Wolfie's

National Labor Relations Board - Board Decisions

Jun 20, 1966

159 N.L.R.B. 686 (N.L.R.B. 1966)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and radio, TV, and phonograph repairmen, but excludes sales person-
nel, maintenance employees, guards, snack bar employees, watchmen,
and supervisors.
The unit sought by the Teamsters would include employees who, like
the "markers" or "checkers," mark merchandise which is then placed
in the various stockrooms or placed on the selling floor, but would
exclude bagboys and cashiers who also do marking work. Like the
excluded bagboys, the "markers" or "checkers" also bag merchandise
at the checkout stands. The unit would also include shipping, receiv-
ing, and warehouse employees, also referred to as "dock personnel,"
who unload or "off-load" incoming merchandise, mark, and deliver it
to the appropriate department on the selling floor or to the stockrooms,
although it would exclude janitors, boxboys, sales stock employees,
and cashiers who also perform some or all of these duties when the need
arises.
As stated, the San Diego and La Mesa stores are essentially self-
service operations. Practically all employees are unskilled. Working
conditions are the same for all store employees, even to the extent that
almost all wage rates are identical. There is considerable overlap in
duties among the various employees. There is no separate bargaining
history for janitors or nonsales employees at these stores. Finally, the
Retail Clerks is seeking to bargain for the employees sought herein as
part of a storewide, two-store unit. Under these circumstances, we
find that the separate units of janitors sought by the Building Service
Employees,6 and nonsales employees sought by the Teamsters,' are not
appropriate for bargaining purposes. We shall therefore dismiss these
petitions.
[The Board dismissed the petitions.]
6White Front San Francisco , Inc, d/b/a White Front South San Francisco , Inc. 159
NLRB 681 ( Chairman McCulloch and Member Brown disserting ), issued this clay. Cf
J. L Hudson, 155 NLRB 1345.
7 J. W. Maya, Inc , 147 NLRB 968 ; Allied Stores of New York, Inc, 150 NLRB 799, 804.
Edir, Inc., d/b/a Wolfie's and Club and Restaurant Employees'
and Bartenders' Union Local No . 133, AFL-CIO, an affiliate of
Hotel and Restaurant Employees and Bartenders International
Union . Cases 12-CA-3000 and 3048(1-2). June 20, 1966
DECISION AND ORDER
On December 10, 1965;,Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices and recommending that
159 NLRB No. 72.
EDIR , INC., D/B/A WOLFIE'S 687
it cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Examiner
further found that the Respondent had not engaged in certain other
unfair labor practices, as to which he recommended that the complaint
be dismissed. The Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as, amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was connr_itted. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
these cases, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications : Acid the following as paragraph
2(b), and reletter the following paragraphs consecutively:
["(b) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military-Training and Service Act, as amended,
after discharge from the Armed Forces."]
' In the absence of exceptions , we adopt pro forma the Trial Examiner ' s recommendation
to dismiss the allegation that Respondent discharged employee Danilo DeArmas in viola-
tion of Section 8(a) (3) and (1) of the Act.
2 The record clearly supports the Trial Examiner 's conclusion that Doline Lindsay and
Jessie Austin were discharged for engaging in peaceful picketing activities which are
protected by the Act. Therefore , their discharges were in violation of Section 8(a) (1)
and (3 ) of the Act. Bernard S. Happach d / b/a 14th Street Market, 151 NLRB 560, enfd.
353 F.2d 629 ( C.A. 7). Thus, this case does not present the issue of what legitimate
measures , short of discharge , an employer may take when faced with picketing by his em-
ployees who continue to perform the duties of their employment . Cf. Redwing Carriers,
Inc, 137 NLRB 1545 , affd sub nom Teamsters, Chauffeurs and Helpers Local Union
No. 79 v. N.L.R .B., 325 F.2d 1011 (C A.D.C.) cert denied 377 U.S. 905 ( 1964).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Samuel M. Singer in Miami, Florida, on April 19-23, 27-29, and May 11-13,
1965, on a complaint dated March 22, 1965, issued by the General Counsel
through the Regional Director for Region 12, based upon charges (filed August 5;
October 12 and 29, 1964), by the Charging Party'against Respondent. The com-
plaint alleged that Respondent violated Section 8(a)(1), -(3), and (5) of the
National Labor Relations Act, as amended. Respondent denied commission of
the alleged unfair labor practices.' '
'At the hearing, I granted General Counsel's motion to correct the name of Respondent
to read as it appears in the caption.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All parties appeared and were afforded full opportunity to be heard, and to
examine and cross-examine witnesses . All waived oral argument at the end of
the hearing. None filed briefs, although afforded opportunity to do so.2
Subsequent to the hearing (July 20, 1965), the Charging Party submitted a writ-
ten request that I withhold disposition of the case pending outcome of contract
negotiations with the new owners of Respondent 's business . On October 14, 1965,
the Charging Party advised me that the Section 8(a) (5) portion of the case has
been settled and requested leave to withdraw the 8(a)(5) charges. On October 22,
1965, I approved this request, and on October 26, 1965, General Counsel moved
to withdraw the portions of the complaint dealing with the alleged Section 8(a)(5)
violations. The motion is hereby granted .3
Upon the entire record 4 in the case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
THE BUSINESS OF THE RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent is a Florida corporation with its principal office and place of busi-
ness at 1390 NE. 163d Street, North Miami Beach, Florida, where it has oper-
ated a restaurant since about May 1, 1964. It is not disputed that Respondent's
gross volume of business , projected on an annual basis, exceeds $500,000. It is
also undisputed that since the beginning of its operations Respondent has received
goods from other Florida enterprises originating in States other than Florida. I
find that all material times Respondent has been and is engaged in commerce
within the meaning of the Act.
The Charging Party (hereafter called the Union ) is a labor organization within
the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events; the issues
The Wolfie's Restaurant here involved opened for business in January 1963.
Edward and Irene Ingle, its owners during the relevant period under consideration,
acquired it in April 1964 .5 The former managers of the business-Joe Wachtel
and Howard Brooks ( day and night managers , respectively )-continued to occupy
the same positions under the Ingles.
Organizational activity commenced in early 1964 . As is customary in campaigns
of this nature , the Union's organizers met with employees and solicited signatures
on union cards. In March and April, the Union filed petitions for election which
it later withdrew.
The Union began to picket Respondent 's premises with nonemployees on July 25.
Shortly thereafter, Respondent informed its employees that they had to choose
between picketing and working , but could not do both; that they were to refer all
customer inquiries concerning picketing to management ; and that anyone grieving
to customers would be dismissed.
In June and July, the Union requested recognition and bargaining on the basis of
authorization cards. Respondent insisted that the representation question be deter-
mined by a Board election.
On July 31, the employees met in the home of Doline Lindsay, a union member.
After deciding to take a strike vote, groups of employees visited her home that day
and the next to cast ballots. At a meeting in Lindsay's home on August 4, Lind-
say and another employee, Jessie Austin, volunteered to picket during their off-duty
hours, at the end of their work shift. On the same day (August 4), after working
hours, Austin and Lindsay joined the nonemployees on the picket line in front of
2 In the absence of briefs, I looked to the pleadings , the statements of counsel at the
bearing, and the nature of the evidence adduced by them, to determine the parties' posi-
tions on the issues.
3 The correspondence and orders in regard to the foregoing are herewith ordered in-
corporated as part of the record . In its letter of July 20 , 1965 , counsel for the Charg-
ing Party indicated that Respondent Company was sold after the hearing , and that the
new purchaser thereafter reinstated the three employees allegedly discharged in violation
of Section 8(a) (3), but without backpay.
6 As corrected by my order dated November 12, 1965.
5 All subsequent dates also will refer to 1964 , unless otherwise indicated.
EDIR , INC., D/B/A WOLFIE'S 689
the restaurant. The next day, August 5, both were discharged because, according
to Manager Wachtel, they chose to picket the Respondent Explaining its action in
a notice to its employees posted on the company bulletin board, Respondent stated,
"As you have been told on many occasions all employees have the right either to
engage in union activities or not. Dolme and Jessie decided to picket . .
On August 10 Respondent and the Union entered into a stipulation for certifica-
tion upon consent election. The Union lost the election held on August 18, and
filed objections to set it aside.6 On March 17, 1965, the Board adopted the
Regional Director's finding that Respondent had interfered with its employees' free
choice in the election by certain conduct, including distribution of coercive leaflets,
and it directed a second election. However, on March 26, 1965, the Board vacated
its March 17 order in view of the issuance of the complaint in this proceeding.
In the meantime, on October 2, 1964, Respondent laid off or discharged employee
Danilo DeArmas allegedly for discriminatory reasons.
In addition to the alleged illegal discharges of DeArmas, Austin, and Lindsay, the
complaint alleges various acts of interference, restraint, and coercion through
Respondent's managers and its employee-agent Alvarez.
The issues herein are:
1. Whether Respondent, in violation of Section 8(a)(1) of the Act, interfered
with, restrained, and coerced its employees through various acts and conduct, includ-
ing interrogation, threats, benefits, and promises of benefits.
2. Whether Respondent's discharge of employees Austin and Lindsay for picket-
ing its premises during off-duty hours, constituted a violation of Section 8(a)(1)
and (3) of the Act.
3. Whether, even if the discharges were unlawful, the two employees forfeited
their right to reinstatement with backpay because they allegedly engaged in
misconduct.
4. Whether Respondent discriminatorily discharged employee DeArmas, in viola-
tion of Section 8(a)(3) and (1) of the Act, because of his union sympathies and
activities.
B. Alleged interference, restraint, and coercion
1. Joe Wachtel
a. Waitress Lindsay (one of the alleged discriminatees) testified that after return-
ing from a union meeting in June, Wachtel (the day manager and her supervisor)
asked her in the kitchen whether she had attended the meeting. When she answered
that she had, Wachtel asked whether she could talk about it and if she thought the
Union would come in. Lindsay opined that the Union would come in. Wachtel
then said that he "didn't know the girls wanted the Union, because he considered
that he was quite fair"; and that "if the Union comes in there will be people that
are going to be sorry." Wachtel explained, "There were girls working that had sta-
tions that according to seniority they had no right to and that if the Union came in,
they would go strictly by seniority and those girls would lose their stations."
Wachtel admitted asking Lindsay in the kitchen, "Were you at the meeting?
Can you talk or is it a secret?" When asked to give Lindsay's reply, Wachtel testi-
fied, "It was nothing, just a question of a vote. , I don't remember the exact words
she said."
b. Lindsay also testified that in the course of a "personal conversation" in July
1964 Wachtel accused her and two coworkers (Jessie Austin and Mildred Lieber-
man) as the "union ringleaders." 7 Wachtel said that Austin had "called the union
in," and that Lieberman "had talked against him in union meetings." Lindsay
denied the accusation, asserting that the girls were merely her friends.
Wachtel generally denied telling anyone that he knew the identity of the union
"ringleaders." He admitted knowing that he had been berated at a union meeting
and resenting the charges leveled against him.
6 The original tally of ballots showed 35 votes cast for and 39 against the Union, with
16 ballots challenged. A revised tally (after determining challenges) showed 37 for and
47 against the Union (the challenges to four ballots were sustained and two challenged
ballots remained undetermined).
7 All three were counter waitresses on the day shift ; the fourth counter girl was Evelyn
Newhaus. Counter work was generally considered more desirable than "floor" work.
243-084-67-vol. 159-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Waitress Lilly Hyman testified that in March or April 1964, Wachtel asked her
"who: started the union," that he stated "nobody would know" who told him, and
that he promised if she gave this information she "would never have to worry about
[her] job." When Hyman disavowed knowledge, Wachtel assured her that "we'll
always be friends and not to be afraid to tell him." Hyman "kiddingly" said that
she "started it," whereupon Wachtel remarked he knew "Millie Lieberman didn't
because . she had a dispute with the Union and . . . she didn't want anything
to do with the Union."
Wachtel at first flatly denied telling any employee "that she would never have to
worry about a job" if she would reveal the person "responsible for the union move-
ment." When specifically asked if he said that to Hyman, he testified, "I don't
remember, but I don't think that I did." He then said that he did not "remember"
if he had a conversation with her,
d. Lieberman (one of the four counter waitresses) testified that around August 2,
in the presence of two other waitresses (Lindsay and Newhaus), she asked Wach-
tel "why he was cutting and changing [her] hours" on the newly posted schedule.
Wachtel replied that "business was slow," "that he had to cut down on the counter,"
and that he was giving "full-time employment" to other floorgirls. Lieberman said
that she had more seniority than the floorgirls and stated that she was willing to
work on the floor if he cut down the counter work. After calling the matter to the
attention of Mr. and Mrs. Ingle (owners of Respondent), Ingle questioned Wach-
tel's proposed schedule changes. Wachtel "got mad" and told Ingle that he there-
after make up the schedules himself. Turning to Lieberman, he said, "you are out
because of all of this . . . you are the one who started the union bit . you
went to the union meeting last week, and . . . degraded me to the union officials
and you really cut me up . . . you made me very small in front of the union mem-
bers . . . . I am out to get you three girls and to crucify you in any way I can,"
naming as his targets the counter girls (Lieberman, Lindsay, Austin, and Newhaus).
Lieberman later took up the matter with Respondent's attorney, Bruckner, who
promised to talk to management. As a result, Wachtel rescinded the new work
schedules and the hours of the counter girls remained unchanged.
Wachtel admitted discussing the changed work schedule with Lieberman on the
day in question. He testified, as did Lieberman, that he told her that he was "cut-
ting down the girls at the counter" because "business is slow"; that Lieberman then
complained to Ingle; and that he "got mad" when the latter overrode his decision.
According to Wachtel, "a heated argument" ensued in which Lieberman warned
him that "I'd better hold on to this job because she will see that I don't get another
job elsewhere." Wachtel agreed that after discussing the situation with Bruckner,
he retained the old work schedule. Although at first "positive" that there was no
mention of the "union" in the discussion, he later conceded stating that he was being
"blamed for everything" just as he "got blamed at the union meeting."
Based on my assessment of the entire record, the inherent probabilities, and
demeanor of the witnesses, I credit the employees' versions rather than Wachtel's.
As to some of the events in issue, Wachtel displayed either poor memory or con-
venient loss of memory. On the other hand, the employees' testimony on the con-
troverted matters was unequivocal and convincing. Moreover, the statements they
attributed to Wachtel conformed to the pattern of his conduct. Furthermore, since
two of the employees (Lieberman and Hyman) were still employed by Respondent
at the time of the hearing, they testified at the risk of incurring their employer's
displeasure.
I find and conclude that Respondent through Manager Wachtel interfered with,
restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act, by
questioning Lindsay (in June 1964) as to whether she attended a union meeting; by
telling her that some employees would be sorry and that seniority would be strictly
enforced, if the Union came in; by accusing Lindsay and two other employees (in
July) as the union "ringleaders"; by questioning (in March or April) Hyman as to
who started the Union, and promising her job security if she revealed the instigator's
identity; and by accusing Lieberman (around August 2) of bringing in the Union,
reprimanding her for degrading him at a union meeting, telling her that the counter
girls' hours were being cut because of the Union, and warning that he was "out to
get" them.
2. Howard Brooks and Manuel Alvarez
a. As previously noted, on July 31 and August 1, the Union polled the employees
in the home of Doline Lindsay, to determine whether they favored a strike.
Employee Alvarez testified that on August 1, Brooks, the night manager and his
EDIR, INC., D/B/A WOLFIE'S 691
superior, asked him to persuade Spanish-speaking kitchen employees to vote against
a strike and to transport them to Lindsay's house for that purpose. According to
Alvarez, Brooks promised him a raise if he spoke to the employees. He further
testified that he spoke to several employees, and that he transported them to the
polling place as requested. Alvarez was later transferred from bus boy to fountain
boy.8
b. Alvarez also testified that 2 or 3 days before the August 18 Board election
(supra, section A), Brooks told him to "be sure that all the boys to whom you
spoke are going to vote against the union," adding that the Company would give the
busboys and dishwashers pay increases. Alvarez did as requested and reported
back to Brooks.
c. Alvarez further testified that a week before the Board election, Brooks asked
him to inform Roberto Torres that "if Roberto voted against a union he would
be promoted from dishwasher to bus boy." Alvarez again did as requested, and
also sent a friend to talk to Torres. Torres was promoted to bus boy several days
after the election.
Brooks denied requesting Alvarez to engage in any antiunion solicitation or activ-
ity of any kind, specifically denying giving him directions to speak to Spanish-
speaking boys and others to vote against the Union in return for wage increases
or other benefits. He also denied promising any award or awarding Alvarez for
his antiunion conduct. Brooks conceded knowing that Alvarez as "very vehe-
mently against" the Union from the very start of the organizational campaign; and
that he heard him "knocking the Union" to his "buddies" before the Board election.
Based on the entire record and the comparative demeanor of the witnesses, I
credit Alvarez' testimony rather than Brooks'. Although Alvarez' testimony was
marked with confusion, I attribute this to language difficulty and limited education
rather than to lack of candor. Brooks, on the other hand, appeared less forthright
and his testimony lacked an authentic ring of truth. For example, although dis-
claiming any "interest" in the organizational campaign, Brooks admitted having
had "numerous" union discussions ("every bit" a "hundred times") with Alvarez.
The reasonable explanation is that Brooks, believing (as he testified) that the union
movement was started by "a few disgruntled" employees, sought to scotch it through
Alvarez, then regarded as his loyal aid.9 Alvarez had worked with Brooks before
the two came to Respondent and Brooks had obtained his Spanish-speaking bus-
boys and dishwashers through Alvarez. Furthermore, Alvarez' testimony is partly
supported by Torres, a witness for Respondent. On cross examination, Torres
admitted that a few days before the Board election Alvarez talked to him about
the election and told him that he would be promoted from dishwasher to busboy.i0
Torres also testified that Alvarez had been antiunion at the time of the Board
election and until at least one of the vandalism incidents.
I find and conclude that Respondent through night manager Brooks interfered
with, restrained, and coerced its employees, in violation of Section 8(a)(1) of the
Act, by requesting Alvarez to persuade Spanish-speaking kitchen employees to
vote against a strike in a union meeting and to transport them to the meeting for
that purpose; by requesting him to induce those employees to vote against the
8 Although Alvarez could not identify the precise date of transfer, it is apparent that it
took place after the above-described incident T_ so find As busboy. Alvarez received
$5 a day plus tips , while as fountain boy he was paid $60 per week. The record is clear,
and I find, that Alvarez was later (several days before the August 18 Board election)
promised another wage increase , but this never materialized , and Alvarez thereafter quit
in November
8I do not credit Brooks' testimony to the effect that he was thoroughly "disgusted" and
"disturbed" by Alvarez' "vehement" antiunion outbursts-the latter occasioned by two
incidents of vandalism to his (Alvarez') car in September-November 1964, which Alvarez
blamed on the Union. (There is no evidence-and Respondent does not claim-that the
Union was responsible therefor. I do not doubt that these incidents accentuated
Alvarez' union animus which, to begin with, Brooks had kindled and fostered by enlist-
ing his assistance in weaning Spanish-speaking employees away from the Union It may
be, as Brooks suggested, that Alvarez later turned against the Company because he
(Brooks ) refused to make good the automobile damage in the second incident. I have not
overlooked this factor in making the credibility resolution
"Torres indicated that Alvarez told him, however, that he could vote as he wanted
As already noted, Torres became a busboy several days after the election, when Alvarez
(then busboy) moved to the fountain Torres had previously worked as busboy for
2 days but was taken off the job because he was told that he was "no good "
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in the forthcoming Board election by promises of pay increases; by request-
ing him to similarly induce employee Torres to vote against the Union through
promise of promotion from dishwasher to busboy; by thereafter promoting Torres
to such job; and by promising benefits, including a pay increase, to Alvarez if he
followed Brooks' instructions.
I further find that in carrying out Brooks' requests and directions, Alvarez acted
as agent of Respondent; 11 and that Respondent, through Alvarez, additionally vio-
l:.tea Section 8(a)(1) of the Act by dissuading employees from voting for a strike
at the union meeting and from voting for ine Uniui, :n the Board election; and by
promising employees benefits, including pay increases and a promotion, for their
antiunion activity.12
3. Posting of the discharge notice
As noted supra section A (and explained in greater detail, infra, section C, 1),
on August 5, Respondent discharged employees Austin and Lindsay for picketing
during off-duty hours. Respondent immediately posted a notice to its employees,
stating, in part, "Doline & Jessie decided to picket; it is their option, but it [is] also
our option not to be required to finance the pickets." The complaint alleges that the
posting of the notice constitutes an independent violation of Section 8(a)(1) of
the Act.
I agree. As hereafter found, the two employees' picketing constituted protected
concerted activity. The notice in effect warned the work force that they faced the
same penalty of discharge already visited on two employees, for engaging in that
protected activity.13
C. The discharge of and refusal to reinstate Austin and Lindsay
1. The discharges
a. The facts
As previously noted (supra, section A), the Union began to picket Respondent's
restaurant with nonemployees on July 25. The picket signs advertised that
Respondent "pays substandard wages." In response, the Company posted a notice
("To Our Customers") on the door of the restaurant, explaining that "none of our
employees are picketing, they are all working as usual and happy to do so," and
thanking it customers for their "continued patronage." Thereupon the picket signs
were changed to read:
To the Public: Sorry if we have caused you any inconvenience. The workers,
members of the Union, are staying on the job at the direction of our chosen
union representative. We protest low wages and substandard conditions.
Please do not patronize. Local 133, AFL-CIO.
On or about July 28, Respondent's attorney, Bruckner, addressed the employees
in the restaurant. He told them that the Company "would expect all employees to
perform their duties in normal fashion"; that they would have "to present even a
better appearance to the public" and "do even a better job" during the period of
picketing; that they had "no right while they were working to visit whatever griev-
ances they might think they have upon the members of the public"; that "any ques-
n An employer is responsible for the statements and conduct of a rank-and-file employee
acting at its direction, or as its agent or conduit. See, e g, N.L.R.B. v. Fitzpatrick and
Weller, Inc, 138 F 2d 697, 699 (C A. 2)
12I do not rely on Alvarez' testimony that in addition to talking to Spanish-speaking
employees, lie also talked to "the American waitresses," telling them that Brooks had in-
structed him to "make propaganda against the union " Apart from the fact that even
Alvarez did not testify that Brooks had instructed him to talk to those waitresses, Alvarez'
testimony on this point is too vague as to time, content, and the waitresses involved, to
justify making a finding of violation thereon One waitress, identified by Alvarez, credibly
denied any such conversation. In any event, a finding that these conversations took place
and that they were coercive would only be cumulative.
13 At the hearing, I granted General Counsel's motion to dismiss paragraphs 7(e) and
(11) of the complaint, alleging further violations of Section 8(a) (1) of the Act by Re-
spondent, through certain other acts of Brooks (in addition to those already treated)
and through Company Attorney Bruckner. I herewith also dismiss paragraphs 7(i) and
(j) of the complaint-dealing with alleged additional illegal conduct by Alvarez-for
want of proof.
EDIR , INC., D/B/A WOLFIE'S 693
tions by any of the customers regarding the picketing" should be referred to man-
agement; and that "any employee who did in fact grieve to the customers would be
discharged." Bruckner again addressed the employees on August 1, telling them,
among other things, about their right not to join the Union in Florida, a right-to-
work State, even if the Union succeeded in the organizational drive.
The subject of picketing was discussed at a union meeting in Lindsay's home on
August 4. Lindsay and Austin volunteered to join the nonemployee pickets in front
of the restaurant. After completing their day's work on that day (August 4),
Lindsay and Austin walked the picket line for an hour or an hour and a half,
dressed in their waitress' uniform.
When Lindsay reported to work around 6:30 a in. the next day (August 5),
Manager Wachtel stopped her near the entrance and said "Doline, I am sorry but
I have to pay you off . . I understand you were picketing last night, and you
were given a choice of picketing or working, and you decided to picket, so I have to
pay you off." Lindsay replied that Company Attorney Bruckner had said that the
employees had "the right to do both." Wachtel disagreed, stating, "Mr. Bruckner
said you had a right to do either one, not both."
When Austin reported a little later in the day (7:45 a.m.), Wachtel told her
substantially the same thing. The timecards'of both employees had been removed
and their termination paychecks had been prepared before arrival, in accordance
with prior instructions from Mrs. Ingle, one of Respondent's owners. When other
employees remonstrated with Wachtel about the discharges, Wachtel told them
that he knew that he "would probably be made the goat" but that he was "just
following instructions." 14
Lindsay and Austin had worked at the restaurant since it was opened by Respond-
ent's predecessor owners in January 1963. According to Wachtel, both were "good
waitresses." Each signed a union card in the organizational drive. They were the
only company employees volunteering to picket the restaurant and picketing it
before and after the discharges. They were replaced at the counter by "floor" wai-
tresses Mueller and Reeder.
After the discharges, Respondent posted the following notice on the employee
bulletin board:
To Our Employees
As promised the attached [Company election] petition was filed by our attor-
ney day before yesterday. There are rumors that it will take 60 to 90 days to hold
an election. It is our intention to see to it that the election is conducted as soon
as is reasonably possible but we also think that the picket line should be
removed. After all, as long as an election is going to be held it makes no sense
for the Union to picket. It just hurts all of us.
As you have been told on many occasions all employees have the right either
to engage in union activities or not. Doline & Jessie decided to picket; it is
their option, but it also our option [sic] not to be required to finance the
pickets.
Aug. 5, 1964 Irene & Ed Ingle
At a meeting between Respondent and the Union held on August 10 to discuss the
voting eligibility list for the forthcoming Board election, a question arose as to
Austin's and Lindsay's voting eligibility. The Union stated that it "would pull the
picket line down" if the Company agreed to put the girls back to work. The Com-
pany responded that the Union already had "agreed to pull the picket line down if
the Company executed a consent election agreement." When the Union insisted that
the two girls be returned before the picketing ceased, the Company replied that the
two girls "had not asked to be returned to work." The Union thereupon said it
was "hereby . making an unconditional request that they be put back to work."
The Company's representative (Bruckner) answered that he "would have to check
on it." 15
14 The foregoing findings concerning the terminations are based on the credited testi-
mony of Wachtel. Lindsay's and Austin's testimony is consistent with Wachtel's, except
that the employees quoted Wachtel as stating that they had been "discharged " How-
ever, whether or not Wachtel used that term is of no significance, since the effect of
Respondent's conduct was the same-it discharged two employees for electing to picket
the restaurant while still in the employ of Respondent, even though the picketing was
done during off-duty hours. I so find
15 The parties apparently did not come to terms Austin and Lindsay voted in the
August 18 election under challenge and the picketing continued to the time of the hearing.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conclusions
Section 7 of the Act guarantees employees " the right to self-organization . and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ." Concerted activities by employees in behalf of a
union or for their mutual aid and protection are ordinarily deemed protected unless
shown to be "unlawful , violent or in breach of contract" or "indefensible ." N.L R.B.
v. Washington Aluminum Company , 370 U S. 9, 17 . "The language of Sec-
tion 7 is broad" and must not be interpreted m so "niggardly fashion" as to "frus-
trate the policy of the Act to protect the right of workers to act together to better
their working conditions." Id at 14.
Respondent admittedly terminated Austin and Lindsay because they "decided to
picket" the restaurant . The employees ' picketing unquestionably was concerted
activity, undertaken as a result of collective action at a union meeting. As the
picket sign disclosed, the objective of the activity was to advance the employees'
working conditions . It follows that the Company 's discharge of the two employees
for exercising their "option" to picket was a violation of Section 8(a)(1) and (3)
of the Act , unless, as Respondent contends , the picketing was indefensible as a
serious breach of duty to the employer.
Respondent in effect contends that the statute does not shelter picketing by
employees against an employer while on the payroll of the employer , even during
off-duty hours of the employees . As Respondent told its employees and as counsel
for Respondent expressed it at the hearing , "The employer . . . has a right to
require its employees not to picket while they are actively engaged as employees
for the store . . . we feel we have a right to require that the employees either go
on a picket line or work for the Company . They can't do both." This position
apparently is predicated on the argument that the employees ' conduct constituted an
act of disloyalty . Furthermore , Respondent urges that to permit employees working
on one shift to picket the next, is to require the employer "to finance the pickets."
I find no merit in either contention.
To begin with , I see nothing inconsistent in an employee seeking to promote
employee interests on employee free time and in providing faithful service to his
employer dulmg working time . Employee and union activities (e g , oral union
solicitation , handbilling , grievance processing ) are usually conducted by working
employees on the employer 's payroll and , more often than not, on employer prem-
ises There is no requucment that employees withhold their services or walk off
their jobs in order to bring lawful pressure upon their employer to yield to
employer demands . To the contrary , it is often "more reasonable and less pro-
ductive of loss to all concerned than an outright strike." ( N.L.R.B. v. Kennametal,
Inc , 182 F 2d 817 , 819 (C.A. 3).)
As Justice Frankfurter has observed , "Many of the legally recognized tactics and
weapons of labor would readily be condemned for `disloyalty ' were they employed
between man and man in friendly personal relations." (N.L.R.B. v. Local Union
No. 1229, IBEW ( Jefferson Standard Broadcasting Company ), 346 U S. 464, 479-
480 (dissenting opinion ).) A typical labor dispute, however , is more than a
friendly match . The contestants are allowed considerable discretion in selecting
economic weapons.16 Publicizing and attacking an employer 's labor policies by
peaceful picketing is one of the accepted media and one traditionally used by
employees to gain public support in a labor dispute . "[ R]easonable and practical
persons . . . view the conduct as an exercise of the right of free speech in criticiz-
ing [the employer 's] labor policies ." ( N.L.R.B. v. National Furniture Manufactun-
ing Co , 315 F.2d 280 , 283 (CA. 7 ).) 17 The fact that the picketing may be highly
in See . N.L R B. v Insurance 4gents' International Union , Prudential Ins Co , .161 Ti S
477, 497-498; N L R B v Bi own Food Store , 380 US 278, 283 ; N L R 13 v Washing-
ton Aluminum Company, Inc, 370 U S 9, 16-17
14 "Throughout the history of federal regulation of labor relations , Congress has con-
sistently refused to prohibit peaceful picketing except where it is used as a means to
achieve specific ends which experience has shown are undesirable . We have rec-
ognized this congressional practice and have not ascribed to Congress a purpose to onilaw
peaceful picketing unless ` there is the clearest indication in the legislative history,'
Loth the congressional policy and our adherence to this principle . . reflect concern
that a broad ban against peaceful picketing might collide with the guarantees of the
First Amendment " ( NL.It13. v . Fruit and Vegetable Pacte,s if Warcbouse,een.
Local 760 ( Tree Fruity Labor Relations Committee, Inc ), 377 U.S 58 , 62-63 )
EDIR, INC., D/B/A WOLFIE'S 695
prejudicial to the employer in loss of image or in income, is not in itself determi-
native. N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130
F.2d 503, 506 (C.A. 2); N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815-816
(C.A. 7).
The Supreme Court's decision in N.L.R.B. v. Local Union No. 1229, IBEW
(Jefferson Standard Broadcasting Company), 346 U.S. 464, is fully consistent with
the above principles. In that case, the Court held certain picketing and hand-
billing "indefensible" and unprotected not because they were conducted after work-
ing hours, but because the handbills attacked the employer's services (TV programs)
without disclosing the workers' grievances or demands, or even indicating that the
appeal related to a labor dispute. No question was raised about the validity of the
picketing and handbilling preceding the illegal activity in that same case. As here,
the first picketing and handbilling in Local 1229 disclosed the nature of the dispute;
the "employees did not strike. They confined their respective hours of picketing to
their off-duty hours and continued to draw full pay." 346 U.S. at 467. Cf.
Home Restaurant Drive-In, 127 NLRB 635, 652. Indeed, the Court noted with
approval the Board's reinstatement and backpay award to one technician who pick-
eted after working hours but "who neither sponsored nor disturbed" the second
handbills. Id at 470.
Respondent's contention that it was in effect required "to finance" the picketing is
too tenuous to require discussion. As stated, the picketing was done after working
hours on the employees' own time. The situation here, therefore, differs from that
in cases like C. G. Conn, Limited v. N.L.R.B., 108 F.2d 390, 397 (C.A. 7) in which
employees were attempting "to work upon terms prescribed solely by [them] while
"remaining at work"; or cases like N.L.R.B. v. Montgomery Ward & Co., 157 F.2d
486, 496 (C.A. 8), where employees, while at work, refused to process orders of a
struck plant.
For all the foregoing reasons, I conclude that since the picketing of Austin and
Lindsay did "not fall within the normal categories of unprotected concerted activ-
ities" (Washington Aluminum, supra, 370 U.S at 17), it was entitled to the pro-
tection of the Act. By discharging them for thus seeking public assistance in the
labor dispute, Respondent violated Section 8 (a) (1) and (3) of the Act.18
2 The refusal to reinstate
(a) Respondent contends that even if Austin and Lindsay were unlawfully dis-
charged for protected concerted activity (picketing) they forfeited their right to rein-
statement because they engaged in misconduct in furtherance of the picketing. It
adduced evidence purporting to show that between July 25 (when the Union began
to picket with nonemployees) and August 4 (when Austin and Lindsay joined the
nonemployee pickets), the two employees neglected their stations at the counter,
were "rude" to customers, and solicited them not to cross the picket line.
As noted at the outset of this Decision (supra, footnote 3), the Charging Party's
motion to withdraw portions of the unfair labor practice charges, indicates that the
two employees were recently reinstated by the purchaser of the business. However,
the issue is not mooted by this circumstance since the employees' right to backpay
prior to reinstatement (even if established) turns on the validity of Respondent's
contention.
(b) Except in few instances, the testimony of Respondent's witnesses imputing mis-
behavior to the two employees, consists of reports from customers. The bulk of
those reports and the testimony concerning them are in such vague, broad, and
conclusory form as not to justify making findings thereon. Moreover, the witnesses
failed to identify the customers involved in the alleged incidents, so that General
Counsel and the Union were not afforded the opportunity to controvert the testi-
mony or to test its veracity by effective cross-examination. Cf. Laystrom Manu-
facturing Co., 151 NLRB 1482, footnote 8. Thus, Respondent's witness Griss
13 Cf. 14th Street Market, 151 NLRB 560, where the Board approved Trial Examiner
Bisgyer's holding that picketing during off-duty hours was a "plainly" statutorily pro-
tected activity, and that the employer's discharge of an employee therefor was a violation
of Section 8(a) (1) and (3) of the Act.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quoted ^ an urinained- "man -and lady" as stating that "the red-headed girl" at one
end of the 'counter (whom Griss recognized as Austin) had been discourteous and
had rendered poor service. Brooks (the night manager), to whom Griss allegedly
reported the incident, testified, however, that Griss "got her colors mixed up."
(Austin has light brown hair and another counter girl-Lieberman-has red hair )
He stated that when he personally checked the incident with the customers, the
latter attributed the misconduct to the girl with the "dimples," from which he con-
cluded that "it must have been Jessie [Austin] . the only one I know with the
dimples." 19 Hostess Speel attributed to Austin similar generalized complaints from
an unnamed "couple," and recalled that another customer ("a single man") stalked
out of the restaurant because he had been neglected at the counter; on cross-
examination, however, she admitted that she really could not tell which waitress was
at fault. According to waitress Kaslaskas, a day or two after the discharges "two
men" pointed to Austin and Lindsay on the picket line as the ones that had given
them "bad service" and had "treated" them "like dirt"; she admitted on cross-
examination, however, that the man "didn't put any blame on any specific" girl and
that they blame "all four [counter girls] equally." Finally, several company wit-
nesses testified that after the picketing started, the toilets in the ladies' room were
stuffed with napkins, bottles, and the like; however, none claimed that either Austin
or Lindsay was responsible therefor.20
(c) The credible evidence establishes, and I find, that the following specifically
identified incidents did take place during the picketing (July 25-August 4) prior to
the discharges: (1) Lindsay once picked up the cup of coffee she had served a cus-
tomer (Frank Miller) at the counter and moved it to a table on the floor served
by waitress Minniti, telling the customer to finish the conversation he was then
having with Minniti at the latter's table; 21 (2) "Bert," a customer working in a
drugstore across the street from the restaurant with whom Manager Wachtel was
"very friendly," had complained about the deterioration in counter service; 22 (3) A
man (Sachs) and his wife (the latter has a shop across the street from Respondent)
generally complained that the girls had made them "uncomfortable" by glaring and
making faces at them; (4) the dischargees had imitated the Ingles' southern accent;
and (5) Austin once delayed waiting on a company hostess.23
I find that the above-described incidents are a far cry from the "violence of great
proportions" to persons and property (N.L.R.B. v. Ohio Calcium Company, 133
F.2d 721, 725 (C.A. 6)) or other serious misconduct involved in cases where rein-
statement had been denied. See, e.g., Republic Steel Corporation v. N.L.R.B., 107
F.2d 472, 479-480 (C.A. 3); N.L.R.B. v. Efco Manufacturing, Inc., 277 F.2d 675,
676 (C.A. 1) cert. denied 350 U.S. 1007; N.L.R.B. v. Wichita Television Corpora-
' 0 The'unreliability of Griss' testimony is further demonstrated by the fact that Gass
(who worked evenings) knew of only two day waitresses although there were four Fur-
thermore, although Griss asserted that all three incidents about which she testified (in
addition to the one described, the others involved "two ladles" and "one lady," none
identified) took place before Austin was terminated (August 5), Brooks testified that
the very first incident occurred "way after" the August 18 Board election In character-
istic peremptory and exaggerating fashion, Brooks insisted that Griss was able to identify
the offending waitress (Austin) because the customers had "described her to a tee"
20 Waitress Mueller's disputed testimony that in the course of a conversation about the
toilets Austin remarked, "Dottie, you have never been in a union fight before, you don't
know how messy it can get," is insufficient to fix responsibility on Austin, even if I were
disposed (which I, am not) to credit Mueller's testimony. I note that one company
witness (Kaslaskas) admitted that toilets were again clogged a week after Austin lett
the restaurant.
"'This finding is based on the testimony of waitress Minniti Lindsay admitted that
the incident took place, but stated that Miller never complained to her about it, and
Austin (Miller's customary waitress) stated that the whole episode "was just a joke "
22 Wachtel inferred that the complaints were directed at Austin because she had usually
waited on "Bert" ; Mrs. Ingle (one of Respondent's owners) indicated that the complaints
were also directed against Lindsay.
2' Austin credibly testified that at the hour in question (the lunch break) a relief waitress
(Mueller) was supposed to have tended the station.
EDIR, INC., D/B/A WOLFIE'S 697
tion, 277 F.2d 579, 585 (C.A. 10), cert. denied 364 U.S. 871, Home Restaurant
Drive-In, 127 NLRB 635, 651-653. They are not "so violent or of such serious
character as to render the employee unfit for further service ." N.L.R.B. v. Illinois
Tool Works, 153 F.2d 811, 815-816 (C.A. 7).24
(d) Respondent's contention that the two employees should be denied reinstate-
ment because during the picketing (July 25-August 4)-while still working, at their
stations-they solicited customers not to cross the picket line, poses a more difficult
issue. Austin admitted telling customers, "When you cross the line, you are going
against the girls that are working." She testified that she felt "pretty strongly"
about the picket line and that she told customers, "That is our picket line." Lindsay
also admitted telling customers that "it was our picket line." Although it is true, as
the dischargees insisted, that they did not request customers to refrain from cross-
ing the picket line in haec verba, their statements (particularly Austin's) carried
that suggestion, and I so find. '
However, it is unnecessary to determine whether the employees' appeals con-
stituted protected concerted activity, immunizing them from discharge therefor.
Local Union No. 1229 IBEW (Jefferson Standard Broadcasting Company), supra,
346 US. 646. Cf. The Hoover Company v. N.L.R B, 191 F.2d 380 (CA-. 6). The
Patterson-Sargent, Co., 115 NLRB 1627. It is one thing for an employer, innocent
of wrongdoing, to discharge an employee for unprotected or indefensible conduct.
It is quite another matter for a wrongdoer to discharge the employee for protected
conduct and then refuse him reinstatement for indefensible behavior in furtherance
of protected activity. In the latter case, the Board will withhold its normal reinstate-
ment and backpay order to remedy the illegal discharge only if the employee's con-
duct was "of such serious character as to render the employee unfit for further
service." Illinois Tool Works, supra, 153 F.2d at 815-816 (see also N L F.B. v.
Wichita Television Corporation, supra, 277 F.2d at 585).25
In the light of the entire record, I find and conclude that Austin's and Lindsay's
appeals to customers inside the restaurant not to cross the picket line, even if con-
stituting unprotected acts of misconduct, are not of such serious nature as to out-
weigh the unfair labor piactices to be remedied. I especially rely on the following
circumstances:
(1) The gravity of Respondent's own conduct in illegally discharging employees
for exercising their statutorily guaranteed right to picket for lawful and proper
purposes. As has long been recognized, a discriminatory discharge goes to the
very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4).
(2) The two employees' inside appeals not to cross the picket line was an adjunct
of the admittedly protected picketing by nonemployees outside the restaurant; they
2i In any event, some of the above incidents and others mentioned by company witnesses
(particularly Mrs. Ingle) are based on hearsay reports from customers which do not con-
stitute substantial, reliable evidence upon which I could properly predicate findings that
they had occurred. I received the evidence in question not for the purpose of establishing
truthfulness of the events, but solely for permitting Respondent to show, as it sought,
that it had acted in the good-faith belief that the incidents occurred For reasons here-
after appearing, I reject Respondent's contention that its refusal to reinstate the two
employees was motivated by such good-faith belief
25 Cf. Local 883, Automobile Workers (Kohler Company) v. N.L.R.B, 300 F 2d 699, 702-
703 (C.A.D.C.), cert. denied 370 U.S. 911 ("where an employer who has committed un-
fair labor practices discharges employees for unprotected acts of misconduct, the Board
must consider both the seriousness of the employer's unlawful acts and the seriousness of
the employees' misconduct in determining whether reinstatement would effectuate the
policies of the Act. Those policies inevitably come into conflict when both labor and
management are at fault. . . . [A]utomatic denial of reinstatement prevents the Board
from protecting the rights of employees, but may not be essential to the protection of
legitimate interests of employers and the public. We conclude that the teaching of the
Thayer [N.L R.B. v. Thayer Company, 213 F 2d 748 (C A. 1) ] case is sound and must be
followed in order to assure the Board's compliance with the statutory command that its
remedial orders effectuate the policies of the Act").
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were orderly, and peaceful; 26 and they did not involve any disparagement or attack
against the employer 's products , services, or business reputation (Cf. Local Union
No. 1229, supra, 346 U.S. 464; The Patterson-Sargent Co., 115 NLRB 1627).
(3) For aught that appears, the appeals were isolated 27 Nor is there any evi-
dence that the apparently brief and unobstrusive appeals in any way interfered with
the normal day-to-day operations of the two employees or of other restaurant
personnel.28
(4) Most significant of all, is the circumstance that Respondent in effect waived
or condoned the employees ' alleged misconduct . 29 Not one company official ever
talked about, or even mentioned, any alleged misbehavior (including the customer
appeals herein discussed ), to either employee, let alone reprimanded her for the
conduct , although Respondent had received on-the-spot reports of the alleged mis-
conduct 30 Manager Wachtel conceded that he never discussed with either Austin
or Lindsay any complaint on "the subject of working or picketing" at or before the
discharges . Nor did Brooks , the night manager do so, explaining that since the
'employees worked daytime, they were "out of my jurisdiction." Mrs. Ingle testified,
"I never talked to any of the girls [about their alleged misconduct], that is the
manager's job , I think." 31 Respondent gave the two employees ( and in its posted
notice all employees ) only one reason for the discharges , namely, the fact that they
had "decided to picket."
Respondent's lack of concern for the two employees ' alleged misconduct is, in my
view, persuasive evidence that the Company itself did not regard their conduct to be
sufficiently serious as to render the employees "unfit" for further service. The infer-
ence I draw is that Respondent advanced the alleged misconduct as an afterthought
and pretext to justify its refusal to reinstate two employees who defied its illegal
instruction not to picket the restaurant (even on their own free time during off-duty
hours ) so long as they remained on Respondent 's payroll. I so find.
Accordingly , from all the congeries of facts, I conclude that Respondent 's refusal
to reinstate Austin and Lindsay was as ill -intentioned and illegal as its earlier dis-
charge of the two employees for engaging in protected concerted activity.
D. The discharge of Danilo DeArmas
DeArmas was hired by Respondent 's predecessor in January 1963. Except for 2
or 3 months ' departure to Las Vegas in 1963, he remained on the restaurant's pay-
35I do not credit waitress Kaslaskas ' testimony quoting a customer to the effect that
Austin had given him "hell for crossing the picketing line " Kaslaskas , whose demeanor
in testifying betrayed a deep -seated union animus, undoubtedly exaggerated the incident
Furthermore , even her testimony suggests that the customer voluntarily refused to cross
the picket line since she also quoted him as saying , "I thought I was helping you by
staying away."
21 Although I have no doubt that Austin's testimony that she was involved in "a couple
of incidents " and, further , that she spoke to customers only in response to questions, does
not tell the whole story, Respondent adduced no credible evidence implicating her to a
greater or more specific degree-perhaps for understandable reasons.
28 Respondent did not submit financial data or other objective evidence ( not even com-
parative gross receipts ) demonstrating the financial impact of the picketing on its busi-
ness. I do not consider the generalized and conclusory statements on this matter by
either Respondent ' s or General Counsel's witnesses ( e g , that the restaurant or counter
remained " busy" or "slowed down ," that there was a noticeable decrease in customers,
that the waitresses ' tips diminished ) probative and reliable evidence
29 Cf. N.L R.B. v . Wallick and Schwalm Company , 198 F . 2d 477 , 484 (C. A. 3) ; N.L.R B
v. EA Laboratories , Inc., 188 F 2d 885, 887 ( C A. 2) ; Alabama Marble Co., 83 NLRB
1047, 1048 , enfd. 185 F 2d (C A. 5).
3o For example, even employee Kaslaskas testified that after receiving the customer's
complaint about Austin ' s appeal not to cross the picket line (supra, footnote 26) she re-
ported it " right away," the "same day," to Manager Wachtel; Austin was still working
in the restaurant at that time . Other company witnesses testified to the same effect as
to other incidents . Manager Wachtel stated that he, too, relayed all complaints to Mr
or Mrs. Ingle, the owners , as soon as he received or learned of them
"I do not credit Mrs . Ingle's testimony to the extent that it seeks to convey the im-
pression that some , if not most , complaints came to her attention only after the em-
ployees were terminated As previously noted , the specifically identified incidents on
which Respondent ' s witnesses testified both occurred and were reported before the em-
ployees' separation
EDIIt , INC., D/B/A WOLFIE'S 699
roll continuously until October 2, 1964, when he was laid off. DeArmas started
as a butcher at $110 a week . He worked as a butcher and part-time cook before
his layoff, earning $ 125 a week.32
DeArmas, on sick leave for a month before his layoff, returned to work on
Friday, October 2. At the end of the day , company officials Bellman ( the kitchen
steward ) and Mr. Ingle ( one of the owners ), told him that they had to lay him off
because "business was slow." Reacting excitedly , DeArmas retorted , "I broke all
these men in. If I go, they will go with me ." DeArmas collected his knives and
those of his brother, Horatio (who also worked in the kitchen ), and started to
leave , saying that his brother would not report the next day either.33 Neither
brother worked thereafter for Respondent.
During Danilo DeArmas' sickness in September , his former assistant , Chano,
took over his work as butcher; Horatio DeArmas did the cooking . Chano continued
Danilo's butchering work after the latter 's layoff.34 Sexto Perez, a former com-
pany employee , was hired as chef to take over Horatio's job as cook.35
I find that the record as a whole does not support General Counsel 's contention
that Danilo DeArmas' termination was discriminatorily motivated . I find, as
Respondent contends, that he was laid off on October 2 for business reasons. In
making these findings, I rely particularly on the following facts supported by sub-
stantial , credible record evidence- ( 1) Respondent 's officials had discussed reduc-
ing the "top heavy" kitchen staff for some time before October 1; (2) complying
with counsel 's advice, Respondent postponed laying off any employees until after
the August 18 Board election ; ( 3) realizing that it was able to operate adequately
without Danilo DeArmas' services , Respondent concluded that he was dispensable-
a "most likely man to let go"-and decided to wait only until after he returned
from sick leave to effectuate his layoff; ( 4) DeArmas was only one of several
other kitchen men ( busboys, dishwashers ) selected for layoff; ( 5) Respondent
retained other employees as active in the Union as DeArmas ; 36 (6) Danilo DeAr-
mas' brother , Horatio , was not laid off and but for his voluntary decision to quit,
would have continued to work for Respondent ; ( 7) Respondent did not hire any
replacement for Danrlo DeArmas, his work as butcher being continued by his for-
mer assistant ( Chaco ) who adequately did the work during Danilo's extended sick
leave; and ( 8) there appeared to be a slack in Respondent's business at the time
of the layoff 37
I conclude that General Counsel did not meet the burden of proving that Danilo
DeArmas was discriminatorily discharged on or about October 2 , because of his
union membership or activities , in violation of Section 8(a)(3) and ( 1) of the Act.
32 The above and subsequent findings concerning the duties of DeArmas and other kitchen
help, are based on the composite testimony of DeArmas , Wachtel ( day manager), and
Mrs Ingle I did not rely on the testimony of James Murad (a company and General
Counsel witness ), except to the extent that it was corroborated by other credible testi-
mony Murad did not impress me as a reliable witness ; his general pattern of testimony
was punctuated by confusion and contradiction.
33 The above findings concerning the layoff interview are based on the composite testi-
mony of DeArmas and Wachtel . I do not credit DeArmas' testimony to the effect that he
had no hand in Horatio 's leaving Respondent At the end of the hearing it was stipulated
that Horatio "did not work on Saturday, October 3 , but came into the store at about
11 a.m., at which time he received " his pay . Horatio's voluntary departure on October 3
was more than coincidental.
3* As Danilo DeArmas' helper , Chano was paid around $ 50 a week , his salary was
subsequently increased to an amount not disclosed in the record
35 Although Horatio earned only $60 or $65 a week , Perez was paid $175, apparently
in recognition of his (Perez' ) increased experience ( he was a full -fledged chef ) and work
hours ( 7 days instead of Horatio ' s 6 days ) It appears that Respondent had been with-
out a chef for some time before Perez' return , the chef ' s job at the time having been
divided between Horatio and Danilo DeArmas
3s DeArmas signed a union card , helped other Spanish -speaking boys fill out cards, and
acted as union observer in the August 1S Board election The other union observer, Glenn
Davis, was not included in the layoff.
37 The busy season for Respondent ( and presumably for other Miami Beach restaurants)
begins around Christmas and ends around Easter ; it is normally slow from August
through October . Although in his prehearing affidavit dated October 12, DeArmas con-
ceded it was "slow" at that time, he patently hedged when questioned on this subject at
the hearing
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent, in violation of Section 8(a)(1) of the Act, interfered with,
restrained, and coerced employees by coercively questioning them concerning union
matters; by accusing employees of being union instigators; by coercively enlisting
or soliciting an employee to obtain other employees' votes against the Union in a
Board election and against a strike in a union poll; by threatening employees with
reprisals in the event of unionization of the business; by promising, holding out,
and awarding benefits for antiunion votes and antiunion activity; and by posting a
notice to the effect that two employees were discharged for picketing on nonwork-
ing time.
2. Respondent, in further violation of Section 8(a)(1) of the Act, interfered
with, restrained, and coerced employees by discharging Jessie Austin and Doline
Lindsay on August 5, for picketing its premises for the purpose of publication and
securing consumer assistance in improving employee working conditions. Respond-
ent, by these discharges, also discriminated in regard to their hire and tenure of
employment, in violation of Section 8(a)(3) of the Act.
3 Respondent has not violated Section 8(a)(3) and (1) of the Act by laying
off Danilo DeArmas on October 2.
4. The unfair labor practices described in paragraphs 1 and 2 above are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act. I shall recommend that Respondent be required to offer
employees Austin and Lindsay immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to seniority and other rights
and privileges.38 In addition, I shall recommend that Respondent make them
whole for any loss of earnings they may have suffered by reason of the discrimina-
tion against them by payment to them of a sum of money equal to that which
they normally would have earned as wages and tips from August 5, 1964, the date
of their discharge, to the date of offer of reinstatement less their net earnings dur-
ing such period, and in the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289. Interest on backpay shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
I shall also recommend that Respondent preserve and make available to the
Board, upon request, payroll and other records to facilitate the computation of
backpay.
Finally, I shall recommend, in view of the nature of the unfair labor practices
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that Edir, Inc., d/b/a Wolfie's,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees about union matters, accusing employees
of being union instigators, coercively enlisting employees to induce fellow employ-
ees to vote against the Union in Board elections and in their union meetings,
threatening employees with reprisals in the event of unionization of the business,
and promising, holding out, and awarding benefits for antiunion activity.
i8 As stated supra, footnote 3, a posthearing communication from the Charging Party
Indicates that Respondent's restaurant is now being operated by a new owner who has
reinstated the two employees, but without backpay. In the event that Austin and Lindsay
have been reinstated (or offered reinstatement) as of the date of this Decision, the rein-
statement requirement in the Recommended Order shall be deemed moot; and in such
event the reinstatement paragraph in the annexed notice (Appendix) may be omitted In
the event that only one of said employees has been reinstated (or offered reinstatement)
as of the date of this Decision, the reinstatement order and notice paragraph shall be
deemed conformed accordingly.
EDIR , INC., D/B/A WOLFIE'S 701
(b) Discouraging membership in Club and Restaurant Employees' and Barten-
ders' Union Local No. 133, AFL-CIO, an affiliate of Hotel and Restaurant
Employees and Bartenders International Union, or in any other labor organization,
by discharging or refusing to reinstate employees because of their union activities,
or in any other manner discriminating against them in regard to their hire or ten-
ure of employment or any term or condition of employment.
(c) Interfering with , restraining , or coercing employees by discharging, threat-
ening to discharge , or refusing to reinstate employees, or in any other manner dis-
criminating against them , for engaging in concerted activities , including lawful
picketing , for the purpose of mutual aid or protection.
(d) In any other manner interfering with , restraining , or coercing its employees
in the exercise of rights under Section 7 of the Act.
2. fake the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Jessie Austin and Doline Lindsay immediate and full reinstatement to
their former or substantially equivalent jobs, without prejudice to any seniority or
other rights and privileges ; and make them whole for any loss of pay and tips, in
the manner described in "The Remedy " section of this Decision.
(b) Preserve and, upon request , make available to the Board or its agents,
for examination and copying , all payroll records , social security payment records,
time cards , personnel records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this Recommended Order.
(c) Post at its restaurant , 1390 NE . 163d Street , in North Miami Beach, Florida,
copies of the attached notice marked "Appendix ." 39 Copies of said notice, to
be furnished by the Regional Director for Region 12, shall, after being duly signed
by Respondent 's authorized representative , be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that such notices
are not altered , defaced, or covered by other material.
(d) Notify the aforesaid Regional Director , in writing , within 20 days from the
date of this Recommended Order, what steps have been taken to comply therewith.40
IT IS FURTHER RECOMMENDED that this complaint be dismissed in all other respects.
other respects.
° In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order " shall be substituted for the words " a Decision
and Order."
°o In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT coercively question our employees about their union activities;
accuse employees of being union instigators; unlawfully enlist employees to
coercively induce other employees how to vote in National Labor Relations
Board elections or union meetings ; threaten employees with reprisal in the
event of unionization of the restaurant ; or promise or award benefits for anti-
union activity.
WE WILL NOT discourage membership in Club and Restaurant Employees'
and Bartenders ' Union Local No. 133, AFL-CIO, an affiliate of Hotel and
Restaurant Employees and Bartenders International Union , or any other labor
organization , by discharging or refusing to reinstate employees because of
their union activities , or in any other manner discriminating against them in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT interfere with , restrain, or coerce employees by discharging,
threatening to discharge , or refusing to reinstate, or in any other manner dis-
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminating against them for engaging in concerted activities, including law-
ful picketing, for the purpose of mutual aid or protection.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their rights guaranteed under the National Labor
Relations Act, as amended.
WE WILL offer Jessie Austin and Doline Lindsay, immediate and full rein-
statement to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges previously enjoyed.
WE WILL make whole the above employees for any wages and tips they lost
as a result of the termination of their employment on August 5, 1964.
All our employees are free to become or refrain from becoming members of the
above-named labor organization, or any other labor organization.
EDIR, INC., D/B/A WOLFIE'S,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
826, Federal Office Building, 51 SW. First Avenue, Miami, Florida 33130, Tele-
phone 350-5391.
Patt Engineering & Manufacturing Co., Inc. and Local Union
170, Sheet Metal Workers International Association, AFL-CIO.
Case 21-CA-6815. June 20, 1966
DECISION AND ORDER
On April 15, 1966, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
159 NLRB No. 70.