The Saloon, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1105 (N.L.R.B. 1980)

THE SALOON, INC.
The Saloon, Inc. and Hotel and Restaurant Employ-
ees and Bartenders Union, Local No. 11, AFL-
CIO. Case 31-CA-8643
February 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 27, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions to the Administrative Law Judge's
recommended remedy and a brief in opposition to
Respondent's exceptions.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, The
Saloon, Inc., Beverly Hills, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole the employees in the appropriate
unit by paying all health-and-welfare contributions as
required by the bargaining contract that expired
December 15, 1978, to the extent that such contribu-
tions have not been made or that the employees have
not otherwise been made whole for their ensuing
medical/dental expenses; and continue such payments
until Respondent negotiates in good faith with the
Union to a new contract or to an impasse. This shall
include reimbursing employees for contributions they
themselves may have made for the maintenance of
union health and welfare coverage after Respondent
unlawfully ceased contributing, for any premiums they
may have paid to third-party insurance companies for
medical and dental coverage, and for any medical or
dental bills employees have paid directly to health care
247 NLRB No. 156
providers that the contractual policies would have
covered."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The General Counsel has excepted to the Administrative Law Judge's
recommendation that interest on backpay be computed at a rate other than
the 9 percent requested by the General Counsel. We find no merit in the
exception. See Florida Steel Corporation, 231 NLRB 651 (1977).
2 The Administrative Law Judge ordered that Respondent make employees
whole "by paying all health-and-welfare contributions as required by the
bargaining contract . . .to the extent that such contributions have not been
made or that the employees have not otherwise been made whole for their
ensuing medical/dental expenses .... This shall include reimbursing any
employees who themselves contributed to the maintenance of union health-
and-welfare coverage after Respondent unlawfully ceased contributing." In
his exceptions, the General Counsel contends that Respondent should also be
required to make employees whole "for any premiums they have paid to third-
party insurance companies for medical and dental coverage, and for any
medical or dental bills employees have paid directly to health care providers
that the contractual policies would have covered...." To the extent that the
recommended Order does not already provide for the make-whole remedy
which the General Counsel now seeks, we shall, in the interest of clarity,
modify the Order as requested.
Contrary to Respondent's contention, the reimbursement provisions of our
Order are reasonable and appropriately tailored to the facts of this case. By
these provisions, Respondent is merely required to remit the contributions it
should have made and thus, as closely as possible, restore the status quo ante.
These provisions simultaneously limit Respondent's obligation to the extent
Respondent may have provided the employees with comparable alternative
health care coverage. See, e.g., James A. McBrady, Inc. and Maine Erection,
Inc.. 238 NLRB 847 (1978), Administrative Law Judge's decision, fn. 21.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Los Angeles, California, on June
28-29, 1979, at which we participated and had a
chance to give evidence, resulted in a decision that we
had committed unfair labor practices in violation of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, and this notice is posted
pursuant to that decision.
Section 7 of the National Labor Relations Act
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity
except to the extent the employees' bargaining
representative and employer have a collective-
1105
1106 DECISIONS OF NATIONAl
bargaining agreement which imposes a lawful
requirement that employees become union
members.
WE WILL NOT refuse to recognize and bargain
collectively with Hotel and Restaurant Employ-
ees and Bartenders Union, Local No. 11, AFL-
CIO, concerning the wages, hours, and other
terms and conditions of employment of our
employees in the appropriate unit. The appropri-
ate unit is as described in the 1976-78 bargaining
contract between us and the Union.
WE WILL NOT refuse to bargain with the
Union by withdrawing recognition from it; by
unilaterally discontinuing contributions to the
Los Angeles Hotel-Restaurant Employer-Union
Welfare & Retirement Funds; by unilaterally
ceasing to treat Memorial Day as a paid holiday;
by unilaterally instituting a new medi-
cal/dental/life insurance program; or by dealing
directly with bargaining unit employees concern-
ing their terms and conditions of employment.
WE WILL NOT interrogate our employees about
how they would feel if we were nonunion; if they
are happy with the Union; how they would feel if
we, as a nonunion house, could match union
health care coverages; whether they have attend-
ed certain union meetings, and who else was
there, and what has happened; and if they are
delegates for the Union.
WE WILI. NOT question our employees' loyalty
with the assertion that there have been customer
complaints that they have discussed union mat-
ters on the job.
WE WILL NOT tell employees they could be
replaced because of their reluctance to disavow
the Union and embrace our new health care
program.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
sympathies or activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under the Act.
WE WILL bargain on request with the Union as
the representative of our employees in the appro-
priate unit concerning wages, hours, pension and
health and welfare benefits, paid holidays, and
other terms and conditions of employment; and,
if an understanding is reached, embody it in a
signed document.
WE WILL make whole the employees in the
appropriate unit by paying all health and welfare
contributions as required by the bargaining con-
tract that expired on December 15, 1978, to the
extent that such contributions have not been
L LABOR RELATIONS BOARD
made or that the employees have not otherwise
been made whole for their ensuing medi-
cal/dental expenses; and continue such payments
until Respondent negotiates in good faith with
the Union to a new contract or to an impasse.
This shall include reimbursing employees for
contributions they themselves may have made for
the maintenance of union health and welfare
coverage after Respondent unlawfully ceased
contributing, for any premiums they may have
paid to third-party insurance companies for
medical and dental coverage, and for any medical
or dental bills employees have paid directly to
health care providers that the contractual policies
would have covered.
WE WILL make whole employees in the appro-
priate unit, with interest, for unlawful failure to
treat Memorial Day 1979 as a paid holiday.
WE WILL offer to Joseph Strong immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or other
rights and privileges previously enjoyed; and WE
WILL make him whole for any loss of earnings or
benefits suffered by reason of his unlawful dis-
charge, with interest on lost earnings.
THE SALOON, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Los Angeles, California, on
June 28 and 29, 1979. The charge was filed on January 9,
1979, by Hotel and Restaurant Employees and Bartenders
Union, Local No. II1, AFL-CIO (Union). The complaint
issued on February 26, 1979, was amended during the
hearing, and alleges that The Saloon, Inc. (Respondent),
violated Section 8(aXI1), (3), and (5) of the National Labor
Relations Act (Act).
Post-hearing briefs were filed for the General Counsel and
Respondent.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation engaged in the
operation of a bar and restaurant at 9390 Santa Monica
Boulevard, Beverly Hills. Its annual gross income exceeds
$500,000, and it annually purchases goods of a value
exceeding S5,000 from sources outside the State of Califor-
nia.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
________ __ ____ _ ___ ___ _____ __ __
THE SALOON, INC.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
111. ISSUES
The complaint alleges that Respondent violated Section
8(a)(5) and (1) by withdrawing recognition from the Union
on December 15, 1978, by dealing directly with its employ-
ees concerning their conditions of employment at or about
that same time and by thereafter unilaterally changing
certain conditions of employment; that it violated Section
8(aX3) and (1) by discharging Joseph Strong on December
27, 1978, and that it violated Section 8(a)(1) by interrogating
and threatening its employees in late 1978 and early 1979
concerning their feelings about union representation.'
The answer denies any wrongdoing.
IV. THE ALLEGED VIOLATIONS OF SECTION 8(A)(5)
AND (1)
A. Facts
In December 1976, Respondent and the Union entered
into a bargaining contract, to expire on December 15, 1978,
covering Respondent's kitchen, dining room, and bar em-
ployees.' There were between 40 and 50 employees in the
unit at relevant times.
By letter dated October 3, 1978, the Union informed
Respondent of its desire to renegotiate the contract. Receiv-
ing no substantive response,3 the Union sent a second letter,
dated December 12, again requesting negotiations. Respon-
dent, through its attorney, replied with this letter, dated
December 15:
As labor counsel for The Saloon, Inc., my client advises
me that a majority of its employees have advised it that
they no longer wish to be represented by your Local
Union. Based on that information, my client maintains
a good faith doubt as to your majority status, and
accordingly, it would be improper for it to agree to any
extensions of any existing collective bargaining agree-
ments or conduct any collective bargaining negotia-
tions.
Then, on December 16, Respondent's president and a part-
owner, Howard Rosov, conducted a mandatory, all-employ-
ee meeting in which he announced that, as of contract
expiration the previous midnight, Respondent no longer was
a union house.
The 1976-78 contract provided medical, dental, and
pension coverages for the employees, funded by employer
I Counsel for the General Counsel contend in their brief that certain other
violations should be found, based on evidence adduced during the hearing,
even though the complaint does not so allege and Respondent was never put
on notice that these items of conduct were under scrutiny. It is concluded that
it would be unfair in the circumstances to entertain these issues. The General
Counsel's contention accordingly is rejected.
' The unit as described in the contract embraced all employees in the
classifications set forth in its wage schedule (schedule A). The complaint
alleges, the answer admits, and it is concluded that the contract-unit was and
is appropriate for purposes of the Act.
A copy of the October 3 letter was sent to Arthur Chinski, Respondent's
contributions to the Los Angeles Hotel-Restaurant Employ-
er-Union Welfare & Retirement Funds. As an incident of its
withdrawal of recognition, Respondent has made no contri-
butions for hours worked since December 15.' And, during
the December 16 employee meeting, Rosov disclosed that he
was arranging for a health-care program "far superior" to
that under the union contract, and that enrollment forms
soon would be available for the employees. He described the
new program in some detail, adding that it would be fully
funded by Respondent, that employee participation would
be voluntary, and that those so desiring could retain their
union coverages by themselves paying the premiums.
The new program became operative on February 15, 1979.
On or about January 5, 1979, Respondent distributed to
the employees a summary of benefits under the new medical
program, together with a covering memorandum stating that
life insurance and dental benefits also would be included.
Then, on January 15, Rosov posted a notice to the
employees stating that Respondent had not been "paying
hospitalization insurance to the Union" for them since
expiration of the contract and that Respondent had "made
arrangements ... to provide superior benefits at no cost to
you"; and urging that they turn in their applications
immediately if they desired the new coverage.
From on or about December 15 Rosov touted the new
program in conversations with employees individually, as
well. He admittedly told "at least a dozen" employees that,
in his opinion, the new program "was far superior to
anything they had," and recommended that they switch.
Respondent's general manager, Rafal Menchaca, and its
assistant manager, Michael Hollingworth, also spoke on
behalf of the new program to some of the employees.'
Attempting to justify the withdrawal of recognition,
Rosov testified of conversations with four employees:'
(a) In the spring or summer of 1978, Eddie Schneider, a
captain-waiter, mentioned that he did not qualify for
coverage under the Union's medical/dental plan because he
had not been on the payroll long enough, then complained:
"What the hell do I need the Union for? I don't get coverage.
I just pay them dues." Schnieder added, according to Rosov,
that "a lot of other guys feel the same way."
(b) In the summer or fall of 1978, another captain-waiter,
Ted Bryan, told Rosov that he "was not pleased with being
in the Union," and that he thought that "possibly" one-half
of the others "feel the same way, but they don't talk about
it."
(c) In October or November, Rosov asked Charles Van
Trump, a waiter, if it were true that he was not "particularly
concerned" about being a union member. Van Trump
replied that he "could care less."
labor counsel in times past, who acknowledged it by telephone and said he
would call the Union again later. Chinski did not call again, Respondent
having stopped using him.
' As an added incident of its withdrawal of recognition, Respondent has
ceased to maintain established conditions of employment in at least one other
respect-it did not treat Memorial Day 1979 as a paid holiday.
I It is undisputed that Menchaca and Hollingsworth, as well as Rosov, are
statutory supervisors.
* Rosov's testimony concerning these conversations was vague and not
particularly convincing.
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In December, yet another captain-waiter, Cyril To-
masko, told Rosov that he "could care less about being in
the Union as long as he had a good medical plan."
Rosov also cited conversations with Menchaca and
Hollingsworth:'
(a) In the spring or summer of 1978, Hollingsworth told
him that "a lot of people really didn't care one way or the
other [about the Union] as long as they had a good medical
plan."
(b) In the fall of 1978, after Rosov had asked them to
ascertain the employees' feelings about continued union
representation, they reported back that they "did not think
the Union had a majority."
B. Conclusions
It is concluded that the withdrawal of recognition violated
Section 8(a) (5) and () as alleged. The general rule, as stated
in Walter E. Heyman d/b/a Stanwood Thriftmart, 216
NLRB 852, 853 (1975), is this:
A contract, lawful on its face, raises a presumption
that the contracting union was the majority representa-
tive at the time the contract was executed, during the
life of the contract, and thereafter.
And, as stated in Terrell Machine Company, 173 NLRB
1480, 1480-81 (1969):
[O]nce the presumption is shown to be operative, a
prima facie case is established that an employer is
obligated to bargain and that its refusal to do so would
be unlawful. The primafacie case may be rebutted if the
employer affirmatively established either (1) that at the
time of the refusal the union in fact no longer enjoyed
majority representative status; or (2) that the employ-
er's refusal was predicated on a good-faith and reason-
ably grounded doubt of the union's continued majority
status.
In the present case, the majority presumption plainly was
operative at relevant times. The question, then, is whether
Respondent managed to rebut it. As indicated, it did not.
The lack of zeal for the Union assertedly expressed to Rosov
by four employees-at most, 10 percent of the unit comple-
ment-falls far short. Bellwood General Hospital, Inc., 243
NLRB 88 (1979); Cut and Curl, Inc., 227 NLRB 1869
(1977). Nor were the conclusionary observations to Rosov
by Menchaca and Hollingsworth-that they "did not think
the Union had a majority" and that "a lot of people really
didn't care one way or the other"-of any value in
overcoming the presumption. Nevada Lodge, 227 NLRB
368, 376 (1976); Terrell Machine Company, supra at 173
NLRB 1482.
Respondent's withdrawal being unsuccessful in lawfully
terminating the bargaining relationship, it further violated
Section 8(a)(5) and () by discontinuing contributions to the
Employer-Union Welfare & Retirement Funds for hours
worked since December 15, 1978, by failing to treat
Memorial Day 1979 as a paid holiday in accordance with
prewithdrawal practice, and by instituting its own medi-
see preceding footnote.
It is undisputed that DeFonte is a statutory supervisor.
Strong testified convincingly that the incident took place the day of the
cal/dental/life insurance program as of February 15, 1979,
all without first giving the Union a chance to bargain over
these matters. James A. McBrady, Inc., and Maine Erection,
Inc., 238 NLRB 847 (1978); Wayne's Olive Knoll Farms,
Inc., d/b/a Wayne's Dairy, 223 NLRB 260 (1976); Sir
James, Inc., 183 NLRB 256 (1970); Harold W. Hinson,
d/b/a Hen House Market No. 3, 175 NLRB 596 (1969).
Given its outstanding bargaining obligation, Respondent
additionally violated Section 8(a)(5) and (1) by touting its
medical/dental program to the employees directly, as an
alternative to union health-and-welfare coverages. Smith's
Complete Market, of Tulare County, Inc., d/b/a Smith's
Complete Market, 237 NLRB 1424 (1978); Erlich's 814 Inc.;
Erlich's Northwest, Inc.; Capri Launderers & Dry Cleaners,
Inc., 231 NLRB 1237, 1246 (1977); Schuck Component
Systems, Inc., 230 NLRB 838, 84042 (1977).
V. THE ALLEGEDLY UNLAWFUL DISCHARGE OF STRONG
A. Evidence
Strong worked for Respondent as a bartender from April
1978 until discharged on December 27. He was the only day-
shift bartender when fired.
Strong learned of his discharge at or about midnight
December 27 when Respondent's bar manager, Bob De-
Fonte, called him at home.' DeFonte said that Rosov had
ordered the move. Strong asked why, and DeFonte said he
did not know. Strong shortly called Hollingsworth, the
assistant manager, asking if he knew why. Hollingsworth,
too, said he did not know, adding that Strong would have to
talk to Rosov.
Rosov was vacationing in Vail, Colorado, at the time.
Strong did not see him until January 3, in The Saloon, at
which time Rosov told him he was welcome there, but was
not to discuss union business. Explaining that he felt the
reason for his discharge was implicit in that remark, Strong
never did put the question to Rosov.
Rosov left for Vail on December 21. He and Hollings-
worth testified that, just before departing, he told Hollings-
worth that he wanted Strong fired before his return. In a
telephone conversation in the early evening of December 27,
Rosov told Menchaca to go ahead and have DeFonte do it.
Three or 4 hours later, Rosov called Hollingsworth, asking if
the deed had been done. Being told that it had not, that
Strong had checked out before DeFonte had had a chance,
Rosov directed Hollingsworth to tell DeFonte to call Strong
at home. DeFonte's call followed.
Rosov testified that the discharge decision was his alone,
and that it had been made "weeks before," on the day of and
coincident with an altercation between Strong and Mencha-
ca. That altercation was November 11.' Strong had evoked a
customer complaint by charging $7.50 for an exotic drink.
Menchaca questioned Strong about it, and was told that the
charge had been based on the ounces of liquor in the drink.
An increasingly abrasive verbal exchange ensued between
Menchaca and Strong. At length, Strong approached Men-
chaca, his hand doubled into a fist, and said: "I am going to
televised football game between Nebraska and Oklahoma. Counsel stipulated
that this game was November 1.
1108
THE SALOON, INC.
take this and ram it down your throat." Menchaca declared
that Strong was fired, and Strong replied: "Now I am going
to take your head off."
Rosov interceded about then, counseling both to "cool
down" and listening to the two sides of the story. He urged
Strong to apologize to Menchaca, explaining that he did not
want to lose Strong as a bartender and that an apology was
essential to his staying. And he convinced Menchaca to
retract the discharge, reminding him of the difficulty in
obtaining good bartenders.' ° Strong was intractable for a
time, but eventually-after DeFonte's predecessor as bar
manager, Patrick Allman, had arrived to help "get this
straightened out"-agreed to shake hands with Menchaca
"and just let bygones be bygones." This was done, and
Strong never heard further of the matter.
Rosov testified that the discharge decision was not
influenced by incidents prior to the Strong-Menchaca tiff,
but that subsequent events "validated" it. He elaborated that
customer complaints began to "trickle back," and that a
report from Bar Control Corporation, a firm retained to
monitor the operation of the bar, "validated" his negative
impression of Strong. Regarding the complaints, Rosov
could cite only one instance, when Strong refused to serve
food at the bar." The weight of evidence indicates, however,
that this came up in September or October. Moreover,
Rosov spoke to Menchaca about it, being told that the
problem had been worked out. Rosov testified that other
customer complaints about Strong were "possible"; that he
was not "too sure."
The Bar Control report mentioned by Rosov stated that
Strong had been under surveillance for I hour on December
9, and summarized his performance this way:
Bartender Joe poured very heavily for most drinks. All
bar customers were given very heavy drinks while
customers at the tables were given drinks that were only
slightly over the program.
Bartender Joe was an efficient bartender. He kept the
bar clean at all times. He is very aloof to most
customers and is a little smug besides. He did ring the
proper prices at all times and gave the correct change
on all occasions.
Rosov testified that a search for Strong's replacement
began promptly after the November 11 altercation; that he
then instructed Menchaca and Hollingsworth to start
interviewing candidates. There is no convincing evidence,
however, that interviewing began at, or anywhere near, that
time. Strong was succeeded by Sherry Schreiber, who began
'" Rosov testified that he persuaded Menchaca that they should retain
Strong for the present because of the difficulty in obtaining good bartenders
during the holiday season, adding that they would seek a replacement at their
convenience. As is later developed, Rosov is not believed that he arrived at the
discharge decision on November I I. It consequently is concluded that if he
made a statement of this sort, it was to mollify Menchaca rather than
signification of a definitive decision.
" Although it was not against house policy, Strong refused to serve food at
the bar because it was contrary to union policy.
"': Neither Allman nor the bookkeeper testified.
" Rosov testified that this conversation occurred about December 1; Strong,
that it was in early November. Both related that the discharge of the 3
bartenders was mentioned. Since that happened on or about December I, it is
evident that Strong misstated that date. Strong is credited that he learned of
the raise at this time, as against Rosov's denial that the raise was mentioned in
on January 2. Rosov assertedly hired her in early December,
but was unable to install her then because she had to give
notice to her then-employer. Rosov professedly informed
Menchaca and Hollingsworth immediately after hiring
Schreiber. Hollingsworth testified, on the other hand, that
the hiring decision was made during a staff meeting in early
December, and that he participated; and Menchaca testified
that he and DeFonte hired Schreiber.
Rosov characterized Strong as "a super good mechanic"
behind the bar. Effective December 1, Strong received a raise
from $30.83 to $36 per day. The raise had been decided upon
in early November, before the Strong-Menchaca altercation,
according to Rosov, after Allman had told him that
Respondent would be unable to hold Strong unless he got
the increase. Rosov continued that he told the bookkeeper at
the time the raise decision was made to put it into effect as of
December 1, and that he did not reconsider the decision
after the November 11 fracas because he "forgot all about"
it."
Strong did not learn of the raise, however, until on or
about December 1, coincident with the discharge of three
night-shift bartenders for suspected embezzlement. Alluding
to the discharges, Rosov told Strong that he had been
"checked out" by Bar Control and was "clean as a whistle,"
and that he consequently was being retained and given the
raise. Rosov closed the conversation by saying, "Keep your
nose clean and do your job.""
During the December 16 meeting in which Rosov an-
nounced that Respondent no longer was a union house,
Strong identified himself as the Union's steward," chal-
lenged Rosov's claim that Respondent could equal the
Union's medical and dental coverages, declared that the
Union still represented the employees, and that the meeting
consequently was illegal. He and Rosov then fenced over the
contents of the Union's letters requesting negotiations,
Rosov contending that Respondent had not received timely
and adequate notice and Strong voicing the opposite view.
A few days before the December 16 meeting, anticipating
its antiunion thrust," Strong had canvassed most of the
employees about their willingness to sign union authoriza-
tion cards; and, during the week or so after the meeting, he
solicited card-signatures from several employees and distrib-
uted packets of cards to others so they could do likewise.
Among those he spoke to were Hollingsworth and De-
Fonte.'" At or about this time, also, Strong instituted a union
grievance against Hollingsworth for demanding that the
waiters remit 15 percent of their tips to Hollingsworth.
Rosov testified that he was never aware that Strong had
been passing out cards, later amending that, if he had been
this conversation. Not only is the weight of plausibility on Strong's side, given
the overall context of the conversation, but neither Rosov nor any other of
Respondent's witnesses testified convincingly of Strong's being told at an
earlier time. Indeed, Rosov's testimony in that regard was a model of
vagueness and evasion. Beyond that, for Rosov to have admitted that Strong
first learned of the raise in early December would have undermined his story
that the decision had been made in early November.
"' Strong testified that he "officially" became steward in October.
" Notice of the meeting was posted several days before December 16.
'" Hollingsworth denied that Strong spoke to him about the Union, but
admitted that he saw Dick Jones, a union official, with cards. Strong is
credited over Hollingsworth's denial. He was an excellent witness, with fine
demeanor and impressive recall. Hollingsworth's presentation, both in content
and demeanor, was less convincing. DeFonte did not testify.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told about it, he could not recall. He admittedly first learned
of Strong's being a steward on December 16. Menchaca
testified of hearing, "within a few days" after December 16,
that cards were being passed out, but denied learning that
Strong was involved.
B. Conclusion
It is concluded that the discharge of Strong violated
Section 8(a)(3) and (I) as alleged.
While the discharge decision supposedly was made about
7 week before being acted upon, Strong emerged as deter-
minedly opposed to Respondent's antiunion scheme only a
few days before, indicating that the latter development was
the real trigger. Beyond that, Strong received a substantial
raise effective December 1," and the discharge was effected
with middle-of-the-night abruptness, two added circum-
stances belying Respondent's claim that the discharge
decision had been reached in early November, before the
onset of Strong's union activities.
Further, Strong was a good bartender, and the matters
cited by Rosov as "validating" the discharge decision either
were generally favorable to Strong, as in the case of the Bar
Control report, or were dredged from the remote past and
overblown besides, as in the case of the customer complaint.
Finally, the testimony of Respondent's witnesses concerning
the hire of Strong's replacement was discrepant to a degree
rendering incredible their stories that the hiring commitment
was made in early December.
In short, the temporal proximity of the discharge to
Strong's emergence as a staunch union proponent; Respon-
dent's manifest resolve to rid itself of the Union; the rank
implausibility of the testimony of Respondent's witnesses
concerning the timing of the discharge decision, of the
decision to give him a raise, and of the hire of his
replacement; and Strong's undeniably strong bartending
skills leave no alternative but to conclude that the action was
prompted by unlawful considerations.
vI. THE ALLEGEDLY UNLAWFUL INTERROGATIONS AND
THREAT
A. Rosov
Facts. The record reveals several instances of interrogation
by Rosov:"
(a) In early December 1978, he asked Lynn Jorgensen, a
cocktail waitress, how she would feel "if The Saloon were
not a union house," and if she was "totally happy with the
" Rosov is not believed that the raise decision was made before the
November I 1 altercation. Not only is it unlikely that implementation of such
a decision would be delayed for a month or so, but Strong was no told of it
until on or about December 1. Beyond that, as earlier mentioned, Rosov's
testimony concerning when Strong learned of raise was an exemplar of
vagueness and evasion. Rosov's testimony that he did not reconsider the raise
decision after the racas of the December II because he had forgotten about it
was but an attempt to bulwark his earlier fabrication about the timing of the
decision, further discrediting him because of its transparency.
" None of which was denied by Rosov. In addition to these instances of
interrogation, Strong testified that he heard Roaov ask Cyril Tomasko, in
early December: "Do you want the Union here or don't your' Rosov did not
controvert this testimony, but Tomasko testified that he could not recall the
Union." Jorgensen replied that she "would not give up [her]
union status."
(b) Still in early December, Rosov asked Al Morgan, a
waiter, how he felt about the Union. Morgan replied that he
would not want to lose the Union's health-and-welfare
coverages, promoting Rosov to ask how he would feel if
Respondent, as a nonunion house, could match the union
coverages.
(c) In late January 1979, Rosov asked Cyril Tomasko if he
had attended a certain union meeting and who else-
specifically, if Strong and "any other bartender, past or
present"-had attended.
(d) On February 5, 1979, Rosov told Jorgensen that he
had heard "something disturbing" about her "loyalty"; that
several customers had complained that she had been
discussing union matters on the job. She replied that she was
"much too professional to do something like that"; while she
had been a union member "for many years" and had never
worked in a nonunion house, her loyalty to Respondent was
beyond question.
Regarding the alleged threat, Rosov and Carmen Mitch-
ell, a cook, had a conversation in January 1979 in which
Rosov tried to sell her on enrolling in the new health-care
program. To Mitchell's resistance, Rosov stated: "You can
be replaced." Mitchell responded: "The president of the
United States was replaced, so can I.""
Conclusions. It is concluded that Rosov's interrogations of
Jorgensen and Morgan in December and of Tomasko in
January violated Section 8(a)(1) substantially as alleged. It
also is concluded that Rosov violated that section in his
February conversation with Jorgensen. While his remark
that he had heard "something disturbing" about her loyal-
ty-namely, that she had been discussing union matters on
the job-was not in the form of a question, it was of a
character likely to elicit a response revealing of Jorgensen's
feelings about the union situation, and thus had the practical
effect of an interrogation.
It is concluded, finally, that the comment to Mitchell that
she could be replaced, made in the context of her reluctance
to disavow the Union and embrace Respondent's new health-
care program, was an unlawful threat.20
B. Hollingsworth
Facts. The record discloses these instances of interrogation
by Hollingsworth:2'
(a) In the early fall of 1978, Hollingsworth and Menchaca
engaged Cyril Tomasko in conversation, during which
Hollingsworth asked Tomasko how he felt about the Union
incident. In light Of Tomasko's failure to corroborate, and since the evidence
is clear of other, similar interrogations, it is concluded that there is no need to
make findings concerning this incident.
" This is Mitchell's credited version of the exchange. Aftef initially denying
that anything of this sort was said, Rosov testified that Mitchell said
"anybody can be replaced," after which he said, "Anybody can be replaced, of
course anybody can be replaced." Rosov further testified that he was joking
although he conceded that Mitchell had expressed considerable unhappiness
in the same conversation over the union situation. Mitchell testified that she
did not know if Rosov "was joking or whatever it was."
" That Rosov may have been joking when he made this remark does not
save it from illegality. Ethyl Corpration, 231 NLRB 431, 434 (1977).
21 None of which was controverted by Hollingsworth.
I110
THE SALOON, INC.
and about getting a "comparable" health-care plan "so we
could do without the Union."
(b) In late December, Hollingsworth and Menchaca again
spoke with Tomasko, Hollingsworth asking if he had
attended a certain union meeting. To Tomasko's affirmative
answer, Hollingsworth said he wanted to know "everything
about it"; and, in particular, what had been said about him.
Hollingsworth, a member, was concerned that the Union
might take adverse action against him for demanding that
the waiters remit 15 percent of their tips to him. Tomasko
replied that he did not "want to talk about that," but
Hollingsworth persisted, naming various people and asking
what each had said about him. Hollingsworth also asked if
Strong was at the meeting."
(c) In late January 1979, Hollingsworth asked Tomasko if
he had attended a later union meeting, how it had gone, and
if Strong was there.
Conclusions. It is concluded that each of the three
instances of interrogation by Hollingsworth constituted a
violation of Section 8(a)(1) substantially as alleged.
C. Menchaca
Facts On or about February 1, 1979, having overheard
Lynn Jorgensen remind a barboy of a coming union meeting,
Menchaca asked her if she were "a delegate for the Union."
Jorgensen replied that she was "just a union member."
Jorgensen testified that Menchaca was "less than friendly"
on this occasion, and had an "accusatory" tone of voice."
Conclusion. It is concluded that Menchaca's question was
violative of Section 8(aX1) as alleged. While seemingly
innocuous at first blush, the question plainly had a serious
purport in the context of what had been happening at The
Saloon.
CONCLUSIONS OF LAW
I. Respondent violated Section 8(a)(5) and (1) of the Act
by:
(a) Withdrawing recognition from the Union as of
December 15, 1978.
(b) Discontinuing contributions to the Los Angeles Hotel-
Restaurant Employer-Union Welfare & Retirement Funds
for hours worked since December 15, 1978.
(c) Failing to treat Memorial Day 1979 as a paid holiday
in accordance with past practice.
(d) Instituting its own medical/dental/life insurance
program as of February 15, 1979.
(e) Dealing directly with its employees concerning the new
medical/dental/ life insurance program in the face of its
outstanding obligation to recognize and bargain with the
Union.
1z As noted earlier. Strong had filed a grievance with the Union over
Hollingsworth's exacting 15 percent of the tips.
" Menchaca, in his testimony, did not controvert either the words
attributed to him or Jorgensen's perception of his attitude when he spoke
them. There also is testimony, uncontroverted by Menchaca, that he asked
Charles Van Trump in December 1978: "Van, do you want the Union?"
Inasmuch as this is not alleged as a violation, and since other clear instances
of kindred interrogation come within the purview of the complaint, no finding
will be made concerning this incident.
2. Respondent violated Section 8(a)(3) and (1) by dis-
charging Joseph Strong on December 27, 1978.
3. Respondent violated Section 8(a)(1) by:
(a) Interrogating one or more employees how they would
feel if The Saloon were nonunion; if they were happy with
the Union; how they would feel if Respondent, as a
nonunion house, could match union health-care coverages;
whether they had attended certain union meetings, and who
else was there, and what had happened there; and if they
were delegates for the Union.
(b) Questioning an employee's loyalty with the assertion
that there had been customer complaints that she had
discussed union matters on the job.
(c) Telling an employee that she could be replaced in the
context of her reluctance to disavow the Union and embrace
Respondent's new health-care program.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER"4
The Respondent, The Saloon, Inc., Beverly Hills, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Hotel and Restaurant Employees and Bartenders Union,
Local No. 11, AFL-CIO, concerning the wages, hours, and
other terms and conditions of employment of its employees
in the appropriate unit. The appropriate unit is as described
in the 1976-78 bargaining contract between Respondent and
the Union.
(b) Refusing to bargain with the Union by withdrawing
recognition from it; by unilaterally discontinuing contribu-
tions to the Los Angeles Hotel-Restaurant Employer-Union
Welfare & Retirement Funds; by unilaterally ceasing to treat
Memorial Day as a paid holiday; by unilaterally instituting a
new medical/dental/life insurance program; or by dealing
directly with bargaining-unit employees concerning their
terms and conditions of employment."
(c) Interrogating its employees about how they would feel
if Respondent were nonunion; if they were happy with the
Union; how they would feel if Respondent, as a nonunion
house, could match union health-care coverages; whether
they had attended certain union meetings, and who else was
there, and what had happened; and if they are delegates for
the Union.
(d) Questioning its employees' loyalty with the assertion
that there had been customer complaints that they had
discussed union matters on the job.
" All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are tiled 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.
2' Nothing herein shall be construed, however, as requiring Respondent to
rescind any benefits heretofore established.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Telling employees they could be replaced because of
their reluctance to disavow the Union and embrace Respon-
dent's new health-care program.
(f) Discharging or otherwise discriminating against its
employees because of their union sympathies or activities.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Bargain on request with the Union as the representa-
tive of its employees in the appropriate unit concerning
wages, hours, pension and health-and-welfare benefits, paid
holidays, and other terms and conditions of employment;
and, if an understanding is reached, embody it in a signed
document.
(b) Make whole the employees in the appropriate unit by
paying all health-and-welfare contributions as required by
the bargaining contract that expired December 15, 1978, to
the extent that such contributions have not been made or
that the employees have not otherwise been made whole for
their ensuing medical/dental expenses; and continue such
payments until Respondent negotiates in good faith with the
Union to a new contract or to an impasse. This shall include
reimbursing any employees who themselves contributed to
the maintenance of union health-and-welfare coverage after
Respondent unlawfully ceased contributing.
"' Interest is to be computed in accordance with Florida Steel Corporation.
231 NLRB651 (1977).
:' Backpay is to be computed in accordance with F W. Woolworth
Company. 90 NLRB 289 (1950), with interest to be computed as set forth in
Florida Steel Corporation. 231 NLRB 651 (1977). See. generally. Isis
Plumbing & Heating Co.. 138 NLRB 716 (1962).
(c) Make whole employees in the appropriate unit, with
interest, 26 for its unlawful failure to treat Memorial Day
1979 as a paid holiday.
(d) Offer to Joseph Strong immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to a
substantially equivalent job, without prejudice to his seniori-
ty or other rights and privileges; and make him whole for
any loss of earnings or benefits suffered by reason of his
unlawful discharge, with interest on lost earnings.'
(e) Preserve and make available, upon request, to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay and benefits owing under the terms
of this Order.
(f) Post at its restaurant in Beverly Hills, California, the
notice which is attached and marked "Appendix."2" Copies
of the notice, on forms provided by the Regional Director
for Region 31, after being duly signed by Respondent, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
: In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
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."
1112