Without Reservation

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1408 (N.L.R.B. 1986)

1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without Reservation and Hotel and Restaurant Em-
ployees and Bartenders Union , Local 2, Hotel
and Restaurant Employees and Bartenders
International Union . Cases 20-CA-17170 and
20-CA-17247
31 July 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 26 May 1983 Administrative Law Judge Joan
Wieder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in response to the Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Without
Reservation , San Francisco , California, its officers,
agents , successors , and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.3
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In agreeing with the judge's conclusion that the Respondent interro-
gated and threatened employees in violation of Sec 8(a)(1), we do not
rely on her citation of PPG Industries, 251 NLRB 1146 (1980), as that
case was overruled in Rossmore House, 269 NLRB 1176 (1984). We note
that the individuals interrogated were not open union adherents, and that
the interrogations were accompanied by threats of reprisal and promises
of benefit Cf Rossmore House, see also Sunnyvale Medical Clinic, 277
NLRB 1217 (1985)
In her recommended Order, the judge included broad injunctive lan-
guage, but included narrow language in the notice We shall conform the
notice to the recommended Order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to recognize and bargain
collectively with Hotel and Restaurant Employees
and Bartenders Union, Local 2, Hotel and Restau-
rant Employees and Bartenders International
Union, as the exclusive bargaining representative of
our employees in the following appropriate unit:
All full time and regular part time employees
including cooks, waiters, waitresses, cashiers
and dishwashers employed by Respondent at
its facility located at 460 Castro Street, San
Francisco, California; excluding office clerical
employees, guards and supervisors as defined
in the Act.
WE WILL NOT expressly or implicitly threaten
employees with reprisal, loss of jobs, or closing our
operations for assisting, supporting, or selecting the
Union or any other labor organization.
WE WILL NOT coercively interrogate employees
about their union sentiments, interests, or activities.
WE WILL NOT promise improvement in benefits
as a reward for employees to discontinue their
union or other concerted protected activities.
WE WILL NOT solicit our employees to engage in
surveillance of the other employees' union activi-
ties.
WE WILL NOT create the impression among our
employees that their union activities are under sur-
veillance.
WE WILL NOT advise employees of the futility of
selecting the Union as their bargaining representa-
tive.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
280 NLRB No. 165
WITHOUT RESERVATION
WE WILL, on request, bargain collectively in
good faith with the Union as the exclusive bargain-
ing representative of our employees in the appro-
priate unit set forth above, with respect to wages,
rates of pay, hours of employment, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in
a signed written agreement.
WITHOUT RESERVATION
Donald R. Rendall, Esq., for the General Counsel.
Brian L. Tom, Esq. (Tom, Freeman & Yuen), of San
Francisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER , Administrative Law Judge . The unfair
labor practice charges in Cases 20-CA- 17170 and 20-
CA-17247 were filed on June 11 and July 14 , 1982,' re-
spectively , by Hotel and Restaurant Employees and Bar-
tenders Union (the Union). The General Counsel issued a
complaint on July 27 in Case 20-CA- 17170; issued a
complaint on August 27 in Case 20-CA-17247; and
issued an amended consolidated complaint on November
3, which was further amended at hearing . Respondent
objected to the amendments offered by the General
Counsel at the commencement of the hearing . Respond-
ent was offered the opportunity to demonstrate with
specificity how the claimed surprise engendered by the
proposed amendments would not afford a proper oppor-
tunity to prepare its defense Respondent failed to state
with specificity how the proposed amendments impaired
the preparation of its case or in any other manner caused
prejudice . No motion for a continuance was made, and
such a course of action was not shown to be warranted.
Because the only objections to the amendments proposed
at trial were based on a claim of surprise, a supported
claim , they were permitted . Respondent was afforded the
opportunity to demonstrate , at any time during the pro-
ceeding , prejudice engendered by permitting the amend-
ments to the complaints. Respondent failed to accept this
offer . Respondent 's extensive cross-examination of wit-
nesses who testified concerning the alleged "surprise"
factual allegation dispels the Company 's claim that it was
prejudiced by the amendments to the complaint. It is
thus concluded that all factual issues were fully and
fairly litigated at trial . Maritime Union v. NLRB, 683
F.2d 305 (9th Cir. 1982).
The complaint , as amended, contends that Without
Reservation (Respondent or Company), violated Section
8(a)(1) and (5) of the National Labor Relations Act. In
sum, it is alleged that Respondent violated Section
8(a)(1) of the Act by interrogating employees about their
union activities ; by creating an impression among its em-
ployees that their union activities were , and would be,
under surveillance; by soliciting employees to engage in
surveillance of union activities for Respondent ; by indi-
1 All dates are in 1982 unless otherwise indicated
1409
cating to employees that it would be futile for them to
select the Union as their collective-bargaining representa-
tive; by offering employees unspecified benefits if they
refrained from supporting the Union; by threatening to
discharge employees who supported the Union; by
threatening employees with unspecified reprisals if they
supported the Union; and by threatening to close the res-
taurant in response to union activity by employees
and/or if employees selected the Union as their collec-
tive-bargaining representative . Respondent denies com-
mitting any of these alleged violations of Section 8(a)(1)
of the Act.
The General Counsel further contends that Respond-
ent violated Section 8(a)(5) and (1) of the Act by agree-
ing to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of its em-
ployees if the Union demonstrated by card count that it
represented a majority of the employees, and by failing
and refusing to recognize and bargain with the Union
after the Union demonstrated by a card count that it rep-
resented a majority of Respondent's employees. Re-
spondent denies entering into such an agreement. A card
count was conducted on June 15.
The hearing was held on January 17, 18, and 19, 1983,
in San Francisco, California. All parties were represented
and provided full opportunity to examine and cross-ex-
amine witnesses and to present material and relevant evi-
dence. The time for filing briefs was extended to March
16, 1983. Briefs, which were timely filed on behalf of the
General Counsel and Respondent, have been carefully
considered.
On the entire record, including especially my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent's Business
Respondent admits that it is a sole proprietorship,
owned by Peter Kung, with an office and place of busi-
ness in San Francisco, California, where it is engaged in
the operation of a restaurant. It further admits that
during the past year, in the course and conduct of its
business , it has derived gross revenues in excess of
$500,000 . During the same time period , Respondent, in
the course and conduct of this business, purchased and
received at the restaurant products, goods, and materials
valued in excess of $2500, which originated from points
outside the State of California. Accordingly, it admits,
and I find, that it is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Although Respondent is owned by Peter Kung, his
parents, Ti Ching Kung (Mr. Kung) and Kwang Liang
Tseng De Kung (Mrs. Kung), were the only active man-
agers at the time the alleged violations of the Act oc-
curred. Mr. and Mrs. Kung, whose native language is
one of the Chinese dialects, came to the United States
several years ago after living 15 years in Argentina,
where the lingua franca is Spanish. About February, Re-
spondent's employees began talking about organizing. It
is also about this time that the General Counsel alleges
the violations of Section 8(a)(1) commenced. There is no
question that the unit is appropriate.2
B. Alleged Violations of Section 8(a)(1) of the Act
Various employees of Respondent testified about meet-
ings or conversations they had with Mr. and/or Mrs.
Kung. In analyzing and crediting the testimony of wit-
nesses, I have considered demeanor, the weight of the
evidence, inherent probabilities, admissions, reasonable
inferences drawn from the record, candor, corroboration,
and the other variant factors that the trier of fact must
consider in resolving credibility. Northridge Knitting
Mills, 223 NLRB 230 at 235 (1976). These criteria have
been utilized in setting forth the credited accounts of the
events herein. I have considered all the testimony given
by the sequestered witnesses but will not set forth the
differing versions; rather, the findings of fact are primari-
ly limited to the credited testimony. Krispy Kreme
Doughnut Corp., 245 NLRB 1053 (1979), and ABC Spe-
cialty Foods, 234 NLRB 475 (1978).
Respondent's contention that the Kung's English lan-
guage skills were so inadequate that they could not make
the alleged violative statements were, at the most, misun-
derstood, led the employee to misunderstand, and con-
comitantly led the Kungs to misunderstand the Union's
position, is found not to withstand scrutiny. Mrs. Kung
admittedly spoke to the employees, all of whom testified
they effectively communicated with her. Also Mrs.
Kung worked in another son's ice cream parlor dealing
with English-speaking patrons on her own. Further, the
employee witnesses, many of whom are still working for
the Company, gave accurate accounts wherein the
Kungs made similar statements. Such corroboration is
further persuasive evidence that the Kungs made them-
selves understood. Mr. Kung, who testified, demonstrat-
ed a good facility to speak and understand English. In
fact, his facility with English was much greater than that
of Allen Hong. Hong is employed by the Union as an af-
firmative action officer and he was present during some
of the meetings between the Union and the Kungs in the
event his services as a translator were needed. Hong
worked 12 years in the U.S. Government overseas and 2
years in San Francisco as a translator. Also, since 1977-
1978 until recently, Hong worked as a court-certified
translator.
2 The unit is described as all the Employer's employees, excluding
clerical employees, guards, and supervisors
Mrs. Kung did not testify. She and Mr. Kung were
present during the testimony of other witnesses, though
the rule of sequestration was invoked. Mrs. Kung was
not barred from testifying, but the pressures of being a
witness were a matter of concern due to the fact that
Mrs. Kung suffers from diabetes and heart disease.
Therefore, the parties stipulated that if Mrs. Kung testi-
fied she would generally deny making the statements the
employee witnesses assert she made, but there was no
stipulation regarding the truthfulness of such a denial.
1. Testimony regarding conversations with Patrick
Urquart
About February 12 Urquart, who was employed by
Respondent as a cook for approximately 3 years ending
in July or August 1982, was in the office to be paid
when Mr. Kung inquired if he had heard any rumors
about employees
trying to bring in a union . . . or if any employees
talked to me about joining a union or if I had been
to a meeting or anything like that.
And I said no. And he asked me-well, if I knew
if anybody was unhappy. And I said no. And I
asked him, you know, what he had heard. And he
said nothing. He asked me if I was unhappy. And I
said no.
And he said that he couldn't afford a union and
they might have to close the place.
Urquart asked if Mr. Kung heard anything about the
Union. Mr. Kung replied, "I don't know, but I'll find
out." Urquart admittedly lied when he denied any
knowledge and denied any employee dissatisfaction. He
lied because he feared an honest response would cost
him his job. Urquart was dissatisfied over the hourly
wage Mr. Kung paid him and their refusal to grant his
request for an increase of $1 an hour. The employees
were interested in organizing to improve working condi-
tions.
2. The meeting with Edward Ronald Patton
Patton is currently employed by Respondent as a
waiter and cashier, a position he has held for approxi-
mately 6-1/2 years. Patton had two conversations with
the Kungs regarding the Union. In late February, Mrs.
Kung asked if he would come to a section of the restau-
rant called the "back storage area." He acquiesced. No
one else was present. Patton credibly testified that Mrs.
Kung asked:
"Did you hear any union talk?" And I said, "No."
And she said that if I was-if I heard anything, to
tell her about it, let her know what was going on.
And she said that we shouldn't have a union be-
cause she'd have to close the restaurant, and if she
found out who was responsible she'd have to let
them go. And she also said at that time that since I
was her oldest employee, meaning the one who's
been there the longest, that she knows that I
wouldn't do anything to cause her any trouble and
WITHOUT RESERVATION
that I would tell her if I heard anything. And I said,
"Certainly." And that was the end of that conversa-
tion.
Patton admittedly lied when he denied knowledge of
any union activity for he feared the loss of his job if he
told the truth.
In March, Patton and Mrs. Kung had another conver-
sation in the "back storage area." Mrs. Kung said:
she didn't understand why there was all this trouble
about the union, why there was all this talk about it,
and had anyone yet spoken to me. And I said,
"No " And she said, "Well, I'm an old person now,
and I don't need all this trouble here at the restau-
rant," and that it would be better just to close and
forget the whole matter, and again, if anybody
talked to me, to go to her and tell her about it. And
I said I would, and that was the end of that conver-
sation.
Patton readily admitted he had a recent disagreement
with the Kungs over vacation time, but that incident was
not shown to have altered his testimony.
3. The meetings with Dennis R. Brown
Brown is currently employed by Respondent as a
waiter, a position he has held for approximately 6 years.
Brown had several conversations with Mr. and Mrs.
Kung about the Union. Brown did want union represen-
tation but this was not shown to have biased his testimo-
ny. The first conversation occurred in late February or
early March. Mrs. Kung asked Brown if he would come
into the back room so she could talk to him. Mr. Kung
was also present. According to Brown, Mrs. Kung
told me that she had heard that the union was
trying to come into the restaurant and asked me if I
knew anything about it. And I said, no, I didn't
know anything about it.
I told her at the time that I did know that there
were a lot of people that were upset with their jobs
and the physical state that the restaurant was in at
that time. . .
She told me that she'd heard the union was
coming in and she didn't understand how employ-
ees were so upset with her conditions because she
felt that they took pretty good care of us. And if
any of them didn't want to work there, that we
should go to work somewhere else.
A few days after this conversation, Brown was again
called into the back room and both Mr. and Mrs. Kung
were present Brown testified:
She [Mrs. Kung] told me that they were going to
close the restaurant to redecorate it, and that she
knew a number of people there were for the union
and she knew who they were. And when the res-
taurant would reopen after that cleaning, that those
people would not be there.
1411
When the restaurant reopened after the completion of re-
decoration, all the employees returned to work.
Brown had many conversations with Mrs. Kung about
the Union similar to that which occurred about a week
before the card count. This conversation also occurred in
the "back storage area" at Mrs. Kung's request. Mr.
Kung was also present.
She [Mrs. Kung] said that she heard that there was
more union activity again in the restaurant and that
they didn't need to have the restaurant and they
would close before she would see the union come
into the restaurant.. . .
Well, a lot of these conversations held [sic] the
same thing about working conditions. She [had]
[sic] stacks of applications from people who wanted
to work for her. She didn't understand how any-
body would not want to work for her. And if they
didn't, they should just go somewhere else and
work.
Mrs. Kung said that anybody "that would sign a union
card would not be working for her too much longer."
Mrs. Kung used such terms as "I hear a union going to
come in. I don't want that. I think we close before. We
do not need to have restaurant."
The last conversation Brown testified about occurred
after the card count. When the results of the card count
were announced, showing a majority favoring union rep-
resentation:
[Mrs. Kung] became agitated, she said that you
cannot take my property from me. I will not sign
any union paper. And that basically we could not
take her property. She said you cannot take my
property from her.
Mr. O'Connor asked Mr. Hong to try and calm
her down and tell her that we were not trying to
take her property away from her, that we just
wanted to sit down and talk with her.
4. The meetings with Robin Jamal Daoud
Daoud has worked for Respondent about 5-1 /2 years
and is a current employee . Daoud's first conversation
with Mr. and Mrs. Kung occurred around March in the
storeroom.
Mrs. Kung told me-Mrs. Kung told me, "We
have heard talk in this restaurant about a union
forming." They said, "We think this would be a ter-
rible idea, that we couldn't afford to pay the higher
salaries if a union were to get in , that I think a
union is a terrible idea. And if the union were to get
in, we would have to close."
There was no evidence regarding Respondent 's operating
expenses or other financial data proffered to indicate that
the mention of closure was reasonably founded in fact.
The next conversation was in late spring and it also
occurred in the storeroom. Both the Kungs spoke to him
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he could not ascribe specific statements to either of
them . However, the general message was that
Anyone caught supporting the union in any way,
such as signing a card or [anyone who is for the
Union , anyone who talks for the Union] , voting for
the union , would be fired . If the union were to get
in, we would close . And so we cannot have a union
in this restaurant . I would close first.
Other statements made to Daoud between February
and the date of the card count , June 15 , were repeated
assertions by Mrs . Kung that
"If the union gets in, we 'll close . Anyone who is for
the union will be fired ." She said this on all of those
occasions , at least ten times.
Mrs. Kung also said that any new employees would be
required to sign a statement that they would never sup-
port or vote for a union. Another frequent statement
made by Mrs. Kung is "I can ' t afford to have a union.
We're going to close ." These statements were made in
passing when Daoud was working or sitting at a table
with coworkers doing paperwork.
Daoud and all the other employees testified that Mrs.
Kung never raised the matter of her ill health as a factor
or the basis for the statements that the restaurant was
going to close . Even Mr. Kung did not testify that she
made such a statement.
5. The meetings with Dennis Heatherington
Heatherington is a current employee of Respondent
and has been employed as a cook for approximately 1
year and 4 months . Heatherington also had a series of
conversations with Mr. and/or Mrs. Kung.
The first conversation was in February or March with
Mrs. Kung in the storeroom . Mr. Kung came in during
the conversation.
Mr. Kung didn't really say anything in the course
of conversation . Mrs. Kung asked me if I had talked
to anyone or if anyone had talked to me about the
union coming into the restaurant.
She said that she had heard that there was trou-
blemakers, as she called them , coming in , trying to
organize the union in her restaurant. She said that
she didn 't want the union in there.. .
She said that she didn 't want the union in the res-
taurant, she couldn 't use the union in her restaurant.
Anybody that-the people that were trying to do
this , were trying to organize the union in her res-
taurant would have to go.
She said that if necessary she would close the
restaurant . That she couldn't use the union in her
restaurant. And that I shouldn ' t sign anything with
the restaurant or agree to do anything with the
union-sign anything with the union or do anything
with the union.
A few days after this meeting , Mrs. Kung asked if
Daoud had talked to anyone about the Union. He said,
no, which admittedly was a prevarication . Similarly,
about June 9 , Mrs. Kung asked Heatherington:
if I knew anything about the cards, if I had signed a
card with the union . She said not to sign any-
thing... .
She asked if I had signed anything for the union,
had signed a card for the union . She said, "You
sign , you go ." She said not to sign anything because
she didn ' t want the union in her restaurant and
asked if I knew any more about the cards and if I
had signed one. .. .
Mrs. Kung said she would close the restaurant if neces-
sary.
The next conversation occurred shortly before the
card count, around June 13 . Mrs. Kung called Heather-
ington back to the dry storage room . Mrs. Kung showed
him a list of employees . There was a check either before
or after each name . He credibly testified Mrs. Kung said
that the checks meant that the employee was either
for the union or against the union . And that there
were 11 for the union and 11 against the union.
She said that there was one she was unsure of,
one name she was unsure of, and asked if I knew
how they were siding.
Heatherington replied that he did not know . The list in-
dicated that Heatherington was not a union supporter.
Heatherington testified that on June 15
Mrs. Kung said that they had lost , that the union
had won , but that she was not going to sign any
contract with the union . That if the union struck,
she would keep the restaurant open and use the em-
ployees that were on her side and hire other people
if necessary.
Otherwise , if she couldn't do that , then she
would have to go ahead and close the restau-
rant.. . . [S]he asked me again if I had signed a
card.... I just refused to answer the ques-
tion.... I said I would rather not answer... .
Between February and June 15, Mrs. Kung made addi-
tional statements to Heatherington to the effect
that the people were organizing with the union
could not work in her restaurant. She said that she
would close her restaurant if the union tried to get
in her restaurant.
That she wouldn 't sign a contract with the union,
she didn 't want to have anything to do with the
union being in her restaurant.
She also asked if he signed anything then or knew
"about anybody signing anything with the union." About
six times between February and June 15 , Mrs. Kung
"said that anybody that wanted the union in would have
to leave the restaurant . She would terminate anybody
having anything to do with the union . And that if neces-
WITHOUT RESERVATION
sary she would close the restaurant and rehire new
people."
6. The meetings with David McCrary
McCrary was employed by Respondent as a cashier
for about a year and a half. He resigned his position a
week or two before he testified. His departure was un-
controvertedly amicable . McCrary had one conversation
with Mrs. Kung on the day before the card count. Ac-
cording to the credited testimony of McCrary:
Most of the talking was done by Mrs. Kung. She
inquired as to whether or not I had signed a card. I
asked her why she asked me.
She replied that the union was no good, that she
did not want to see the union come into the restau-
rant, and that it would be in my interest not to sign
the card.
That she would take-this is a quote-"Mama
take care of you no sign the card. You sign, no
work for mama."
Q. What if anything do you recall saying?
A. Well, as my understanding having already
signed the card, my understanding was that most of
the staff had signed. I inquired of her, I asked Mrs.
Kung, I said, "Well, what if a majority of the
people are interested in negotiating with the union
or having a union negotiate with you?"
And she said, "We close."
C. Alleged Violations of Section 8(a)(5) and (1) of the
Act
1. The events of June 11
The day the charge was filed by the Union in Case
20-CA-17170, Kevin O'Conner,3 Urquart, and Hong
went uninvited to the Kung's residence and asked to
speak to them regarding the unfair labor practice charges
filed that day. Urquart gave Mr. Kung a copy of the
charge filed with the National Labor Relations Board.
Mr. Kung said he was not able to meet with them at that
time , but suggested a meeting at the restaurant the fol-
lowing day, June 12, at noon. Mr. Kung then called his
lawyer, John Paul Bosshardt.
2. The events of June 12
Urquart, Hong, and O'Conner met with Mr. and Mrs.
Kung and Bosshardt at the restaurant. The charges filed
the preceding day were discussed. Also discussed was
holding a card check to determine if the Union repre-
sented a majority of the employees. The Company con-
tends the understanding was that if the card count
showed the the Union represented a majority of the em-
ployees, there was sufficient interest to hold an election.
Bosshardt's testimony is not credited. His testimony
was confused, evidencing a lack of clarity of recollec-
tion, candor, and understanding of the import of the
statements . For example, the Union merely had to show
30 percent of the employees desired an election to war-
9 O'Connor is employed by the Union and conducted the organization-
al drive at the restaurant
1413
rant the holding of an election by the Board. See State-
ments of Procedure, Sec. 101.18(a); Cf. S. H. Kress &
Co., 137 NLRB 1244 (1962), and O. D. Jennings & Co.,
68 NLRB 516 (1946).4 Similarly, Mr. Kung's testimony
is not credited based on an admitted lack of clear recol-
lection, demeanor, attempts to tailor testimony, and lack
of candor.
Based on demeanor, demonstrated clarity of recall, and
inherent probabilities, the testimony of O'Conner, as cor-
roborated by Urquart, is credited. According to O'Con-
ner, he presented the Kungs and their attorney a copy of
the charge filed the preceding day. The violations were
discussed. Mrs. Kung denied committing any violations,
stating there may have been a misunderstanding. O'Con-
ner said he was interested in having the violations of the
Act cease,5 that the Union represented a majority of the
Company's employees, and was prepared to prove it.
O'Conner suggested a card count be conducted by a neu-
tral party, a clergyman, as the means of proving that the
Union represented a majority of the employees; and if
the card count so demonstrated, the Employer would
recognize the Union and agree to bargain. Bosshardt
said, "We want this thing resolved as quickly as possi-
ble." Bosshardt also agreed to O'Conner's suggestion
that a Roman Catholic priest O'Conner knew be used to
conduct the card count. The parties agreed to meet again
on June 15 to conduct the card count. There is no con-
tention that Bosshardt did not represent the Kungs
and/or could not enter into the agreement on behalf of
Respondent. The issue of an election was not raised by
any party.6 The lack of familiarity of Bosshardt with
these procedures was never raised and there was no re-
quest for further explication. The question of verification
or authentication of signatures was not discussed at this
meeting.
3. The events of June 15
The card count was conducted on June 15 by Father
Moriarty, a Roman Catholic priest. 7 Present during this
4 There is no question of timeliness or currency of the showing of in-
terest. Urquart testified, credibly and without contradiction , that he
signed a card and gave 13 employees authorization cards, which he saw
signed between June 5 and 14 At times here pertinent, the record clearly
shows that Respondent had 23 employees
s The future disposition of the unfair labor practice charges was dis-
cussed in connection with the card count but there was no clear under-
standing that the charges would be withdrawn if Respondent agreed to a
card count . O'Conner did offer to withdraw the charges if the asserted
threats and interrogations stopped
6 Hong 's testimony regarding what he told Mrs Kung dung this and
subsequent meetings is unclear , reflecting a poor understanding of the
questions asked him due to language difficulties This difficulty does not
impact on this decision for there is no claim that Hong made any repre-
sentations to Mr Kung or Bosshardt. The card count agreement was
made dung discussions between Bosshardt and O 'Conner without any
showing of input by Hong The language difficulties exhibited by Hong
render his testimony not credible.
T Father Moriarty died prior to the trial in this matter Accordingly,
hearsay testimony was permitted regarding his statements and actions and
this testimony is treated consonant with the decision in Pasadena Bowling
Center, 150 NLRB 729, 733-734 (1964)
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting were O'Conner, Hong, Urquart, Brown, Mr.
and Mrs. Kung, Bosshardt,8 and Father Moriarty. There
is no question that Father Moriarty was a neutral party.
While Father Moriarty was counting the cards, Bos-
shardt opined that O'Conner must know that he had won
prior to the card count. After counting the cards, Father
Moriarty announced that the Union did represent a ma-
jority of the employees. He then signed and distributed
to the various attendees of the meeting a statement that
they had agreed to the card check and that the results of
the card check are that the Union represents a majority
of Respondent's employees.
Bosshardt and the Kungs then inquired if the cards
were current. O'Conner agreed to read the dates appear-
ing on the cards, which he did. Father Moriarty sat next
to O'Conner and checked the date on each card. Bos-
shardt then inquired how many employees signed cards,
and O'Conner told him 14. Shortly thereafter, Bosshardt
and Mr. Kung then inquired how they could ascertain if
the employees actually signed the cards. O'Conner indi-
cated he was agreeable to comparing the signatures. Re-
spondent found some canceled checks. Father Moriarty
compared signatures and 10 were found to be valid but
he was unable to compare four signatures for there were
no canceled checks available for those four individuals.
O'Conner inquired if there were other documents that
could be used such at W-4 forms, but no such documents
were available.
O'Conner therefore suggested that all employees affix
their signatures to a blank piece of paper to permit
checking all the signatures on the cards. This suggestion
was agreed to by Bosshardt, Mr. Kung, and Peter Kung.
The parties then agreed to meet on June 18 at 9 a.m. to
complete the checking of the signatures. There was
never any discussion of the ramifications if the signatures
on the four cards were not authenticated.
Mrs. Kung became upset and "said that she would not
sign with the union, would never agree to anything, that
no one could take her property."9 O'Conner said no one
was going to take her property, the Union just wanted to
talk about wages and benefits. Mrs. Kung then left the
room.
O'Conner then handed Bosshardt a statement entitled
"Recognition Agreement," which recognizes the Union
as the sole collective-bargaining representative of the
Company's employees, reflects agreement to negotiate,
and further contained an agreement to refrain from any
violations of Section 8(a)(3) and (1) of the Act.10 O'Con-
ner told Bosshardt he wanted the agreement signed as a
formality. Bosshardt said he understood, "but that it
would be difficult for him to get his client to sign it
while this was going on. Mrs . Kung was still upset,
saying that she would never sign. . . . That she would
never agree to deal with the union." O'Conner indicated
he understood but hoped Bosshardt would "do his best."
The subject of an election was not raised at this meeting.
8 Mr. Kung admitted Bosshardt was Respondent's representative at
this meeting
° She also said , "We close the restaurant."
10 There was some discussion by O'Conner regarding the withdrawal
of the charges filed June 11 by the Union if the Kungs accepted the card
count Apparently this offer was not accepted
4. The events of June 18
At 9 a.m. on June 18, O'Conner, Hong, Urquart, Mor-
iarty, and Bosshardt met outside the restaurant. Accord-
ing to O'Conner, whose testimony is credited for the rea-
sons stated above, "Bosshardt said he no longer repre-
sented the Kungs, that they had retained another coun-
sel. That they were not there and they were not going to
meet." [O'Conner] said , "Does that mean that they were
attempting to back out of the card count?" He said he
did not know, but that they were not there. And he
"presumed that we would hear from their new attor-
ney." The meeting did not occur, the priest was unable
to verify the signatures on the cards.
Later in the day, O'Conner, Hong, Urquart, and Mr.
and Mrs. Kung met inside the restaurant. O'Conner
handed the Kungs a letter stating:
Please be advised that this constitutes an official
demand to bargain.
Enclosed is another copy of the results of the
June 15th card check conducted by Father Mor-
iarty. We are available to meet on June 24, 25, 28,
29 and 30th at 9:30 a.m. at a mutually agreeable lo-
cation. i i
O'Conner suggested the Kungs take the letter to their
attorney and said he wanted to start bargaining about
wages, benefits, and working conditions. The Kungs
would not agree to a particular date to negotiate but said
they would talk to their attorney. This meeting conclud-
ed the contact between the parties.
III. ANALYSIS AND CONCLUSIONS
A. Alleged Violations of Section 8(a)(.I)
Section 7 of the Act guarantees employees the right
"to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection." Section 8(a)(1) of the Act ef-
fectuates this guarantee by making it an unfair labor
practice for an employer "to interfere with, restrain, or
coerce employees" in the exercise of their Section 7
rights. An employer violates Section 8(a)(1) of the Act if
its actions "would tend to coerce a reasonable employ-
ee," without regard to intent or whether the employees
were actually coerced. Wyman-Gordon Co. v. NLRB, 654
F.2d 134, 145 (1st Cir. 1981); Daniel Construction Co.,
264 NLRB 569 (1982). This prohibition is tempered by
Section 8(c) of the Act, which provides:
Expressing of any views, argument, or opinion, or
the dissemination thereof, whether written, printed,
graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of
the provisions of this Act, if such expression con-
11 O'Conner also sent the Kungs a copy of this letter, certified return
receipt requested
WITHOUT RESERVATION 1415
tains no threat of reprisal or force or promise of
benefit.
The Supreme Court, in NLRB v. Gissel Packing Co.,
395 U.S. 575, 617-619 ( 1969), balances the requirements
of the two above -stated sections of the Act as follows:
Any assessment of the precise scope of employer
expression , of course , must be made in the context
of its labor relations setting . Thus , an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely , as those rights are em-
bodied in § 7 and protected by § 8(a)( 1) and the
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers , and the neces-
sary tendency of the former , because of that rela-
tionship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.. . .
[An employer] may even make a prediction as to
the precise effects he believes unionization will have
on his company. In such a case , however , the pre-
diction must be carefully phrased on the basis of ob-
jective fact to convey an employer 's belief as to de-
monstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unionization.
See Textile Workers v. Darlington Mfg. Co., 380 U.S.
263, 274 fn. 20 (1965). If there is any implication
that an employer may or may not take action solely
on his own initiative for reasons unrelated to eco-
nomic necessities and known only to him , the state-
ment is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion , and as such without
the protection of the First Amendment . We there-
fore agree with the court below that "[c]onveyance
of the employer 's belief, even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless , which is most
improbable , eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control," and
not "threats of economic reprisal to be taken solely
on his own volition ." NLRB v. River Togs, Inc., 382
F.2d 198 , 202 (C.A. 2d Cir. 1967).
Accordingly , Respondent 's statements will be exam-
ined in the "context of its labor relations setting ." Also,
the following factors are considered in determining if the
questioning tends to be coercive:
(1) the history of the employer's attitude toward
its employees ; (2) the type of information sought or
related ; (3) the company rank of the questioner; (4)
the place and manner of the conversation ; (5) the
truthfulness of the employee 's responses ; (6) wheth-
er the employer had a valid purpose in obtaining
the information ; (7) if so , whether this purpose was
communicated to the employee, and (8) whether the
employer assures employees that no reprisals will be
taken if they support the union . [General Motors
Corp. v. NLRB, 596 F.2d 1295 at 1309 (5th Cir.
1979).]
All the meetings with the employees, detailed herein-
above, occurred when the employees met individually
with Mr. and/or Mrs. Kung and were questioned about
organizing activity almost at the commencement thereof
and several times thereafter. These employees were not
given assurances against reprisals. In general, the em-
ployees unanimously and independently felt constrained
to lie about this union activity. The Kungs were the
managers of the restaurant. There was no showing of
valid purpose for these communications with the em-
ployees and none was communicated to them. The infor-
mation singularly related to the employees' exercise of
rights under Section 7 of the Act and mention of repris-
als for these activities was frequent. Struksnes Construc-
ton Co., 165 NLRB 1062, 1063 (1965). Cf. Graham Archi-
tectural Products Corp., 259 NLRB 1174 (1982). Specifi-
cally, during these meetings Respondent engaged in the
following activities.
A. Interrogations and Plant Closure
An employer violates Section 8(a)(1) of the Act if it
coercively interrogates employees about union activities
or statements.
In determining whether interviews or interrogations
are coercive, the Board, in Johnnie's Poultry Co., 146
NLRB 770, 774-775, enf. denied on other grounds 344
F.2d 617 (8th Cir.), set forth the following criteria:
Despite the inherent danger of coercion therein,
the Board and courts have held that where an em-
ployer has a legitimate cause to inquire, he may ex-
ercise the privilege of interrogating employees on
matters involving their Section 7 rights without in-
curring Section 8(a)(1) liability. The purposes which
the Board and courts have held legitimate are of
two types: the verification of a union's claimed ma-
jority status to determine whether recognition
should be extended, involved in the preceding dis-
cussion, and the investigation of facts concerning
issues raised in a complaint where such interroga-
tion is necessary in preparing the employer's de-
fense for trial of the case.
In allowing an employer the privilege of ascer-
taining the necessary facts from employees in these
given circumstances, the Board and courts have es-
tablished specific safeguards designed to minimize
the coercive impact of such employer interrogation.
Thus, the employer must communicate to the em-
ployee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his par-
ticipation on a voluntary basis; the questioning must
occur in a context free from employer hostility to
union organization and must not be itself coercive
in nature; and the questions must not exceed the ne-
cessities of the legitimate purpose by prying into
other union matters, eliciting information concern-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing an employee 's subjective state of mind , or other-
wise interfering with the statutory rights of employ-
ees. When an employer transgresses the boundaries
of these safeguards , he loses the benefits of the
privilege.
About February 12, Mr . King asked Urquart if he
heard any rumors about the employees "trying to bring
in a union . . . or if any employees talked to me about
joining a union ," if he had attended a union meeting, and
if he was unhappy . In late February, Mrs. Kung asked
Patton if he "heard any union talk . . . [to] let her know
what was going on." Similar inquiries were made by
Mrs. Kung of Brown , Heatherington , and Daoud . Heath-
erington and McCrary were asked by Mrs. Kung, shortly
before the card check, if they signed a card . These in-
quiries were accompanied by statements that if the em-
ployees were represented by the Union , the restaurant
would close.
In evaluating the conversations herein , it is clear that
neither verification of claimed majority status nor the in-
vestigation of facts regarding a complaint in preparation
for the Employer 's defense were involved, and Respond-
ent never claimed such involvement . Neither were the
established safeguards observed to minimize the coercive
impact of employer interrogation and the atmosphere
was not free from company hostility to the organizing
effort.
The test for "interference," "restraint," or "coercion"
does not turn on the subjective impact which the inquir-
ies may have on the individual employee . Rather, the
question is whether it can be reasonably said that the
Employer 's conduct tends to interfere with the free exer-
cise of employee rights under the Act . Litton Industrial
Products, 221 NLRB 700 (1975). There appeared to be no
legitimate purpose for asking the questions , nor were the
employees given assurances against reprisals. Moreover,
when considered in connection with the existing atmos-
phere of the Company 's campaign against the Union,
that the incidents were not isolated, and considering the
other activities discussed hereinafter , I find such interro-
gations and statements to be inherently coercive and in
violation of Section 8(a)(1) of the Act. San Lorenzo
Lumber Co., 238 NLRB 1421 (1977).
That some of these inquiries were addressed to union
supporters, even if it is assumed that threats of reprisal or
promises of benefits are absent, does not abrogate or
mitigate the violations , and such interrogations are un-
lawful and in violation of Section 8(a)(1) of the Act. See
PPG Industries , 251 NLRB 1146 ( 1980), and Edgecomb
Metals Co., 254 NLRB 1085 (1980).
The interrogations by Respondent were made during a
union organizing campaign and were comprised of in-
quiries into whether employees joined a union, knew
anything about the Union or the organizing campaign, if
an employee signed a union card , whether the employer
knew how other employees felt about the Union after a
list of employees , which designated how the employees
felt about the Union , was shown to them . These inquiries
were not shown to be necessary or privileged, isolated
instances or technical violations . These questions are im-
permissible inquiries into the employees' union activities
and sympathies in violation of Section 8(a)(1) of the Act.
See Airborne Freight Corp ., 263 NLRB 1376 (1982). Cf.
Crown Zellerbach Corp., 225 NLRB 911, 912 fn . 6 (1976).
The repeated threats by Mrs. Kung to close the plant
amplify the impact of the other violations found herein
and are themselves violative of the Act . Threats of plant
closure are among the most serious unfair labor prac-
tices . "It is in fact difficult to imagine any result of a de-
cision by the employer about which labor would be
more highly sensitized ." Mack Trucks v. NLRB , 582 F.2d
720, 735 (3d Cir . 1978). Accord : Bandag, Inc. v. NLRB,
583 F.2d 765 , 772 (5th Cir . 1978) (a threat to close the
plant "strik [es] directly at the heart of the security of the
employees"). Therefore , threats of plant closure "long
[have] been recognized as one of the most potent instru-
ments of employer interference . . . ." Chemvet Labora-
tories v. NLRB, 497 F . 2d 445 , 448-449 (8th Cir . 1974).
C. Other Threats
In late February , Mrs. Kung told Patton that "if she
found out who was responsible [for the Union] she'd
have to let them go ." Similarly, Mrs. Kung told Daoud
several times that "we couldn 't afford to pay the higher
salaries if a union were to get in" and "Anyone caught
supporting the union in any way, such as signing a card
or [anyone who is for the Union , anyone who talks for
the Union], anyone voting for the Union would be
fired." Mrs. Kung told Patton , "if she found out who
was responsible [for the organizing], she'd have to let
them go."
Brown was told that the union supporters would not
remain employees when the restaurant reopened after
being closed for redecoration. Subsequently , Mrs. Kung
told Brown, "She [had] stacks of applications from
people who wanted to work for her . She didn 't under-
stand how anybody would not want to work for her.
And if they didn 't they should just go somewhere else
and work." During a conversation with Patton, she re-
ferred to the organizing effort as "trouble ." In a conver-
sation with Heatherington , she referred to the organizers
as "troublemakers" and that the employees "trying to or-
ganize the union in her restaurant would have to go."
She later told Heatherington that he should not sign a
union card , stating "you sign , you go."
The day before the card check, Mrs. Kung told
McCrary that he could no longer work for Respondent
if he signed a card.
These threats to employees of discharge for supporting
or participating in an organizational campaign are among
the most serious and flagrant forms of interference with
Section 7 rights and are violative of Section 8(a)(1) of
the Act . R. L. White Co., 262 NLRB 575 (1962); Irv's
Market, 179 NLRB 832 (1969), enfd . 434 F . 2d 1051 (6th
Cir. 1970).
D. Impression of Surveillance
Respondent unlawfully created the impression of sur-
veillance when Mr. Kung told Urquart he would find
out about the union activity ; when Mrs. Kung told
Brown she knew which employees were union support-
ers; and when Mrs. Kung showed Heatherington a list of
WITHOUT RESERVATION
names she had prepared in which she had designated by
check marks which employees were for or against the
Union. Mr. and Mrs. Kung also made several remarks
that they had heard that the Union was trying to orga-
nize the Respondent.
The employees could reasonably assume from these
comments that their union activities were under surveil-
lance in violation of Section 8(a)(1). Cherokee Culvert
Co., 262 NLRB 917 (1982). Cf. Arrow Automotive Indus-
tries, 256 NLRB 1027 (1981); Hoover, Inc., 240 NLRB
593, 606 (1979)
E. Soliciting Employees to Engage in Surveillance
Similarly, Respondent violated Section 8(a)(1) of the
Act when Mrs. Kung asked Patton to tell her if he heard
any talk about the Union, after she threatened plant clo-
sure and discharge of those employees responsible for
the organizing effort immediately prior to requesting him
to report to her. Huttig Sash & Door Co., 239 NLRB 571
(1978).
F. Offer of Benefits
On June 14, Mrs. Kung told McCrary that, in consid-
eration for his not signing a union card, she would "take
care of him." The promise of benefits during an organiz-
ing campaign "in order to discourage employees from
seeking a collective-bargaining representative . . . has
long been held to interfere with employees' Section 7
rights in violation of Section 8(a)(1) of the Act." R. L.
White Co., 262 NLRB 575 (1982).
G. Futility of Union Support
Mrs. Kung repeatedly told Heatherington that she
would not sign a contract. She made a similar comment
at the card check on June 15 after Father Moriarty an-
nounced that the Union had a majority. These statements
bespeak an unwillingness to recognize and bargain with
the Union, which is coercive, for it patently discourages
activity protected by Section 7 of the Act. Marathon Me-
tallic Building Co., 224 NLRB 121, 124 (1976); Trane Co.,
137 NLRB 1500, 1501 (1962). See also R. L. White Co.,
supra.
In sum , it is found that Respondent has engaged in a
campaign of intimidation and coercion in violation of
Section 8(a)(1) of the Act.
H. Alleged Violations of Section 8(a)(5) and (1) of the
Act
The Board stated the applicable law regarding the par-
ties' respective positions on this issue in Green Briar
Nursing Home, 201 NLRB 503 (1973), as follows:
In Linden Lumber [190 NLRB 809 (1972)], we
made it clear that an employer will not be found in
violation of Section 8(a)(5) of the Act solely upon
the basis of his refusal to accept union-proffered
evidence of majority status other than the results of
a Board election unless his conduct precluded resort
to an election. In those cases we pointed out that an
election would be precluded by substantial employ-
er misconduct in violations of the Act, by an em-
1417
ployer's action in agreeing upon another method of
ascertaining whether a union majority existed or by
an employer's conduct of a poll of employees which
established the existence of a majority.
Accord: Gregory Chevrolet, 258 NLRB 233 (1981).
In this case , contrary to Respondent's assertion, we
have more than the mere proffer of evidence of majority
status . The parties agreed to a card count conducted by
a neutral party. The parties attended the card count.
Only after the results were announced was the question
of signature verification raised. The Respondent never
asserted at the time of the card count, or any time prior
thereto, that they would be willing to be bound only by
an election. Subsequent to the card count, Respondent
had not sought an election. See Linden Lumber, supra at
719.
Bosshardt's remark to O'Conner during the card
count, but prior to the announcement of results, indicat-
ed he knew the Union had a majority. The demand for
signature verification was merely a method of reinforc-
ing the conclusion. There was no assertion that the cards
were considered invalid or improper. It is not asserted
that the card check was inaccurate or improper. When
attempts to complete the verification procedure were
made by the Union, which knew the signatures were au-
thentic,12 Respondent, solely by its own actions, pre-
vented such verification. This action is not a warrant for
invalidating the card check for there is no basis to find
that Respondent had a reasonable basis to doubt the sig-
natures were invalid or otherwise doubt the Union's ma-
jority status. See Snow & Sons, 134 NLRB 709 (1961).
Mr. and Mrs. Kung's opposition to the organizing
effort, their repeated violations of Section 8(a)(1) of the
Act, and Mrs. Kung's reaction to the results of the card
count demonstrate that the desire for an election arose
subsequent to the card count and is a ploy to defer if not
avoid the obligation to bargain.
In sum, it is abundantly clear that the parties agreed to
be bound by a card count, the card count showed the
Union represented a majority of employees, and the Em-
ployer, by avoiding completion of the verification of sig-
natures procedures, which were not a part of the original
card count agreement , tried to repudiate the previously
agreed-on method of determining if a union majority ex-
isted.ts
This conclusion is not altered even if, assuming ar-
guendo, Respondent was enticed into the card count
agreement and was unaware that the results could lead
to the loss of its right to demand an election. As summa-
rized by Administrative Law Judge Steven B. Fisk in
Gregory Chevrolet Inc., supra at 240:
The Board and the courts have considered these
kinds of contentions in similar situations , and have
rejected such defenses. In Harding Glass Industries,
Inc., etc., 216 NLRB 331 (1975), the Board rejected
12 Urquart , as stated above, credibly testified he saw the employees
sign the cards
's The Respondent never raised a question about the appropriateness
of the unit.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer's contention that its expressed desire to
consult an attorney before recognizing the Union is
a defense to his breach of an agreement that he had
entered into to recognize the Union based on the re-
sults of a card check.
The Eighth Circuit Court of Appeals, in affirming the
Board on this issue, while reversing on other grounds,
quoted with approval the Ninth Circuit Court of Ap-
peals opinion affirming Snow & Sons, supra, which held:
Nor is it important whether an employer appreci-
ates in advance that a card count may provide in-
formation which will undermine his right to insist
on a Board election. Fred Snow, Harold Snow, and
Tom Snow, d/b/a Snow & Sons v. NLRB, 308 F.2d
687, 692 (9th Cir. 1962).
The Eighth Circuit Court of Appeals opinion in Har-
ding Glass Industries v. NLRB, 533 F.2d 1065, 1069 (8th
Cir. 1976), agreed with the preceding analysis and made
the observation which is particularly applicable herein:
The verification procedure approved by the em-
ployer gives that employer accurate information,
but the employer need not appreciate in advance
the obligations that may arise from knowledge so
gained.
In Idaho Pacific Steel Warehouse Co., supra, the Board
rejected an employer's defense that it did not understand
the implications of a card check, and that it did not
intend to create a binding obligation by assenting to such
a check, by citing Snow & Sons and Harding Glass Indus-
tries, supra.
However, on the record herein, it is found that Re-
spondent was represented by counsel on June 12 and 15,
counsel was present both days, and the parties agreed to
a card count as the means of ascertaining if the Union
represented a majority of the employees.
The record clearly demonstrates that the Union made
a clear and proper demand for recognition, which was
communicated and considered by Respondent, and Re-
spondent refused to meet its bargaining obligation. Ac-
cordingly, it is found that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union on and after June 15, 1982.
Based on this conclusion that Respondent, by its con-
duct, obligated itself to bargain with the Union on June
15, it is not necessary to decide whether the independent
violations of Section 8(a)(1) of the Act were sufficient to
preclude the existence of a free and fair election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON
COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with the operations of Respondent
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce
CONCLUSIONS OF LAW
1. The Respondent, Without Reservation, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartenders
Union, Local 2, Hotel and Restaurant Employees and
Bartenders International Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing on and after June 15, 1982, to recognize
and bargain collectively with the Union as the exclusive
bargaining representative of its employees in the appro-
priate unit set forth below, Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act. The appropriate bar-
gaining unit is:
All full-time and regular part-time employees in-
cluding cooks, waiters, waitresses, cashiers and
dishwashers employed by Respondent at its facility
located at 460 Castro Street, San Francisco, Califor-
nia; excluding office clerical employees, guards and
supervisors as defined in the Act.
4. By the foregoing conduct in February through June
1982, and by threatening employees with closure of its
operations and loss of jobs; coercively interrogating em-
ployees; creating the impression of engaging in surveil-
lance of the employees' protected concerted activities;
coercively soliciting employees to engage in surveillance
of coworkers' protected concerted activities; promising
improvements in benefits if an employee did not sign an
authorization card; and advising employees of the futility
of selecting the Union as their bargaining representative;
actions which restrained and coerced its employees in
their concerted protected activities, the Respondent has
violated and is violating Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent on and after June 15,
1982, has failed and refused to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act, I recommend that Respondent be ordered to
recognize and bargain with the Union , on request, as the
exclusive bargaining agent of its employees and, if an un-
derstanding is reached, embody same in a written signed
agreement.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Continued
WITHOUT RESERVATION 1419
ORDER
The Respondent, Without Reservation, San Francisco,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Hotel and Restaurant Employees and Bartenders Union,
Local 2, Hotel and Restaurant Employees and Bartend-
ers International Union, as the exclusive bargaining rep-
resentative of its employees in the following appropriate
unit:
All full-time and regular part-time employees in-
cluding cooks, waiters, waitresses, cashiers and
dishwashers employed by Respondent at its facility
located at 460 Castro Street, San Francisco, Califor-
nia; excluding office clerical employees, guards and
supervisors as defined in the Act.
(b) Expressly or implicitly threatening employees with
reprisal, closure of operations, or loss of jobs, for assist-
ing, supporting, or selecting the Union or any other
labor organization; coercively interrogating employees
about their union sentiments, interests, or activities; coer-
cively soliciting employees to rescind union authorization
cards; giving the impression of engaging in surveillance
of employee protected concerted activities; coercively
soliciting employees to engage in surveillance of cowork-
ers' protected concerted activities, promising benefits to
employees to induce them to refuse to support the Union
or any other labor organization; and indicating to em-
ployees that engaging in protected concerted activities is
a futility.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self organization, to form, join, or assist any labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining or
other mutual aid and protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
the Union as the exclusive bargaining representative of
the employees in the appropriate unit found above with
respect to wages, rates of pay, hours of employment, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed written agreement.
(b) Post at its place of business in San Francisco, Cali-
fornia, copies of the attached notice marked "Appen-
dix."15 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
15 If 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 Nation-
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcmg an Order of the National
poses Labor Relations Board "