiters to state what the Respondent had
done -wrong and , what they considered' unfair and told
them if they had "any problem" they "could speak up."
Meng asked whether he could discuss the matter and ask
management to be fair if he felt that something was unfair.
President Chiang indicated he could speak his mind. Meng
stated. that' "for example once he had a toothache and
asked to be excused from work for a few hours so he could
go to the dentist but Manager Chien refused his request.
Chien responded that he did not know whether Meng was
substance that he reminded the employees of the existence of the posted no-
solicitation rule, told them that anyone who violated the rule would be
punished and advised them to tell him of'any such violation.'He denied
using the word "union" or that he referred to "union cards." On cross-
exammation he admitted that he described the posted rule in these terms:
"No solicitations is allowed in the restaurant.,"
6 The reasons for the change in the procedure used to,transmit Ms.
Sanders' share of the tips and particularly whether the waiters intended to
continue sharing this money in whole or in part with Sanders, are questions
irrelevant to the disposition of any issue involved in this case. This is so
because Billie Meng s, suspension admittedly was not motivated by these
events.
7 Since none of his customers had a bar bill Meng had no bar money to
give to Captain Steve. In other words, on September 10 Meng was not
obliged to share any of the tips he had received with Ms. Sanders.
THE MANDARIN
really sick and that if an employee wanted to leave work
because of sickness that the employee must have a doctor's
excuse ., Chien pointed out that this requirement placed an
employee who was sick on the job in an impossible
situation . That it was not practical for an employee to go to
the doctor's office for a note then return to the restaurant
and show the, note to Chien in order to then be excused.
Chien stated he was the manager and would decide if an
employee-was too sick to work. Then Meng mentioned that
the last time one of the hostesses, Rene Hall, had gotten
sick and missed. work that , Chien had immediately
discharged her. Chien explained that he had immediately
reinstated Hall when she had indicated she had an excuse
from the doctor. At this point President Chiang shouted,
"did you see anybody die here," and Chien told Meng,
"from this moment you are suspended." Meng-asked why
he was being suspended. Chien replied that Meng had
"interrupted the house operation." When Meng asked in
what manner he had interrupted the house operation,
Chien stated "I'm not going to tell you" and abruptly
ended the meetings
Immediately, following the conclusion of the September
11 meeting Meng went to Chien's office and asked about
the length of his suspension. Chien stated he was
suspended "until further notice." Meng asked`for a written
notice of his suspension so he would be able to collect
unemployment compensation insurance. Chien replied, "I
have no obligation to give you a written notice" and stated,
"you will be given' further notice by our' Lawyer." Chien
then concluded the conversation by'instiucting Meng to
turn in his uniforms,' unused dinner checks, and the wine
list.
On September 11, following Meng's suspension, Manag-
er Chien announced that retroactive to September 1 all of
the dining room employees' wages were increased 25-cents
per hour.
On the afternoon of September 12 Manager Chien
received a copy of an election petition filed by the Union
with the Board on September 10 in Case 20-RC-12335
seeking an election in a voting- unit consisting of all
Respondent's.employees. The election was held in Novem-
ber.
-On September 29 Manager Chien- asked hostess Rene
Hall to come to his office at-which time he spoke to her
with- no one else present. Chien opened his remarks by
stating he knew Hall was upset because she was absent
from work earlier that week due to, sickness, but wanted to
assure Hall she was in no danger of being fired so long as
she called in ahead of time to notify Chien about her
absences . Chien inquired about Hall's health and compli-
mented her work stating that she,did a "great" job when
she was in a good mood but that her work was not so good
when she was not in a good, mood. Then Chien stated that
he, knew Hall had been, employed at the Mandarin since
the beginning of the year and that several of the employees
had been urging him to give her more days ;of work,9 but
s The description of what was said at the September 11 meeting is based
on a composite of the credible testimony of Billie Meng and George Leung
who as I have indicated previously impressed me as more reliable and
trustworthy witnesses than Linsan Chien,who was the Respondent's only
witness. Also, this unexplained failure of Respondent to'call'its owner and
president , Cecilia Chung, to corroborate Chien's version of this meeting
269
that he could not schedule her for more workdays because
he was not a free man., Hall asked, if by, this Chien meant
that the employees were still trying to unionize. Chien
answered in the affirmative and said that when all of his
problems were solved and when he was free again to do his
work at the Mandarin that then Hall would receive more
days of work. The conversation concluded with Chien
declaring that Hall was a young lady who was inexperi-
enced in the restaurant business and that his advice to Hall
"was not to get involved." Chien' did not expressly state
what it was that Hall was not to get involved with but from
the context in which this advice was given it is, plain, and
Hall would have so understood, that Chien was referring to
the Union or its organizational campaign.
B. Ultimate Findings and Analysis
I. Billie Meng's suspension
"Suspended" normally' connotes exclusion for a specified
period of time. Here however the record establishes that
Respondent did not suspend Meng rather his employment
was permanently terminated; he was effectively dis-
charged. When Manager Chien notified Meng he 'was
suspended he told him to turn in all of the tools of his
trade, i.e., uniform, and in effect refused to tell him the
length of his suspension. On the date of the hearing, over 3
months after the, suspension, Meng, whose name is still
listed on Respondent's payroll, had not been reemployed.
When asked how long Meng's suspension would continue,
Manager Chien testified, "I have to consult with a lawyer
on that." When asked whether he, had in fact sought the
advice of his lawyer about the duration of Meng's
suspension, Chien evasively testified, "I' haven't got
answers yet. I - haven't got advice - yet." Under the
circumstances, the record demonstrates that when Chien
notified Meng he was suspended that it was Chien's intent
to discharge Meng, to permanently sever his relationship
with the Mandarin.
The decision to suspend Meng was made by Manager
Chien who testified Meng was suspended because,
He had arrogant attitude, and the manner that he
raised all arguments against. giving the people time off
on sickness it seems- to me is cross-examine me rather
than ... ' ask for the rights of people.
When asked if he had given all of his reasons Chien further
testified:
in addition to what I stated before, because of
[Meng's I arrogant manners and the way he line up
arguments with me, cross - almost like cross-examine
me, instead of 'asking the rights .... (A)11 these
arguments and his manners in front of all the waiters
present, it would have a very, very bad effect on the
morale of the peoples. And I figure on myself, I could
leads me to believe that Chiang's testimony would have been harmful, to
Respondent and would not have corroborated Chien's testimony.
9 Hall was working 3 days a week rather than 5 and wanted to work
more since as an hourly paid employee it would mean more money in her
pocket.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not carry on the operations of this restaurant in the
future in dealing with the people that have sickness and
ask for leave for any reasons.
And, in his sworn affidavit furnished the Board during the
investigation of the instant unfair labor practice charges
Chien stated:
My sole reason for suspending Billie _ Meng was his
challenging my authority in front of all the employees. I
felt this would have a bad effect on morale.
To sum up his -testimony, Chien contends that Meng's
arrogant attitude and his cross-examination of Chien at the
September 11 meeting constituted a challenge to his
authority, in front of the employees, which would tend to
have a disturbing effect on the employees' morale in that
they would not obey Chien's instructions concerning sick
leave, and it was for these reasons that Chien decided to
suspend Meng. I do not believe Chien was telling the truth.
When he gave this testimony;he did not impress me as a
sincere witness . In addition, what actually took place at the
September 11, meeting contradicts Chien's explanation.
Meng spoke out only after Respondent's owner, President
Chiang, ' had - invited the employees to voice their griev-
ances . There is no evidence that Meng spoke in an
arrogant manner or was otherwise arrogant or that he used
intemperate or abrasive language. To the contrary; it is
undisputed that Meng voiced his grievance in temperate
language and spoke calmly in a normal tone of voice. Not
did he disobey or defy an order to stop talking. Nor is there
any indication or ,contention that Meng was speaking out
of malice toward Manager Chien or that Chien believed
this to be the case. Simply: stated, what took place was that
Respondent's owner invited the employees to voice their
grievances and waiter Meng, after making sure that there
was really no objection to his speaking, grieved about
Manager Chien's sick leave,requirements. Meng spoke in a
normal tone of voice using temperate language and
engaged in no conduct from which Chien or Chiang could
have reasonably believed he was being insubordinate or
otherwise disrespectful. Under these circumstances, I
cannot believe, as Chien would have me, that Respondent
discharged Meng for doing ex actly what he was invited to
do by Respondent's owner, which was to speak openly
about employees' grievances. '
Also relevant in evaluating Respondent's motivation in
discharging Meng is the refusal of Chien to explain to
Meng the reason for the discharge and his further refusal to
provide Meng with a written notification. If the discharge
was motivated by legitimate reasons I am convinced Chien
would have had no hesitancy in explaining the reason to
Meng or at the very least of reducing to writing the simple
fact of the discharge.10 Moreover, the nature of Meng's
discharge indicates that it was not imposed because of
legitimate considerations. Here Meng was placed in limbo
10 " .. refusal by the employer to give a reason for firing an employee
may by itself be a reason for inferring a discriminatory discharge" A. J.
Krajewski Manufacturing Co., Inc. v. N.LRB., 413 F.2d 673, 676, fn. 2 (C.A.
1, 1969).
11 When asked his reason for telling Meng on September 11 that
Respondent's lawyer would notify him of the length of his suspension;
- in a state of perpetual suspension. If Manager Chien
believed that Meng had misconducted himself on Septem-
ber 11, I am of the view, Chien would have imposed a
punishment to fit the misconduct rather than tell Meng he
was suspended for an indefinite period, and turn the matter
over to the Company's attorney.11
Based on the above stated reasons, I find that Billie
Meng was discharged by Respondent on September 11 and
that the decision to discharge him was not motivated by a
belief that he had been insubordinate toward Manager
Chien or had otherwise challenged his authority.
Does the false motive advanced by Respondent for
discharging Meng establish that a motivating force in
Respondent's action was its desire to eliminate a union
adherent? In the circumstances of this case such an
inference seems appropriate under the rationale of the
court in Shattuck Denn Mining Corporation v. N.L.R.B.,
362 F.2d 466, 470 (C.A. 9, 1966):
If [the trier of fact) finds that the stated motive for a
discharge is false, he certainly can infer that there is
another, motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where . . . the surrounding
facts tend to reinforce that inference ....
Here, the "surrounding facts" preponderate in favor of a
finding that Meng's discharge was motivated by Respon-
dent's knowledge that he was a union adherent. On
September 6 Respondent had learned - that, despite the
withdrawal of its, representation petition, the Union was
continuing its current campaign to organize the Manda-
rin's employees and that Meng was actively soliciting
employees to support the Union. The record also shows
that Respondent strongly opposed the Union's effort to
organize the employees. In other words, the record
establishes that Meng, the Union's most active advocate in
the restaurant, was abruptly discharged almost immediate-
ly after Respondent, which was strongly opposed to the
unionization, of its restaurant, learned ° the Union was
continuing its organizational drive and that Meng was
actively supporting the Union. Respondent refused to
explain to Meng the reason for, his discharge or even
acknowledge the fact in writing. When these surrounding
circumstances are juxtaposed with the false reasons
advanced by Respondent as its motive for the discharge, I
am convinced that they establish, by a preponderance of
the evidence, that in discharging Meng Respondent was
motivated by his union activities and sympathies. By
engaging in such . conduct Respondent violated Section
8(a)(1) and (3) of the Act.
I further find that assuming Manager Chien in discharg-
ing Meng was motivated by a belief that Meng had
challenged his authority or' had acted insubordinate, that
the discharge still constituted an independent violation of
Section 8(a)(1), regardless of Chien's motivation. This is so
Chien testified: "Because in consideration of all the legal terms. Using of
the legal terms, I always like to consult with my lawyer." But then admitted
it was not his practice to normally consult with Respondent's lawyer over
such matters and, to explain his treatment of Meng, unconvincingly
testified, "at the, time there was union activities going on. I wanted to be
sure that I would not be interpreted as doing something against the law."
THE MANDARIN
because Meng's conduct at the meeting of September 11
was 'concerted protected activity within the meaning of
Section 7, and it was neither so insubordinate nor so
disruptive of plant discipline as to take him beyond the
pale of the Act's protection. Generally see Hugh H. Wilson
Corporation v. N.LR.B., 414 F.2d 1345 (C.A, 3, 1969).
Meng's grievance about Manager Chien's sick leave
policy was expressed at a meeting with his fellow
employees all of whom were affected by Chien's policy and
was expressed after Respondent's owner had solicited the
employees to voice their grievances. The grievance voiced
by Meng involved a matter, which Meng credibly testified
several of the waiters and busboys had previously brought
to his attention. Moreover, the record establishes that
hostess Rene Hall had complained to Meng about Chien's
treatment of her which complaint was specifically brought
up by Meng at the meeting. Thus, at a minimum Meng's
conduct at the meeting of September 11 was for "mutual
aid and protection" of employee Hall in addition to
himself.12 For all of these reasons, although the question is
a close one, I am of the opinion that Meng's complaints
concerning Manager Chien's sick leave practice constituted
protected concerted activity and, for the reasons stated
previously, the manner, in which Meng voiced this
complaint did not remove his activity from the protection
of the Act.
2. The rule prohibiting union solicitation and the
creation of an impression that the employees'
union activities were under Respondent's
surveillance
Respondent prior to the Union's current organizational
drive promulgated a number of work rules which, if
violated, would result in discipline including discharge.
These rules during the time material were posted on the
Mandarin's bulletin board. One of the rules reads:
"Solicitation of any type by employees during working
time is prohibited." On September 7 Manager Chien called
this rule to the attention of the dining room employees
under the following circumstances.
As I have previously found, Chien on September 6
learned that the Union's organizational drive was still in
progress and that waiter Meng had solicited an employee
to attend a union meeting. The next day - September 7 -
Chien summoned all the dining room employees to a
meeting and, as described in detail above, stated that
Respondent had a no-solicitation rule which was posted
which prohibited any type of solicitation by employees,
whether they were "on a shift or not." Chien then stated
that employees could not solicit union pledge cards in the
Mandarin and that he had been informed that some of the
employees were distributing these cards in the Mandarin.
Chien suggested that if the employees were solicited to sign
a union pledge card, they could report the matter to him.
12 The context in which Meng voiced his grievance establishes that
Respondent knew it was not a personal grievance but was advanced on
behalf of all the employees. Moreover, Manager Chien in explaining his
reason for suspending Meng in effect admitted he realized that Meng's
grievance concerned "the people" meaning the employees in general. This
realization is implicit in Chien's contention that Meng's grievance would
271
The General Counsel contends that Manager Chien on
September 7, as described above, in effect announced a
rule prohibiting union solicitation at any time on the
Company's premises- I agree. Of course,, Respondent's
posted rule prohibiting solicitation during "working time"
is a prima facie lawful rule. Essex International, Inc., 211
NLRB 749 (1974). However, on September 7 Manager
Chien communicated the rule to the employees in such a
way as to unambiguously convey an--intent -to prohibit
solicitation in nonpublic areas of the Mandarin, during
breaktime or other periods when the employees were not
actively at work. Chien's interpretation of the rule
unequivocally prohibited the employees from engaging in
union solicitation at any time while on the Company's
premises. Under the circumstances, whether it is viewed as
an unlawful interpretation of an existing rule 'or the
promulgation of a new rule, I find that Respondent on
September 7 violated Section 8(a)(1) of the Act, by Chien's
announcement of a rule prohibiting-solicitation on behalf
of the Union during its employees' nonworking time.'
Likewise, I-find in agreement with the General Counsel
that Manager Chien's statements to the employees that he
had been informed that some employees had been'passing
out union cards in "the' Mandarin and that the employees
who were solicited to sign such cards should notify him,
created the impression of surveillance. The statements were
calculated to create the impression in the, minds of the
employees that Chien was keeping their union activities
under surveillance. This conduct constitutes a further
violation of Section 8(a)(1) of the Act.
3. The rule prohibiting solicitation by off-duty
employees
Long before the Union commenced its organizational
campaign Respondent, as indicated earlier, promulgated a
number of work rules which, if violated, could result in
disciplinary action. These rules were posted on the
Mandarin's bulletin board. The rule in question herein
reads: "Solicitation on company premises by employees
after employees shift has been, completed is prohibited." As
the rule indicates it only prohibits off-duty employees from
remaining in the Mandarin or entering the premises, to
solicit. They have free access to the' premises for other
purposes. As a matter of fact, it is undisputed that, with the
permission of Respondent, off-duty employees wait for
fellow employees to, finish work, return to the premises on
their day off to get 'a paycheck or to eat with their fellow
employees. On the other hand, there' is no contention or
evidence that the rule prohibiting off-duty employees-from
soliciting has been discriminatorily-applied against union
solicitation. There is no evidence that off-duty employees
have been allowed to solicit on the premises for any
purpose.
The General Counsel contends ,that Respondent's rule
which prohibits solicitation by off-duty employees,is illegal
cause other employees to question Chien's sick leave policy.
13 The fact there is no evidence Respondent enforced this unlawful rule
does not detract from its illegality. To compel the employees to wait and see
whether Manager Chien meant what he said would place an unreasonable
burden or risk on the employees who desired to exercise their Section 7
rights.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on its face. Respondent takes the position that the rule is
presumptively valid: As both General Counsel and
Respondent recognize, the answer to the question present-
ed is governed by the Board's decision in GTE Lenkurt,
Inc.,14 -whereas the Board -recently explained in All-Glass
Aquarium Co.,'Inc.:15
In GTE Lenkurt we held that where an employer's no-
access rule is nondiscriminatory, that is, it denies off-
duty employees access to the premises for any purpose,
and is not disparately applied against union activities, it
is presumptively valid absent a showing that no
adequate alternative means of communication are
available ... .
The General Counsel correctly distinguishes Lenkurt on
the basis that there- the no-access rule prohibited off-duty
employees from entering or remaining on the employer's
premises for any purpose whereas in the instant case off-
duty employees are denied access solely for the purpose of
solicitation. This difference the General Counsel argues
makes the, Respondent's no-access rule illegal. There is
language in Lenkurt, and in the , Board's subsequent
interpretation of its holding in Lenkurt, which seems to
support the General Counsel's position, but a closer look at
the rationale- and the underlying basis for the holding in
Lenkurt convinces me that the distinction relied upon by
the General. Counsel is one without legal significance.
In Lenkurt a majority of the Board reexamined ' and
overruled earlier decisions and, in agreement with the
Third Circuit's Diamond Shamrock 16 decision, held that an
off-duty employee who seeks to enter or remain on the
employer's property to engage in union activities is "more
nearly analogous to a non employee," bringing into play
the employer's private property rights. The Board reasoned
in 204 NLRB at 922, that:
for purposes not protected by this Act off duty
employees and, nonemployees would be invitees to the
same extent , and one is no more entitled than the other
to admission to the premises. We are unable to
conclude, that a different rule is required where union
organization is involved, and, absent a showing of
inability to reach the employees otherwise, we see no
justification for holding, that an employer's right to
control ingress to his property must give way for that
purpose. Rather, to require an employer to open his
premises for union activities to off duty employees is,
in fact, to compel him to make available an additional
means of communication, one which we believe he
need not afford them. For, in our view, there is no
significant diminution of the employee rights by such a
no-access rule, inasmuch as the Board and courts
protect the right to engage in union activities during the
normal period of employee association and commum-
cation; i.e., during nonwork periods when employees
are on the premises in connection with their jobs.
Thus, the Board focused not on the statutory definition of
an employee, but on an appraisal of the status of the
individual while on the employer's premises - that is, is he
there in his capacity as an employee, "lawfully and
properly on the company premises pursuant to the work
relationship," or is he there simply "for the purpose of
union solicitation." Diamond Shamrock, 443 F.2d at 56.
The Board by this approach affirmed the right of an
employee who is on the employer's premises incident to his
employment to engage in organizational activities "during
the normal period of employee association, i.e. during
nonwork periods when employees are on the premises in
connection with their jobs" (Lenkurt, supra, 204 NLRB at
922), while at the same time avoiding an "intru[sion] into
the Company's property rights without any showing that
such intrusion is necessary to facilitate the exercise of the
employees' organizational rights" Diamond Shamrock, 443
F.2d at 58.
Guided by the underlying basis for the Board's holding
in Lenkurt I am of the view, that the General, Counsel's
assertion that, "Respondent's rule, unlike the one in
Lenkurt, does not make it unlawful for [off-duty] employ-
ees to remain on company property; rather it restricts
impermissibly what employees rightfully there-may do with
their own time," completely misses ,the point that the off-
duty status of the employee changes the character of the
employer's right being challenged, a factor which the Board
in Lenkurt found to be crucial to the outcome of the
balance of the competing interests. For, ,as, the Board
emphasized in Lenkurt, the right of off-duty employees to
enter the employer's premises to engage in union activities
is properly balanced not against the employer's operational
or disciplinary needs, but against his more fundamental
and constitutionally guaranteed right to limit access to his
property. (Lenkurt, supra, '204 NLRB at -922 citing,
N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 113
(1965). Thus, under Lenkurt the burden was on the Union
to demonstrate that a yielding, of the employer's property
right was mandated by the inaccessibility'of the employees
through other channels of communications. The Union has
not attempted to meet this burden here.
For the aforesaid reasons, I find that Respondent did not
violate Section 8(a)(1) of the Act, by maintaining a rule
which prohibits off-duty employees from entering or
remaining on its ' premises to ' solicit for any purpose
including tle'Union.17
4. , Manager Chien's conversation with hostess
Hall
In agreement 'with the General Counsel I find that on
September 29 Manager Chien promised hostess Hall he
would increase the number of days she worked and
threatened her with reprisal, to discourage her from
supporting the Union.
On September 29,' as-described above in detail, Manager
Chien called hostess Hall to his office at which "time he
14 204 NLRB 921 (1973) (Members Fanning and Jenkins dissenting)
15 214 NLRB No 75 at fn 11 (1974). -
16 Diamond Shamrock Co. v N.L R B, 443 F.2d 52 (C A 3, 1971).
17 General Counsel 's reliance upon Westinghouse Electric Corporation,
Tampa Division, 199 NLRB 783 (1972) is misplaced, for there the rule
regulating access was discrimmatorily adopted and disparately applied only
to union activities. See Litho Press of San Antonio, 211 NLRB 1014 (1974),
where the Board more fully explained the basis of its holding in
Westinghouse
THE MANDARIN
brought up the subject of Hall's desire to work more days
each week - she was only working 3 days a week - in
order to earn more money. ,1n this regard Chien indicated
he was in favor of scheduling more days of work for Hall
but was not able to do so at that time since the Union was
organizing the employees, but assured Hall that when his
problems were solved and he was again free to operate the
Mandarin he would increase Hall's days of work. In the
same breath Chien advised Hall not, to get involved with
the Union. The aforesaid remarks, in my view, constitute a
none too subtle promise to increase Hall's weekly earnings
for the purpose of discouraging her from supporting the
Union as well aas a threat that the increase would not be
granted if Hall should support the Union. Hall could have
hardly missed the necessary implication that her prospect
of receiving more,, work and higher earnings depended on
keeping the Union out of the Mandarin. This conduct
reasonably tendedto restrain or coerce Hall from exercis-
ing her statutory right to support the Union and as such
violated Section 8(a)(1) of the Act.
5. The 25 cents hourly pay raise granted the
dining ro0`; employees
On September 11 Respondent announced and granted a
25-cents hourly wage increase to its approximately 35
dining room, employees. General Counsel contends that the
increase was motivated by Respondent's opposition to the
Union. The circumstances surrounding the increase and
the Respondent's explanation for the increase follow.
The dining room personnel - waiters, busboys, bar-
tenders, cocktail waitress - are compensated by the hour
plus customers tips. The State minimum wage during the
time material was $2 per hour. However, restaurant
operators, including Respondent, are able to comply with
the $2 minimum by paying dining room employees $1.50
per hour. This is so because the" restaurant operators are
allowed to credit 25 cents per hour against the minimum
wage for the employees' tips from customers and an
additional credit of 25 cents per hour for the employees'
meals. Respondent in fact credited 50 cents per hour
against each dining room employee's minimum wage for
tips and meals.
On September 3 Manager Chien was notified by the
State that under a new regulation employees were required
to sign a written form authorizing the employer to credit 25
cents against their minimum wage for meals before the
employer could take such a credit. On September 6 Chien
called all of the busboys and waiters together and
explained that they had the option of eating or not eating
at the restaurant or, in other words, of authorizing or not
authorizing 'the Respondent to credit 25 cents against their
minimum wage for meals. He then distributed the meal
deduction authorization forms.,
Since Respondent was allowed to credit 25 cents an hour
for the employees' customers tips against their minimum
wage, any dining room employee who earned $1.75 or
more an hour would not have been affected by the new
authorization requirement. The great majority of the
18 The 25 cents credit for customers' tips allowed Respondent to raise
this hourly rate to the rmmmum rate of $2.
19 1 also note that all of Chien's problems, if they really existed, could
273
dining room employees earned $1.75 or more and' of the
group of 21 who attended the meeting of September 6 only
8 earned less than $1.75 an hour. These were the eight
whom Chien asked to sign the meal deduction authoriza-
tions and of the eight all but three agreed to eat meals at
the restaurant and authorized the Respondent to credit 25
cents per hour against their minimum wage. The result was
that in order to comply with the State minimum wage law
Respondent had to increase the hourly rate of pay of these
three by 25 cents per hour, from -$1.50 to $1.75 an hour. 18
But, rather than increase the hourly rate of pay of three
employees by 25 cents Manager Chien decided to increase
th e hourly rate of pay for all of the dining room employees,
about 35, by 25 cents per hour, and to allow all of the
employees to eat meals in the restaurant. I shall now
discuss Chien's explanation for his decision.
Chien testified that on September 6 upon reviewing the
meal deduction authorizations signed by the eight employ-
ees and observing that three, of them had declined to
authorize Respondent to credit 25 cents an hour against
their minimum wage for meals, that he decided the three
would be granted a 25 cents hourly increase thus bringing
their rate of pay up to the minimum wage. Later that same
evening however, Chien testified, he reconsidered the
matter and, decided to raise the hourly rate of pay of all the
dining room employees. This decision' was motivated,
according.to Chien, by two considerations. First, it would
be difficult to supervise which employees were legally
entitled, to eat, and, second, he noticed that the State's
letter notifying Respondent of the authorization require-
ment also stated that those employees who authorized the
employer to credit 25 cents hourly toward their minimum
wage must be relieved of all duties during their meal period
which Chien testified, he felt, would result in the following
situation: "[I in the middle of the service to the customer,
the waiters will say, this is my meal time," and abruptly
stop serving the customer.
The problems pointed to by Chien which involved three
employees on their face lack substance. In my view Chien
grossly exaggerated them out of their true proportion. Also
he did not impress me as an honest witness when testifying
about his reasons for granting the 25 cents hourly increase
to all of the dining room employees rather than to only the
three whose hourly rate he was obligated to increase. His
explanation that he "thought it only fair" to give all rather
than only three of the employees a 25 cents hourly increase
was not given in a convincing manner. The flimsiness of his
explanation becomes more apparent in the light of the fact
that Respondent normally only grants one' such general
pay raise a year and had already done so in 1974.19
When the unconvincing reason advanced by Respondent
to justify the September 11 pay raise granted to the dining
room employees is considered in the context of the entire
record I am convinced that the evidence preponderates in
favor of a finding that the increase was motivated by the
Respondent's opposition to the unionization of - the
Mandarin and to discourage the employees from support-
have been avoided by simply granting the eight dining roomremployees who
earned $150 per hour a 25 cents per hour increase, rather than rase the
wages of all 35
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the Union. The following considerations have led me to
this conclusion.
On Friday September 6 Manager Chien learned that
despite the withdrawal of its representation petition that
the Union was still actively conducting its organizational
campaign. On Saturday September 7 Chien violated the
Act by prohibiting the employees from soliciting for the
Union during their nonworking time on the Company's
premises and created the impression that he was keeping
their union activities under surveillance. Then, on Wednes-
day, September 11, Chien unlawfully discharged dining
room waiter Meng who was the leading union adherent
among the employees. It was in the context of these events,
and in particular immediately after Meng's unlawful
discharge which was motivated by Chien's desire to
discourage the employees from supporting the Union, that
Chien for the first time announced the wage increase to the
dining room employees. Indeed it appears that the decision
to grant the increase was made immediately after Chien
decided on September 11 to discharge Meng. I realize that
Chien testified he arrived at the decision to grant the wage
increase sometime during the evening of September 6, but
there is not one bit of evidence to corroborate this self-
serving testimony which, in view of Chien's poor impres-
sion as a witness, I do not believe. Moreover, Chien did not
explain why the announcement of the increase was not
made until immediately after Meng's discharge on Septem-
ber 11. Under the circumstances, I am convinced that the
timing of the announcement in relation to Meng's unlawful
discharge was no mere coincidence but that the decision to
grant all of the dining room employees a raise in pay was
not made by Chien until September 11.
For all of the foregoing reasons, I find that in
announcing and granting the general wage increase to its
dining room employees on September II that Respondent
was motivated by a desire to dissuade its employees from
supporting the Union. By engaging in this conduct
Respondent violated Section 8(a)(1) of the Act.
6. The $50-a-month salary increase granted the
kitchen employees
The General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by granting a $50-a-month salary
increase to its kitchen employees. The facts on this issue
are undisputed.
On September 7 Respondent, retroactive to September 1,
granted all of its kitchen employees - cooks and
dishwashers - a $50 monthly salary increase even though
Respondent normally grants only one such pay raise a year
and had already done so in 1974. This increase, decided
upon by Manager Chien, was first announced on Septem-
ber 7, the day after Chien learned that the Union was still
actively organizing the employees. On the day of the
increase Chien unlawfully prohibited the employees from
soliciting for the Union on their own time on Respondent's
premises and unlawfully created the impression that he was
keeping the employees' union activities under surveillance.
And, within 4 days after this increase , Chien in an effort to
20 The Union's petition in Case 20-RC-12222 which was filed on July 22
was limited to only the restaurant's dining room employees The kitchen
discourage the employees from supporting the Union
granted a general hourly wage increase to the dining room
employees and discharged the Union's leading employee
adherent. When the kitchen employees' salary increase is
viewed in the above setting I find that the General Counsel
has made out a strong prima facie case which imposed on
Respondent the duty of going forward with evidence that
adequately explained the increase.
In this regard, the evidence reveals that the employees
were informed that the increase was granted, "in consider-
ation for the past contributions by the kitchen personnel
towards the increase of the business of this restaurant."
Manager Chien testified he decided to grant the increase
because the volume of the restaurant's business during the
"past summer" had increased about 40 percent and Chien
felt that this increase had placed an extra workload on the
kitchen personnel. However, Chien admitted that he had
entertained the thought of increasing the kitchen employ-
ees' salaries since June but had delayed granting the
increase until September 7 because the Union had filed a
representation petition with the Board and, according to
Chien, he believed that Respondent might have been
charged with the comrrussion of an unfair labor practice if
he had granted the salary increase during the pendency of
the petition, so he waited until the petition was withdrawn.
This story rings false. The Union did not file a representa-
tion petition to represent the kitchen employees until July
29 and Respondent was notified of the Union's withdrawal
of the petition on or about August 20.20 Chien failed to
explain why the salary increase was not granted during
June or July prior to the filing of this petition or
immediately after the Union withdrew the petition. These
circumstances, plus Chien's poor demeanor as a witness,
have led me to conclude that his conclusionary and self-
serving testimony regarding his reason for granting the
kitchen employees' salary increase was not sufficient to
dissipate the unfavorable inference to be drawn from the
General Counsel's prima facie case.
For all of the foregoing reasons I find that in announcing
and granting the general salary increase to its kitchen
employees on September 7 that Respondent was motivated
by a desire to dissuade its employees from supporting the
Union. By engaging in this conduct Respondent violated
Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. M Restaurants, Incorporated, d/b/a The Mandarin,
the Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. San Francisco Local Joint Executive Board of
Culinary Workers, Bartenders, Hotel, Motel and Club
Service Workers, Hotel and Restaurant Employees and
Bartenders International, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By announcing and granting its employees wage
increases in order to dissuade them from supporting the
employees who were excluded from the voting unit were first included when
the Union amended the petition on July 29
-THE MANDARIN
Union, by , creating an impression- of surveillance of its
employees' union activities; by promulgating or maintain-
ing a no-solicitation rule which prohibits employees from
soliciting for the Union during their nonwork time, and by
promising an employee improved employment benefits and
threatening said employee with reprisal for the purpose of
discouraging the employee from supporting the Union, the
Respondent has engaged in unfair labor practices widiin
the meaning of Section 8(a)(1) of the Act.
4. By discharging Billie Meng because of his union
activities and to discourage employees from supporting the
Union and because of his protected concerted activity, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
The Remedy
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act.
Having found that Respondent unlawfully discharged
employee Billie Meng, I shall recommend that Respondent
offer to him immediate and full reinstatement to his former
job, or, if said job no longer exists, to substantially
equivalent employment without prejudice to his seniority
or other rights and privileges, and make him whole for any
loss of earnings suffered by reason of his discharge, by
payment to him of a sum of money equal to that which
normally would have been earned as wages from the date
of the discharge to the date of said offer of reinstatement,
less net earnings during such period with backpay
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
As the unfair labor practices committed by Respondent
were of a character which go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and to
cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
21 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.
ORDER21
275
Respondent, M- Restaurants, Incorporated, d/b/a The
Mandarin, San Francisco, California, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees or
membership in San Francisco Local Joint Executive Board
of Culinary Workers, Bartenders, Hotel, Motel and Club
Service Workers, Hotel and Restaurant Employees and
Bartenders International, or any other labor organization,
by discharging or in any other manner discriminating
against its employees in regard to hire and tenure of
employment or any condition of employment.
(b) Giving to its employees the impression that their
union activities are being kept under surveillance.
(c) Promising or granting improved benefits of employ-
ment including wage increases to dissuade its employees
from supporting the Union.
(d) Threatening its employees with reprisals to dissuade
them from supporting the Union.
(e) Promulgating or maintaining any rule or regulation
prohibiting its employees from soliciting on behalf of the
Union during their working hours while on nonworking
time on its property.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise , of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Billie Meng whole for any loss of earnings
suffered by reasons of his discharge, in the manner set
forth in the section herein entitled "The Remedy."
(b) Offer Billie Meng immediate and full reinstatement
to his former position or, if this position no longer exists, to
a substantially equivalent one, without prejudice to his
seniority or other rights and privileges.
(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 and the
right of reinstatement under the terms of this Order.
(d) Post at its place of business in San Francisco,
California, in English and the appropriate Chinese dialect,
copies of the attached notice marked "Appendix." 22
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
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.
22 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."
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 20, in IT IS FURTHER ORDERED that the complaint be dismissed
writing , within 20 days from the date of this Order what insofar as it alleges violations of the Act not specifically
steps have been taken to comply herewith . found.