Vincent's Steak House, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 647 (N.L.R.B. 1975)

VINCENT'S STEAK HOUSE, INC. 647
Vincent's Steak House, Inc. and Chicopee-Holyoke-
Westfield Bartenders, Hotel, Motel, Cafeteria, and
Restaurant Employees International Union, Local
116, AFL-CIO
Vincent's Steak House, Inc. and Hotel Service
Employees and Bartenders Union, Local 116,
AFL-CIO, Petitioner. Cases 1-CA-9432,
1-CA-9516, and 1-RC-13046
February 21, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On July 30, 1974, Administrative Law Judge James
V. Constantine 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, findings l
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
1. The Administrative Law Judge found that
Respondent violated Section 8(a)(1) of the Act by
discriminatorily enforcing work rules in prohibiting
employees known to be engaged in activity protected
by the Act from using its bulletin board without
permission .2 Respondent contends, however , that its
action was not unlawful because its policy forbade
posting anything on its bulletin boards without its
permission, as was clearly enunciated in rule 26 of its
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 This finding , with which we agree, was predicated on Respondent's
removing from its bulletin board a copy of a newspaper article posted by
dining room waitresses Kathy Olschajski and Carol Meyers, describing the
discharge of a waitress at a nearby restaurant for displaying an "unhappy"
attitude and how her fellow employees thereafter picketed the restaurant in
protest over her dismissal . Like the Administrative Law Judge , we find that
Olschajski and Meyers were engaged in protected concerted activity when
they posted that article.
Thus, the facts establish that the article was circulated among
Respondent's employees before being posted ; that the contents of the article
dealt with enforcement by another restaurant of a working condition which
was similar to Respondent's policy of requiring its waitresses to maintain a
happy appearance ; that this policy was a matter of common concern to
Respondent's employees as was later made evident to Vincent Lanzarotto,
Respondent's owner, by Meyers during his questioning of her on August 8
216 NLRB No. 100
book of rules and regulations, a copy of which rule, it
claims, was posted on the restaurant's kitchen
bulletin board. Rule 26 provides:
Distributing or posting literature, pamphlets, or
other printed matter or photographs, soliciting or
collecting funds for any purpose on the premises
without permission is forbidden.3
We disagree. The credited testimony of employees
Meyers, Holly Baggs, and Pamela Clark established
that they had never been informed that Respondent's
permission was required before posting on the
bulletin board and, further, that Respondent had
never objected to the posting by employees of
personal notices and other items such as cards, thank
you notes, articles, and cartoons. Furthermore,
Lanzarotto himself testified that he told Meyers on
August 8, during his inquisition of her concerning
her responsibility for the posting of the news item,
that the article ". . . did not do anything for the best
interest . . . [of ] the staff . . . ." In these circum-
stances, we reject Respondent's contention that its
action in removing the offending newspaper article
was taken merely in furtherance of its application of
rule 26. In our view, Lanzarotto's entire course of
conduct with respect to that article and its posting
made crystal clear to Respondent's employees that
such a method of communicating information to
fellow workers concerning matters relating to their
"mutual aid or protection" would not be permitted in
the future. Although we do not hold that Respondent
could not uniformly enforce a rule prohibiting the
use of its bulletin boards by employees for all
purposes,4 we here find that Respondent, by imple-
menting the rule to prohibit the posting of material
relating to and in the course of concerted activity of
its employees, while having previously allowed the
posting of other miscellaneous matters by the
employees, disparately denied employees access to its
as to why she had posted the article ; and that Respondent cited as
justification for the subsequent discharge of Meyers that she had exhibited
unhappiness in her job over a period of several months. We conclude,
therefore , that the posting of an article of this nature , in an atmosphere of
mounting employee discontent with working conditions, with the purpose of
educating fellow workers as to how employees of another employer had
dealt with comparable employment problems, is protected under Sec. 7 of
the Act . Challenge Cook Brothers of Ohio, Inc, 153 NLRB 92 (1965), enfd
374 147 (C.A 6, 1967).
3 We adopt the Administrative Law Judge 's finding that while this broad
no-distribution , no-solicitation rule does not discriminate against union or
other protected concerted activities , it violates the Act in that it prohibits
such activities in nonworking areas during nonworking time No exception
was filed to the Administrative Law Judge's failure to find that the no-
solicitation portion of the rule was too broad in that it restricted soliciting to
nonworking areas.
Absent exceptions we adopt , pro forma, the Administrative Law Judge's
finding that Respondent's no-solicitation rule had no substantial impact on
Respondent 's employees and therefore did not prevent or interfere with the
holding of a free and fair election.
4 Cf. Nugent Services, Inc, 207 NLRB 158 (1973).
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulletin boards for their concerted activities in
violation of Section 8(a)(1) of the Act.
2. We also agree with the Administrative Law
Judge; for the reasons stated by him, that Respon-
dent discharged Carol Meyers in violation of Section
8(a)(1) of the Act . Respondent contends , however,
that, whether Meyers was discharged or whether she
quit, her employment was severed at a time when the
Union had not entered the scene , and thus Respon-
dent could not have been motivated by a discrimina-
tory purpose in violation of the Act . We disagree.
As more fully described by the Administrative Law
Judge in his Decision , Meyers had become increas-
ingly critical of working conditions , vocalizing her
complaints to other employees as well as manage-
ment . This activity culminated with Meyers ' bringing
in the newspaper article which , to the distress of
Respondent , was subsequently posted on the kitchen
bulletin board as described above . The evidence
shows that Respondent had taken unlawful action
calculated to prevent further such postings, that
Lanzarotto believed that Meyers had posted the
newspaper article and had intensively interrogated
her on August 8 about its posting, and that, in the
process of such interrogation , he had threatened to
terminate her if she remained "unhappy." We
interpret Respondent 's use of the word "unhappy" in
this context as its way of referring adversely to
Meyers' past course of conduct in complaining on
behalf of Respondent 's employees about their work-
ing conditions and in engaging in other protected
concerted activity.
In view of the above circumstances, we conclude
that Meyers was discharged because of her exercise
of protected activity , and that such discharge
violated Section 8(a)(1) of the Act, notwithstanding
Respondent 's further contention that Meyers was not
discharged but quit voluntarily because she was not
happy with her job. We agree with the Administra-
tive Law Judge who found that , even if Meyer's
conduct constituted a quit , she was pressured into
doing so by Lanzarotto's insistent questioning as to
why she was not happy and his statement that if she
was unhappy he would see that she did not stay
there . Consequently , it was only logical for Meyers to
assume that her fate would not differ from that of the
overly critical waitress discussed in the article to
which Lanzarotto so strenuously objected-in other
words that she was going to be terminated anyway.
Since Meyers' only alternative was to give up her
right to engage in protected activity or lose her job,
we conclude, as did the Administrative Law Judge,
that Meyers' statement that she would give her notice
did not constitute a voluntary quit, but that if she
had been allowed to follow her announced course of
action to completion her termination would have
constituted a constructive discharge.
In addition to his constructive discharge finding,
the Administrative Law Judge also held that Meyers'
termination was an actual discharge because her
separation date was accelerated by Respondent, who
told her not to work out her notice because she had
been taken off the schedule , i.e., discharged. The
testimony shows that Meyers shouted to Supervisor
Fessia, shortly after the August 8 interview with
Lanzarotto , that she was giving her 2 weeks' notice.
However , Fessia replied that Meyers was "not to
worry, that it would all blow over " and not to talk to
anyone about it, but finish her work . There is no
indication in the record that Meyers made a reply. In
any event , at this point there is no indication that
Respondent regarded Meyers as having quit her job.
Rather, from Fessia's statement that Meyers should
in effect forget about the notice to quit, it is apparent
that she did not accept Meyers' statement as a
resignation . Nevertheless , as found by the Adminis-
trative Law Judge, the next day after the confronta-
tion between Lanzarotto and Meyers , Fessia called
Meyers' husband and left word that Meyers was not
to finish out her 2 weeks ' notice, but that she was
taken off the schedule . We agree , therefore , with the
Administrative Law Judge that such conduct consti-
tuted an actual discharge , and that in any event there
is no merit to Respondent 's above contention that
Meyers quit her employment voluntarily.
Accordingly , we find that Meyers was discharged
not for the reasons asserted by Respondent , but for
being engaged in protected concerted activities, and
that Respondent thus violated Section 8(a)(1) of the
Act.
3. We adopt the Administrative Law Judge's
finding that on or about October 31, 1973, Respon-
dent's manager of the restaurant, Clark Bertera,
interrogated certain of Respondent 's employees at
the Diplomat restaurant in violation of Section
8(a)(1).
According to the credited testimony of Pamela
Clark, when Bertera came to the Diplomat on
October 31, 1973, he sat between her and another
waitress . After listening a bit to a rather excited
discussion between the employees about the Union,
Bertera asked Clark and three other employees
around the table if they had signed cards.
Respondent argues that Bertera's questioning was
in the nature of casual inquiry rather than coercive
interrogation particularly in view of the relaxed and
social atmosphere at the Diplomat . However, we
note that Bertera not only questioned each employee
sharply as to whether he had signed a card , but when
an employee in turn asked if Bertera had signed a
card, Bertera indicated his sharp disapproval of such
VINCENT'S STEAK HOUSE, INC. 649
activity, shouting "Are you kidding?" Furthermore,
upon completing his questioning, Bertera abruptly
departed without further comments. Thus, we do not
agree with Respondent that Bertera 's questions were
stripped of their otherwise plainly coercive effect
because delivered in a seemingly casual and relaxed
atmosphere. Furthermore, we find that the question-
ing of employees as to whether they had signed union
cards by a supervisor of such high standing as
Bertera itself carried an intimidating and coercive
effect , particularly since the questions were initiated
by him . We also note that Bertera engaged in other
unlawful conduct as is set forth below.
The Administrative Law Judge found that on
November 3, 1973, Supervisor Bertera again violated
Section 8(a)(1) by threatening that if the Union got
in (1) the employees would lose insurance benefits,
(2) there would not be any kind of a pay increase, (3)
employees would be requested to declare their tips to
the penny, and (4) Respondent would cut down the
number of working hours. Respondent contends that
Bertera's comments were not coercive because they
were in response to an employee's question , "[W ]hy
shouldn 't we have a union?" However, we do not
regard Bertera 's comments as in the nature of a
discussion of the pros and cons of unionization;
rather , his comments carried the clear message that if
the Union should be successful the employees would
lose wage increases and benefits . The only inference
to be drawn from such unexplained predictions of
loss in the event of unionization is that Respondent
would be instrumental in some way in bringing about
such losses . Accordingly, we find that Respondent
threatened to take coercive measures in the event
that the employees became organized and that by
such threats it violated Section 8(a)(l) of the Act.
4. The Administrative Law Judge found that at a
meeting of all employees called by Respondent on
November 24, 1973, Supervisor Fessia unlawfully
stated that if the Union got in (1) employees under 18
would be out of a job, (2) work would be limited to
an 8-hour day, and (3 ) waitresses would no longer be
allowed to adjust their work schedules among
themselves . The Administrative Law Judge discredit-
ed Respondent's evidence not consonant with this
finding . Respondent's exceptions point out that while
S We do not agree with the General Counsel 's contention that the
Administrative Law Judge erred in not finding that Respondent engaged in
unlawful surveillance of its employees when Bertera visited the Diplomat
bar, commonly frequented by them after hours , and overheard them
discussing the Union . We find that the Administrative Law Judge properly
found no violation regarding Bertera's involvement in incidents of this
nature, but we do not adopt his rationale that "even if Betters went to the
bar to overhear the talk of employees , he did so as a customer rightfully
there, and, consequently , his conduct does not amount to unlawful
surveillance ." Rather, we find no evidence that Bertera went to the
Diplomat for such purpose in light of the undisputed evidence that Bertera
had been going regularly to that establishment since late 1970 or 1971; that
the credited witnesses support the Administrative
Law Judge's finding that the above statements were
made at the November 24 meeting, some of them
testified that these remarks were made by employees,
rather than by Fessia. We find it unnecessary to
reach the General Counsel's contention in response
that the statements are attributable to Respondent in
any event, since made in the presence of supervisors
without refutation, thereby amounting to an endorse-
ment or ratification of such remarks. Rather, we note
that the record establishes that Supervisor Fessia did
state that if the Union got in, employees under 18
would be out of a job and waitresses would no longer
be allowed to adjust their work schedules. For
example, Bradley Fitzgerald testified that Fessia
stated at the November 24 meeting: "If the union
comes in, you will not be able to schedule your own
hours." Sharon DeLuca testified that Fessia stated
"if the union gets in, then these kids [referring to
kitchen help and busboys under 18 ] will not have
any jobs . . . they will not be able to work after
certain hours, not being eighteen." Waitress Kowar-
sky testified to the same effect. We regard the
Administrative Law Judge as having credited the
above testimony. Such remarks by supervisors
predicting the inevitability of loss of jobs and
benefits if the Union is successful do not lose their
coercive character simply because the employer
seeks, without foundation, to lay the blame at the
feet of the union. Like the Administrative Law
Judge, therefore, we find these remarks to have
violated Section 8(a)(1) of the Act.
Upon careful examination, however, we are unable
to discover any evidence in the record that Fessia
stated that work would be limited to 8 hours per day.
However, we have found that Respondent, through
Supervisor Bertera, threatened that Respondent
would, in the event of unionization, cut down the
number of working hours. Accordingly, we find no
need to modify the order in this regard.
5. The General Counsel has excepted to the
failure of the Administrative Law Judge to find
certain other conduct of Respondent to have violated
Section 8(a)(1) of the Act .5 Specifically, General
Counsel contends that Respondent threatened an
employee with discharge, and more strictly enforced
he regularly met his friend and Respondent's employee, Rene Sincowicz,
there, and that the two drove home together from that bar on the evenings
that they both worked; and that he frequently had socialized with the
employees at the Diplomat before the advent of the Union on the scene. In
such circumstances , we decline to infer, as requested by the General
Counsel, that Bertera went to that bar to observe the employees engaging in
union activity , since the evidence establishes that he acted no differently
than he had in the past in sitting near or with the employees after the union
campaign commenced. Since his behavior in attending the Diplomat was
not shown to have deviated from normal , we find that General Counsel has
failed to sustain this allegation of the complaint.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain of its rules against fraternization among its
employees in reprisal for their union activities. We
find merit to these contentions for the reasons given
below.
According to the credited testimony of Pamela
Clark, immediately following Bertera's above-dis-
cussed statements of November 3 an employee asked
him "What he thought Vincent [Lanzarotto] would
do if the union got in there?" Bertera replied, "Well,
I think Vincent would sell because I don't think he
could handle the changes."6 In response Clark stated
"maybe this would be the best thing for Vincent
because Vincent's crazy . . . He's always making up
silly rules and it makes it very difficult to work
there." Bertera retorted to Clark, "Why don't you
just quit. Nobody asked you to work here." The
Administrative Law Judge found that Bertera's
remark was not a violation of the Act. We disagree.
As Clark testified, without contradiction, this was
not the usual reaction she or other employees had
received from Bertera in the past when they had
aired their complaints about the "deplorable" situa-
tion at Respondent's restaurant. Bertera had always
been "a shoulder to cry on" and would say "Yes, I
understand" rather than getting upset by such
complaints . Now after a series of statements which
clearly exhibited Bertera's opposition to the Union,
he responded to Clark's criticism of Lanzarotto's
rules, unlike his previously comforting manner under
similar circumstances, by stating that Clark should
"quit." Bertera's response clearly conveyed the
message that Clark's criticism of working conditions
on behalf of herself and other employees was no
longer welcome and her alignment with the Union
was not compatible with continued employment.?
Accordingly, we find, contrary to the Administrative
Law Judge, that Bertera's statement to Clark was
designed to coerce her in the exercise of protected
activity and was therefore violative of Section 8(a)(1)
of the Act.
The Administrative Law Judge found that Respon-
dent had a rule prohibiting employees from talking
and fraternizing on the job, that prior to the coming
of the Union violations thereof were overlooked or
tolerated by Respondent, but that after the Union
entered the scene these rules were enforced. How-
ever, he concluded that such stricter enforcement of
the rules was not violative of the Act, particularly
since, as he found, the rules were applied uniformly
to all employees. We disagree. To the contrary, we
find not only that existing rules were more strictly
enforced after the appearance of the Union, but that
additional restrictions were imposed, and that such
rules were applied more strictly against known union
organizers.
According to the uncontradicted testimony of
employees Powers, Clark, Fitzgerald, and Holly
Baggs , prior to the Union's campaign, Respondent's
no-fraternization rule prohibiting waitresses from
talking with bartenders was widely disregarded by
the employees, and its enforcement by Supervisors
Fessia and Bertera largely was ignored. However,
after the union effort got under way, and after
Respondent had become aware of such union
activity, the rule was rigidly enforced by all supervi-
sors to the extent that waiters , as well as bartenders,
were not permitted to eat with waitresses. Indeed,
Sharon DeLuca, a leading union adherent, testified
that she was informed by Bertera that waitresses
were to eat their meals upstairs in the tackroom
rather than downstairs in the cocktail lounge where
they had previously been permitted to dine. And
Marie Lewia testified that on one occasion after she
had been observed by Bertera at the Diplomat in late
October or early November arguing in favor of the
Union's organizing Respondent's facility and after
Supervisor Reiman had sent word through DeLuca
that Lewia was being watched, Bertera had ordered
her to go downstairs and to wait for the other
employees to finish eating. Lewia went back down-
stairs to eat with Bob Powers, a bartender and
another union sympathizer, but Bertera intervened,
applying the no-fraternization rule. She went upstairs
again, and sat with two women and a man,
whereupon Bertera instructed her to go sit by herself.
Lewia then sat with someone else, but Bertera again
told her to sit alone and not to talk to anybody.
Thus it appears that with respect to known union
adherents, such as Lewia and DeLuca, Respondent
applied its no-fraternization rule far more strictly
than its original intended scope of prohibiting
fraternization between waitresses and bartenders. It
is evident that Respondent was far more watchful
with respect to these employees than it had been with
others, that it for the first time regulated the places
where they could eat, and went so far as to insist that
Lewia dine by herself. Consequently, we find that in
Respondent 's tightening of its rule as well as the
discriminatory application of such rule to regulate
DeLuca's and Lewia's contacts with other employees
during the union campaign, Respondent did so for
the purpose of restricting the efforts of these
employees to organize its employees, in violation of
Section 8(a)(1) of the Act.
6. We agree with the Administrative Law Judge's
finding that Respondent discharged employees Ma-
s In the absence of exceptions to the Administrative Law Judge 's finding we adopt such finding proforma.
that Respondent did not violate the Act when Bertera made this statement , 7 Padre Dodge, 205 NLRB 252 (1973).
VINCENT'S STEAK HOUSE, INC. 651
rie Lewia and Robert Powers in violation of Section
8(a)(3) and (1) of the Act.8 We also agree with his
ultimate conclusion that Pamela Clark was discrimi-
natorily terminated. However, in doing so, we do not
adopt his finding that she had properly been
terminated for cause on November 4, 1973, but that
Respondent condoned her behavior when it rehired
her and offered her another chance on the condition
that she "never do it again," and further, that Clark
was then discharged on November 6, 1973, for her
union activity, not having worked the 2 intervening
days. Instead, we find merit to General Counsel's
contentions that the record evidence does not
support the finding that Clark was terminated on
November 4, but that there is ample record evidence
Clark was discharged for her union activities.
It is true , as contended by Respondent, that
Pamela Clark was not the possessor of an unblem-
ished record nor was she an exemplary employee
during her employment with Respondent from
January 1973 until her discharge on November 6. As
testified without contradiction by Supervisor Fessia,
Clark had been absent several times without authori-
zation , the last incident of which occurred in May.
When Fessia learned that Clark had not been ill as
claimed during the May absence, but had been out of
town, she suspended Clark for the remainder of the
week, and told her that she could return to her job if
she promised "not to do it again." There is no
evidence that Clark ever was absent again without
authorization. Another incident occurred in Septem-
ber when Clark refused to set up tables in her
assigned station because two other girls scheduled to
work with her had not arrived. Fessia told her to
either set up or punch out. Clark reluctantly
performed her assigned tasks and that was the end of
the matter. No disciplinary action was taken and
none was threatened. Thus, we find that Clark's past
absence and her initial refusal to perform assigned
work in September had been resolved to manage-
ment's satisfaction and that such incidents did not
form any basis for Clark's discharge on November 6.
This brings us to the incident of November 4,
which purportedly precipitated Clark's discharge on
November 6. Fessia testified that she came into work
on her day off and noticed Pamela Clark standing at
the buffet table "like a soldier." Fessia testified in
effect that she had been fed up with Clark's general
lack of cooperation, and complaints by other
employees, for example, that she would not bring in
the glasses and silverware, and that as a result she
told Clark on November 4 that she was on probation,
and that she should behave herself that night. Clark
responded , according to Fessia , that she would
behave herself, and there is no evidence that she
misconducted herself or failed to perform satisfacto-
rily on November 4. Nevertheless , Fessia notified
Clark the following Tuesday, November 6, that she
was taking her off the schedule because she was
"uncooperative." Such notice, of course, was tanta-
mount to discharge, and we so find.
We take note that Pamela Clark had attended the
union organization meeting at the Diplomat on
November 3, the evening prior to her "probation," a
fact well known to Respondent, since Supervisor
Bertera was present at the same meeting .9 Bertera
knew she had signed a union card , because Clark
told him so in response to an unlawful interrogation.
Furthermore, Bertera told her "why don't you just
quit" in response to Clark's comments about Lanza-
rotto's rules , making it, as she said , difficult to work
there . Accordingly, we agree with the Administrative
Law Judge that Respondent discharged Clark to get
rid of a known anion adherent , rather than because
of her alleged uncooperative attitude . The timing of
the discharge was close upon the heels of demonstra-
ted union sympathies of Pamela Clark . The circum-
stances of Clark's probation do not ring true
considering that she had not refused to perform
assigned tasks , or misconducted herself , but was,
merely standing by the buffet table, and performed
her work satisfactorily on November 4. Lastly, the
switch from probation to discharge was not satisfac-
torily explained by Respondent , particularly since no
shortcomings by Clark occurred after her probation
to warrant the conversion of her status to the
ultimate penalty of discharge. In these circum-
stances, we find that the reasons asserted by
Respondent in support of its action in terminating
the employment of Pamela Clark were used as a
pretext to cloak its true motive, namely her union
activities . Therefore, for the reasons given here and
by the Administrative Law Judge in reaching the
same conclusion , we find that Respondent dis-
charged Clark in violation of Section 8(a)(3) and (1)
of the Act.
7. The Administrative Law Judge found that
Respondent violated Section 8(aXl) and (3) of the
Act by discharging Sharon DeLuca on December 12
for having signed a union card and engaging in union
activities . Respondent contends that DeLuca was
fired because she "obviously could not handle the
6 Besides the reasons given by the Administrative Law Judge to establish Clark and former employee Janice Kowarsky testified that Fessia was
Respondent's knowledge of Lewia's union activity , we find that Supervisor present in November at a meeting of employees of Respondent 's restaurant
Reiman was aware of such activity on Lewia's part prior to her discharge . whereat the Union was discussed. This evidence was not directly
9 There is also evidence that Fessia , contrary to her testimony, was aware contradicted . Accordingly, we find that Fessia had knowledge of the
of the presence of the Union on the scene prior to Clark 's discharge . Both Union's campaign as of that time.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job" and for her refusal to make good on customer
checks of those whom she served who left without
paying such checks. The Administrative Law Judge
disagreed, finding that on the record Respondent's
reasons were proven to have been pretextual to
disguise Respondent 's desire to get rid of a known
union adherent, notwithstanding the fact that Res-
pondent had a policy of requiring waitresses to pay
for such unpaid checks in the absence of a satisfacto-
ry explanation. To support this finding, the Adminis-
trative Law Judge noted that other waitresses , albeit
not all those in Respondent's employ, had refused to
pay walkout checks without being discharged for
such refusal. Thus, he concluded that Sharon
DeLuca was treated differently from the others, and
that one reason for such disparate treatment was her
union activity.
We do not adopt the Administrative Law Judge's
finding of a violation with respect to Sharon
DeLuca's discharge because , unlike him , we find that
the General Counsel has failed to establish by a
preponderance of the evidence that DeLuca was
disparately treated. According to DeLuca herself,
Supervisor Nomakeo told her at the end of Novem-
ber that she had a number of walkouts, that she
could pay them with her tips every night or all at
once , and that the other waitresses paid their
walkouts. However, DeLuca told Nomakeo that she
was not going to pay, as a matter of principle.
Nomakeo told DeLuca, "You have to pay them, or
you will be fired," but DeLuca remained fast on
principle. Subsequently, Gladys Cole, the accounts
receivable clerk, called her to the office, produced
copies of the missing checks, and told DeLuca much
the same as had Nomakeo , that she was responsible
for the missing checks . Gladys Cole asked if DeLuca
could tell "something of what happened to them,"
but no evidence of any explanation was brought
forth. DeLuca again stood on principle, and Gladys
Cole told her to take the matter up with Vincent
Lanzarotto, which she never did. Furthermore,
DeLuca testified that the cashier , a girl named
Marie, subsequently spoke to her about walkouts and
told DeLuca to check with her every night to make
sure she did not have any. This was all prior to the
fourth incident involving DeLuca in which someone
served by her walked out without paying the bill.
This last walkout occurred on December 4 and led to
DeLuca's eventual discharge. Thus , we do not agree
with the Administrative Law Judge that "no warning
was given to Sharon that her performance exposed
her to the risk of discharge ." It is clear from
DeLuca's own testimony that she knew Respondent
was insistent on such walkout checks being paid and
that being fired for not doing so was a distinct
possibility.
Gladys Cole, the accounts receivable clerk, testi-
fied, supported by the submission of documentary
evidence by Respondent, that DeLuca had missing
checks on November 17, November 24, December 1,
and December 4. Her practice when checks turned
up missing was to make a check of the area near the
counter to see if the missing check had been left in
the rack, or in or about the cash register. She would
go through the duplicates to see if the check had
been used, then would check out the carbon to see if
a shortage had turned up attributable to the missing
check. After DeLuca's third missing check, Cole
regarded the matter as becoming serious, and spoke
to DeLuca. DeLuca was unaware of having a third
missing check , and offered no explanation . Further-
more, she had failed to check out with the cashier at
the end of the day on December 1, a procedure
which would have revealed the missing check and
well might have called to her mind any reasonable
explanation if there was one . Gladys Cole reminded
DeLuca of her responsibility for the checks and the
requirement of checking with the cashier.
Gladys Cole discovered DeLuca's fourth missing
check on December 5 in the morning while going
through the checks for the previous day. She
unsuccessfully tried to reach DeLuca by telephone,
after which she reported the matter to her supervisor,
Stephen Cijka, the office manager in charge of
finance. Cijka testified that he learned from Gladys
Cole about DeLuca's first three missing checks on
December 3, and about the fourth missing check on
December 5. Subsequently, he took the matter up
with Bertera and Vincent Lanzarotto on December 7,
which was a Friday. On Monday, December 10,
Cijka decided to terminate DeLuca, according to his
uncontradicted testimony. Lanzarotto testified to a
"seat of judgment" meeting on December 11, when
Cijka's decision was adopted by Respondent. On
December 12, DeLuca was informed of her discharge
at a meeting attended by Bertera , Cijka, and Cole. At
this meeting Cijka said that as the individual
responsible for finances, he was aware of the four
missing checks, that Respondent could not tolerate
this any longer, and that they would have to let her
go. DeLuca said only that she was not going to pay
for the checks . DeLuca was given her final check at
this interview.
In spite of these facts, the Administrative Law
Judge found that because Respondent discharged
DeLuca without extending to her an opportunity to
defend herself and to explain her position with
regard to the fourth missing check , he was justified in
drawing the adverse inference that a discriminatory
motive generated the discharge . We disagree. There
was no question that the four checks were missing.
The question of what to do about DeLuca was not
VINCENT'S STEAK HOUSE, INC. 653
conceived hastily, but only upon reflection by Cijka,
and after consideration by Lanzarotto and Bertera at
the "seat of judgment" meeting. The impetus for
such determination clearly was supplied by Cijka,
who represented the financial end of the business.
Clearly, as the one responsible for finances, Cijka
was concerned about the repeated loss of checks by
DeLuca, without explanation, and without reim-
bursement in accordance with Respondent's policy.
Taking into account DeLuca's known attitude that
she was not responsible for the lost checks, along
with her careless and indifferent attitude as illustra-
ted by her disinclination to check out at the end of
the day as instructed-indeed there is no evidence
that she checked out on the night of December 4-it
was not surprising that Respondent should have
decided to terminate DeLuca without giving her an
opportunity to offer an explanation or affording her
another chance to remain as an employee. In any
event we note that DeLuca offered no explanation at
the termination interview beyond saying that she
must have been busy at the time the customers
walked out.
Thus, unlike the Administrative Law Judge, we
find and conclude that Respondent 's reasons for
terminating DeLuca have not been proven by a
preponderance of the evidence to have been pretex-
tual, and that, therefore, the General Counsel has
failed to sustain his burden in support of the
allegation in the complaint that DeLuca was dis-
charged in violation of the Act.
8. We adopt the Administrative Law Judge's
disposition of the representation case, which was
consolidatgd with the unfair labor practice matter.
However , in doing so, we do not adopt his determi-
nation to set aside the election based on the Union's
Objection 1(f) in light of our determination herein
that the discharge of Sharon DeLuca , which oc-
.curred on December 12, during the critical period of
the election , did not constitute a violation of Section
8(aXl) and (3) of the Act. Furthermore , since we
have not adopted the Administrative Law Judge's
finding that Fessia stated to employees on November
24 that employees would work no more than 8 hours
per day, we do not adopt the Administrative Law
Judge's determination to set aside the election in part
on the basis of such finding. However , since we have
found , as he did, that Fessia stated to employees on
November 24, during the critical preelection period,
that if the Union gets in employees under 18 would
be out of a job and waitresses would no longer be
able to adjust their work schedules among them-
selves, we shall adopt his recommendation to set
aside the election and direct a new election based on
the Union's Objection 3 contending that such threats
of reprisal interfered with the holding of a free and
fair election.
AMENDED CONCLUSIONS OF LAW
We hereby adopt Conclusions of Law 1, 2, 5, and 6
of the Administrative Law Judge and substitute the
following for his Conclusions of Law 3 and 4:
"3. By engaging in the following acts Respondent
committed unfair labor practices proscribed by
Section 8(a)(1) of the Act: (a) discriminatorily
enforcing working rules; (b) threatening to take the
following reprisals if the Union got in: (1) laying off
employees under 18 years of age, (2) reducing the
number of work hours, (3) waitresses would no
longer be able to adjust their work schedules among
themselves, (4) employees would lose insurance
benefits, (5) there would be no pay increase, and (6)
employees would be required to declare their tips; (c)
interrogating employees as whether they signed a
union card; (d) maintaining an unlawful no-solicita-
tion, no-distribution rule; and (e) discharging Carol
Meyers for engaging in protected concerted activi-
ties.
"4. By discriminating in regard to the tenure of
employment of Marie Lewia, Pamela Clark, and
Robert Powers, thereby discouraging membership in
the Union, a labor organization, Respondent has
engaged in unfair labor practices condemned by
Section 8(aX3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Vincent's Steak House, Inc., West Springfield,
Massachusetts, its officers, agents, successors, and
assigns, shall:
1. Cease and desist:
(a) Discharging or otherwise punishing employees
because they have engaged in concerted activities for
their mutual aid or protection , or discouraging
membership in Chicopee-Holyoke-Westfield Barten-
ders, Hotel, Motel, Cafeteria, and Restaurant Em-
ployees International Union, Local 116, AFL-CIO,
hereinafter the Union, or any other labor organiza-
tion, by discharging employees or otherwise discrimi-
nating in any manner in respect to their tenure of
employment or any term or condition of employ-
ment.
(b) Discriminatorily enforcing working rules during
a union organizational drive of its employees or
enforcing such rules more strictly in reprisal for its
employees' union activities.
(c) Threatening to take the following reprisals if a
union represented its employees: (1) lay off employ-
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees under 18; (2) reduce the number of working
hours; (3) deny to waitresses their privilege to adjust
among themselves their work schedules ; (4) cause
employees to lose their insurance benefits; (5) deny a
pay raise to employees; (6) require employees to
declare their tips.
(d) Interrogating employees as whether they signed
a union card.
(e) Maintaining any rule which prohibits any
employee from soliciting or distributing literature on
behalf of a labor organization in nonworking areas
during their nonworking time.
(f) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following action designed to effectu-
ate the policies of the Act:
(a) Offer Carol Meyers, Marie Lewia, Pamela
Clark, and Robert Powers immediate and full
reinstatement each to his or her former position, or,
if such no longer exists, to a substantially equivalent
one, without prejudice to the seniority and other
rights and privileges previously enjoyed by each, and
make each whole for any loss of pay he or she may
have suffered by reason of Respondent's discrimina-
tion against him or her, with interest at the rate of 6
percent.
(b) Preserve and , upon request , make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its premises at West Springfield,
Massachusetts , copies of the attached notice marked
"Appendix ." 10 Copies of said notice, on forms
provided by the Regional Director for Region 1,
after being duly signed by Respondent 's authorized
representative , shall be posted by it 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
10 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise punish
our employees because they have engaged in
concerted activities for their mutual aid or
protection.
WE WILL NOT discourage membership in
Chicopee-Holyoke-Westfield Bartenders , Hotel,
Motel , Cafeteria , and Restaurant Employees
International Union , Local 116, AFL-CIO, or
any other labor organization , by discharging any
of our employees , or otherwise discriminating in
any manner in respect to their tenure of employ-
ment or any terms or conditions of employment.
WE WILL NOT discriminatorily enforce working
rules during a union organizational drive of our
employees or enforce such rules more strictly in
reprisal for our employees ' union activities.
WE WILL NOT threaten to take the following
reprisals if said Local 116 or any other union
represents our employees:
(1) Lay off employees under 18 years of
age;
(2) Reduce the number of work hours;
(3) Cause employees to lose their insur-
ance benefits;
(4) Deny employees a pay raise;
(5) Require employees to declare their
tips;
(6) Deny to waitresses their privilege to
adjust among themselves their work sched-
ules.
WE WILL NOT ask employees if they have signed
a card for any union.
WE WILL NOT maintain any rule which prohib-
its any employee from distributing literature or
soliciting on behalf of a labor organization in
nonworking areas during nonworking time.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL offer Carol Meyers , Marie Lewia,
Pamela Clark, and Robert Powers each immedi-
ate and full reinstatement to his or her former
position or, if such position no longer exists, to a
substantially equivalent one, without prejudice to
the seniority and other rights and privileges
VINCENT'S STEAK HOUSE, INC. 655
enjoyed by each , and make each whole for any
loss of pay he or she may have suffered by reason
of his or her discharge, with interest thereon at the
rate of 6 percent per annum.
All our employees are free to become, remain, or
refuse to become or remain , members of said Local
116 or any other labor organization.
VINCENT'S STEAK HOUSE,
INC.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
consolidated case, consisting of an unfair labor practice
case and a representation case, has been instituted under
the National Labor Relations Act, herein called the Act. 29
U.S.C. 150, et. seq. The unfair labor practice proceeding
comprehends Cases l-CA-9432 and 1-CA-9516. In Case
I-CA-9432 a charge was filed by the Charging Union
against Vincent's Steak House, Inc., herein called Respon-
dent or the Employer, on November 15, and was amended
on November 29, 1973. Upon such charge and amended
charge the General Counsel of the National Labor
Relations Board, herein called the Board , by the Acting
Regional Director for Region I (Boston, Massachusetts),
issued a complaint on December 28, 1973. Respondent
timely answered said complaint . In Case l-CA--9516 a
charge was filed by the Charging Union against said
Respondent on January 2, 1974.
In the representation proceeding , Case 1-RC-13046, the
petitioning Union on November 16, 1973, filed a petition
to be certified as the bargaining representative of the
Employer's employees in a specified unit . Following the
election held on January 9, 1974, the Union on January 16,
1974, seasonably filed objections to conduct affecting the
results of the election . On February 26, 1974, the Regional
Director directed a hearing on the issues raised by four of
said objections before an Administrative Law Judge and a
decision thereon by said Judge . On February' 28 the
Regional Director issued an amended complaint and
ordered that the hearing on said amended complaint be
consolidated with the hearing on said objections.
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Springfield,
Massachusetts , on April 16-19 and 22 , 1974. All parties
were represented at and participated in the trial , and had
full opportunity to adduce evidence, examine and cross-
examine witnesses , file briefs, and present oral argument.
Briefs have been received from Respondent and the
General Counsel.
In the unfair labor practice case the issues are:
1. Whether Respondent engaged in various acts which
violated Section 8(axl) of the Act.
2. Whether Respondent discriminatorily discharged
certain employees because they engaged in union , concert-
ed, or other activities protected by the Act.
3. Whether Respondent discriminatorily enforced
working rules against union adherents.
4. Whether Respondent threatened reprisals against its
employees if the Union got in.
5. Whether Respondent discharged an employee for
giving testimony under the Act.
6. Whether Respondent had an unlawfully broad no-
distribution and no-solicitation rule.
In the representation case the issues are:
1. Whether Sharon DeLuca was discriminated against
on or about December 12, 1973, for activities on behalf of
the Union.
2. Whether Respondent , through its agent , Bernice
Fessia, threatened reprisals against employees if the Union
got in and also stated the Union, pursuant to a union rule,
would cause employees under 18 to lose their jobs if it got
in.
3. Whether supervisor James Varney asked an employ-
ee how the latter intended to vote in the then forthcoming
election.
4. Whether Respondent has maintained and enforced
an unlawfully broad no-distribution and no-solicitation
rule during the critical period; i.e., from the day of filing
the petition (November 16, 1973) to the date of the election
(January 9, 1974). The Regional Director's Report on
Objections alleges that "Although [this objection is] not
specifically alleged by the Petitioner in its Objections, the
investigation disclosed evidence that the Employer has
maintained an unlawfully broad no-distribution and no-
solicitation rule during the critical period . . . . The
Regional Director is not limited in his post-election
investigation to those matters specifically alleged by the
Petitioner in its Objections ." While I have grave doubts
whether an employer or a union can be found to have
engaged in offensive conduct of which prior to a trial it had
not been apprised by the opponent in writing pursuant to
the Board's Rules and Regulations , I am constrained to
pass on this Objection on the ground that Board Decisions,
which are binding on me, require me to do so . Thomas
Products Co., 169 NLRB 706 (1968); Hobart Mfg. Co., 92
NLRB 203, 205 (1950); J. I. Case Co., 86 NLRB 12, fn. 2
(1949).
Upon the entire record in this case , and from my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Massachusetts corporation, has its princi-
pal office and place of business at West Springfield,
Massachusetts , where it is engaged in selling and distribut-
ing food and related products at retail . Annually its gross
income exceeds $500,000, and its purchases of food,
restaurant supplies, and related products from other States
exceed $2,500. Respondent admits, and I find, that it has
been and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that
Respondent is an employer within the meaning of Section
2(2) of the Act.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED from October 9 to November 6, 1973. She was discharged
as a result of a decision by Lanzarotto and Assistant
Manager Bertera . Employee Sharon DeLuca was dis-
charged when Bertera and Office Manager Stephen Cijka
decided on this action. Supervisor Don Reimann and
Bertera made the decision to discharge employee Robert
Powers. And employee Pamela Clark was discharged by
Supervisor Bernice Fessia.
Finally, Lanzarotto said he was not aware that a union
was attempting to organize Respondent's employees until
former employees Lewia and Powers brought this to his
attention several days after they were discharged in early
November 1973.
Clark Bertera, Respondent' s manager, was called as a
witness for the General Counsel. A conspectus of his
testimony follows. He fired Marie Lewia, a cocktail
waitress at the Steak House , on November 6, 1973.
Although he has told waitresses to smile while serving, "it
is not a requirement for a waitress to smile" or "to have a
happy face."
A couple of days before said November 6 Bertera
determined to discharge Lewia because "she could not do
the job." An "incident" in Respondent's Oyster Bar, plus
"a whole lot of incidents," caused him to dismiss Lewia.
These "incidents" included not being "properly dressed"
by not wearing her "cocktail hat" three or four times;
refusing to work "in a station downstairs" farther away
from the bar; and complaints from other waitresses that
Lewia "was not a good cocktail waitress" or was "not
holding her own . . . section" or station, so that her tips,
which she pooled with them, were low. Bertera did speak to
Lewia about said defects . He testified that by not holding
her own Lewia "was not taking care of as many customers
as the other waitresses."
Bertera admitted that he had never before fired a
waitress for not wearing a cocktail hat (see rule 43 of G.C.
Exh. 3 as to proper dress), that Respondent gave such
waitresses 30 days "to learn the job," and that other
waitresses failed to wear such hat, although not as many
times as Lewia . He also claimed that Lewia once "gave a
[front desk ] girl a hard time" about signing in when
reporting to work by insisting the rule requiring her to sign
in was a silly one because she had to punch in anyway.
Although Bertera described this last failing by Lewia as
"trivial ," he said it was one of the reasons , but a "very
small reason," leading to her being fired.
Bertera also contended that another reason for dischar-
ging Lewia was her "swearing" during an argument with
Don Reimann, supervisor of bartenders, in which she
failed to carry out his order. Bertera learned of this
incident from one of the cashiers , and not from Reimann.
But Bertera did ask Reimann for the facts, So Bertera later
that night, after work was over, called a meeting of all the
cocktail waitresses , the cashier, and one of the bartenders,
and told them that he did not want any "swearing,
argument, fighting . . . like that ." Later, when Lewia
privately talked to him and he admitted he was referring to
her, she explained what had happened. Bertera also told
Reimann and Lewia that he "did not want this to happen
again."
Another demerit of Lewia's, taken in consideration in
The answer admits, and I find , that the Union herein,
Chicopee -Holyoke-Westfield Bartenders, Hotel , Motel,
Cafeteria , and Restaurant Employees International Union,
Local 116, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
Vincent A. Lanzarotto, Respondent's president and
general manager , was called as a witness by the General
Counsel. A summary of his testimony ensues . Respondent
operates a restaurant in two separate buildings about 100
yards apart located at 1508 Riverdale Road in West
Springfield, Massachusetts . One building has a seating
capacity of about 500 while the other can accommodate
about 200 people. The major building, called the Steak
House , has four dining rooms . During the summer of 1973
Respondent employed between 50 and 60 persons.
At all times material Clark Bertera was Respondent's
manager, Bernice Fessia was assistant manager over dining
room personnel, James Varney was director of food and
kitchen personnel, Stephen Cijka was its office manager,
Don Reimann was bar manager (until December 31, 1973,
when he was succeeded by Vincent Mooney), and Mary
Nomakeo was its head cashier and assistant manager. It is
admitted that these are all supervisors and agents within
the meaning of the Act.
According to Lanzarotto, employee Carol Meyers was
hired in 1972 and left Respondent 's employ on August 8,
1973. He spoke to her about her "discontentment" during
roll calls at the Steak House 2 or 3 days before she left.
This discontentment was evidenced "by not being attentive
to what was taking place at the" roll calls . He first
observed this about 6 months before she left . He also
noticed that Carol's work habits were bad and spoke to
Mrs. Fessia, Carol's supervisor, about it in May 1973, and
on two other occasions thereafter . He told Mrs. Fessia each
time "to bring it to [Carol's) attention [and] bring out more
corrective measures." Yet he did not perceive any
improvement in Carol's performance notwithstanding that
Mrs. Fessia spoke to Carol on this subject.
On August 8, 1973, Lanzarotto told Carol that he "had
noticed some unhappiness and discontentment about her
work." Carol "expressed very much unhappiness" and
decided to quit Respondent 's employ . Shortly before this
Carol had posted a newspaper clipping "on the board,"
without permission, about a waitress in another restaurant
who was discharged because she was "unhappy and
doesn't smile" (see G.C. Exh. 2), and told Lanzarotto about
it. Since she had no permission to post it he had this
removed but he did not scold her about it. Rule 26 of
Respondent's "Employees' Rules and Regulations" for-
bade all posting unless authorized . (See G.C. Exh. 3.)
Lanzarotto also considered Carol to be unhappy because
not long before she quit the "Women's Lib" engaged in a
"protest march . . . on the sidewalk of Vincent's Steak
House."
Another employee, Marie Lewia, worked for Respondent
VINCENT'S STEAK HOUSE, INC. 657
discharging her, according to Bertera , is that the cashiers
complained about her in that she once or twice failed to
check out and often tried "to cut ahead of the other girls
... on checking out at nighttime ... and also when she is
paying checks." However, he conceded that other waitress-
es did this as well as Lewia. See General Counsel's Exhibit
4 for Lewia's "employment record."
Bertera testified that he was not aware that Lewia was
helping the Union organize the Steak House, but admitted
he "knew they were trying to get a union . . . for some
time before" Lewia's discharge . He also knew that
Lanzarotto "was opposed to a union ." In fact, he also
informed Lanzarotto that the employees "were seeking to
organize a union."
Continuing his testimony Bertera said that Sharon
DeLuca was hired on October 10 and fired on December
12, 1973, by Office Manager Stephen Cijka. Although
Cijka discussed DeLuca with him, and Bertera approved
her dismissal , the decision to terminate DeLuca was made
solely by Cijka. Such firing could not be made without
consulting Bertera and obtaining his sanction.
According to Bertera , DeLuca was fired "because she
had missing checks . . . she was assigned checks and they
were missing . No money [for such checks] was accounted
for, and no [missing ] checks were accounted for." He
explained that each waitress receives a specific number of
checks, each one numbered , to give to customers , and that
they must be accounted for at the end of the day. A
"missing check is one where the customer has not paid his
bill . . . and that [is] the waitress 's responsibility . . . to
see that he pays his bill." Although "many other"
waitresses had missing checks DeLuca "had quite a few."
See General Counsel's Exhibit 5 for DeLuca's "employ-
ment record ." However, Bertera testified during the year
and a half he served as manager no waitresses other than
DeLuca were fired for "missing checks" although other
waitresses than DeLuca also had checks missing. DeLuca
had two more missing checks around December 8 or 9,
1973.
DeLuca also had "errors on checks" indicating wrong
prices which, along with missing checks, contributed to her
being fired . However, such errors were not mentioned to
him by the office until mid-November 1973, "about the
time [he) learned that . . . employees were seeking to
organize a union."
Bertera said that waitresses are supposed to pay for any
errors or missing checks if such are their fault. But DeLuca
was not asked to pay for hers because "she did not want to
pay" since "she felt it was unfair , that she was not
responsible for it ." But no investigation was made by
Respondent to ascertain whether DeLuca's assertion that
she was not responsible was justifiable.
Finally, Bertera admitted visiting the Diplomat Bar often
and overhearing employees discussing having a union at
the Steak House . But he explained that he waited there to
meet a friend working in the Steak House kitchen to give
such friend a ride home after work, and that such waiting
commenced "late '70, 7 1." While so waiting he sometimes
talked to Marie Lewia and Sharon DeLuca whom he saw
there, but such conversations had nothing to do with a
union . Nevertheless both Lewia and DeLuca on such
occasions were in a group of Respondent 's employees
discussing a union at the Steak House , and Bertera knew
this on such occasions.
It was developed during Bertera 's testimony "that, as to
missing or lost checks , the employer relies on the voluntary
action of the waitress whether to pay or not"; that "Miss
DeLuca, on her own, voluntarily decided not to pay"; that
such refusal to pay "was permitted" as being in Respon-
dent's "practice and rule" ; that there is no written rule that
anyone will be discharged for not paying lost checks (see
G.C. Exh. 3 for the written rules and regulations for
employees); and that during Bertera's term as manager
only DeLuca was fired for lost or missing checks although
other waitresses also experienced lost or missing checks.
Donald Reimann, Respondent's beverage manager from
October 9 to December 31, 1973, in substance testified as
follows as a witness for the General Counsel . He was the
supervisor of the bartenders and had "quasi-authority over
a few cocktail waitresses ." Robert Powers was hired on
October 4, 1973, as a bartender. The decision to terminate
Robert Powers , made by Reimann and Bertera in early
November 1973, was brought about by "a combination of
many factors." These include a 40 percent "drop-off in
business" caused by the "energy crisis , coupled with the
closing of gas stations on Sunday ." As a result Reimann in
early November cut the number of hours Powers was
working. Since Powers protested this Reimann suggested
that Powers find another job.
On November 7 Powers was "let go." However,
bartender Kelley, who was hired on October 18, 1973, was
not laid off but voluntarily quit on November 18; and
bartender Pace, who was hired on October 23, 1973, also
was not laid off but quit on November 6. Pace's
employment record, however, discloses that his workman-
ship was declared to be inferior and indicates he may have
been discharged therefor. (See G.C. Exh. 6.) Powers'
employment record also shows he performed inferior
workmanship and may have been discharged therefor. (See
G.C. Exh. 7.)
Another reason why Powers was laid off is that he lacked
seniority at a time when the work force had to be cut
down. Yet Kelley, over whom Powers had seniority, was
retained instead of Powers. As noted above Kelley quit
after Powers was laid off . Still another reason for
terminating Powers was that his work was "inferior ," i.e.,
he was slow; but the quality of his work was not only good,
but he taught Reimann how to tend bar. Although Pace
was uncooperative, Reimann selected Powers , rather than
Pace, to be laid off.
Sometime in November 1973, but before Powers was
terminated , Reimann became aware of union activity at
the Steak House by hearing employees talk about it at the
Diplomat Bar across the street. Also, about November 3,
1973, Powers "approached me [Reimann ] about a union
[and] asked me to sign a card ," and Reimann did sign one.
However, Reimann was "not in favor of the Union."
A dining room waitress, Carol Meyers, gave evidence for
the General Counsel. It may be adequately condensed as
follows. By taking a course at the University of Massachu-
setts in the spring of 1973, she "became more outspoken"
to management "when we saw something we did not agree
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with." One of her complaints related to "having to pay for
[customers'] checks" when such customers left without
paying them. Another concerned additional work imposed
on waitresses when Respondent "decided to let the bus
boys leave early." Still another involved unjustified
disciplinary action taken against waitresses.
Once, in protesting the failure of customers to pay
checks, Carol mentioned to head cashier Mary Nomakeo,
admittedly a supervisor and agent under the Act, that a
union in the Steak House might prevent it. This upset
Mary, who replied, "Don't say that word union. People
have been fired a couple of years ago for trying to start a
union here."
On Sunday, August 5, 1973, Carol assisted another
employee in posting on the bulletin board a newspaper
article about the discharge of a waitress in an Amhert,
Massachusetts, restaurant, for being unhappy and not
smiling. (See G.C. Exh. 2.) About 20 minutes later
President Lanzarotto removed said article. Soon employee
Peggy told Carol that Lanzarotto wanted to know why
Carol had affixed this placard on the board. A couple of
days later he asked Carol why she did this. When she
replied that it would be of interest to Respondent's
waitresses, he wanted to know if she wanted to start
trouble and was unhappy with her job. She then enumerat-
ed some of her complaints about her job. Then he said that
if Carol was unhappy and stayed there "he would see that
[she] would not stay there." He also asserted he did not
think she had the right attitude to be a waitress." When he
again remarked that she was unhappy with her job, she
replied that she would give her notice to Bernice Fessia, the
supervisor of waitresses.
Carol further testified that Lanzarotto told her she had
no permission to post anything on the bulletin board. But
she further testified that she and others had posted written
or printed matter on the bulletin board in the past.
The next day Carol's husband received a call informing
him that Carol was not to "finish her notice." So Carol
called Fessia about this. Fessia said that "seeing [Carol ]
was unhappy with [the] job, [Fessia] had taken [Carol] off
the schedule." The following Saturday the Women's Lib
protested Fessia's said action by picketing Respondent's
Steak House. (It was stipulated this occurred on August 18,
1973.) While the picketing continued a waitress threw a
note to the pickets alleging that Lanzarotto told the
waitresses to punch out and go home if they looked out the
window.
Carol stated that her supervisor, Bernice Fessia, once
spoke to her about the refusal of a customer to pay a bill
because of a mistake Carol made "on an order" while
serving a "large party." Bernice told her "not to let it
happen again." This occurred in late 1972 or early 1973.
Bernice also "kept an eye" on all the waitresses, including
Carol, and if they "slacked off" Bernice "mentioned it to
you," including Carol. Also in September or October 1972,
a customer complained about Carol by writing to Respon-
dent; but the subject matter of the letter was not disclosed
at the trial.
Another witness for the General Counsel is Maria Lewia.
An adequate summary of her testimony is here set forth.
She was employed as a cocktail waitress by Respondent in
its Oyster Bar for about a month before she was terminated
on about November 6, 1973. She and Robert Powers talked
about organizing Respondent's employees. As a result they
consulted Neil Daboul, a business agent for Local 67, on
October 27, 1973, as to "how to go about organizing."
Then she spoke to seven or eight kitchen people and bus
boys "about signing cards and organizing."
After work on the evening of October 30, 1973, Marie
met with Daboul at the Diplomat Bar, where she signed a
union card for Local 116. (See G.C. Exh. 8.) Later that
evening Bob Powers, Sharon DeLuca, and Kathy Bergeron
came in and also signed a card for Local 116. Then Daboul
gave them pamphlets and blank cards to get employees of
Respondent to sign. Still later that evening manager Clark
Bertera entered and sat at a table about 2 feet away from
said employees at a time when they were discussing
organizing a union and "looking over pamphlets and
stuff." Such "stuff" included union authorization cards.
On "many evenings afterwards" Marie, Powers, and
Daboul talked union and distributed literature to Respon-
dent's employees who came to said Diplomat Bar and
solicited them to sign union authorization cards. On some
of these occasions, supervisors Bertera and Mary Nomakeo
were present in the Diplomat Bar, and Marie and Powers
placed union cards and leaflets on the table where Bertera
and Nomakeo sat. Once, when Marie was at the Diplomat
Bar arguing with some employees opposed to unionism,
Bertera was seated at a nearby table.
About a week before Marie was fired Sharon DeLuca
told Marie that supervisor Reimann had informed Sharon
that Marie "was being watched." Then on the Sunday
before being discharged, while Marie was eating dinner
with Bob Powers, Manager Bertera told them that they
were not permitted to sit together as "fraternization" was
not allowed by Respondent. When Marie sat at another
table with other employees who were eating dinner Bertera
instructed her "to go and sit by herself ... and not to talk
to anybody." In the past not only had she often eaten with
Powers and other employees, but other employees had
eaten together.
On November 6, 1973, Marie was discharged by Clark
Bertera who told her he did so because she was uncoopera-
tive and she had argued with the bartender. But when she
insisted that she was being "fired for my union activity,"
Bertera did not say anything. Marie testified she had an
argument with Reimann, the supervisor of bartenders,
about 2 weeks preceding her discharge, when he gave her
another job to do at a time when she was very busy waiting
on customers. Her refusal caused him to "yell, scream, and
jump up and down" so much that she "swore at him." But
she did carry out his order. Later that evening manager
Bertera, at a meeting of employees called by him, stated
there would be no swearing and that there should be a little
more teamwork and cooperation. Sharon DeLuca replied
that the bartenders swore behind the bar. After the meeting
Marie discussed the Reimann incident with Clark Bertera,
but Clark gave her no warning or reprimand.
Marie also testified that she could not wear her waitress
cap one night because she had misplaced it. But she
obtained another one the next day from Respondent. She
wore this for 2 days and, having found her own hat,
VINCENT'S STEAK HOUSE , INC. 659
resumed wearing her said hat . Furthermore , Marie testified
that she observed another employee not wearing a hat for 4
days.
Continuing, Marie contended she never refused to work
at, or complained about , a station to which she had been
assigned , or that any supervisor complained to her about
where she had been assigned , or that any supervisor told
her that waitresses were complaining about her work, or
that any waitress or cashier complained to her about her
work or her attitude, or that she gave the girl at the front
desk a hard time about signing in. But she has heard
employees swearing at work at the Steak House . And she
insisted that she never received any warning or threat of
discipline about • her work, and that no supervisor ever
accused her of being uncooperative . On cross, Marie
testified that prior to her being discharged neither Bertera,
nor Lanzarotto , nor Fessia ever mentioned anything about
a union to her.
One of Respondent's bartenders , Robert Powers, gave
testimony for the General Counsel the essential import of
which follows . He worked for about a month , starting at
$2.25 an hour and receiving a raise to $2.40 an hour on his
"second paycheck ." He and Marie Lewia, after discussing
the subject, decided to try to get a union into the Steak
House . Then he and Marie met with Neil Daboul, an
official in the Hotel and Restaurant Workers Union, and
discussed with him how to organize the Steak House.
The following week Powers and Marie met with Daboul
at the Diplomat Bar. Powers signed a union authorization
card on this occasion ; i.e., on October 30, 1973. (See G.C.
Exh. 9 .) Powers also received some union cards to give to
employees to sign. During the week he passed out such
cards both at the Steak House and at the Diplomat Bar. At
the latter place Supervisors Nomakeo, Reimann, and
Bertera were present some of the time when Powers
handed out such cards to employees ; Powers even asked
Nomakeo to sign one and succeeded in inducing Reimann
to affix his signature to one . Powers also distributed union
literature to employees . On one occasion at the Diplomat
Bar, Manager Bertera was present when Powers and Marie
Lewia had a loud discussion with two employees as to
whether a union would be beneficial.
On November 7, 1973, Powers was told by Reimann and
Bertera that Respondent's Oyster Bar was being closed
that evening because a shortage of fuel oil made it
impossible to heat it . He was told "this was a temporary
situation . . . it would be operi by the weekend."
Consequently they assigned him to work in Respondent's
wine cellar that night . The next 2 days Reimann tele-
phoned him each day not to come to work because the
Oyster Bar was still closed . Then on the third day Reimann
telephoned Powers that Reimann could only offer him 1 or
2 days of work a week , and this would amount to 10 to 15
hours for each week , probably until Thanksgiving or
Christmas. So Powers told Reimann that Powers "guessed"
he was laid off because he needed a full-time job. Reimann
replied that Powers was thus laid off and was eligible for
unemployment benefits.
Powers mentioned that Respondent had a rule that its
men and women employees could not sit or eat together.
Nevertheless he "many times" ate with female employees
and, although supervisors observed this , they never
stopped it. In fact Supervisor Don Reimann ate with
cocktail waitresses . Nevertheless, after he started union
activity, supervisors instructed him not to sit with Marie
Lewia unless he wanted to lose his job. Also, bartenders
often talked to the waitresses when they ordered drinks for
customers . But after union activity started Supervisor
Bernice Fessia instructed the waitresses not to talk to the
cashier or the bartenders. A day or two before his
termination management started "harping" to him to wipe
the glasses so that they shine and to dust off bottles. But he
had not been required previously to perform this task "as a
general practice."
Powers had never been reprimanded for his work, or told
that waitresses complained about his work , or warned that
his performance was unsatisfactory . He also testified that
he read postcards , other cards , and thank you notes,
affixed to the bulletin board. Finally, he averred that he
was never told not to post anything on the bulletin board;
and that he heard employees swearing at the Steak House.
On cross Powers admitted that, contrary to' instructions
from Bertera and Lanzarotto, he did not always keep the
glasses filled with ice; but he explained his conduct by
asserting that the ice often melted, so that the glasses
became overloaded with water.
A cocktail waitress who worked at the Steak House from
October 10 to December 12, 1973, Sharon DeLuca,
testified substantially as follows as a witness for the
General Counsel. About 2 weeks after Sharon commenced
working there Bertera commended her for doing a good
job and advised her that she was "going to be made Head
Smartee"; i.e., head cocktail waitress. At or about the same
time Lanzarotto also praised her work and said that he
wanted to make her head cocktail waitress with "a
substantial pay increase." And for a while she executed
some of the duties of a "head smartee."
On October 30, 1973, supervisor Don Reimann told her
to convey to Marie Lewia the information that Lewia "is
being watched." On the same day she signed a union
authorization card (see G.C. Exh. 10) at the Diplomat Bar
lounge . She also distributed such cards and succeeded in
inducing employee Bradley Fitzgerald to sign one. And she
told supervisor Reimann that she favored the Union.
Reimann also observed her talking union at the Diplomat
Bar. Once Bertera was in said Diplomat Bar while Sharon
was talking union to fellow employees.
Sharon also testified that "at first" she became aware of
a rule at the Steak House that women employees could not
eat with male employees. However, "after the union
activities got started, they became stricter about enforcing
that rule" so that even "hostesses couldn't eat with the
waitresses ." Also, waitresses at first were allowed to bring
their dinners downstairs to the cocktail lounge, but
sometime in November 1973, they were required to eat
upstairs in the tack room or "somewhere." Further,
although a rule proscribed cocktail waitresses from talking
to bartenders on the job, it was not strictly enforced until
"after the union activities got started." In addition Sharon
often observed waitresses "not in full uniform while
working there," but they were not reprimanded therefor.
On Tuesday, November 6, 1973, Sharon called in that
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was too ill to work . The next day Bertera telephoned
her not to bother coming in as Roxanne was taking her
place . Although Sharon protested she was not sick , Bertera
adhered to his decision. Then on Thursday Bertera called
her and told her that , due to mechanical difficulty causing
oil on the floor , she was not to work . And she was told not
to work the next day, Friday, November 9.
When on November 10 she called as to whether she
should report to work Lanzarotto informed her that she
was no longer an employee there "because you're sick."
Notwithstanding that she denied she was sick he told her to
bring in a doctor's certificate and "then we 'll see about you
working again ." A few hours later she presented him with a
doctor's certificate but he refused to let her work on
account of a "problem . . . of some kind" which he
refused to identify . So he told her to go home "and we'll
call you" when to return. The following Thursday,
November 15, she returned to work , but management
"demonstrated" its attitude was "very cool" towards her.
On November 24, 1973 , Sharon attended a meeting for
employees addressed by Supervisor Bernice Fessia . Bernice
asked them to volunteer opinions as to the Union. One
waitress then spoke against the Union ; another said if a
union got in they would lose their "free insurance ." Bernice
said "If the Union gets in these [under 18 ] kids will not
have any jobs" because they are not allowed by the Union
to work "after certain hours ." Sharon said it was neither
the time nor place to discuss the Union.
About a week before December 12, 1973, Supervisor
Don Reimann told Sharon , "They made me [Don] say
things about Bob [Powers ] that weren't true ... that [Bob ]
was a bad bartender and couldn't handle his job."
At some time in late October 1973, Bertera addressed the
cocktail waitresses saying he "had enough" and command-
ed them not to swear . So Sharon replied that "the
bartenders swear behind the bar ." In fact, she testified that
"just about everybody swore ," and sometimes in the
presence of supervisors , but they were never reproved for
this . Further, Sharon denies that she or any other waitress
ever complained to Bertera about Marie Lewia's perform-
ance . And Sharon asserted she was not told to refrain from
using the bulletin board.
Board agents John Beal and Joseph Kane interviewed
Sharon during their investigation of this case , Beal on
December 3 , 1973. On December 12 Bertera discharged
Sharon because she "obviously could not handle the job."
He also alluded to her refusal to make good on checks of
her customers who walked out without paying them.
Sharon admits that such nonpayment by her customers
occurred three times ; but she testified that other waitresses
suffered the same experience without being asked to make
good on such checks. Previously in late November 1973,
Mary Nomakeo had asked Sharon to make good on some
checks not paid by Sharon's customers or be fired, but
Sharon refused. Gladys, the payroll clerk, "told [Sharon]
the same thing," but Sharon still refused to reimburse
Respondent for such checks . Finally, Sharon denied she
made any errors on checks.
On cross Sharon testified that she reported to work on
December 12 but Bertera would not allow her to punch in.
As a result she did not work that day, but soon was
discharged . She also repeated the conversation she had at
the time she was discharged , but it need not be repeated
here.
Bernice Fessia , supervisor of the dining room waitresses,
was called as a witness for the General Counsel. Her
testimony may be abridged as follows . She made the
decision to discharge Pamela Clark on the first Monday in
November 1973. Pamela was fired because "she would not
take responsibility , her coworkers were complaining
continuously [that she would not do her share of work], she
would not bring in her glasses . . . and her silver . . . if she
did not like where . . . her station was she used to
complain ... she'd stand behind [Bernice] like a puppet,
and say, 'Bernice, Bernice.' She was very dramatic .. .
continuously not doing her job well .... And she would
not set [her] station up . . . it was up to her to set her
station up." Bernice often spoke to her about these
shortcomings and, although Pamela did correct them,
Pamela more than once "started right back again"
repeating said derelictions.
On Sunday, November 4, 1973, Bernice placed Pamela
on probation and told Pamela it was her last warning. The
next day, Monday, Bernice said to herself, "Why should I
have to put up with any more of this?" So Bernice
discharged her because Bernice "figured I had to end it."
Yet Bernice did not work Sunday night, November 4, and
nothing occurred that night which would cause disciplinary
action against Pamela. Bernice also testified that Pamela
had some unexcused absences for which Pamela could be
discharged, but because Bernice had "a good heart,"
Pamela was not fired for these.
Bernice first learned of the Union's organizing efforts at
the Steak House when a girl about November 24
mentioned that the latter 's husband had read of it in the
newspaper . Bernice also testified that she never visited the
Diplomat Bar at any time.
Another witness for the General Counsel, Holly Bagg, a
cocktail waitress employed by Respondent in its Oyster
Bar from August 2 to early October 1973, testified
substantially as follows . When she first started she was told
not to speak to the bartenders. Sometime in September
1973, Respondent remodeled its Oyster Bar. When the
Steak House was picketed another waitress told her that a
supervisor directed employees not to watch said picketing
while at work . Also, she observed "articles or items on the
bulletin board that appeared to have been posted by
employees ." At no time was she warned by supervisors not
to use said bulletin board . Holly was discharged because
she "wasn ' t a good waitress" and "was always trying to
change the rules" ; but no contention has been advanced
that she was unlawfully terminated.
Further, Holly testified she was informed by Respondent
that the waitresses would have to "split among themselves
... loses" flowing from missing checks and from
customers who walked out without paying their bills. This
"splitting" did occur . Also, she testified that girl employees
were not supposed to "eat with boys"; yet she not only ate
with boys , but supervisors who observed this said nothing
to her about it. However , no one told her not to eat with
the waitresses . She also talked to bartenders but was never
VINCENT'S STEAK HOUSE, INC. 661
reprimanded for doing so by supervisors who observed her
so conversing.
An alleged discriminatorily discharged dining room
waitress is Pamela Clark , whose supervisor was Bernice
Fessia . Her testimony may be condensed as follows. She
started in mid-January and left on November 6, 1973. On
October 31, 1973, she signed a union authorization card at
the Diplomat Bar's lounge. (See G.C. Exh. 13.) Later that
evening Supervisor Bertera came to said Diplomat Bar and
sat next to her at a time when she and other employees
were "discussing the Union rather excitedly." When
Bertera asked her if she signed a card she replied in the
affirmative . Bertera also asked other employees of Respon-
dent present in said lounge whether they signed such cards.
A few days after signing a union card Pamela was
"singled out" by Bernice Fessia who "was just yelling at
me [Pamela ] for something." In addition Bernice was
unusually rough in directing Pamela to perform some
duties which neither Pamela nor any other waitress had
previously performed . Also, on other occasions Bernice
overworked Pamela . The foregoing incidents so upset
Pamela that she took them up with Head Cashier Mary
Nomakeo . The latter replied "it didn't sound like Bernice
at all."
On Saturday, November 3, 1973, Pamela visited the
Diplomat Bar, where some of Respondent's employees
were having a spirited argument for and against the Union.
Supervisor Bertera was there at this time. When someone
asked Bertera , "Why shouldn't we have a union," he
replied , "Well, you' ll lose your insurance . You won't get
any kind of a pay increase . You'll have to declare your tips
to the penny. Your number of hours will be cut down" to
conform to union standards . When some of them asked
Bertera how Vincent Lanzarotto would react to a union in
the Steak House , the former declared, "Well, I think
Vincent would sell because I don 't think he could handle
the changes ." At this point Pamela accused Lanzarotto of
"making silly little rules ." This caused Bertera to tell her,
"Why don't you just quit . Nobody asked you to work
here." Then Pamela left the Diplomat Bar's lounge.
On November 6, 1973, Fessia telephoned Pamela's sister
to say that Fessia was laying off Pamela . When Pamela
soon returned the call Fessia said that Pamela was
terminated "because you're unco-operative ." Pamela de-
nies that on November 4, the previous Sunday, Bernice
placed her on probation. Previous to her discharge Pamela
attended a meeting at the Steak House when management
discussed the Union. The discussion at said meeting has
been recited above and need not be related here again.
Pamela testified that no supervisor told her that other
waitresses complained about her . She admitted she took
time off, but it was caused by her father's extreme illness
from which he did not recover. In fact she asked for such
leave from Fessia who granted it . But one leave was not
granted . This was to act as a bridesmaid for a friend who
called her at the last moment . When Pamela returned
Fessia rehired her on condition Pamela "promised not to
ever do it again." So Pamela promised.
Pamela admits she refused to set up her station but
testified it was too great a task for her to perform alone and
she so notified Supervisor Fessia . But Fessia told her to set
it up or punch out. Soon a hostess brought two girls to help
and, with the help of these two, Pamela set up her station.
Pamela never received any warnings other than this
concerning her performance.
When picketing occurred at the Steak House, as
described elsewhere herein, Lanzarotto told the waitresses,
including Pamela, that Carol Meyers, on whose behalf
such picketing was conducted , had "left because she was
unhappy." He also instructed them that anyone looking
out the window would be immediately dismissed.
Pamela further testified that she observed articles or
items posted by employees on the bulletin board, and that
she had never been warned or told that this was forbidden
by Respondent. She also stated that employees had
customers walk out without paying checks, and that the
waitresses were supposed to "pay the whole thing," but
only one waitress ever did so pay.
Bradley Fitzgerald, a bartender employed by Respon-
dent from August 29 to December 20, 1973, gave testimony
substantially as follows for the General Counsel. His
supervisor was Don Reimann . Frequently Bradley in-
formed Don that the former and "some of the other
people" had signed a pledge card for the Union and asked
Don to sign one. Eventually Don did so sign. Bradley
mentioned in such talks with Don that employees Bob
Powers , Sharon DeLuca, and Marie Lewia had signed and
"had talked [Bradley J into signing."
Continuing, Bradley said that in November 1973, there
was an inch of water on the floor in the ice room
downstairs and the boiler room , but "there was often water
on the floor there." However, there was not, according to
him, then or any other time, any water on the floor of the
Oyster Bar which adjoined the ice room. He also overheard
Bertera tell the waitresses at a meeting not to swear and to
be "decorous." And President Vincent instructed him not
to talk to the waitresses. Yet Bradley did talk to them
frequently in the presence of the supervisor of bartenders,
Reimann.
Bradley also attended a meeting of employees on
November 24, 1973, "conducted by Bernice Fessia." He
reiterated Fessia's remarks as set forth elsewhere herein by
other witnesses . He also testified that at this meeting a
waitress remarked that if the Union got in the kitchen boys
under 18 would no longer be able to work because of a
"Union allowance" forbidding them to work "after a
certain time." Another waitress , Effie Johnson , said at this
meeting that the Union forbade overtime so that waitresses
would be earning less.
One evening in December 1973, Bradley told Bertera
that "there was too much work for me to do alone on a
Friday night . . . . Let's have another bartender." But
Bertera replied , "If you can't take it, go home." So Bradley
"took it," but Bertera did give him "some assistance
himself."
B. Respondent 's Defense
Bernice Fessia , who had previously been called as a
witness by the General Counsel, also testified for Respon-
dent in substance as follows . (Admittedly she is supervisor
of waitresses for Respondent and a supervisor and agent of
Respondent within the purview of the Act.) She denies that
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her name is spelled correctly on General Counsel's Exhibit
12 or that she received a copy of General Counsel's Exhibit
11, the former being a registered mail receipt dated
11/13/73. The latter is a notice to Respondent from the
Union, dated November 8, 1973, to the effect that said
Union has filed a "petition with the N.L.R.B., Boston,
Mass. on behalf of the employees of Vincent's Steak
House, Inc." (Said notice, according to the General
Counsel, was sent to Bernice by registered mail evidenced
by G.C. Exh. 11.)
She holds meetings with the waitresses once a week or
oftener. At the meeting of November 24, 1973, she
informed the waitresses that she had to reduce their
working hours because they were complaining they were
"not making any money." This is because "a lot of the
girls" asserted that they "wanted to take time off because
they weren't making any money" and because business
had declined. She also told them at this meeting that she
was going to be as fair as she could be by treating them
equally in granting such time off and that "each one would
get their fair share of work."
After completing her remarks at the foregoing meeting
Fessia asked for questions from the waitresses. One Effie
Johnson then stated that her husband had apprised her
that he had read in the paper that a union was "trying to
come into Vincent's." Fessia replied that she had not read
it and "hadn't heard anything about it" but would talk to
Bertera as to whether this subject could be discussed at
said meeting. Since Bertera granted such permission, other
employees, including bartenders and busboys were invited
to come to the meeting in order to participate in such
discussion. "Almost the entire staff" came to such
discussion. Effie then repeated her above statement about
the Union and then briefly expressed opposition to the
Union because some nonwaitresses "would be out of a
job." Fessia then commented "that would be too bad" if
some lost their jobs. Some at said meeting spoke in favor of
a union while others argued against it. But Fessia denies
she said that if the Union got in all employees would work
no more than 8 hours a day, or utter any other antiunion
remarks. About October 1973, Fessia had told her
waitresses at one of said meetings that she "may have to"
cut down their working hours because "business started to
go down."
After the incident of September 8, 1973, with Pamela
Clark, Bernice Fessia "kept getting complaints from the
kitchen, the checker, and the chefs, and the bartenders,
because [Pamela ] pushed her way through . . . always in a
rush." Although Bernice talked to Pamela about this two
or three times a week it did no good. Consequently, Pamela
was discharged on November 6 or 7.
On November 3, 1973, the checker in the kitchen was
"mad at Fessia because Pamela still was not following
directions." So Fessia thereupon had a long talk with
Pamela in which Pamela was told to "obey the checker and
she [Pamela] agreed to it." Then on November 5 Fessia
told Pamela "to be careful, that she [Pamela] was on
probation." Pamela replied, "All right." Pamela was not
due to work the next 2 days. Nevertheless, notwithstanding
that no complaint was thereafter submitted to Fessia about
Pamela, Fessia took Pamela `off the schedule"; i.e.,
discharged Pamela , on November 6. When Pamela
inquired why this occurred , Fessia replied "because [you ]
did not obey all the rules and regulations ." Fessia denies
that she ever told Pamela , "you are itching to lose your
job.,,
Gladys Cole, an accounts receivable clerk in Respon-
dent's office , testified for it substantially as follows.
Included among her duties are "the guest checks that .. .
are used in the dining room . I am [also ] in charge of
making out a daily receipt , reconcile the daily cash . . . I
am to be sure [the cashiers ] are on duty . I record the guest
checks when they go back into the office , count them and
record them , chase down errors . . . [I] track down any
missing checks . . . [and] record the mistakes" on any
guest check.
Among other things Gladys Cole checked the guest
checks issued by Sharon DeLuca. In performing this
function Cole discovered that DeLuca on about November
17, 1973, had a missing check . Cole was unable to reach
Sharon on the phone to account for such check. The
following week Cole ascertained that another customer
check of Sharon's was missing. Cole again was unsuccess-
ful in trying to reach Sharon by phone. Notice of said
missing checks was posted in the kitchen bulletin board as
a matter of policy.
On December 1 Sharon had still another , i.e., a third,
missing check . Cole reported this to the office manager.
After ascertaining that said check "had been used and not
paid" Cole spoke to DeLuca about it and the other two
missing checks of DeLuca , but the latter "was unaware
that she had had a missing check or any missing checks."
Cole also told her that DeLuca had failed to check out with
the cashier and that it was DeLuca 's "responsibility to at
least account for some reason that the checks were
missing," but DeLuca "couldn 't do it." That evening
DeLuca had another missing check , her fourth. Cole
reported this to Respondent 's office manager. (See Resp.
Exhs. 1, 3, and 4 for three of the alleged missing checks.)
On December 12, 1973, DeLuca was called to the office.
In addition to Cole , Office Manager Cijka and Assistant
Manager Bertera were present . When the office manager
told DeLuca that the latter had four checks missing and
"assumed no responsibility" for "missing monies," DeLuca
answered that she would not pay for these checks but
offered no explanation why said checks were missing.
Thereupon Bertera discharged DeLuca.
On cross-examination Cole conceded that "it is not
unusual for the waitresses . . . to have an occasional
missing check"; no other waitress has been discharged by
Respondent for having missing checks ; "there have been
other waitresses who have not paid for missing checks";
and Cole had never before been asked to be present "when
a waitress was being discharged."
Respondent's office manager, Stephen Cijka , admittedly
an agent and supervisor within the meaning of the Act,
gave testimony for it. An adequate summary of his
evidence follows . On December 3, 1973 , Gladys Cole, who
works in his office , brought to his attention that on three
previous occasions Sharon DeLuca had a missing custom-
er's check . So he instructed Gladys "to get in touch with
... Sharon . That's standard procedure." When he learned
VINCENT'S STEAK HOUSE, INC.
on December 5 that Sharon had still another check
unaccounted for he not only directed Cole to call Sharon
again but also spoke to President Lanzarotto and Assistant
Manager Clark Bertera concerning it. Then on December
10 he decided to terminate Sharon without giving Sharon
an opportunity to be heard on the question.
So on December 12 a meeting was held . Present were
Bertera , Cijka, Cole, and DeLuca . After reminding
DeLuca that she had four different missing checks and
telling her that "we can't tolerate this any longer," he
notified her that she was being terminated . DeLuca merely
said that she was "not going to pay for the checks" without
elucidating why such checks were missing.
On cross-examination Cijka disclosed that he did not
carry out any independent investigation as to the circum-
stances surrounding DeLuca's missing checks, but relied
on Cole's statements to him about this situation ; DeLuca
was not contacted about the missing checks , although Cole
had unsuccessfully attempted to reach her by telephone; he
had not exercised authority over or disciplined any other
waitress ; he discharged DeLuca without "even waiting to
hear an explanation" from her ; and he "wasn't really
interested in" whether DeLuca had an explanation to offer.
Clark Bertera, who previously had been called as a
witness by the General Counsel , also testified for the
Respondent . An adequate abridgment of his testimony in
this latter capacity follows . Respondent closed its Oyster
Bar about November 7, 1973, because (a) "we couldn't get
the heat up," (b) there was an energy crisis , so that
customers had difficulty coming because of a gas shortage,
(c) repairs were being done "on the floor downstairs," and
(d) "we had a flood problem" of about 3 inches when the
"sewers backed up." It has not since been reopened.
Bertera denies that he told Pamela Clark on August 18,
1973, that any girls looking out the window at the picketing
would be fired . In fact on that day he was on vacation in
Florida. (See Resp . Exh. 7, which is his timecard on which
is written in pencil the word "vacation" for the pay period
ending August 19, 1973.)
On October 31, 1973, Bertera went to the Diplomat
Lounge at or about midnight, where he sat with Pamela
Clark and three other employees of Respondent . Although
he entered into a conversation with them at no time did he
ask Pamela whether she had signed a union card or did she
ask him if he had signed one . But when Pamela
complained about being mistreated by Bernice Fessia, the
supervisor of waitresses, he suggested that Pamela quit if
she was unhappy at Vincent's Steak House . Finally, he
insisted that he saw no union card or literature on the table
while he was there.
Another witness for Respondent is its Beverage Manager
and supervisor of bartenders, Donald Reimann, who had
previously been called by the General Counsel as a witness.
(The answer admits that he is a supervisor and agent under
the Act.) A summary of his testimony follows. One
Saturday night , when business was "very, very busy,"
Marie Lewia was working in the "back section . . . which
is adjacent to the Oyster Bar." Because the girls were
unusually busy, Reiman took an order from a table of 12
customers in Marie's section and gave it to Marie to fill at
the bar . Although Marie said she "could not take the order
663
right now," he gave it to her anyway. Thereupon Marie
called him an asshole in the presence of two bartenders,
three or four waitresses , a cashier, and many customers.
Reiman reported this incident to Manager Bertera about
2 hours later and suggested that Bertera call a meeting to
discuss it.
Not long after closing hours of the same day Bertera
called a meeting which was attended by Reimann, all
(probably six or seven) the cocktail waitresses , one or two
bartenders, and "maybe a bus boy or two." Bertera
reprimanded, without mentioning Marie , both Reimann
and Marie for what had occurred earlier in the evening,
demanded that foul language not be used , and insisted that
Reimann should not shout when giving orders to the
cocktail waitresses . Reimann admitted on cross-examina-
tion that he was aware that Marie was engaged in union
activity before she was discharged.
Respondent also called Holly Bagg , who had previously
testified as a witness for the General Counsel, to give
testimony for it . She testified for Respondent substantially
as follows . She described the functions performed by a
cocktail waitress , including keeping hors d'oeuvres warm.
Such a waitress is also expected to sign in at the beginning
of her shift , writing the date and time opposite her name.
Then she punches her timecard. Although never told to do
so, she "thought" she "was expected," from what the
waitresses told her, to keep the tables clean and "cleared
off," to bring glasses to the bartenders, and to throw away
empty bottles. In addition , the waitresses had to keep their
uniforms clean.
On cross-examination Holly testified to various instances
when others , including herself, who were required to wear
uniforms failed to keep them clean or to be dressed in the
proper manner without being reprimanded therefor by
their supervisors.
C. General Counsel's Rebuttal
Janie Kowarsky, a dinner waitress for Respondent, gave
substahtially the following testimony as a rebuttal witness
for the General Counsel . Her immediate supervisor was
Bernice Fessia, but Clark Bertera was over Bernice and,
therefore, over Janie. Around Thanksgiving 1973, Bernice
called a meeting of waitresses . At that meeting waitress
Effie Johnson mentioned to the group present that the
Union had previously "tried to get in" Respondent's Steak
House, but that she "did not favor the union," and "came
out very strongly against unionization at Vincent's."
Continuing, Effie mentioned that waitresses "were entitled
to a full insurance plan [which also covered their children
and family] . . . after a certain period of time" at
Respondent's, but "the union could not cover this"; that
"certain hours, which were very flexible at Vincent's,
would not be flexible with the union."
A few weeks later another meeting was held by
Respondent at which all its employees were present. At it
the employees gave "various pro and con arguments"
concerning unionization of Respondent's workers . Bernice,
who also attended , commented that if the Union came in,
the younger workers, such as busboys and setup girls under
18, "would not be able to work the hours that they work
[as] this was against union policies , because of their age."
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharon DeLuca also gave testimony as a rebuttal witness
for the General Counsel . It is briefly set forth at this point.
Adverting to the meeting of November 24, 1973, she
testified that no introductions were made on this occasion;
and that each person "spoke in turn," so that the
"comments" were not "made all at once ." She also insisted
that check No . 006 (see bottom right of General Counsel's
Exhibit 24), "is definitely not [in] my writing," but
admitted that the other checks in General Counsel's
Exhibit 23 and 24 were in her handwriting.
D. Concluding Findings and Discussion
1. As to alleged 8(aXl) violations
(a) As to surveillance, admittedly Bertera visited the
Diplomat Bar several times where he overheard some of
Respondent 's employees discussing the Union . But the
Diplomat Bar was open to the public , so that he was
lawfully on the premises as a customer . The fact that
employees also visited said premises and casually talked
about the Union did not convert a public bar into a union
hall which he was prohibited to enter . Accordingly, I find
that , even if he went there to overhear the talk of the
employees, he did so as a customer rightfully there, and,
consequently , his conduct does not amount to unlawful
surveillance . Cf. N.LR.B. v. Davidson Rubber Company,
305 F.2d 166, 169-170 (C.A. 1, 1%2); Salant & Salant, Inc.,
92 NLRB 417,446-447.
(b) As to discriminatory enforcement of working rules,
Respondent forbade some employees whom it knew to be
engaged in activity protected by the Act not to use its
bulletin board without permission. An example is Lanza-
rotto's denying such permission to Carol Meyers. But I
find that other employees used said bulletin board in
posting personal matters . On this issue I credit the General
Counsel's evidence and do not credit Respondent's
evidence inconsistent therewith . Hence I find that such
denial is discriminatory and that it contravenes the Act.
(c) As to stricter enforcement of rules against talking and
fraternization on the job, I find that Respondent had a rule
against talking and fraternization among employees on the
job. But I further find that , prior to the advent of the
Union , violations thereof were overlooked or tolerated by
Respondent. However , I find that after the Union entered
on the scene these rules were enforced . An 'example is
Respondent's instructing Marie Lewia to sit by herself
when eating meals and not to talk to anybody . But I find
that no violation of the Act occurred by reason of said
stricter enforcement . This is because an employer who
loosely enforces valid working rules is not precluded from
later deciding to have such rules obeyed so long as all
employees are required to do so . The fact that the Union
happened to be organizing such employees does not mean
that the employer must disregard working rules in order to
facilitate such organizing efforts.
(d) On November 24, 1973, Fessia at a meeting told
employees if the Union got in ( 1) employees under 18
would be out of a job, (2) work would be limited to 8 hours
a day, and (3) waitresses would no longer be allowed to
adjust their work schedules among themselves. Respon-
dent's evidence not consonant with this finding is not
credited. I further find that these statements constitute
threats of reprisals against employees if the Union got in,
and that such threats violate the Act.
(e) As to interrogation, about October 31, 1973, Bertera
asked waitress Pamela Clark and other of Respondent's
employees at the Diplomat Bar whether Pamela and such
other employees signed a union card. Ordinarily interroga-
tion without more does not contravene the Act. But I find
that , in view of Respondent's antiunion activities as recited
elsewhere herein , such questioning is coercive and there-
fore is prohibited by the Act.
(f) Other alleged threats of reprisals : At the Diplomat
Bar on or about November 3, 1973, Bertera engaged in a
conversation with some of Respondent's employees whom
he found there. During such talk he told them that if the
Union got in ( 1) the employees would lose insurance
benefits, (2) there would not be any kind of a pay increase,
(3) employees would be required to declare their tips to the
penny, (4) Respondent would cut down the number of
working hours, and (5) Bertera thought Lanzarotto would
sell the iusiness because Bertera did not think that
Lanzarotto could handle the changes . Bertera's denial that
he made these remarks is not credited . I find that all but
the last statement , i.e., (5), are threats of reprisals
interdicted by the Act. But (5) is not an unlawful utterance
as it does no more than disclose an intent to sell , rather
than close, the Steak House . Proprietors of a business are
free to sell it at any time , even though such time coincides
with the selection of a union by the employees.
(g) As to harassment, I find that Fessia often got after
Pamela Clark, but I find , crediting Fessia, that she treated
all waitresses working under her in the same fashion.
Hence I find no violation of the Act in this conduct of
Fessia as it was uniformly followed as to all employees
whom she supervised.
(h) As to the allegedly broad no-solicitation and no-
distribution rule, Respondent 's "Employees' Rules and
Regulations" (see G.C. Exh. 3) provides in Rule 26:
Distributing or posting literature , pamphlets , or other
printed matter or photographs, soliciting or collecting
funds for any purpose on the premises without
permission is forbidden.
This is a lawful rule to the extent that it does not
discriminate against union or other protected activity. But
as worded it prohibits union or protected activity in
nonworking areas at any time , thus including nonworking
time . Pepsi Cola of Los Angeles, 211 NLRB 870 (1974). Cf.
Essex International, Inc., 211 NLRB 749 (1974). But the
Act preserves to employees the right to engage in union
and other protected activity on the employer's nonworking
areas during nonworking hours . Hence this rule in its
present form violates the Act. Magnavox Company of
Tennessee, 195 NLRB 265 (1972), 414 U.S. 1109 (1974);
General Motors Corp., 212 NLRB 133 (1974) and 211
NLRB 986 (1974).
(i) About November 3, 1973, Bertera told employee
Pamela Clark, as alleged in paragraph 8(e) of the
complaint, to quit if she did not like working for
Respondent; but I find this is not coercive and, therefore,
does not violate the Act.
VINCENT'S STEAK HOUSE , INC. 665
2. As to the discharge of Carol Meyers
I find that Meyers was discharged on August 5, 1973, for
engaging in activities protected by Section 8(a)(1) of the
Act, and that she did not quit on that day. It is true that on
that day Carol gave a notice to quit , but only because
Lanzarotto told her that if Carol was unhappy and
remained on the job he would see that she would not stay
there and that he did not think she had the right attitude to
be a waitress . This is tantamount to a constructive
discharge for engaging in protected activities described by
her, as I credit her that she did so give a notice as a
consequence of Lanzarotto 's remarks . But I further find
that her notice was to quit after a given length of time. But
the very next day Supervisor Fessia sent word to Carol that
Carol was not to finish her notice . I find this is an actual
discharge for engaging in 8(a)(l) activities ' which she
delineated in her testimony set forth above and need not be
repeated here . I credit her on this aspect of the case.
It is true that Carol testified that Fessia did complain of
Carol's conduct in the past . But at no time was Carol
disciplined for it . Consequently I find that such conduct
was condoned or overlooked , so that Respondent's
discharge of her 'long after it occurred is a pretext to
disguise the fact that she was terminated , as I find, for
engaging in conduct vouchsafed to her by the Act.
3. As to the discharge of Marie Lewia
It is my opinion , and I find that Lewia was discharged
for engaging in union activity, and that the grounds
advanced for her being terminated are a pretext to mask
the true reason . In arriving at this ultimate finding I have
relied on the entire record and the following subsidiary
facts, which I hereby find as facts.
a. Lewia was very active and prominent in the
movement to organize Respondent 's employees . Indeed
she was one of the two (Powers being the other) chief
proponents of the Union . Of course I am aware of and
expressly rule that this does not shield her from being
terminated for cause . P.G. Berland Paint City, Inc., 199
NLRB 344 (1972). But dismissing an outstanding propo-
nent of a union often tends to discourage other employees
from becoming interested in a union . "Obviously the
discharge of a leading union advocate is a most effective
method of undermining a union organizational effort."
N.LR.B. v. Longhorn Transfer Service, Inc., 346 F .2d 1003,
1006 (C .A. 5, 1965). This may be evaluated in ascertaining
the actual reason motivating or inspiring a layoff , N.L.R.B.
v. Melrose Processing Co., 351 F.2d 693 , 699 (C .A. 8, 1965);
Maphis Chapman Corporation v. N.LR.B., 368 F .2d 298,
304 (C .A. 4, 1966); N.L.A.B. v. Georgia Rug Mill, 308 F.2d
89, 91 (C.A. 5, 1962).
b. Respondent was aware of Lewia's union activity.
This is because I find that Manager Bertera more than
once observed her engaged in such conduct at the
Diplomat Bar. Additionally, I attribute such knowledge to
Respondent because it had not too many employees.
Under the small plant rule , which I find is operative in this
case, it is reasonable to ascribe knowledge of union activity
at its premises . Angwell Curtain Company, Inc. v. N.LRB.,
192 F.2d 899 , 903 (C.A. 7). In fact, Bertera discussed the
Union with some employees at the Diplomat Bar on
November 3, 1973: This also demonstrates that Respon-
dent had knowledge of union activity by its employees.
c. Respondent entertained antiunion hostility. I credit
the General Counsel's evidence on this issue, and do not
credit contradictory evidence, if any, of Respondent. This
is illustrated by its other unfair labor practices found
herein to constitute infractions of Section 8(a)(1) and (3) of
the Act, and by Nomakeo's statement to Meyers that
"people have been fired . . . for trying to start.a union." I
credit Meyers that Nomakeo , a supervisor , said so.
Patently this in itself is inadequate to prove that Lewia was
discriminatorily discharged (N.L.R.B. v. Berggren, Inc., 406
F.2d 239,246 (C.A. 8, 1969), cert. denied 396 U.S. 823), but
is a factor which may be appraised in determining the true
reason prompting or inducing a discharge.
d. It is true , and I find , that Lewia once failed to wear
her waitress cap while working . Although this constitutes
dereliction of duty I find that it did not contribute to her
discharge for two reasons . In the first place, at least one
other waitress also failed to wear her cap without being
disciplined therefor, so that such failure was not considered
enough to result in a discharge . And secondly , Respondent
overlooked or condoned such failure by Lewia as it did not
at any time inform her that she risked discharge therefor.
Further, I find that Lewia did enter into an argument
with Supervisor Reimann and I called Reimann an "assi-
hole." , But I find that this was condoned when manager
Bertera told a meeting of employees merely that there
should be no swearing and a little more team work. But
after the meeting Bertera , who discussed the above
Reimann incident with Lewia , gave her no warning or
reprimand for it . This amounts to condonation. The
sudden revival of this incident several days later in
discharging Lewia convinces me, which I find, that she was
being discharged for her union activity. In this connection
it is of some, but slight , significance that at the time Bertera
discharged Lewia he remained silent when she insisted she
was being fired for her union activity.
In this connection it is desirable to point out as to Lewia
and the other employees whom I have found to have been
discriminatorily terminated that "Direct evidence of a
purpose to discriminate is rarely obtained , especially as
employers acquire some sophistication about the rights of
their employees under the Act." Carrie Corporation of
Charleston v. N.LRB., 375 F.2d 149, 152 (C.A. 4, 1975).
"Nowadays it is usually a case of more subtlety." N.L.R.B.
v. Neuhoff Brothers Packers, Inc., 375 F.2d 372, 375 (C.A. 5,
1967).
e. Although Bertera gave as one reason for terminating
Lewia that Lewia was uncooperative, at no prior time was
she reprimanded or disciplined therefor or was she warned
that such alleged lack of cooperation exposed her to the
risk of being discharged. Such failure on Respondent's part
warrants the inference , and I draw it, that lack of
cooperation did not lead to Lewia 's discharge.
f. Finally, it is not essential, in order to find Lewia's
discharge discriminatory, that it resulted solely from her
union activity . It is sufficient to find such discrimination,
notwithstanding that a valid cause may have existed for her
termination, if a substantial or motivating ground for her
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was her union activity. N.LRB. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1); N.L.R.B. v.
Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4). And I fmd
that a substantial or motivating reason resulting in her
dismissal was her union activity, and the said "union
activity weighed more heavily in the decision to fire [her]
than did dissatisfaction with [her] performance." Whitin
Machine Works case , supra, at 885.
4. As to the termination of Robert Powers
Upon the entire record and the facts recited in this
subsection , which I hereby find , it is my conclusion, and I
find, that Powers was constructively discharged by so
reducing his hours of employment that he was contrained
to leave Respondent 's employ; such reduction in hours was
made with a discriminatory purpose , i.e., to retaliate
against his union activity ; and the reason assigned for such
reduction in hours is a pretext to dissemble the true cause.
a. With Lewia he was the prime proponent of the
Union at Respondent's Steak House, and devoted much of
his time to espouse it among Respondent 's employees.
b. Respondent had actual knowledge of his activity on
behalf of the Union. In any event I find that the
application of the small plant rule, which I fmd appropriate
under the circumstances, ascribes such knowledge to the
Respondent . In fact he induced supervisor Reimann, and
solicited supervisor Nomakeo, to sign a union card.
c. Respondent entertained union hostility.
d. Respondent's claim that lack of fuel oil caused it to
close its Oyster Bar is not credited . This is because the
reason given for closing it, "impossibility of heating it,"
was not established by evidence which I have credited. In
fact not a single employee so testified, and the supervisors
who did so testify were not corroborated by any impartial
testimony, such as that of the supplier of the means to heat
the Oyster Bar.
e. Respondent knew that Powers needed a full-time
job. Hence I find that by reducing his working hours it is
reasonable to infer, and I do so , that Powers would be
forced to seek full-time employment elsewhere. And I
further infer that such hours were cut to induce him as an
active proponent , of the Union to leave Respondent's
employ.
f. Admittedly Powers did not always carry out instruc-
tions . And Respondent contends that he was a slow,
although good, bartender. But I find, crediting him, that he
was never reprimanded for his work or warned that his
performance was unsatisfactory. Hence I fmd that any
deficiencies he may have displayed in executing his work
were either overlooked or condoned . Consequently I find
that such deficiencies were not the real reason for the cut in
his hours of employment . And I further fmd that
discriminatory reasons were the principal ground for such
cut.
S. Finally , even though a valid cause may have arisen
to discharge Powers, I find a substantial or motivating
ground for discharging him was his union activity. It is not
necessary that the valid reason be the sole cause producing
the discharge to fmd that such discharge was discriminato-
ry. See authorities cited in subparagraph f under Lewia,
supra
h. Even if Respondent had economic need to reduce its
work force at the time Powers had his hours cut, I find it
was discriminatorily motivated in selecting him. Pearson
Bros. v. N.LRB., 199 NLRB 1179, enfd. (C.A. 7), 85
LRRM 2187, cert. denied 85 LRRM 2924. This is because
of the findings recited above, plus the fact, which I find,
that Powers ( 1) was an experienced bartender , indeed so
competent that he trained Reimann , his supervisor, how to
tend bar, and (2) two bartenders with less seniority and
experience were retained in preference to Powers. While
seniority was not absolute, disregarding it, absent other
considerations requiring it not be followed, warrants the
inference (which I draw) that he was discriminated against.
N.LRB. v. Cleveland Pressed Products Co., 493 F.2d 1250
(C.A. 6, 1974), in my opinion is distinguishable. And
retaining less experienced bartenders also tends to indicate
that Powers was discriminated against. Also significant,
although not too important , is the fact that Powers received
a raise in pay while employed by Respondent. Inefficient
employees are not granted such raises as a rule.
5. As to the discharge of Sharon DeLuca
On the entire record in this case and the subsidiary facts
found below in this subsection I find that Sharon was
discharged for signing a union card and engaging in some
prounion activity, and that the reasons given her, i.e.,
"obviously could not handle the job" and refusal to make
good on checks of those whom she served who left without
paying such checks, are a pretext to disguise the real
reason. However, I further find that her termination was in
no way induced, motivated, or prompted by the fact that
she was interviewed by two N.L.R.B. agents who investi-
gated the charge and amended charge in this case.
It is true that Sharon was not very active on behalf of the
Union, but she was one of the few who openly espoused
the Union among Respondent's employees when they
patronized the Diplomat Bar. I credit her testimony that
she was observed by Supervisor Reimann on one occasion
and Manager Bertera on another when she was arguing in
favor of the Union to Respondent's employees who
happened to be in said Diplomat Bar. This establishes not
only her efforts on behalf of the Union but also
Respondent's actual knowledge thereof.
As found elsewhere herein Respondent displayed anti-
union animus . Of course this alone is not an unfair labor
practice, and I so rule. But it is an element which I may
take into consideration in determining the actual cause for
dismissing her. And I also have not disregarded the well
established principle that engaging in union activity will
not provide an employee immunity from being disciplined
for legitimate reasons . Norfolk Tallow Co., 154 NLRB 1052,
1058 (1965). Nevertheless, as indicated herein, I am
convinced, and fmd, that Sharon was terminated because
of her union activity.
It is true, and I find, that on three occasions customers
served by her departed from Respondent's restaurant
without paying their checks, and that Sharon refused to
reimburse Respondent for such unpaid checks . But I fmd
that some, but not all, other waitresses who suffered such
experiences refused to make good on the unpaid checks of
those they served, but they were not discharged for such
VINCENT'S STEAK HOUSE, INC. 667
refusal . This disparate treatment of Sharon warrants the
inference , and I draw it, that some reason other than
refusal to pay such checks lay behind Sharon's discharge,
and that such reason was her union activity.
Respondent's witnesses testified that they did not discuss
with Sharon the question of dismissing her, but that the
decision to terminate her was made without giving her a
chance to defend herself or to explain her position, or to
argue against discharge as the proper discipline. This
failure to extend to an employee an opportunity to present
a defense or an argument prior to his being discharged
warrants the inference , which I draw, that a discriminatory
motive generated the discharge . N.L.R.B. v. Murray-Ohio
Mfg. Co., 358 F.2d 948, 950 (C.A. 6, 1966); Norfolk Tallow
Co., 154 NLRB 1052, 1059 (1965).
Then , again, I find that no warning was given to Sharon
that her performance exposed her to the risk of discharge.
In fact I credit her that prior to the advent of the Union
she was praised by Bertera for the excellence of her work
and for a while she executed some of the duties of a head
cocktail waitress. When there is added to this lack of
warning the fact that she was abruptly terminated in the
middle of the week and at the height of the Union's
campaign it is reasonable to conclude-and I do so-that
the true reason for her discharge was her union activity and
that the reason given is a pretext . N.LR.B. v. Melrose
Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965); N.L.R.B.
v. Hawthorn Co., 404 F.2d 1205, 1210 (C.A. 8, 1969);
N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1,
1966). "The abruptness of a discharge and its timing are
persuasive evidence as to motivation ." N.LR.B. v. Mont-
gomery Ward & Co., 242 F.2d 497, 502 (C.A. 2, 1957). See
also Arkansas-Louisiana Gas Co., 142 NLRB 1083, 1085-86
(1963).
Notwithstanding that lawful cause existed to discharge
Sharon such discharge will be found to be discriminatory if
the motivating or substantial reason was her union activity.
N.L.R.B. v. Murray-Ohio Mfg. Co., supra at 950. This
consequence flows from the rule that such union activity
need not be the sole cause for terminating her. I find that
the motivating or substantial reason for dismissing Sharon
was her union activity even though it may not have been
the sole reason.
On the other hand I find that Sharon was not released by
Respondent because she had been interviewed by Board
agents . Hence I find that paragraph 14 of the amended
complaint has not been established . This is because no
more has been shown by the evidence than that Sharon
was so interviewed ; but this is not enough to prove that she
was discharged on account of said interview . There is
therefore lacking in the record evidence from which it may
be inferred that said interview contributed to her being
released . Accordingly, I shall recommend that this aspect
of the complaint be dismissed.
6. As to the discharge of Pamela Clark
It is my opinion , and I find, that Pamela was discharged
for her union activity and that the reason assigned for
terminating her is a pretext . This ultimate finding is
derived from the entire record and the ensuing subsidiary
findings which I hereby find as facts.
a. Respondent harbored a strong dislike for unions.
b. Pamela signed a union card and Respondent had
knowledge thereof . I credit her that she so informed
Manager Bertera when he asked her in the Diplomat Bar if
she had so signed . His denying having propounded such a
question is not credited . She also spoke in favor of the
Union to some of Respondent 's employees at the Diplomat
Bar. Bertera was present at least once when she so talked to
Respondent 's employees.
c. Admittedly, she (1) was once absent from work by
giving a false reason in obtaining a leave of absence on that
occasion, and (2) once refused to set up her station,
although she did so some time later . Her supervisor, Fessia,
also testified creditably that Pamela also was deficient in
some other instances . While I find that these deficiencies
constitute lawful cause for discharge and that Fessia
properly terminated Pamela therefor on November 4, 1973,
I find that such conduct was condoned by Fessia's rehiring
Pamela when Pamela called to be given another chance.
Pamela was rehired on condition that she "not to ever do it
again" and her promise to fulfill said condition. She had
off and did not work the next 2 days. Nevertheless,
although Pamela did nothing for which she could be or was
criticized during said 2 days, Fessia fired her on Pamela's
second day off, November 6.
It is my opinion, and I find , that since Pamela did
nothing after being rehired which subjected her to any kind
of discipline , the sudden discharge of her after she had
been rehired was motivated by antiunion inducements.
Thus the sudden revival of condoned old faults , when no
new or current failings required that the old ones be
reappraised in the light of the new ones , points to the
conclusion , and I find , that that some other cause incited
the decision to discharge . I find that said other cause is her
prounion conduct, and that discharging her for such
conduct contravenes the Act.
d. The abruptness of Pamela 's discharge, especially
since it did not occur concurrently with any reproachful
conduct on her part, together with the fact that it was
imposed at the height of the Union 's organizing campaign,
further convinces me, so that I find , that her discharge was
stimulated by discriminatory motives.
e. And, of course, as more fully elucidated elsewhere
herein , it is no defense that both lawful and unlawful
considerations entered into the decision to terminate
Pamela . Since I find that a substantial or motivating reason
for discharging her was her union activity , such discharge
may not be justified on the ground that legal cause also
played a part in the judgment to dismiss her.
7. Rules of law applicable to all of the above
discharges
I recognize and have adhered to the rule that I may not
question the severity of discipline imposed by Respondent,
for the penalty to be meted out for infractions of working
requirements may not be reviewed by me . Nevertheless, I
have found that each discharge was discriminatory . Also, I
have been guided by the principle that the burden of proof
is on the General Counsel to establish the allegations of his
complaint, that this burden never shifts , that discrediting
Respondent's evidence does not amount to affirmative
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence contributing to the General Counsel's sustaining
his burden of proof, and that no obligation rests on
Respondent to disprove any of the allegations of the
complaint . Charles L. Hawkins v. N.LR.B., 358 F.2d 281,
283-284 (C.A. 7, 1966).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Those activities of Respondent set forth in section III,
above , occurring in connection with its operations de-
scribed in section I, above , have a close , intimate, and
substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor dispute
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take specific action,
as set forth below, designed to effectuate the policies of the
Act.
In view of the finding that Respondent unlawfully
terminated Carol Meyers, Marie Lewia , Pamela Clark,
Robert Powers, and Sharon DeLuca , it will be recommend-
ed that Respondent be ordered to offer each immediate
and full reinstatement to his or her former position, or, if
such is not available , one which is substantially equivalent
thereto, without prejudice to the seniority and other rights
and privileges of each . It will further be recommended that
each be made whole for any loss of earnings suffered by
reason of his or her termination.
In making whole these five persons Respondent shall pay
to each a sum of money equal to that which he or she
would have earned as wages from the date he or she was
terminated to the date he or she is reinstated or a proper
offer of reinstatement is made , as the case may be, less his
or her net earnings during such period . Such backpay, if
any, is to be computed on a quarterly basis in the manner
established by F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at 6 percent calculated
according to the formula set forth in Isis Plumbing &
Heating Co., .138 NLRB 716 (1962). It will also be
recommended that Respondent preserve and , upon reason-
able request, make available to the Board or its agents all
pertinent records and data necessary to aid in analyzing
and determining whatever backpay may be due. Finally, it
will be recommended that Respondent post appropriate
notices.
The foregoing discriminatory terminations go "to the
very heart of the Act." N.L.R.B. v. Entwhistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941); M. R. & R. Trucking Co., 178
NLRB 167, 174 (1969). Accordingly, the Board's Order
should be comprehensive enough to prevent further
infraction of the Act in any manner; and I shall so
recommend . Cf. R & R Screen Engraving, Inc., 151 NLRB
1579, 1587 (1%5).
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By engaging in the following acts Respondent
committed unfair labor practices proscribed by Section
8(a)(1) of the Act : (a) discriminatorily enforcing working
rules; (b) threatening to take the following reprisals if the
Union got in: (1) laying off employees under 18 years of
age, (2) work would be limited to 8 hours a day, (3)
waitresses would no longer be able to adjust their work
schedules among themselves , (4) employees would lose
insurance benefits, (5) there would be no pay increase, and
(6) employees would be required to declare their tips; (c)
interrogating employees whether they signed a union card;
and (d) maintaining an unlawful no-solicitation and no-
distribution rule.
4. By discriminating in regard to the tenure of
employment of Carol Meyers, Marie Lewia, Pamela Clark,
Robert Powers, and Sharon DeLuca, thereby discouraging
membership in the Union, a labor organization , Respon-
dent has engaged in unfair labor practices condemned by
Section 8(aX3) and ( 1) of the Act.
5. The foregoing unfair labor practices affect com-
merce within the purview of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair
labor practices alleged in the complaint.
[Recommended Order omitted from publication.]