Carpiccios Restaurant, Inc.

CAPRICCIOS RESTAURANT, INC. 685 Capriccios Restaurant, Inc. and Hotel and Restau- rant Employees Union, Local 39, AFL-CIO. Cases 12-CA-8218 (1-2) and 12-RC-5498 May 21, 1980 DECISION, ORDER, AND DIRECTION BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On September 18, 1979, Administrative Law Judge Elbert D. Gadsden issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, 2 conclusions, and recommendations of the I At the hearing, the Administrative Law Judge sustained the General Counsel's hearsay objection to testimony of General Manager Santarpia that a detective told him that discriminatee Hernandez had been accused of harassing a pregnant woman Respondent excepts to this ruling on the ground that the detective's statement was not hearsay within the meaning of Fed. R. Evid. Rule 801(c) because it was not being offered for the truth of the matter asserted by the detective, ut rather to show the basis for Santarpia's asserted fear of discharging Hernandez before Santarpia's departure on a trip to Italy, which resulted in his pregnant wife being left alone for a week. We find merit in Respondent's argument that the of- fered testimony was not hearsay. We further find, however, that Re- spondent has not been prejudiced by the Administrative Law Judge's ruling since the offered testimony would not affect the results of our de- cision. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. We note the following inadvertent errors of the Administrative Law Judge, all of which appear in sec. Ill. B, of his Decision, and which do not affect the results of our decision: The Administrative Law Judge de- scribed the interrogation of employees by Respondent's president, Fioren- tiano, as occurring on or about May 15, 1978. whereas the record reveals that these interrogations took place on May 19, 1978. Also, in this discus- sion of Fiorentiano's interrogations, the Administrative Law Judge attrib- uted a quoted portion of the record testimony to employee Lomoriello rather than to discriminatee Montesinos. The Administrative Law Judge indicated that discriminatee Hernandez overheard a statement Fioren- tiano made to a group of employees that he, Fiorentiano, would call New York and make everyone involved with the Union "disappear." w hereas the record shows that this statement was made to Montesinos alone Con- trary to the findings of the Administrative Law Judge. we note that the record establishes that Sanlarpia left for Italy on or about May 13, 1978, and returned to Palm Beach on May 20, 1978. The Administrative Law Judge described testimony by Montesinos that he returned to work on May 22, 1978, because he hoped Santarpia would have changed his mind This reference should be to Fiorentiano rather than to Santarpia. In addition, the Administrative Law Judge noted Santarpia's testimony that he laid ff about five or six employees and that about four or fise quit, in a context which implies that the events occurred in May 978. However, the record clearly reflects that this testimony refers to events occurring in May 9 )77 249 NLRB No. 100 Administrative Law Judge and to adopt his recom- mended Order, as modified herein.3 1. The Administrative Law Judge concluded that Respondent on and after May 20, 1978, laid off em- ployees Hernandez and Montesinos and discharged employee Ruiz for their union activities in violation of Section 8(a)(3) and (1).4 We agree with this con- clusion for the reasons set forth by the Administra- tive Law Judge. In addition, we rely on the fol- lowing facts: The record reflects that Montesinos was Respondent's most senior employee and had never been laid off during previous slow seasons. Additionally, although Respondent's general man- ager, Santarpia, assertedly asked other employees about their summer plans in selecting employees for layoffs, he admittedly did not ask Montesinos. As for Ruiz, Respondent's president, Fiorentiano, admitted to Montensinos on May 19 that Ruiz was being discharged because he signed a union card. Finally, the record indicates that all but one of the other employees Respondent claims it laid off in May 1978 in fact voluntarily quit to engage in a In his recommended Order, the Administrative Law Judge provided that Respondent be required to reinstate discriminatees Hernandez, Mon- tesinos, and Ruiz to their former positions or, if these positions no longer exist, to substantially equivalent positions "at its other restaurant, Pappa- galo." He also recommended that the notice be posted at Pappagalo. These provisions appear to be based on a joint-employer relationship be- tween Respondent and Pappagalo inferred by the Administrative Law Judge. While there is some evidence in the record which supports this inference, the issue was not fully litigated We shall leave the resolution of any issue which may arise regarding the nature of the relationship be- tween Respondent and Pappagalo to the compliance stage of these pro- ceedings. However, specifically with respect to the notice, we shall order the notice posted at Capriccios and not at Pappagalo, since the unfair practices occurred solely at Capriccios. The record further indicates that Respondent Capriccios has been purchased by Mott's Cove Corporation. We shall leave to the compliance stage of these proceedings the resolu- tion of any issue which may arise with respect to whether Mott's Cove is a successor employer. In any event, we shall order the notice mailed to the employees employed by Respondent during the time the unfair labor practices found herein occurred. See Cerro C,4TV Devices, Inc., 237 NLRB 1153 (1978). In addition, the General Counsel excepts to the Ad- ministrative Law Judge's failure to recommend that the notice be printed in Spanish as well as English. We find merit in this exception, since it appears from the record that man) of the employees involved primarily speak Spanish. Thus, we shall modify the Order to provide for a bilingual notice. Appollo Tire Company, Inc. 236 NLRB 1627 (1978). In par. (e) of his recommended Order, the Administrative Law Judge used the broad cease-and-desist language "in any other manner," relying on N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). We find that a broad cease-and-desist order is warranted under the standards set forth in Hickmolt Foods Inc., 242 NLRB No 177 (1979). 4 The Administrative Law Judge additionally found that Respondent had violated Sec. 8(a)(3) and () of the Act by discharging Montesinos on May 19, 1978 We agree. In so doing, we note that Respondent, on that same day, soon after terminating Montesinos, offered him reinstatement but unlawfully conditioned it on his accepting a different work schedule. Montesinos accepted this offer, and worked the remainder of May 19 and on May 20, the last day he worked before his layoff We shall modify the Administrative Law Judge's recommended Order so as to require Re- spondent to reinstate Montesinos to the position he held on May 19 or, if that position no longer exists, to a substantially equivalent position, and to make him whole for any losses he may have suffered from that date Additionally, although the Administrative Law Judge in his recommend- ed Order required Respondent to reinstate Hernandez to his former posi- tion held on May 22, it is clear that Hernandez last worked on Ma 20, and e shall modify the recommended Order accordingly. CAPRICCIOS RESTAURANT, INC. 685~~~~~~~~~~~~~- -: 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other activities for the summer. Accordingly, the layoffs were largely limited to the group of alleged discriminatees. In concluding that Respondent's layoff and/or discharge of the above-named employees was un- lawful, the Administrative Law Judge further re- jected, as pretextual, Respondent's purported de- fense of economic necessity. We agree with this finding. In so doing, we particularly note that Re- spondent failed to submit any documentary evi- dence of the alleged adverse business conditions which it contends required such layoffs. Further- more, although Respondent asserts that it had de- cided to lay off employees several weeks prior to May 22, 1978, it did not mention this decision or the alleged underlying adverse business conditions to the employees until the day of their layoffs. 5 2. The Administrative Law Judge received evi- dence into the record on the merits of the seven determinative challenged ballots6 in issue in the representation case. However, while the Adminis- trative Law Judge specifically discussed the eligi- bility of employee Perez, he failed to address the challenges to the ballots of discriminatees Hernan- dez, Montesinos, and Ruiz, as well as those of em- ployees G. Guilherme, J. Guilherme, and Reardon. We hereby make the following findings with re- spect to the challenged ballots. We agree with the Administrative Law Judge that, contrary to the Employer, employee Perez had not been discharged as of the time of the elec- tion and therefore he was eligible to vote in the election. Accordingly, we shall overrule the chal- lenge to his ballot. Additionally, as indicated above, we agree with the Administrative Law Judge's conclusion that Hernandez, Montesinos, and Ruiz were laid off and/or discharged in viola- tion of Section 8(a)(3) and (1). Since the record re- veals that these discriminatees were challenged on the sole ground that their names were not on the eligibility list, we shall overrule the challenges to their ballots. The ballot of J. Guilherme was chal- 5 We disavow the Administrative Law Judge's reliance on Respond- ent's failure to apprise the Union of its future business considerations since there was no statutory obligation to so inform the Union Further, although the Administrative Law Judge characterized Respondent's claim of economic necessity as a "rather late affirmative defense," Re- spondent properly raised this defense in its answer to the complaint However. we note, as indicated above, that the record is clear that Re- spondent failed to raise any alleged business difficulties to the employees prior to the layoffs. 6 We also disavow the Administrative Law Judge's statement that the unfair labor practices alleged in Case 12-CA-8218(1-2) constituted objec- tions to the election in the representation proceeding, Case 12-RC-5498. In his regard, the Regional Director's Order Directing Hearing and Con- solidating Cases consolidated the representation case with the unfair labor practice case only "for the purpose of taking testimony to resolve the issues raised by the challenged ballots." Accordingly, and inasmuch as no party filed objections to the election, there were no objections properly before the Administrative Law Judge. lenged on the basis that he was allegedly a part owner of the Employer, and the ballot of G. Guil- herme was challenged on the ground that she was J. Guilherme's wife, and was allied with manage- ment. The record contains no evidence that either of the Guilhermes has ever possessed any owner- ship interest in the Employer. Thus, we shall over- rule the challenges to their ballots. Finally, em- ployee Reardon's ballot was challenged on the basis that she was not employed on May 27, 1978, the eligibility date. Undisputed testimony in the record reveals that Reardon began working for the Employer in October 1977, was on vacation from on or about May 14, 1978, through on or about June 19, 1978, and continued to work into July 1978, after the election. We find that Reardon was employed by the Employer on May 27, 1978, and we shall overrule the challenge to her ballot.7 Ac- cordingly, we shall order that these ballots be opened and counted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Capriccios Restaurant, Inc., Palm Beach, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Marcello Montesinos, Julio Hernan- dez, and Javier Moreno Ruiz immediate and full reinstatement to their former positions held on May 19, May 20, and May 20, respectively, or, if such positions no longer exist, to substantially equivalent positions at its other restaurant (Pappagalo), with- out prejudice to their seniority or other rights pre- viously enjoyed, and make them whole for any loss suffered by reason of the discrimination against them, with interest, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). (See Isis Plumbing & Heating Co., 138 NLRB 716 (1962).)" 2. Substitute the following for paragraph 2(c): "(c) Post at its Royal Poinciana Plaza Mall loca- tion copies, in English and in Spanish, of the at- tached notice marked "Appendix."5 In addition, mail a copy of said notice, in English and in Span- ish, to each employee who was on its payroll during the period May 15, 1978, through July 15, 7We further note that the Charging Party, in its brief to the Adminis- trative Law Judge, withdrew its challenges to the ballots of the Guil- hermes and Reardotn. CAPRICCIOS RESTAURANT, INC. 687 1978. Said notice shall be mailed to the last known address for each employee. Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted and mailed by it immediately upon receipt thereof. Those notices posted shall be maintained by Re- spondent for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said posted notices are not altered, defaced, or covered by any other material." IT IS FURTHER ORDERED that in Case 12-RC- 5498 the challenges to the ballots of Gracie Guil- herme, Jose Guilherme, Julio Hernandez, Marcello Montesinos, Mauricio Perez, Yvette Reardon, and Javier Moreno Ruiz be, and they hereby are, over- ruled. DIRECTION It is hereby directed that the Regional Director for Region 12 shall, within 10 days from the date of this Decision, open and count the seven ballots, the challenges to which have been overruled, in Case 12-RC-5498, and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the union has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative. However, if the revised tally shows that the union has not re- ceived a majority of the valid ballots cast, the Re- gional Director shall issue a Certification of Re- sults. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon unfair labor practice charges filed on May 30 and June 7, 1978, respectively, by Hotel and Restaurant Em- ployees Union, Local 39, AFL-CIO, herein called the Union or the Charging Party, against Capriccios Restau- rant, Inc., herein called Respondent, a complaint was issued by the Regional Director for Region 12, on behalf of counsel for the General Counsel, on July 7, 1978. In substance the complaint alleged that Respondent, through its supervisory personnel, interrogated employ- ees about their union activities, told them other employ- ees were being discharged because they engaged in union activities, threatened employees with unspecified repri- sals for engaging in union activities by telling them it could put an end to the Union, created the impression that employees' union activities were under surveillance by Respondent, threatened employees by telling them they were lowdown for not informing Respondent of their union activities, and called employees who engaged in union activities traitors costing Respondent money, all in violation of Section 8(a)(1) of the Act; and discharged and thereafter failed and refused to reinstate employees because they engaged in union or other concerted activi- ties for the purpose of collective bargaining or other mutual aid and protection also in violation of Section 8(a)(1) of the Act. Pursuant to a Stipulation for Certification Upon Con- sent Election approved by the Regional Director for Region 12 on June 8, 1978, an election by secret ballot was conducted on June 27, 1978, under the supervision of said Regional Director among certain unit employees of Respondent. There were challenged ballots significant in number to affect the results of the election and, upon investigation, the Regional Director for Region 12 con- cluded that the charges in the representation case have merit and are directly related in substantial and material part to the evidence bearing on the charges herein. He further concluded that said challenges can best be re- solved after a hearing, and that they be consolidated with the above-captioned cases for the purpose of a hear- ing. Respondent filed an answer denying that it has en- gaged in any unfair labor practices as alleged in the com- plaint. The allegations in the complaint constituted ob- jections to the election in Case 12-RC-5498, which was consolidated herewith for hearing. The hearing in the above matter was held before me in Coral Gables, Florida, on November 1, 1978, and in West Palm Beach, Florida, on November 20 and 21, 1978. Briefs have been received from counsel for the General Counsel, counsel for Respondent, and counsel for the Charging Party, respectively, which have been carefully considered. Upon the entire record in this case, and from my ob- servation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Florida. Respondent maintains a place of business located in Palm Beach, Florida, where it is engaged in the business of operating a restaurant. During the past 12 months, a representative period, Respondent, in the course and conduct of its business op- erations, had a gross volume of business in excess of $500,000, and, during the same period of time, Respond- ent purchased and received goods and materials valued in excess of $10,000, which were shipped directly to it from points located outside the State of Florida. The complaint alleges, Respondent admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE I.ABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Hotel and Restaurant Employees Unions, Local 39, AFL-CIO, is, and has been at all times material herein, a CAPRICCIOS RESTAURANT, INC. 687:: 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Respondent is a Florida corporate restaurant with a place of business located in Palm Beach, Florida. Raf- faele Santarpia was manager and assistant to the secre- tary-treasurer of Respondent and also a shareholder therein. Respondent became a corporation in August 1975 and opened for business on December 1, 1975. San- tarpia had the authority to, and did in fact, interview, hire, and fire employees. Respondent, Capriccios Restaurant, Inc., was located in the Royal Poinciana Plaza Mall, which consisted of a compound of nationally prominent stores, restaurants, and offices. Several of the stores were exclusive stores in the center for carriage trade. Most of the clientele fre- quenting the restaurant and other exclusive stores were people who came to Palm Beach for the winter and de- parted around Easter time. The clientele of the shopping center contributed about 40 percent of Respondent's business. Respondent remained in business until it was sold to Mott's Cove Corporation, Inc., of Florida, on October 13, 1978. At all times material herein, the following named per- sons occupied the positions set opposite their respective names, and have been and are now agents of Respond- ent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Marcello Fioren- tiano, president; and Raffaele Santarpia manager-treasur- er. The parties stipulated that the following employees constituted a unit appropriate for the purpose of collec- tive bargaining: All waiters, kitchen help, dishwashers, busboys, bartenders, and cashiers employed by Respondent at its Palm Beach, Florida, restaurant; excluding: All office clerical employees, bookkeepers, chefs, maitred's and guards and supervisors as defined in that Act. B. The Union Activity of Employees, Respondent's Knowledge thereof and Respondent's Interrogation of Employees About Such Activities Julio Hernandez, undisputedly testified that he was first employed by Respondent as a waiter in January 1977. He worked there until he went on vacation in July 1977, and did not return until he was rehired in January 1978 by Respondent's president, Marcello Fiorentiano. Her- nandez said he contacted the Union in Miami, Florida, in February 1978, and that he signed a union authorization card in early May and distributed 15 or 16 union cards to employees. Hernandez further testified that on or about May 15 he heard Fiorentiano ask employees Dick, Respondent's bartender, and Giovanni Lomoriello, the executive cap- tain of Respondent's dining room, if they had signed cards for the Union. Dick replied that he had not, Lo- moriello corroborated Hernandez' testimony in this regard. However, Lomoriello added that Fiorentiano also asked him was he sure he did not sign a union card, and he replied, "Yes"; and Fiorentiano then asked him if his fellow employees Hugo, Salierno, and Luigi had signed cards for the Union. Lomoriello said that he did not know, and and he continued to testify as follows: Then he call me. He said: "Did you sign the card of the union?" I said: "Yes; I did sign the card." "Why did you sign the card for the union?" I said: "Because I want to give a security to my wife, my child, and in my work I never know when you get mad, scream, and these are the reasons I signed." Fiorentiano then told him to send Hugo, Salierno, and Luigi to him. Hernandez complied with the order and the aforenamed employees went to Fiorentiano. Santar- pia acknowledged that he asked all his employees had they signed cards for the Union and they told him that they did. Hernandez testified that he learned from bookkeeper Charlie Diaz that Fiorentiano had received a letter from the Union on May 19, 1978, demanding recognition. San- tarpia corroborated Hernandez' testimony in this regard because he said Fiorentiano had knowledge of the Union's demand on May 19. He also testified that on the same day Respondent re- ceived notice of the Union's demand, Fiorentiano told him he would have to be very smart to screw him up. Hernandez also testified that on May 19 he heard Fior- entiano tell employees Marcello Montesinos, Pierre LeBaur, Bruno Porillo, Roberto Adairoldi, and Luigi Amancio that he was going to call New York and make everybody who was involved in the Union disappear. Marcello Montesinos testified that he distributed five or six union cards in early May, and that on or about May 19, the following conversation between himself and Fior- entiano occurred: A. He says: "You don't feel sorry, Marcello, that I have to fire Santos, Javier, and this fellow-an American fellow-he used to be a dishwasher then, "No," I said,"l don't feel guilty at all." He grabbed the bowl back from my hands and put it on the stand and said: "You can leave right now. I don't need you." All right. I didn't answer him back at all. When I was in the front door he called me back. He said: "Marcellino," he said, "Listen, I don't fire you for union activities. I fire you because I don't need nobody. However, I have been thinking al- ready two weeks to cut in half the crew of the place. That is all right, Marcello. But if you want, you can stay working on Friday and Saturday, and don't come back Mondays." I said, "All right, [Fiorentiano] I work Fridays and Saturdays." I credit the testimonial accounts of Hernandez and L.omoriello not only because I am persuaded by their demeanor that they were testifying truthfully, but also because their respective versions corroborate each other's CAPRICCIOS RESTAURANT, INC. 689 A few minutes later Montesinos said the following conversation between himself and Fiorentiano occurred: Q. Did he tell you why he was firing Santos and who was the other one, Javier Reese [phonetic]? A. Yeah; because- Q. [Interposing] Well, what exactly did he tell you? A. He is firing them because [they] signed union cards. Q. What did he say to you? Tell us what he said to you. A. "Did you feel sorry for these guys? I gave room and board to Santos. He has a handicap; he don't speak English. You want to find him a job," he says. I didn't answer him back at all. I just-the only words was: "I don't feel guilty what I did be- cause I don't think I am going against nobody." Montesinos continued to testify as follows: Q. Let me bring you back to Friday, November 18-May-I am sorry-May 19th, Friday, May 19th. What did Mr. Fiorentiano say to you about your job? A. He said that-he fire me at lunchtime. He said that-he grab the salad bowl, put it on the stand and says: "Go. I don't need you." Then I was walking away, he was in the front door, and he says: "No, no, no, no, no, [Marcello]. I don't fire you for your union activities. I fire you because is slow the place and I decide to lay off some people, and if you want you can stay Friday and Saturday working." Montesinos said that he worked on Saturday, May 20, and that about 5:30 p.m. Santarpia passed him and said, "Thank you very much." Montesinos continued to testify that their conversation was as follows: Q. And what did you say? A. I didn't say anything, and he come back again and stops and says: "Thank you very much." I said: 'What do you thank me for?' He says: "You know what I mean, I am thanking you for," and he left. Q. Did you ever talk to Santarpia again that day? A. Yes. You know, he went out, he come back, and I was on the kitchen, again, and he pass by and says: "Do you know, Marcellno, you are the lowest man I ever meet in my life." I said: "Why am the lowest man?" "Because you betray me." "I don't betray you." He said: "No. You are the lowest man I ever meet in my life, because I fight for you many times, even with Mr. Fiorentiano. You should tell me that union activities going here." Santarpia denied that he told Montesinos that Monte- sinos should have informed him about the employees' union activities. Manager Raffaele Santarpia testified that he went to Italy during the early part of May (May 3, 4, 5, and 6) and returned home about 5 a.m. on or about May 19. He re- ceived a telephone call shortly thereafter from one of the employees, advising him that there was a big problem; that the employees had signed a petition to unionize. Santarpia also said he learned that Respondent had been contacted by a representative from the Union, Local 39, with a registered letter, indicating that a majority of Re- spondent's employees wanted the Union as their repre- sentative for the purposes of collective bargaining. How- ever, he said that he did not actually see the letter, which was dated May 17, until Monday, May 22. On Friday evening, May 19, at approximately 5 or 5:30 p.m., Santarpia said he was told by three or four employees that three or four unnamed employees were distributing cards and telling the employees to sign with the Union because it was good for the employees. Santarpia further testified that on Saturday, May 20, he told Montesinos that the had heard that Montesinos was telling employees false things about the Union, and he entered into the following conversation with Montes- tinos: THE WITNESS: What-no. Most of the employees that I encountered were doing all the talking and telling me all kinds of things. So, I listened and when Marcellino came he said, "How are you?" I said to him, I said, "You shouldn't do this. If you want to represent a union, it's fine, but do not go tell lies about how the union works, what the union is." Q. And didn't you also tell Mr. Montesinos that he had been one of the original employees at the restaurant and that you had treated him with re- spect? Do you remember that? A. I said in somewhat that he was one of the original, yes, but I stated that all the employees I treat with respect and I didn't think that he should lie about me or any other things. Q. And didn't you tell him also in that conversa- tion that what he had done was the lowest thing a person could do, that is lying about what your posi- tion was about the union? A. Yes, sir. He was telling the employees that I was at the head of the union movement. Santarpia continued to testify as follows: Q. Now, would you tell me, please, sir, how many-who informed you that Marcello was telling lies about the union if it did not-if they did not name Marcello in those conversations on the tele- phone? A. I go there about 5:00 or 5:15 and somebody- I came through the kitchen and some of the kitchen employees stopped me and saying, "There's a lot of problems. Montesinos and Hernanadez want us to sign for the union and if-" a couple of persons, in- cluding a lady and a gentleman, to be more specific, approached me saying that Marcello had asked them to sign union cards and they asked him be- cause they were loyal to me they had asked him if I knew anything about it and Marcello told them, "Yes, he knows everything about it and he is for it." CAPRICCIOS RESTAURANT, NC. 689 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Santarpia said the employees asked him did he know anything about the Union and whether or not he was in favor of it. He said he replied as follows: A. I said, "I don't know nothing about it and I certainly am not for it." Q. I see. So, you told these two employees that you were against the union? Why? A. Why? Q. Why does it matter to you if your employees want to join a union or don't want to join a union? Santarpia said the above conversation was held with Montesinos, and that, during the discussion with the em- ployees on May 20, the following occurred: A. We had a meeting. They requested a meeting with me, yes, and we spoke about the union and I said before you should-would have gone to the union, you went to the union, you would have given me the-how you say? Q. Courtesy. A. -courtesy of saying why, since on prior oc- casions we had always discussed problems and the employees might say I always stuck up for them and for their rights. Q. So, you didn't think they needed a union? A. What I thought was irrelevant. Q. So you weren't angry that they went to the union? A. No. I was just angry that they told some em- ployees about me aiding the union movement and being one of the partners it put me in a spot where, you know, I didn't think it was fair.Y Based upon the forgoing credited testimony, I con- clude and find that Respondent, through its president, Fiorentiano, and its manager, Santarpia, coercively inter- rogated employees about their union activities; that Re- spondent (Fiorentiano) threatened employees with repri- sals for engaging in union activities by telling them it would telephone New York and cause them to disappear; that Respondent (Fiorentiano) created the impression of surveillance of its employees' union activities by telling them it knew all dining room employees had signed union authorization cards; that Respondent (Santarpia) threatened employees by telling an employee he was lowdown for not telling it about the employees' union activities, and said employee was therefore a traitor, costing Respondent money; and that all of the aforede- scribed conduct by Respondent constituted a violation of Section 8(a)(l) of the Act. I further conclude and find that on May 19 Respond- ent (Fiorentiano) also restrained employee Montesinos by asking him if he felt guilty for having caused Respondent to discharge fellow employee Santos for engaging in union activities in violation of Section 8(a)(l) of the Act; and that, when Montesinos told Fiorentiano he did not I credit the testimony of Hernandez, Lomoriello, and Montesinos over that of Santarpia with respect to the latter's conversations held with them concerning employees' organizing activities. I credit their version not only because they were consistent one with the others, but also be- cause they were in great part corroborated by the testimony of Santarpia. feel guilty, and Fiorentiano grabbed the bowl out of Montesinos' hands and discriminatorily discharged him, Respondent violated Section 8(a)(3) of the Act. Santarpia also testified that Respondent's business was seasonal beginning in January and slowing or ending around the Easter season. The largest volume of business was done during the months of February through March, and Santarpia made his decision to layoff Monte- sinos about 10 days or 2 weeks before May 22. He said he was angry with Montesinos for lying because Monte- sinos knew about the Union. However, he denied that his anger with Montesinos played a part in his decision to lay him off 2 weeks later. C. Respondent's Layoff of Employees and Its Stated and Later Asserted Reasons Therefor Santarpia acknowledged that he terminated Marcello Montesino on Monday, May 22, but that he informed Montesinos that he was being laid off for lack of work; that he laid off Javier Moreno Ruiz on Saturday, May 20, but that he informed Ruiz 2 weeks in advance that he would be laid off for lack of work; and that he laid off Julio Hernandez on May 22, but that said layoff was ac- tually a termination. Santarpia said he termed Hernan- dez' separation as a "layoff" because he was afraid to inform him that he was terminated because he was afraid of what Hernandez would do to him. With respect to Respondent's decision to layoff Ruiz, Santarpia testified as follows: Q. When did you play soccer with him between the time that you returned from Italy on your busi- ness trip and when you saw him on Wednesday? A. On Sunday morning. Q. I see. Did you mention to Mr. Ruiz on Sunday morn- ing that he was laid off? A. No, sir. I didn't have any idea I was going to lay him off until I got back on Monday and I was told to lay off two dishwashers right there because we couldn't afford to pay them. Oh, but wait a second now. Didn't you testify that you had the list of the people that you were going to lay off? A. The dining room people. Q. Oh, I see. You left that out of your testimony. A. Sorry. With respect to the termination of Montesinos, the latter testified that he returned to work on Monday be- cause Santarpia is a changeable person, he gets angry quickly but cools off quickly, and he thought Santarpia might have changed his mind. He said he had never been laid off before. With respect to Ruiz, who was discharged on May 20 by Fiorentiano, Ruiz said he reported to work on the evening of May 24 hoping that Santarpia would allow him to work. Ruiz does not speak English very well, and he said he was informed by Montesinos that Respondent wanted him to return to work under the new owner. Santarpia also testified that, when he laid off Monte- sinos and Hernandez on May 22, he did not know that CAPICCIOS RESTAURANT, INC 691 they were two employees who were distributing union cards. He admitted however, that both female and male employees told him Hernandez and Montesinos had asked them to join the Union. Hernandez further testified that, when he reported to work on Monday, May 22, Fioren- tiano told him to go upstairs to the office and talk to Santarpia, who gave him his final check with a note ad- vising (by stipulation of the parties) that he was terminat- ed because it was the end of the season. He acknowl- edged that he was once fired for allegedly altering a trip on a credit card. D. Respondent's Explanation for the Nine Layoffs The parties stipulated that the following named em- ployees were laid off on the dates following their respec- tive names, all such dates occurring in 1978: Hector Per- alta (busboy)-May 6, 1978 John Sutter (doorman)- May 20, 1978 Julio Hernandez (waiter)-May 20, 1978 Marcello Montesinos (waiter)-May 20, 1978 Javier Moreno Ruiz (dishwasher)-May 20, 1979 Jose Gomez (busboy)-May 27, 1978 Loretto Miriel (waiter)-May 27, 1978 Charles Hunt (dishwasher-May 27, and Mari- cio Perez (waiter)-June 3, 1978. General Counsel does not concede that Perez was ter- minated since his vote is challenged, including the 8(a)(3) allegations. Manager Raffaele Santarpia testified that Respondent had a meeting with its certified public accountants in April 1978, concerning the decline in business, wherein it received a business statement and was advised that it could no longer afford a payroll of $14,000 a week. At that time Respondent decided to began reducing its staff by 10 persons around May 1978, and it in fact com- menced to do so around May 10. Santarpia said he left for Italy on May 13 and returned on May 20, but did not go back to work until May 22. Santarpia further testified that in early May he asked all the above-named employees what were their plans for the summer, and were they going to be available for work. Peralta told him he was ready to leave at the end of the first week in May, and Sutter told him he would leave May 20. With respect to Gomez, Santarpia testified as follows: A. Right around the beginning of May, after I started to converse with all my employees,I have a conversation with him and he told me that he was planning to go back to school to learn English, and he say to me: "I will leave by the middle of No- vember," and he asked me if I would give him a job back in the wintertime, and I say to him: "I don't think I will be here in the wintertime because we are selling the place." Gomez left the week ending May 27. Santarpia said Miriel told him he would leave on May 14 because he was going back to Italy for the summer, and Perez told him he needed some time off because his wife was having a baby. Perez' wife delivered a baby on May 15, and Santarpia granted Perez time off. He received a letter for a job reference on Perez on June 3 and called Perez by telephone on or about June 4 about the letter. Perez said he still needed time off, and Santarpia said he told Perez that, if he did not report for work by the fol- lowing Monday, he could regard himself as terminated. Perez did not report on Monday; however, he report- ed to vote in the election on June 27. Santarpia said that, during the latter part of April, Montesinos came to him and told him he was not satis- fied with work anymore and expressed a desire to go into the trucking business. He complained about the long hours. With respect to new hirees, Santarpia said he hired a waiter in August, who would be working in Respond- ent's other restaurant, and Pappagalo in September when business picked up. With respect to Ruiz, Santarpia said he hired Ruiz in March 1977; shortly thereafter he learned Ruiz did not have immigration papers, but Ruiz advised him that he was in the process of obtaining them. Upon his entry of employment with Respondent, Ruiz also submitted a false social security card. In April, Respondent received a call from the immigration services, which advised Re- spondent that it had learned Respondent had some illegal aliens in its employ, and that they were going to investi- gate Respondent. After several inquiries, Ruiz did not produce immigration papers, and, since Respondent had to lay off two dishwashers, it terminated Ruiz as one of them. With respect to Hernandez, Santarpia said he had spoken to Hernandez, Peralta, and Lomoriello in April about talking on the telephone during working time and about using rude language (in Spanish) before customers. On Saturday, April 6, he had to talk to Hernandez about sitting down talking to coworkers and smoking while a customer was awaiting service. A few minutes later, he was looking for Hernandez and again found him in the kitchen smoking. In this regard, Santarpia continued to testify as follows: A. I said: "Julio, please. I told you to get to your station, attend to your customers." He say to me: "But Hugo is taking care of the customers." I said: "No. Hugo is right here taking the food out and there is nobody up there. Please go out." Then I rushed out and I saw him coming after me. At or about 9:15 or 9:30 p.m., according to Santarpia, a customer called him and asked him, "Do you want me to go and get my own bread and butter." He said Her- nandez was not at his station, and he described their con- versation as follows: He had been served salad and there was no bread and butter. So at this point I had enough. I got a little bit mad. I went into the kitchen and I say: "Julio, where are you?" He was right there, again, smoking a cigarette and talking to the diswashers. I said: "I have had enough of this." I said: "For two times already I told you to get in the station." He said: "I don't give a damn what you are saying. I don't care what you are saying." I said: "Listen. I am the manager here and I have to take care of the customers. If you don't like, I can fire you right CAPRICC... RE T U , 6. _ _ 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now." He looked at me and he said: "You cannot fire me, you SOB, because if you fire me I break your legs and I cut your head off." Santarpia said he did not terminate Hernandez on May 6 because he was afraid of what Hernandez might do. He said that he laid off about five or six employees, and that about four or five employees left Respondent's employ voluntarily. Santarpia admitted he never asked Montesinos was he leaving or did he want to be laid off. He further ac- knowledged that he did not recall Montesinos, Hernan- dez, or Ruiz to work for the following reasons: (1) Mon- tesinos was in the trucking business, (2) He would not recall or rehire Hernandez if he had to do the job for another 100 people, and (3) He could not rehire Ruiz unless the latter had obtained a green card (alien registra- tion card). With respect to Perez, the latter testified that he told Santarpia he was going to take the month off because his wife was going to deliver a baby, which he did on May 30. He denied he told Santarpia he was going to work for another company, but admitted that he did purchase a moving truck in April 1978, which he brought for someone else to operate on his behalf. He hired a driver who drove the truck for 15 days. Under the arrange- ment, Perez said he was considered an owner-operator and leased the truck. Perez denied that Santarpia telephoned him or his wife on June 4 or 5. He said he did not return a call to San- tarpia, and that no one from management of Respondent told him he was fired. He said that, when he went to vote in the union election, Santarpia asked him what was he doing there because he could not vote. When he asked Santarpia why not, Santarpia said because you no longer work here. Perez said he then asked Santarpia was he just fired on that day (June 27), and Santarpia said, "If you want to vote, you can wait." Perez said he eventually voted. He acknowledged that he did make an application for employment as an agent-driver for Briggs Moving and Storage Company in late May. However, he said he was an owner-operator simply leasing a truck to them. Jose Roha Guiherme testified that he has been in Re- spondent's employ for 8 years, and that, on one Saturday night in May 1978, he saw and heard Santarpia enter the kitchen on three or four occasions on which Santarpia found Hernandez smoking. Santarpia ordered Hernandez to go into the dining room and work. On the last such occasion, Santarpia told Hernandez to "[c]ome to work if it pleases you; if it doesn't, you can go," and Hernan- dez told Santarpia, "If you throw me out, I will break your neck." Guilherme denied he served as a translator in May for a conversation between Fiorentiano and Ruiz. However, he acknowledged that Fiorentiano asked him if he signed a card for the Union. In his judgment, busi- ness at Respondent in May 1978 was good. At the time of the union election, Guilherme said he was not a part owner of Respondent. He said he was simply a cook and did not have authority to hire, fire, grant time off, settle grievances, or to assign employees to work stations. He denied he ever told Fiorentiano to fire the busboy. Montesinos testified that the cook, Guilherme, told Willie Santos, the pot washer, that he was finished. He had given him so many breaks that that was the end; he was finished. This statement was made by Guilherme after an altercation that took place in the kitchen. Santos left the kitchen, and later Santarpia investigated the dis- sension. (Perez is the brother-in-law of the witness, Mon- tesinos ) Analysis and Conclusions It is overwhelmingly established by the credited testi- mony of the record that, during the early part of May 1978, Respondent, by its president, Marcello Fiorentiano, and/or its manager-treasurer, Rafaele Santarpia, coer- cively interrogated employees about their union interests and activities, threatened employees with discharge or reprisals for engaging in union activities, created the im- pression that employees' union activities were under sur- veillance by Respondent, and threatened and restrained an employee for not informing Respondent about the union activities of the employees, all in violation of Sec- tion 8(a)(l) of the Act. It is also clearly established by the undisputed testimo- nial evidence of record that Respondent laid off or dis- charged Marcello Montesinos, Javier Moreno Ruiz, and Julio Hernandez on May 20, 1978. The only question raised by the layoffs is whether all three employees were laid off for their union activities or for declining business and lack of work as Respondent contends. This question must be considered and answered in light of Respond- ent's recent violation of employees' Section 7 rights prior to May 20, 1978. The evidence is also essentially undisputed that Re- spondent had knowledge of its employees' union activi- ties, on May 19 and most of Respondent's unlawful 8(a)(1) conduct occurred on May 19, 20, or 22, 1978. With respect to the layoff of Montesinos, it is observed that Montesinos distributed union authorization cards to employees prior to May 19, and that Santarpia admitted on examination that about 5:15 p.m. on May 19, a couple of employees informed him that Montesinos and Hernan- dez had asked them to sign cards for the Union. Hence, Respondent (Santarpia) had actual knowledge of Monte- sinos' and Hernandez' unionization involvement. Santar- pia also acknowledged on examination that on May 20 he told employees he was against the Union, and that they should have advised him of their problems before they went to the Union. When Respondent's aforedescribed knowledge of the employees' organizing activities and its statement that it was against the Union are considered along with its pre- viously described unlawful conduct, which occurred only a day or so before it laid off Montesinos, Ruiz, and Hernandez, it is unquestionably clear that the nature of said layoffs were precipitous in character. Moreover, since it is also clear that Respondent had previously made it clear that it was against the Union, its animus to- wards its employees organizing the Union is well estab- lished. CAPRICCIOS RESTAURANT, INC, 693 With this background in mind, it is further observed that on May 19, the same day Respondent (Fiorentiano) received the Union's demand letter, Fiorentiano asked Montesinos if he felt sorry Respondent had to fire em- ployees Santos and Javier Reese for signing union cards. Montesinos responded that he did not feel guilty at all because he did not believe that the had done anything wrong. President Fiorentiano then grabbed a bowl from Montesinos' hands and told him, "You can leave right now. I don't need you." However, Fiorentiano shortly thereafter said, "No, no, no, no, no, Marcello. I don't fire you for your union activities. I fire you because is slow the place and I decide to lay off some people, and if you want you can stay Friday and Saturday working." While working on Saturday, May 20 Santarpia passed Monte- sinos and thanked him. When Montesinos asked Santar- pia why he was thanking him, Santarpia said, "You know what I mean, I am thanking you for." When San- tarpia passed him on a second occasion, Santarpia said, "Do you know, Marcello, you are the lowest man I ever meet in my life." Montesinos asked why he felt that way, and Santarpia said, "Because you betray me," by not tell- ing Santarpia about the employees' union activities. San- tarpia contends that he made the statement because Mon- tesinos did not tell him about the employees' union activ- ities, but I do not credit his testimony because it is con- trary to the credited and logical consistency of all the testimonial accounts of record. It is particularly noted that Fiorentiano did not appear and testify in this proceeding and no explanation was given for his nonappearance. Consequently, all of the corroborated testimony of employees Hernandez, Lo- moriello, and Montesinos regarding the allegations of Fiorentiano's interrogations, impression of surveillance, and threat of reprisals (telling employees why it fired certain other employees) are undisputed, credited, and deemed true. I further find that said interrogations by Respondent (Fiorentiano and Santarpia) were coercive because they were not only conducted by high level managerial officials, but they were also extensive, prob- ing, and threatening. Moreover, I find the above-credited evidence more than ample to support the conclusion that Respondent's layoff (discharge) of Montesinos was substanially, if not totally, motivated by Montesinos' union activities and Respondent's (Fiorentiano's and Santarpia's) manifested animus towards unionization of its employees. Although Ruiz has since been called back and em- ployed by the new owner, Motts Cove Corporation, Inc., he was nevertheless undisputedly discharged by Fiorentiano on May 20 for signing a union authorization card. Ruiz nevertheless reported to work at Respond- ent's place of business on May 24 with hopes that Re- spondent would have changed its mind and permitted him to work. However, Santarpia had sanctioned Fioren- tiano's discharge of Ruiz by informing him that he no longer worked there, and that Respondent would send him his check. As previously indicated, Fiorentiano did not appear and testify, and Ruiz' testimonial account is not only consistent with all of the evidence of record, but is also undisputed by Respondent, and therefore credited. I therefore conclude and find that Respondent's layoff or discharge of Ruiz was discriminatory because it was substantially motivated by Ruiz' union activities (of which Respondent had gained knowledge by its wide- spread coercive interrogation of employees) and Re- spondent's aforefound animus towards the unionization of its employees. Respondent (Santarpia) admits that on Friday, May 10, or Saturday, May 20 it acquired knowledge of Hernan- dez' efforts to solicit employees to join the Union. When Hernandez reported to work on Monday, May 22, Fior- entiano told him to go upstairs to the office and talk with Santarpia. Hernandez went up to the office, where he was given his check and advised by Santarpia that the was terminated because it was the end of the season. However, when it is observed that Respondent had ac- quired knowledge of Hernandez' union involvement only I or 2 working days prior thereto, it is more than an in- ference that Respondent's layoff or discharge of Hernan- dez was precipitous in character. Moreover, Respondent (Santarpia) admitted that it was terminating, and not laying off, Hernandez. Thus, while it is true that, for the large part, Respondent's business is seasonal (from Janu- ary to May or June), such fact does not mitigate the sub- stantial and predominating character of Respondent's motivation for discharging or laying off Hernandez for his leadership role in unionizing the employees. This is especially true when it is noted that Respondent did not give Hernandez, Ruiz, or Montesinos any warning about the season ending or about its future business plans. In laying off or discharging Hernandez, Respondent dis- criminated against him for exercising protected Section 7 rights in violation of Section 8(a)(3) of the Act. During this proceeding, Respondent raised or offered for the first time evidence of objective business consider- ations regarding a decline in its business, the necessity to reduce its staff, and finally, its decision to sell the busi- ness. Respondent also contends that, following an April 1978 meeting with its accountants, it decided to reduce its staff by 10 persons, commencing in May 1978; that Santarpia told employee Gomez (uncorroborated) in early May that Santarpia did not think he would be there next winter because Respondent was selling the business; that Ruiz did not have immigration papers and did not obtain them; that Respondent spoke to employees Her- nandez, Peralto, and Lomoriello in April about talking on the telephone during working time and about using rude language in the presence of customers; that in April Respondent (Santarpia) had to speak to Hernandez about smoking and socializing on the job; and that it had learned in early June that Montesinos was going into the trucking business and was no longer interest in Respond- ent's work. I find that Respondent did not establish it had apprised its employees or the Union about its future business con- siderations. Nor had Respondent given any warnings, particularly ultimate warnings, to any of the three sub- ject employees it laid off or terminated allegedly for cause. Consequently, I find Respondent's rather late af- firmative defenses in this regard self-serving and pretex- tual. In other words, while I find that Respondent's layoff or discharge of Montesinos, Hernandez, Ruiz, and C A P RIC C'' .ET U A T . . _ .93 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees coincided with the approaching season- al slowdown of its business, I do not find that such fac- tors constituted the primary and motivating cause for Respondent's abrupt mass layoff or discharge of said em- ployees. Rather, on the contrary, I find that Respond- ent's lately asserted defenses were made to camouflage its real and unlawful reasons for laying off or discharging the aforenamed employees; namely, their union activities, about which Respondent was fully aware. With respect to Perez, the latter testified that in mid- May 1978 he requested leave because his wife was about to deliver a baby. Santarpia granted his request, and, during this hearing, Santarpia corroborated Perez' testi- mony, adding that he (Santarpia) granted Perez' request and thereafter also granted him an indefinite extension. However, a conflict in the testimony of the two wit- nesses developed when Santarpia said he telephoned Perez on June 4 in reference to an application for em- ployment Perez had filed with another employer. Santar- pia said he spoke with Perez and gave him until the fol- lowing Monday to report to work or consider himself terminated. Perez denied he ever received such a tele- phone call from Respondent. Perez does not speak and understand English to any reasonable degree, and, since Respondent contends it was trying to reduce its staff in May, I find it difficult to be- lieve that Respondent was trying to summon Perez back to work while it was laying off employees in multiples on and subsequent to May 20. Additionally, Santarpia ac- knowledged that he speaks some Spanish (how profi- ciently was not established), and I find that there was a communication problem between himself and Perez. I am therefore persuaded by the circumstances and all the credited evidence of record to credit Perez' version over that of Santarpia. I also note that Perez reported to work on June 27 to vote in the election, which at least raised an inference that he did not consider himself terminated by Respondent. Although several weeks elapsed between the time Perez accepted leave in May and his return to vote in the election on June 27, I particularly note that Respond- ent (Santarpia) did not specify the amount of leave it granted Perez. Nor did the Respondent specify the length of the extension of said leave given Perez. Conse- quently, I find it logical to conclude upon the credited evidence that Respondent was in fact laying off and ter- minating employees, and that such act probably explains why Respondent did not contact Perez with any concern regarding the duration of his requested leave. Based upon the foregoing evidence and reasons, I con- clude and find that Perez was not laid off or terminated by Respondent on or before June 27, the date of the union election. Respondent's reason given on the written note of layoff to Hernandez indicated that he was laid off for lack of work. Respondent now gives another reason relating to declining business. However, Respond- ent failed to furnish sufficient documentary and corrobo- rative evidence of objective considerations showing eco- nomic hardship, and it did not explain why it did not lay off some employees with less working tenure. A case in point where the employer, after receiving notice of the union's demand letter, immediately embarked upon un- lawful interrogation of employees is Mission Rubber Company, Inc., 202 NLRB 33 (1973). See also Ring Metal Company, 198 NLRB 1020 (1972). Both cases are cited by the General Counsel. Finally, based upon all of the foregoing credited evi- dence of record, I conclude and find that Respondent discriminatorily laid off or discharged Hernandez, Mon- tesinos, and Ruiz for exercising their Section 7 protected rights in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent interfered with, re- strained, and coerced its employees by interrogating them about their union interests and activities, threaten- ing them with discharge or reprisals for engaging in union activities, creating the impression that their union activities were under surveillance by Respondent, and threatening and restraining an employee for not inform- ing Respondent about the union activities of the employ- ees, all in violation of Section 8(a)(l) of the Act; and having discriminatorily laid off or discharged Marcello Montesinos and Javier Moreno Ruiz on May 20, 1978, and Julio Hernandez on May 22, 1978, respectively, for exercising their Section 7 rights in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent cease and desist from engaging in such unlawfull conduct and that it make Marcello Montesinos, Javier Moreno Ruiz, and Julio Hernandez whole for any loss of earnings they might have suffered by reason of Respondent's discrimination against them, with interest thereon, within the meaning of, and in accord with, the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977),3 except as specifically pro- vided by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent, cease and desist from, or in any manner, in- terfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCI.USIONS OF LAW 1. Capriccios Restaurant, Inc., was, at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. :' See. generally, lis Plumbing & learing Cng ., 138 NLRB 716 (1962). --- CAPRICCIOS RESTAURANT, INC, 695 2. Hotel and Restaurant Employees Union, Local 39, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for purposes of collective bargaining: All waiters, kitchen help, dishwashers, busboys, bartenders, and cashiers employed by Respondent at its Palm Beach, Florida, restaurant; excluding: All office clerical employees, bookkeepers, chefs, maitre d's, and guards and supervisors as defined in the Act. 4. By coercively interrogating employees about their union interests and activities, Respondent violated Sec- tion 8(a)(1) of the Act. 5. By threatening employees with discharge or repri- sals for engaging in union activities, Respondent violated Section 8(a)(1) of the Act. 6. By creating the impression that employees' union activities were under surveillance by Respondent, Re- spondent violated Section 8(a)(1) of the Act. 7. By coercively threatening and restraining an em- ployee for not informing Respondent about the union ac- tivities of the employees, Respondent violated Section 8(a)(1) of the Act. 8. By discriminatorily laying off Marcello Montesinos and Javier Moreno Ruiz on May 20, 1978, and by discri- minatorily discharging Julio Hernandez on May 22, 1978, because they exercised employee rights protected by Section 7 of the Act, Respondent violated Section 8(a)(3) and (I) of the Act. 9. By granting and extending leave of indefinite dura- tion to Maricio Perez, Respondent had not terminated Perez on or before June 27, 1978, and he was therefore an employee eligible to vote in the election. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Capriccios Restaurant, Inc., Palm Beach, Florida, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating its employees about their union interests and activities. (b) Coercively threatening employees with discharge or other reprisals because employees engaged in union activities. (c) Coercing and restraining employees by creating the impression that the employees' union activities are under surveillance by Respondent. 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes (d) Coercively threatening or restraining employees for not informing Respondent about the union activities of the employees. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. (f) Discouraging membership in, or activities on behalf of, Hotel and Restaurant Employees Union, Local 39, AFL-CIO, or any other labor organization, by laying off or discharging employees or otherwise discriminating against them in any manner with respect to their hire or tenure of employment or any term or condition of em- ployment in violation of Section 8(a)(3) and (1) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Marcello Montesinos and Javier Moreno Ruiz immediate and full reinstatement to their former po- sitions held on May 20, 1978, and offer to Julio Hernan- dez immediate and full reinstatement to his former posi- tion held on May 22, 1978, or, if such positions no longer exist, to substanially equivalent positions at its other res- taurant (Pappagalo), without prejudice to their seniority or other rights and privileges, previously enjoyed, and make them whole for any loss of earnings suffered by reason of the discrimination against them, with interest, in the manner described in the section of this Decision entitled "The Remedy." (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, items of sale and all paper involving the purchase and sale of Respondent, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's office and place of business, Pappagalo Restaurant located in Palm Beach, Florida, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In the even; that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CAPRICCIOS RESTAURANT. INC. 695 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT coercively interrogate employees about their and other employees' union membership, activities, and desires. WE WILL NOT coercively threaten employees with discharge or other reprisals because they engage in union activities. WE WILL NOT create the impression that we are surveilling the concerted and/or union activities of employees. WE WILL NOT threaten employees with reprisal for not informing us about the union activities of employees. WE WILL NOT discourage membership in Hotel and Restaurant Employees Union, Local 39, AFL- CIO, or any other labor organization, by laying off or discharging employees or otherwise discriminat- ing against them in any manner in respect to their hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment and of the rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affect- ed by lawful agreements in accord with Section 8(a)(3) of the Act. WE WILL offer Marcello Montesinos, Javier Moreno Ruiz, and Julio Hernandez immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions as they formerly held, at our Pappagalo Restaurant, located in Palm Beach, Flor- ida, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of pay suffered by reason of our discrimination against them, with interest. All our employees are free to become or remain, or refuse to become or remain, members of said Union, or any other labor organization, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. CAPRICCIOS RESTAURANT, INC.