Yoshi's Japanese Restaurant

National Labor Relations Board - Board Decisions

Apr 27, 2000

330 N.L.R.B. 1339 (N.L.R.B. 2000)

YOSHI’S JAPANESE RESTAURANT & JAZZ HOUSE 1339
Yoshi’s Japanese Restaurant, Inc. d/b/a Yoshi’s
Japanese Restaurant & Jazz House and Hotel
Employees and Restaurant Employees Union,
Local 2850, Hotel Employees and Restaurant
Employees International Union, AFL–CIO. Case
32–CA–16527
April 27, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
On September 18, 1998, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
General Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed cross
exceptions and a supporting brief. Thereafter, the Charg-
ing Party filed an answering brief to the Respondent’s
cross-exceptions, and the Respondent filed a reply brief.
The Respondent also filed an answering brief to the Gen-
eral Counsel’s and the Charging Party’s exceptions, and
the Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs, and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions,
and to adopt the recommended Order.3

1 The Respondent excepted to the judge’s rejection of the written
speech of Yoshi Akiba from evidence. In the absence of testimony that
Akiba read the prepared speech to the employees she addressed, we
find that the judge’s decision to exclude it does not constitute an abuse
of discretion.
2 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility 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 Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In agreeing with the judge that owner Yoshi Akiba unlawfully
threatened employee Jesse Kupers by stating her concern that the Re-
spondent may not be able to stay open if the employees unionized, we
do not rely on the judge’s find that Akiba, as the speaker, was in a
better position to recall her statement. Rather, we find that, regardless
of whether Akiba’s version or Kupers’ version of Akiba’s statement is
credited, the statement constitutes a threat to close the facility in viola-
tion of Sec. 8(a)(1).
3 Although we agree with the judge that the General Counsel has not
shown that a bargaining order under NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), is a necessary remedy in the in the particular circum-
stances of this case, we do not adopt all of her rationale. We do not
adopt her conclusion that a bargaining order is not warranted because
the Respondent’s threats of closure, grants of benefits, and remedying
grievances did not indicate outright animosity towards unions in gen-
eral, or a desire to rid itself of the Union, but rather a “misunderstand-
ing of the law.” It is well established that the motive behind employer
statements regarding the consequences of unionization is not relevant;
rather, such statements violate Sec. 8(a)(1) if they have a reasonable
tendency to interfere with, restrain, or coerce union activities. See
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946) (“[T]he
test of interference, restraint and coercion under Sec. 8(a)(1) of the Act
does not turn on the employer’s motive. . . . The test is whether the
employer engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights under the Act”). In
addition, the Respondent’s ignorance of the law does not excuse or
otherwise mitigate the discriminatory impact of the wage and benefit
increases on its employees. Moreover, we do not rely on the judge’s
determination that Akiba’s implied threat to the assembled group of
employees is not a hallmark violation. Nevertheless, we agree with the
judge that, in the particular circumstances of this case, the General
Counsel has not shown that our traditional remedies would be inade-
quate to mitigate the effects of the Respondent’s unfair labor practices
and make the holding of a second election possible.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Yoshi’s Japanese Restaurant,
Inc. d/b/a Yoshi’s Japanese Restaurant & Jazz House,
Oakland, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER HURTGEN dissenting in part.
I agree with the judge’s findings except her finding
that the Respondent’s owner, Yoshi Akiba, unlawfully
interrogated employees Belinda Peitso and Jesse Kupers.
As fully recounted by the judge, Akiba asked two em-
ployees, who were open and active union supporters,
why employees were organizing. In my view, Akiba’s
general questions, directed to open union advocates,
were not coercive. See Rossmore House, 269 NLRB
1176 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985).

Gary M. Connaughton, Esq., for the Acting General Counsel.
Philip E. Drysdale, Esq., Michael S. Ward, Esq., and Beth E.
Aspedon, Esq. (Fitzgerald, Abbott & Beardsley LLP), of
Oakland, California, for the Respondent.
Joni S. Jacobs, Esq. (Davis Cowell & Bowe LLP), of San Fran-
cisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. This
case was tried in Oakland, California, on May 6, 7, and 8, 1998.
The charge was filed by Hotel Employees and Restaurant Em-
ployees Union, Local 2850, Hotel Employees and Restaurant
Employees International Union, AFL–CIO (the Union) on De-
cember 23, 1997, 1 and amended on January 7, 1998. The com-
plaint was issued February 23, 1998. At issue is whether Yo-
shi’s Japanese Restaurant, Inc., d/b/a Yoshi’s Japanese Restau-
rant & Jazz House (Respondent or Yoshi’s) committed miscon-
duct which allegedly tended to undermine the Union’s majority
strength and impede the Board’s election processes.
All parties were afforded full opportunity to appear, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,2 and after considering the briefs filed by counsel

1 All dates are in 1997 unless otherwise indicated.
2 Credibility resolutions have been made based upon a review of the
entire record and all exhibits in this proceeding. Witness demeanor and
inherent probability of the testimony have been utilized to assess credi-
330 NLRB No. 174
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
for the General Counsel and for Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a California corporation, with an office and
place of business in Oakland, California, is engaged in the op-
eration of a restaurant and entertainment facility. During the 12
months preceding February 23, 1998, Respondent derived gross
revenues in excess of $500,000 in the course and conduct of its
business operations and purchased and received goods or ser-
vices valued in excess of $5000 which originated outside the
State of California. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Yoshi’s, located in Jack London Square in Oakland, Califor-
nia, is a jazz club and Japanese restaurant. There is sufficient
seating for 200 dining patrons and 340 jazz patrons. The facility
also offers a bar and cocktail lounge. Its owners, Yoshi Akiba,
Kasuo Kajimura, and Hiro Hori, are the “hands-on” managers.
Kajimura is the general manager. Yoshi Akiba is the restaurant
hostess and is in charge of publicity while Hiro Hori runs the
kitchen. Yoshi’s is typically open 7 days each week, serving
lunch and dinner. There are two jazz shows each night.
In October, employees held meetings and had discussions
regarding unionization. Between October 10 and November 12,
a majority of employees in an appropriate bargaining unit
signed single-purpose authorization cards. In a meeting with
Kajimura on November 10, prounion employees explained that
they wanted to organize and asked Respondent to sign a neu-
trality agreement. Respondent refused to sign the agreement but
Kajimura stated Respondent would abide by the terms of the
agreement.
The bargaining unit is:

All full-time and regular part-time employees employed by
Respondent at its Oakland, California location in box office,
food and beverage classifications, including but not limited to
cooks, food and beverage servers, dishwashers, sushi chefs,
buspersons, hosts, bartenders, ticket takers and office cleri-
cals; excluding all other employees, guards, and supervisors
as defined in the Act.

Despite this majority support for the Union, no election was
held because alleged unfair labor practices intervened. These
allegations will now be considered in order to determine
whether a fair election may be held or whether the chances of a
fair election are slight because the alleged misconduct tended to
undermine the Union’s majority strength and impede the
Board’s election processes. Among the allegations of miscon-
duct to be considered are several threats of closure, interroga-
tion, implied threat of closure, solicitation of grievances with an
implied promise to remedy them, wage increases to union ad-
vocates, a change in wait staff rotation practice through the
sushi bar, bonuses, and increased “tip-outs” to an outspoken
union advocate.

bility. Testimony contrary to my findings has been discredited on some
occasions because it was in conflict with credited testimony or docu-
ments or because it was inherently incredible and unworthy of belief.
A. Threats to Close the Facility if Employees Chose the Union
1. Facts
Deedee Bollong, bartender, testified that on November 13,
while working the opening shift, she overheard a conversation
between owner Yoshi Akiba and bartender, Belinda Peitso. At
first, Bollong noticed that Akiba was crying and seemed upset
and distraught. This caught her attention and she listened to
Akiba tell Peitso that she was upset about the Union and con-
cerned that if the Union came in there would be no more Yo-
shi’s. Peitso, who was called by Respondent, corroborated Bol-
long. Peitso testified that Akiba told her that “if the union came
in that she was afraid that they would loose Yoshi’s and that
they would have to close.”3 Akiba testified that she told Peitso,
“We are really having hard time. We are in a dangerous zone.
So, if anything is separated we may not make it. We may not
make it.” Akiba admitted that she was concerned about whether
Yoshi’s could continue to operate if employees unionized. I
find based upon the substantial agreement of Bollong and
Peitso, as well as Akiba, that Akiba said she was concerned that
Respondent would have to close if the employees unionized.
Bollong discussed the conversation with Peitso and also re-
peated Akiba’s remarks to Patty Carroll, bartender; Odessa
Donovan, cocktail waitress; and Jesse Kupers, expediter.
On this same evening, Akiba spoke with Andrea Bacigalupo,
food server, at around 9 p.m. Eric Zivnuska, a coworker, was in
the immediate vicinity and may have overheard the conversa-
tion. According to Bacigalupo, Akiba was crying when she
approached Bacigalupo. Akiba said that she was concerned that
Kupers (perceived by Akiba as the main organizer) was young
and did not know what he was doing. Akiba continued that
Yoshi’s would have to sell the business if the Union came in.
Akiba added because she is Buddhist, she was going to turn her
turmoil over and whatever happens, happens. No other witness
was questioned regarding this conversation. I find, based on the
unrebutted testimony of Bacigalupo, that Akiba told her, in the
presence of coworkers Zivnuska, that she was concerned that
Kupers did not know the consequences of his action and that
Respondent would have to sell the business if the employees
unionized.
Later that evening, Akiba spoke with Jesse Kupers, expe-
diter. Initially, according to Kupers, Akiba told Kupers that
unions were bad. She asked Kupers what problems the employ-
ees had and why they were trying to unionize. He told her he
was in the middle of his shift. However, they continued the
conversation following completion of his shift. According to
Kupers, Akiba explained the financial difficulties faced by the
owners4 and told Kupers that if Yoshi’s went union they would
3 Akiba also said, according to Bollong, if the Union came in, Yo-
shi’s would close its doors and there would be no more Yoshi’s. Bol-
long added this further statement after she testified that Akiba’s words
were that Akiba was “concerned” there would be no more Yoshi’s if
the Union came in. It is unclear to me whether Bollong added this later
statement in clarification of her understanding of Akiba’s first state-
ment or whether she attributed this statement to Akiba. In any event, I
credit Bollong’s initial recollection that Akiba was “concerned” but not
Bollong’s further testimony that Akiba said Yoshi’s would close if the
union came in. This credibility resolution is based in part on failure of
Peitso and Akiba, both of whom I judged to be reliable witnesses, to
corroborate Bollong’s statement and is also based on Akiba’s credible
disavowal that she made such a statement.
4 Kupers testified that Akiba told him that Respondent was loosing
tens of thousands of dollars a week and the only reason Respondent
YOSHI’S JAPANESE RESTAURANT & JAZZ HOUSE 1341
not be able to stay open. Akiba agreed with much of Kupers’
testimony. However, she denied that she told him that Yoshi’s
would close if the Union came in. Rather, Akiba explained she
told Kupers that Yoshi’s was financially, “in danger zone right
now.” She told Kupers that she did not know if the restaurant
could make it or not, financially. Based upon the totality of the
circumstances, the import of Akiba’s admitted statement is that
she feared that Respondent was endangered by the employees’
effort to unionize. On balance, I credit Akiba’s recollection of
the conversation and find that Akiba said, in effect, that she did
not know if Respondent would be able to stay open if employ-
ees unionized.5
On November 15, Akiba addressed 30 to 40 employees at a
prearranged meeting. According to employee witnesses, she
told them that Yoshi’s was in financial danger and she was
concerned that unionizing was not the best solution. She
wanted to talk about what kind of changes could be made to
remedy the situation so that there would not be a third party at
Yoshi’s. Akiba urged employees to think about what they were
doing. She asked employees to, “help us keep Yoshi’s alive,”
and think about what is best for Yoshi’s before you go union.
Akiba asked employees to give management a chance and lis-
ten to them.6
2. Arguments
Counsel for the Acting General Counsel notes that an em-
ployer may permissibly predict closure of a business as a con-
sequence of unionization only in narrowly delineated circum-
stances; that is, such a prediction must be, “carefully phrased
on the basis of objective fact to convey an employer’s belief as
to demonstrably probable consequences beyond his control.”
NLRB v. Gissel Packing Co., 395 U.S. 575, 618–619 (1969).
Counsel contends that Akiba’s statements fail to meet these
requirements because (1) the Union had made no demands; (2)
even if the Union had made demands, there is no demonstrably
probable consequence that Respondent would have to close;
and (3) Akiba did not objectify a basis for her predictions.
Counsel for the Charging Party notes that Akiba did not spe-
cifically deny making the statements to employees but instead,

could stay open was because her husband had solicited donations and
the owners had cashed their IRAs.
5 Akiba was a candid and generally credible witness. She exhibited a
sharp intelligence and forthright demeanor. Although Kupers exhibited
a sincere demeanor, in this instance, as between Akiba and Kupers, I
credit Akiba because she was in a better position, as the speaker, to
clearly recall the statements which she made. Moreover, the inherent
probabilities favor Akiba’s version of the conversation as well. Akiba,
by her own admission, was indeed worried about the continued viabil-
ity of Yoshi’s if the employees unionized. Under these circumstances,
and given her admitted distraught state of mind, I find it probable that
her statements were made in the context of her fears, rather than in the
context of concrete predictions.
6 Akiba’s testimony was generally in agreement with the recollection
of employees. For instance, Akiba testified that she said, “[O]ur busi-
ness is really dangerous right now and we may not really make it, but
we have to do it, because we have responsibility. So, please help me to
keep alive. So, I’m open for anything to keep Yoshi’s alive. And we
have to come together. And let’s talk. And if we need to improve. And
if we try a service first and if it doesn’t work then by all means you can
go to union.” When there is disagreement between Akiba’s recollection
and the employees’ recollection of this particular conversation, I credit
the employees. Specifically, I credit the testimony of Mia Ellis, who
took notes at the meeting. Ellis credibly testified that she wrote some of
Akiba’s statements verbatim, indicating these statements in quotations.
claimed that she did not intend that employees understand her
statements, “that way;” that is, as threats. Counsel for the
Charging Party contends that Akiba’s words reasonably tended
to restrain, coerce or interfere with employees’ rights regardless
of Akiba’s subjective intent.
Counsel for Respondent notes the “undisputed” evidence that
Yoshi’s was at the brink of economic failure. Counsel also
argues that none of the alleged remarks indicate retaliatory
intent or implication that employees would be punished for
their union activity. Rather, Respondent argues, Akiba’s state-
ments are, “lawful, albeit fearful, fact-based predictions of eco-
nomic consequences beyond Respondent’s control.”
Analysis
In assessing the credited evidence, I have taken into account
the economic dependence of employees on their employers
with special awareness of an employee’s attentiveness to in-
tended implication of his or her employer’s statements which
might be more readily dismissed by a disinterested party. NLRB
v. Gissel Packing Co., 395 U.S. at 617. Gissel further teaches
that “conveyance 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, the
eventuality of closing is capable of proof.” Id. at 618–619.
Certainly, there is no dispute that Akiba believed that Re-
spondent’s financial condition was precarious.7 However, there
is also no dispute that employees were not aware, until the un-
ion effort became known by Respondent, of Akiba’s fear that
the future of Yoshi’s was in doubt.8 When Akiba sincerely and
sometimes tearfully conveyed to employees her fear that un-
ionization might take Respondent over the brink and into clo-
sure, she did not cite any objective facts. Nor does the record
reflect that she was aware of any such facts other than her be-
lief regarding Respondent’s financial condition. Akiba admitted
she was unaware of wage scales in union contracts. Even had
she been knowledgeable regarding union wage scales, there is
no evidence of demands by the Union regarding wage in-
creases. Moreover, even had demands for higher wages been
made, the give and take in bargaining was not considered when
Akiba expressed her concerns for the impact of unionization on
Respondent.9
The clear implication of Akiba’s remarks was that she was
afraid the fate of Yoshi’s would be thrown into question if em-
ployees chose to be represented by the Union. I note specifi-
cally that Gissel does not differentiate between absolute state-
ments predicting plant closure and statements which equivocate
7 After a 2-month closure to move from its old space, Respondent
opened at Jack London Square in May. Its jazz shows from July 9
through November 16 had profits during only 4 weeks. Cash flow
problems were remedied by the owners drawing from their retirement
accounts and depositing $45,000 in Respondent’s account in early
October. Nevertheless, according to Kajimura, Respondent was “in the
red” by approximately $20,000 in early November. The managers and
owners had discussed these economic realities and Kajimura had in-
formed them that another month of heavy losses could or might mean
closure.
8 Employees were aware that business was slow or very poor. How-
ever, there was no indication from Respondent that Yoshi’s was in
danger of closing until the employees unionized.
9 See, e.g., Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995)
(simple fact of waiving union contract in front of employees insuffi-
cient objective evidence as there is no evidence unit employees would
have been covered by such agreement).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
about whether plant closure will result. Rather, pursuant to
Gissel an employer’s belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not a state-
ment of fact unless the eventuality of closing is capable of
proof. I find that Akiba’s remarks fall into the category of a
sincere belief that unionization may result in closure. However,
under all the circumstances, these statements reasonably tended
to interfere with, restrain, or coerce employees in the free exer-
cise of their rights under the Act because they were not based
on facts capable of proof.10
Respondent submits that its financial situation formed the
objective basis for Akiba’s concern that Respondent might not
be able to continue in operation due to circumstances beyond
her control. In my view, Respondent’s argument must fail.
Gissel does not anticipate that a prediction of plant closing be
verifiable by later-produced evidence of financial difficulties.
Rather, Gissel requires that a prediction of plant closing be
based upon simultaneously stated objective facts. Akiba’s
statements (we are having a hard time; we are in a danger zone)
do not satisfy this requirement because she tied her statements
to unionization (and I fear we will lose Yoshi’s if the Union
comes in). There is no evidence that the Union would take Re-
spondent over the brink.
B. Interrogation
1. Facts
Akiba testified that when she initially approached Peitso on
the evening of November 13, she asked, “What’s happened,
Belinda?” and Peitso responded that it was the Union–like a
growing pain. Akiba then asked, “Why?” The same colloquy
with Kupers proceeded, “[W]hat is happening?” and Kupers
responded, “[S]ome employees are trying to unionize Yoshi’s.”
Akiba queried, “[W]hy?”
2. Arguments
Counsel for the Acting General Counsel contends that be-
cause these questions arose in owner-initiated conversations
containing threats of closure only days after employees publi-
cized their unionization effort and because they were clearly
intended to elicit extensive information about the union effort,
the interrogations were coercive. In agreement, counsel for the
Charging Party further notes the absence of any legitimate rea-
son for the questions and the lack of assurances that no reprisals
would be taken against employees.
Respondent, on the other hand, claims that Akiba’s questions
to Kupers and Peitso were innocuous and devoid of coercion or

10 See, e.g., Eldorado Tool, 325 NLRB 222(1997) (UAW Wall of
Shame displaying plant closings in UAW represented plants by tomb-
stones and showing Eldorado’s name in middle with question mark
constituted unlawful threat because company offered no objective facts
that, for reasons beyond its control, selection of UAW would cause
plant closure); Caterpillar, Inc., 321 NLRB 1178, 1181 (1996) (state-
ment that if union did not accept contract, employer would close plant
went beyond employer’s legitimate position that cost savings were
necessary to keep plant open because it failed to show acceptance of
last contract offer was only was to keep plant open and failed to ac-
knowledge the role of collective-bargaining in cost savings); Weldun
International, 321 NLRB 733, 746 (1996) (CEO statement that he was
afraid if employees unionized it would doom the division and other
similar phrasings indicating doom constituted threats rather than free
speech); see also Sage Dining Service, 312 NLRB 845, 846 (1993)
(threat conveyed friend to friend by owner is of greater impact in view
of the source).
threat. Respondent further notes that Akiba did not ask Kupers
or Peitso about their own or others’ personal views regarding
unions.
Analysis
Interrogation is not, by itself, a per se violation of Section
8(a)(1). Interrogation is coercive if, under all the circumstances,
it reasonably tends to interfere with, restrain, or coerce employ-
ees in the exercise of their Section 7 rights. Matthews Ready-
mix, Inc., 324 NLRB 1005 (1997); Emery Worldwide, 309
NLRB 185, 187 (1993). Under this totality of circumstances
approach, such factors as whether the interrogated employee is
an open or active union supporter, the background of the
interrogation, the nature of the information sought, the identity
of the questioner, and the place and method of the interrogation
are examined. Sunnyvale Medical Clinic, 277 NLRB 1217
(1985); Rossmore House Hotel, 269 NLRB 1176 (1984), enf.
760 F.2d 1006 (9th Cir. 1985).
Peitso and Kupers were open and active union supporters
whose names appeared on a November 10 letter of support for
the Union. Akiba and Peitso enjoyed a friendly relationship
while Akiba and Kupers had never spoken before. The conver-
sations took place at the employees’ workstations rather than in
a management setting. Akiba was obviously distraught and
crying. At one point, Peitso gave Akiba the bar rag to dry her
tears because Akiba’s own handkerchiefs were too damp.
Akiba sought information regarding the reasons employees had
decided to unionize. During these same conversations, Akiba
told Peitso and Kupers about her concern that unionization
might cause Yoshi’s to close.
Assuredly, Rossmore House recognizes some flexibility for
questioning open union advocates about the benefits of union
representation. However, neither Peitso nor Kupers was given a
choice about discussing the matter with Akiba, neither of them
received assurances about retaliation, and both of them were
confronted with Akiba’s fears and concerns for Yoshi’s future
should employees unionize. The fact that Akiba, one of the
owners, questioned Peitso and Kupers and displayed a sincere
and tearful manner would only heighten the fear and anxiety of
the employees in reacting to such a confrontation. Under the
totality of these circumstances, I find the questioning coercive.
See, e.g., Koronis Parts, Inc., 324 NLRB 675 (1997); Stoody
Co., 320 NLRB 18, 18–19 (1995).
C. Solicitation of Grievances with Implied Promise to Remedy
1. Facts
At a meeting on December 3, Kajimura invited employees to
express anything on their minds. This was the first time such a
meeting had been held. Members of the wait staff voiced their
discontent about the amount of their tips they had to share with
the sushi chefs. The wait staff also expressed unhappiness with
the existing rotation through the sushi bar. Female bartenders
complained that the recently hired male head bartender was not
as competent as female bartenders who were passed over for
promotion to head bartender.
Jesse Kupers, whom Kajimura perceived as a leader of the
union effort, complained that he felt he should be promoted
from expediter to waiter. Kupers had been making this com-
plaint for several months. For about 2 months (October and
November) Kupers was the only expediter employed by Re-
spondent. Kajimura’ response prior to December 3 had been
YOSHI’S JAPANESE RESTAURANT & JAZZ HOUSE 1343
that Kupers had not been with Respondent long enough for
such a promotion.
2. Arguments
Counsel for the General Counsel argues that in the context of
Akiba’s “give us a chance” remarks at the November 15 em-
ployee meeting, the December 3 meeting constituted an implied
solicitation of grievances. He notes specifically that Kajimura
told employees it was their meeting and directed them to ex-
press whatever was on their minds. Counsel for the Charging
Party further notes that on November 15, Akiba specifically
told employees that she was open to their suggestions on how
to keep Yoshi’s alive without the interference of a third party.
Finally, she contends that even though no express commitment
was made to remedy the problems, the expectation of improved
conditions is nevertheless present.
Counsel for Respondent characterizes the meeting as little
more than an employee gripe session. He notes that Respondent
took no action on issues not already under review and states
that there was no implication that grievances would be reme-
died.
Analysis
Respondent had no continuing practice of holding “gripe”
sessions. On November 15, Akiba asked employees to help
keep Yoshi’s alive by giving management a second chance. On
December 3, Kajimura told employees to tell him what was on
their minds. This constituted a solicitation of grievances.11 So-
licitation of grievances upon learning of union activity among
employees raises an inference that the employer is making a
promise to correct the problems brought to his attention.12 This
inference may be rebutted by a showing, for instance, that its
actions were a continuation of prior practice. Capitol EMI Mu-
sic, 311 NLRB 997, 1007 (1993), enf. mem. 23 F.3d 399 (4th
Cir. 1994). Respondent has not rebutted the inference and, in
fact, there was no precedent for such a meeting. Accordingly, I
find that Respondent solicited grievances and impliedly prom-
ised to remedy them in reaction to its employees’ union activity
and with hopes of dissuading them from supporting the Union.
D. Change in Rotation Through Sushi Bar, Sushi Bar-Shift
Bonus, Wait-Staff Increase in “tip out” to Expediter, and
Wage Increases
1. Facts
According to Kajimura, within a week after the December 3
meeting, he instructed Roy Yang, headwaiter at that time, to
adjust the sushi bar wait staff rotation stating, “We’ve tried this
and that and this didn’t work and that didn’t work, and so we’re
going to try another one. . . . just do it in a very fair way.”13

11 See, e.g., Fieldcrest Cannon, Inc., 318 NLRB 470, 519–521
(1995) (asking employees to express concerns, problems or questions
which employer characterized as “gripe” sessions constituted solicita-
tion of grievances).
12 See, e.g., DTR Industries, 311 NLRB 833 (1993), enf. denied on
other grounds 39 F.3d 106 (6th Cir. 1994) (suggestion boxes and hot-
line constituted implied promise to remedy grievances).
13 There is a credibility conflict regarding the pre-December 3 rota-
tion practice. According to Estow, the most senior waiters were omitted
from the rotation prior to December 3. According to Kajimura, prior to
December 3, all wait staff rotated through the sushi bar except for new
hires. Moreover, Estow recalled the December 3 complaint being aimed
at failure to rotate senior wait staff through the sushi bar while Kaji-
mura recalled the complaint being failure to rotate junior-wait staff
In addition, shortly after the December 3 meeting,14 Kaji-
mura instituted or reinstituted a $20-tip bonus for wait-staff
sushi bar duty. According to Allan Teng, the restaurant man-
ager, this was not the first time such a bonus was introduced. In
May, the wait staff complained to Teng that they were making
less money during their rotations through the sushi bar. Accord-
ing to Teng, when he presented this complaint to Kajimura,
Kajimura decided to subsidize the sushi bar rotation with a $20
differential. According to Teng, this subsidy was immediately
implemented. Teng, who opposed the subsidy, told the wait
staff about the new policy but explained it only during the first
week it was implemented. He stated that he did not believe the
policy continued in effect when he left in late October. Accord-
ing to him, the policy, “start to fading, start to die down,” by
the end of May.
Two promotions occurred within days of the December 3
meeting. Roy Yang was promoted to the position of headwaiter
shortly after the December 3 meeting. He received a $2-per-
hour-wage increase in connection with this promotion. Yang
was outspoken at the December 3 meeting and signed the No-
vember 10 notice to the employer regarding unionization.
The recently hired male head bartender was discharged
shortly after the December 3 meeting.15 According to Kajimura,
practically from his first day on the job, there were complaints
that his drinks were not good and he did not fill orders quickly.
Jill Denyes, a senior bartender and the first member of the un-
ion delegation to address Kajimura on November 10, received a
$2-per-hour-wage increase in connection with being made head
bartender. Bartender Belinda Peitso received a wage increase
from $9 to $10 an hour on January 1. She testified that she
received this raise in the context of a conversation she had with
Kajimura about becoming head bartender. Although she told
him she was not interested in the head bartender job, she did
ask for a raise. Peitso had previously received a raise in May.
This occurred shortly after the December 3 meeting.
According to Kajimura, Respondent typically grants wage
increases in January of each year. Respondent’s payroll records
indicate that generally the kitchen staff receives pay increases
in the first payroll period of the year.16 The record also reveals
that wait staff and cocktail servers do not typically receive pay
increases during the first payroll period of each year.
There is no dispute that in December, cooks Salomon Ortiz
and Gabriel Rodriguez (a/k/a Gomez) received wage increase

through the sushi bar. In any event, both agree the rotation was changed
shortly after the December 3 meeting to accommodate the complaint
raised at the meeting. Accordingly, it is unnecessary to resolve the
exact nature of the pre- and post-December 3 rotation.
14 At one point, Kajimura stated the $20-shift bonus was imple-
mented within 1 week of the December 3 meeting. At another point,
Kajimura stated the bonus was implemented in late December or early
January.
15 The male head bartender was hired on November 13. At that time,
it was the view of the club manager that none of the current bartenders
was qualified to be head bartender. (This testimony was received
through a question and answer offer of proof which I rejected. Counsel
for the Acting General Counsel has withdrawn his objection to this
testimony and it is now accepted.) However, 1-month later, both
Denyes and Peitso were given consideration.
16 Shi Nan Chen received pay raises during calendar years 1996 and
1997 as well as receiving pay raises during the first payroll period of
each year. Another kitchen employee, Minao Sako, did not receive any
increase in calendar year 1998. However, I note that this employee
worked a minimal number of hours.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1344
from $11.25 to $13 an hour. Normally, kitchen staff raises were
given in January. Both had received raises in the prior January.
Kajimura testified that he learned that Minoru Watanabe’s de-
parture as a cook at Yoshi’s on November 22, as well as, an
anticipated increase in business created a need to restructure the
kitchen. Kajimura consulted with Hiro and they decided to rely
on Andy Hua, the head cook, and Ortiz and Rodriguez. How-
ever, when Hiro and Kajimura examined their pay, “we were a
little shocked that we hadn’t really given attention to their pay
and their pay was very low.” Accordingly, raises were given to
Ortiz and Rodriguez in December rather than waiting for the
regular January raises.
There is no dispute that shortly after the November 10 dele-
gation for the Union, Respondent increased by 1 percent the
percentage of tips, known as a “tip-out,” that the wait staff
shared with the sole expediter Jesse Kupers. The “tip-out” had
previously been 3 percent and it was increased to 4 percent.
The restaurant manager, Nikki Lamb, spoke with Kupers dur-
ing the week of November 17 and told him about the “tip-out”
increase.
On or about December 5, Kajimura responded to Kupers’
complaints about wanting a promotion to waiter by telling Ku-
pers that he would receive a $2-per-hour-pay increase and
would be promoted to waiter after the holiday season. In addi-
tion, Alejandro Padilla, a busperson, received $1-an-hour-wage
increase on or about January 1, 1998. Padilla was also part of
the November 10 delegation and his name appeared on the
request for neutrality.17
2. Arguments
As to changes in the sushi bar, counsel for the Acting Gen-
eral Counsel argues that changing the rotation through the sushi
bar and instituting a shift bonus in response to complaints con-
stitutes a grant of benefits in order to dissuade employees from
supporting the Union. Counsel relies generally on Acme Bus
Corp., 320 NLRB 458, 476 (1995), and Capitol EMI Music,
supra, 311 NLRB at 1012. Counsel for the Charging Party
notes that Respondent was unable to articulate a legitimate
business reason for the timing of the change in rotation and
implementation of the shift bonus and requests that an unlawful
motive be inferred, relying on Holly Farms Corp., 311 NLRB
273, 274 (1993), enf. 48 F.3d 1360 (4th Cir. 1995), and Ideal
Elevator Corp., 295 NLRB 347, 351 (1989).
Respondent claims that problems regarding rotation and
compensation for wait staff through the sushi bar had been a
source of constant discussion and revision and was not targeted
for new changes because employees voiced concern at the De-
cember 3 meeting. Counsel for Respondent contends that resto-
ration of the $20-shift bonus was part of an ongoing adjustment
to the relocation to Jack London Square. From Respondent’s
perspective, the original bonus implemented in May was, unbe-
knownst of Kajimura, not continuously utilized. When Kaji-
mura was informed of this on December 3, he revived the pol-
icy. Respondent relies upon Ideal Macaroni Co., 301 NLRB
507 (1991), enf. denied on other grounds 989 F.2d 880 (6th Cir.
1993), for the principle that publication of an existing benefit of
which employees were unaware is lawful unless the benefit was

17 Respondent’s payroll records indicate that of the 35 wait staff em-
ployees, 6 received increases on or about January 1, 1998. In addition
to Padilla, these employees were Estow, Lillian Ortiz, Pei-Yu Weh,
Andrew Contreras, and Eric Zivnuska. Padilla, Estow, and Yeh signed
the union statement presented on November 10.
purposely hidden as an election strategy. As to the sushi bar
rotation, Respondent claims that senior-wait staff who were
union supporters removed themselves from the sushi bar rota-
tion and the only change that occurred was that when manage-
ment became aware of this situation, it was rectified.
Regarding wage raises, counsel for the Acting General
Counsel argues that no business justification exists for the wage
raises and promotions which followed on the heels of the De-
cember 3 meeting. He also notes that although Respondent
typically granted wage increases to the kitchen staff at the first
of each year, those increases averaged 61 cents in 1997 versus
92 cents in 1998. Counsel for the Charging Party’s analysis of
the wage information revealed no pattern of raises. She argues
that the granting of wage increases were random both in
amounts and timing.
Respondent contends that its established policy, from which
it did not deviate, contemplates that wage increases be granted
on January 1. In 1998, these increases were granted to kitchen
staff, a couple of senior waiters, and buspersons. As to Ortiz
and Gomez, Respondent argues that departure of Watanabe
caused inspection of their wages. Respondent notes that De-
nyes’ promotion to head bartender is not alleged to be unlawful.
Given the promotion, Respondent urges that the pay increase
merely gave her parity with her departed predecessor. Accord-
ingly, Respondent claims that these actions were taken when
expected or requested and that there was no obligation to post-
pone the changes.
Finally, as to Kupers’ increased tip-out, counsel for the Act-
ing General Counsel notes that although expediter Kupers
complained about his pay and requested promotion to the wait
staff from the beginning of his employment in August, it was
not until he was identified as a leader of the union movement
that his complaints were remedied. Counsel for the Charging
Party urges that an inference of improper motivation be attrib-
uted to Respondent’s increase in the tip out due to the timing of
the grant of the increase.
Respondent argues that the facts do not support this allega-
tion. Although agreeing that a 1-percent increase in the amount
the wait staff tipped the expediter was implemented, Respon-
dent claims this resulted in less money for union activist Ku-
pers because he was no longer the sole expediter.
Analysis
When benefits are granted upon the advent of a union cam-
paign, the employer bears the burden of overcoming a pre-
sumption that the benefits were meant to influence employees
to relinquish their support for the union.18 Under these circum-
stances, the employer must provide a legitimate explanation for
the timing of the grant of benefits.
The timing of the implementation of the change in sushi-bar
rotation and the institution or reinstitution of the sushi-bar bo-
nus raises an inference that the reason these changes were made
was because Respondent wished to dissuade its employees
from unionizing. Respondent argues that these changes were
legitimately made. It notes that the sushi bar had been a source
of complaints from the wait staff since Respondent relocated to
Jack London Square. The record supports this assertion by
Respondent. However, it appears that Respondent had not taken
any action to remedy the sushi-bar situation for at least 6
months prior to the December 3 meeting. The bonus certainly
18 See, e.g., B & D Plastics, 302 NLRB 245 (1991); Speco Corp.,
298 NLRB 439, 443 (1990).
YOSHI’S JAPANESE RESTAURANT & JAZZ HOUSE 1345
had not been announced since late May according to Teng and
it was disused immediately thereafter. Respondent claims that
as soon as it realized the problem, it implemented a solution
and that this was consistent with its past practice. However,
what Respondent overlooks is the explanation for the timing of
the change. Had Respondent not solicited grievances in re-
sponse to the appearance of the union, it would not have known
of the continued problems with the sushi bar rotation and com-
pensation. It may not bootstrap its timing defense by referenc-
ing the December 3 meeting. I find that implementation of
sushi-bar wait staff changes were motivated by employees’
union activities and constitute an unlawful grant of benefits.
Typically Respondent utilizes two expediters on the weekend
and one expediter during the week. During the time that Kupers
was the only weekend expediter, he was paid 1-hour extra pay
and the entire 3-percent tip-out from the wait staff. Kajimura
was well aware of Kupers’ complaints about his pay; “that was
clear to me all along.” Kajimura also admitted that he perceived
Kupers as a leader of the November 10 delegation. Within a
week thereafter, the amount of the tip-out to Kupers was in-
creased.
I infer that a desire to mollify Kupers because of his union
activity motivated Respondent’s grant of this increase. Further,
I do not accept Respondent’s argument that Kupers’ tips were
actually decreased. A second expediter, Angel Perez, was hired
on November 18. To the extent that Kupers and Perez worked
together on weekends, it is true that Kupers would have re-
ceived less money than if he had worked alone because the tip
out was divided among all expediters.19 However, on weekdays
when only one expediter was present, the increased tip out in-
ured to that expediter. I conclude that the increase in the tip-out
constituted a grant of a benefit—not an adverse change in
working conditions—that that it was motivated by the employ-
ees’ union activity.
Moreover, Kupers and Padilla, both members of the wait
staff and both part of the November 10 delegation, received pay
increases after the December 3 meeting. The timing of these
increases is highly suspicious. Wait-staff wages are tied to
minimum wage laws according to Respondent. The evidence
reveals no pattern of wage increases to members of the wait
staff. I find that the timing of both Kupers’ and Padilla’s raises
is unexplained except for their union activity.
Regarding the remaining wage increases, once again, the
timing raises an inference that union activity served to motivate
Respondent’s actions. Yang had formerly been headwaiter but
had resigned from the position. There is no explanation for
Respondent’s need for a headwaiter 2 days after the December
3 meeting nor is their any explanation for the timing of the
discharge of the male head bartender immediately after the
December 3 meeting. Both Yang and new head bartender De-
nyes received $2-per-hour-wage increases in connection with
their promotions. Respondent is unable to offer a legitimate
reason for the timing of the promotions and the actions taken
consistent with employees’ complaints about the former head

19 The record does not reflect whether Kupers and Perez worked to-
gether on the weekends. Perez began training on November 18. Con-
trary to Respondent’s claim that Kupers was working at another job on
November 15, I understand the record to reflect that could not attend
the November 15 employees meeting because he was scheduled by
Respondent for work at that time. Accordingly, it would appear that he
may have benefits from the increased tip-out during that weekend as it
predated Perez’ employment.
head bartender. The specific complaint was that qualified
women were passed over when the male head bartender was
hired. Respondent was aware of the complaints about the new
male head bartender from the beginning of his employment.
Yet, despite this, no action was taken until the union arrived on
the scene. Then suddenly, employees who were deemed
unqualified for the position were considered and promoted. In
this same vein, Peitso received a $1-per-hour increase although
she was working only one shift per week. There was no pattern
of wage increases for bartenders and the only explanation
remaining is the Union.
The wage increases to the kitchen staff were given in De-
cember rather than in January. I find that the explanation for the
timing of these increases does not rebut the inference that they
were a direct result of the employees’ union activity. Although
departure of a talented chef and anticipated increase in business
may have required examination of the kitchen staff, as Kaji-
mura testified, the explanation regarding his “shock” at the
wage levels is not credible. Moreover, such “shock” does not
explain why the raises had to be given 1 month prior to the
ordinary time of wage raises, especially in light of Respon-
dent’s stated financial situation. Rather, it appears that the un-
ion was the reason for the timing of these increases.
CONCLUSIONS OF LAW
1. By threatening to close its facility, interrogating employ-
ees, and soliciting employee grievances in order to discourage
employees from supporting the Union, Respondent has inter-
fered with, restrained, and coerced employees in the exercise of
the rights guaranteed in Section 7 of the Act and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By granting wage increases to numerous employees,
changing its existing sushi-bar wait-staff rotation practice,
granting a $20 sushi-bar wait-staff shift bonus, and increasing
the wait staff tip-out to the expediter by 1 percent because its
employees supported the Union and engaged in concerted ac-
tivities and/or in order to discourage employees from engaging
in such activities, Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act and has discriminated in regard to hire,
tenure or terms or conditions of employment thereby discourag-
ing membership in a labor organization and has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Specifically, counsel for the Acting General
Counsel and counsel for the Charging Party seek the extraordi-
nary remedy of a bargaining order based upon the nature and
extent of Respondent’s unfair labor practices. They assert that
the flagrant nature of the unfair labor practices, especially the
hallmark violation of an owner immediately threatening plant
closure, is likely to destroy election conditions for a longer
period of time than other unfair labor practices. Counsel also
rely upon the grant of wage increases and benefits, noting that
the effect of such unfair labor practices is not easily remedied
by traditional means because it is not the Board’s policy to
require such benefits to be rescinded. Moreover, counsel argue
that this “buying off” of union advocates, both in wage in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
creases as well as systematically remedying every concern
raised by employees, erodes support for the Union. Finally,
counsel note the pervasiveness of the unfair labor practices:
within days of the beginning of the union drive, over half of the
employees had been exposed to threats to close if the employ-
ees unionized; 30 to 40 employees were present when Kajimura
unlawfully solicited grievances and implied promised to rem-
edy them; thereafter, 23 employees were given unlawful wage
increases within 2 months and other grievances were immedi-
ately remedied.
Counsel for Respondent argues that even if all allegations in
the complaint are found to be meritorious, no bargaining order
is required because there was minimal impact on the election
machinery. Respondent does not argue that passage of time or
changed circumstances have eliminated the effect of the unfair
labor practices.
Although the appropriateness of a bargaining order depends
on the nature and extent of Respondent’s misconduct, there are
no mechanical or per se rules. Rather, each case must be fully
examined for the, “infinitely various circumstances which will
influence employee perceptions of such prohibited conduct.”
General Stencils, 195 NLRB 1009, 1112 (1972) (Chairman
Miller, dissenting).
Some violations, however, are so likely to undermine major-
ity strength and impede the election processes that a bargaining
order may be justified in the absence of extenuating or mitigat-
ing circumstances. Such “hallmark” violations include dis-
charging employees for union activity,20 closing or threatening
to close,21 and granting benefits.22
In this case, Respondent threatened employees with closure
of the facility, interrogated employees about their reasons for
unionizing, solicited their grievances, impliedly promised to
remedy them and, indeed, immediately remedied them, and
granted wage increases to the main union activists. For the
reasons stated below, I find that the only hallmark violation
which would support a bargaining order in this case is the grant
of benefits. In the particular circumstances of this case, I find
that the Board’s traditional remedies including the customary
notice posting and cease and desist order can create an atmos-
phere in which a free and fair election may be held.
I do not rely upon the specific threats of closure made to
Peitso, Bacigalupo, and Kupers to support a bargaining order
because these threats were not transmitted widely to other em-
ployees. Akiba’s statement to assembled employees that she
was concerned that unionization was not the best solution for
Respondent’s precarious financial situation, which I have found
to be an implied threat of closure, does not rise to the level of a
hallmark threat of plant closure.
On the other hand, the significance of wage increases com-
ing on the heels of the employees’ announcement of their un-
ionization effort is not lost on employees. The Supreme Court
has found that employees are quick to understand the “fist in-
side the velvet glove” inherent in such tactics. NLRB v. Ex-

20 Intersweet, 321 NLRB 1 (1996), enf. 125 F.3d 1064 (7th Cir.
1997); Davis Supermarkets, 306 NLRB 426 (1992), enf. 2 F.3d 1162
(D.C. Cir. 1993), cert. denied 511 US 1003 (1994); Amazing Stores,
289 NLRB 163 (1988) as modified 290 NLRB 1131 (1988), enf. 887
F.2d 328 (D.C. Cir. 1989), cert. denied 494 U.S. 1029 (1990).
21 Weldun International, 321 NLRB 733, 735–736 (1996); Gerig’s
Dump Trucking, 320 NLRB 1017 (1996), enf. 137 F.3d 936 (7th Cir.
1998); Lasar Tool, 320 NLRB 101, 111 (1995).
22 Adam Wholesalers, 322 NLRB 313, 314 (1996).
change Parts Co., 375 US 405, 409 (1964). Wage increases are
not required to be withdrawn pursuant to traditional Board
remedies. Adam Wholesalers, 322 NLRB 313, 314 (1996).
Accordingly, because they are not erased, their effect will con-
tinue to be felt.
Moreover, I note that Respondent did not simply increase the
wages of all employees. Rather, it predominantly targeted the
union activists. Those employees who did not support the Un-
ion were generally not given increases. This divide and conquer
tactic remains in effect as far as the record reflects. Similarly,
other benefits granted shortly after the November 3 meeting—a
$20–shift differential for the wait staff when they worked in the
sushi bar, alteration of sushi-bar rotation practice, discharge of
the recently hired male head bartender and promotion of one of
the female bartenders to head bartender—are hallmark viola-
tions. Respondent had earlier turned a deaf ear to these prob-
lems.
On the other hand, a bargaining order remedy deprives em-
ployees of the Board’s election process and deprives the Union
of the Board’s certification process. Although it has long been
recognized that the election process is not the sole means of
determining majority status23 and, specifically, that authoriza-
tion cards may adequately reflect employee sentiment when the
election process has been impeded, this is warranted only when
widespread hallmark violations are combined with the likeli-
hood that traditional remedies will not erase their effect.
Here, in addition to the fact that there were no discharges or
widespread threats of plant closure, Respondent’s actions do
not indicate a desire to rid itself of the Union, but rather, a mis-
understanding of the law. There were no statements that indi-
cated Respondent’s policy was to remain nonunion or that it
would close rather than operate as a union establishment.
Rather, it appears that Respondent was alarmed due to its pre-
carious financial situation and misunderstood that unionization
automatically meant spending more money. Respondent’s ac-
tions in granting benefits and remedying grievances, although
they interfered with employees’ rights to organize, appear more
the result of misunderstanding of the law rather than outright
animosity toward unions in general. I find, based upon the na-
ture of the violations as well as Respondent’s misunderstanding
of the law, that the chances of creating a level playing field for
the holding of a fair election through the Board’s traditional
procedures are more than slight and that a bargaining order
based upon employee authorization cards would not effectuate
the policies of the Act more effectively. 24
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25
23 In United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62,
72, fn. 8 (1956), the Court noted that an NLRB election is not the only
method by which an employer may determine a union’s majority status.
24 Cf., Skyline Distributors v. NLRB, 319 NLRB 270 (1995), revd. in
part and remanded 99 F.3d 403 (D.C. Cir. 1996) (bargaining order
based solely on grant of economic benefits).
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
YOSHI’S JAPANESE RESTAURANT & JAZZ HOUSE 1347
ORDER
The Respondent, Yoshi’s Japanese Restaurant, Inc. d/b/a
Yoshi’s Japanese Restaurant & Jazz House, Oakland, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening or impliedly threatening to close its facility,
interrogating employees, soliciting employee grievances, and
impliedly promising to remedy them in order to discourage
employees from supporting the Union.
(b) Granting wage increases to numerous employees, chang-
ing its existing sushi-bar wait-staff rotation practice, granting a
$20-sushi-bar wait-staff shift bonus, and increasing the wait
staff tip-out to the expediter by 1 percent because its employees
supported the Union and engaged in concerted activities and/or
in order to discourage employees from engaging in such activi-
ties.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Oakland, California, copies of the attached notice
marked “Appendix.”26 Copies of the notice, on forms provided
by the Regional Director for Region 32, 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 customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 13, 1997.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

26 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten or impledly threaten to close our facil-
ity, interrogate our employees, and solicit employee grievances
and impliedly promise to remedy them in order to discourage
employees from supporting Hotel Employees and Restaurant
Employees Union, Local 2850, Hotel Emloyees and Restaurant
Employees International Union, AFL—CIO, or any other Un-
ion.
WE WILL NOT grant wage increases to numerous employees,
change our existing sushi-bar wait-staff rotation, and increase
the wait staff tip-out to the expediter by 1 percent , or grant a
$20-sushi-bar wait-staff shift bonus because you supported the
Union and engaged in concerted activities and/or in order to
discourage you from engaging in such activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

YOSHI’S JAPANESE RESTAURANT, INC. D/B/A YOSHI’S
JAPANESE RESTAURANT & JAZZ HOUSE