Narragansett Restaurant Corp.

NARRA(iANSIII RSIAIRANI CO(RP Narragansett Restaurant Corp. and Augusta Jacke and Local 69, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, Part) in Interest Narragansett Restaurant Corp. and Margaret Werner Local 69, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO and Au- gusta Jacke. Cases 29-CA 5417, 29 ('A 5925, and 29 CB 2765 June 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND Mi BIRS .II NKINS ANI P NI I 0 On March 5. 1979, Administrative Law Judge Ir- win Kaplan issued the attached Decision in this pro- ceeding. Thereafter, Respondent Narragansett Res- taurant Corp. filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Narrangansett Restaurant Corp., Lindenhurst, New York, its officers, agents. successors, and assigns, and Respondent Local 69, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, Lindenhurst, New York, its officers, representatives, and agents, shall take the action set forth in the said recommended Order, except the attached notice, "Appendix A." shall be substituted for that of the Administrative Law Judge. I In agreeing with his colleagues that employee Margaret Werner's griev- ance should not be deferred to the arbitration process. Member Penello relies solely on the fact that the Employer and Union are hostile to the employees' interests. See Kansas Meal Packers. A Dison of 4risro Food. Inc. 198 NLRB 543 (1972) We have modified the Administrative I.aw Judge's notlice. "Appendix A," to conform with his recommended Order. APPL-NDIX A No II(+- I(o EMI' OYIoI:S PosIIl:) BY ORI)iR ()t 1i NAIIONAI. LABO)R RI All()NS BARI) An Agency of the United States (;overnnlent Wl \1 i.. NOI threaten to discharge employees for joining Local 69. Hotel and Restaurant Em- ployees and Bartenders International Union, AFI ('IO attempt to inhibit shop stewards from performing their union responsibilities or coercively interrogate emploees for seeking the assistance of the National I.abor Relations Board. WI: wVII.. NOI interfere with the administration of Local 69, Hotel and Restaurant nEmployees and Bartenders International Union., AFL C10. by recognizing or dealing with any person as shop steward or other agent of the nion while that person is our supervisor. Wl wirI NOl l favor union emplo',ees over nonunion employees with regard to rates of pay. vacation and welfare contributions. and emplo\- ment opportunities. WE \VI.L Not discharge or otherwise discrimi- nate against our employees because of their e- fors to attain union membership. Wt w\I.l. NO permanently suspend, dis- charge. or otherwise discriminate against our employees for giving testimony under the Act. Wi wni.i. Nt in ans other manner. interfere with, restrain, or coerce our employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. W-I. iiL, with Local 69. Hotel and Restau- rant Employees and Bartenders Union, AFL CIO, make whole all nonunion employees for any losses of pay anti benefits with interest by reason of our discrimination predicated on their nonmembership in the Union. Wt! wii.i. make employee Robert Jacke whole for lost earnings and benefits with interest. Wi wit.i. offer Margaret Werner immediate and full reinstatement to her former job or, if the position no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges previously enjoyed, and we Wit.i. make her whole by paying her backpay with interest. NARRAGANSEIr RESIAURAN I CORP. DECISION SI ATEMEN I 01 I 1Tl CASI IRWIN KAPI&,N. Administrative Law Judge: This matter was heard heflore me in Brooklyn. New York. originall on 243 NLRB No. 30 125 I)I:(ISI()NS OF NAIOINAL l.ABOR R.AIO()NS BOARI) various dates in 1977 in consolidated (Cases 29 (A 5417 and 29 ('B 2765. Following the close of the hearing on the aforenoted consolidated cases, additional charges were filed by Margaret Werner, a terminated employee of' Respon- dent Narragansett. in ase 29 CA 5925 and a complaint thereon issed October 31, 1977. On the General Counsel's motion. I reopened the record of' the previously litigated cases and consolidated Case 29 CA 5925. The hearing on the most recent consolidated cases closed on March 21, 1978, with the General Counsel and Respondent Narragan- sett thereafter filing supplemental briefs. The original consolidated complaint alleged, in essence. that Respondent Narragansett violated Section 8(a)( I ), (2). and (3) of' the National Labor Relations Act, as amended (herein called the Act), and Respondent Union concomi- tantly violated Section 8(hb)( I)(A) of the Act by maintaining in force and effect an arrangement, understanding, and practice whereby Respondent Narragansett provided union employees higher pay rates and other benefits than non- union employees. According to the General ('ounsel, Re- spondent Narragansett and Respondent Union (collectively referred to as Respondents) maintained a union quota. thereby denying nonunion employees the opportunity lor union membership and higher wages and other benefits predicated on union membership. In addition, the General Counsel asserts that Respondent Narragansett indepen- dently violated Section 8(a)(l I of the Act by, ier lia. threatening employees with discharge to dissuade them from joining the Union. Further, the General Counsel al- leged that Respondent Narragansett independently violated Section 8(a)(3) of the Act by terminating Robert Jacke and providing less employment for his mother, Augusta Jacke. because of their efforts to secure union membership for Robert Jacke. Still further, and with regard to the reopened consolidated cases, the General Counsel alleged that Re- spondent Narragansett suspended and thereafter termi- nated Margaret Werner because she testified adversely to Respondent Narragansett's interests at the original hearing. Respondents filed timely answers (amended at the hearing) denying the substantive allegations in the consolidated cases. The supervisory and agency status of certain individ- uals and jurisdiction are also in dispute. Upon the entire record, including by observation of the demeanor of the witnesses, I make the following: FINDINGS OF FAC'I I. JURISDICTION Respondent Narragansett is a New York corporation en- gaged in the operation of a retail catering establishment called the Narragansett Inn (herein referred to as the Inn, Restaurant, or Respondent Narragansett), which is located in Lindenhurst, New York, and is its only facility involved herein. In connection with the operation of the Inn, the parties stipulated, the record reveals, and I find that, during the year 1976 and at all other material times herein. Re- spondent Narragansett derived gross revenue in excess of $500,000. The record reveals that, during the same period of time and in connection therewith. Respondent Narra- gansett purchased from suppliers, food, wine and liquor, and other goods and materials valued in excess of $50,000 of' which goods and materials in excess of $50,(00() origi- nated outside the State of New York.' In addition, the par- ties stipulated, and I find, that in 1976 Respondent Narra- gansett purchased fruit salad valued at $10,803.63 directly from Fruit Salad Incorporated of Lawrence, Massachusetts. On the basis of the loregoing. and the entire record, I find that the total operations oif Respondent Narragansett meet the Board's statutory standards. 2 Accordingly I find that Respondent Narragansett is an employer engaged in com- merce within the meaning olf Section 2(2). 16). and (7) of the .Act. II. 1111 I AB(i)R t)R(iANIZAi/(iN IN\)tI V:D) It is admitted. the record reflects, and I find that Local 69, Iotel and Restaurant l:mploy ees andi Bartenders Inter- national Union, AFI. ('10. (herein Respondent Union) is a labor organization within the mlcaning of Section 2(5) of the Act. 11. 1 111: A I I:(;:l) INI AIR lABOR PRAM I ( I S A. Bat Aground/tl Respondent Union' has represented Respondent's Narra- gansett's restaurant employees, including waiters, wait- resses, bartenders, head waiters, and captains for many years covering successive collective-bargaining agreements, the most recent of which at the time of the hearing was effective July 31. 1975, until July 30, 1978. 4 In July 1976, Gus Colletti, one of Respondent Narragan- sett's managers.' addressed a group of approximately 20 employees in the Imperial Room at the Inn and urged them to accept certain pay cuts and other changes in working conditions to assist Philip Orlando. the owner of the restau- rant, because he was experiencing financial difficulties. Thus. (Colletti proposed, inter a/lia, that employees on the permanent bartenders list take a $5-per-party cut in pay when working as bartenders and all other employees take a $10-per-party cut when serving in the same capacity. The permanent bartenders list was comprised of 10 employees (all union members), whereas the other employees, union or nonunion, were asked to take the larger $10-pay cut. The employees accepted Colletti's proposals immediately and without having discussed the matter with union representa- tives. In July 1976, over Gus Colletti's signature, a two- column notice, one headed "Union" the other "Non- Union" reflecting, inter alia, the bartenders pay cut and ' See G.C. Exhs. 4.4 A. 5 7. and 18 A D. 2 See Pick-Mi. Laurel Corporation, 239 NLRB No. 174 (1979): Front Porch Holding Corp., and Front Porch 82, Inc., 214 NLRB 788. 789 (1974). 1 Respondent Union was initially known as Local 164, but became Local 69 after the two entities merged in October 1975 The parties stipulated and I find that at all times material herein, Local 69 is the "successor" to Local 164 for collective-bargaining purposes. I See G.C. Exh. 2. 5 The supervisory and agency status of Gus ('olletti. Joe Slo/ile, and Paul LaBella are in dispute. For reasons discussed, infra, I find that these individ- uals at all times material herein are statutory supervisors and agents whose acts are chargeable to Respondent Narragansett. In addition, Paul LaBella served as union shop steward from November 1975 to February 1977, and his acts and conduct for that period are also chargeable to Respondent Union. 126 NARRAGANSETT RESIAURANI CORP. other differentials in pa between union and nonunion em- ployees. was posted on the union bulletin board in the kitchen at the Inn.6 On the same bulletin board from on or about July 18. 1976. to around the end of the year. there appeared in order of seniority a list of 32 employees, all union members, and the names of three maitre d's (also union members). which was posted b Paul .a Bella, union shop steward.' According to the General Counsel this group of 35 union members represented a quota which was maintained by both Respondent Narragansett and Respondent Union. All other employees were assertedly denied membership until someone in the select group of 35 either retired or was oth- erwise terminated. The General Counsel contends that Re- spondent Narragansett paid these nonunion employees a lower rate per party than union employees and did not make contributions to the union vacation and welfare funds for these nonunion employees. In support thereof, the Gen- eral Counsel produced payroll records and related docu- ments and adduced testimony from several employees who testified that Union Shop Steward Paul LaBella consis- tently referred to the Union quota in rejecting union mem- bership applications. Further, these witnesses testified that they received certain fringe benefits, and their rate of pay per party increased only after they became union members. According to Respondent Narragansett's owner, Philip Orlando, he maintained these differentials because the non- union employees were "casuals" and not regular employees. On the other hand. Respondent union business agent Carl Coluzzi asserted that all employees, including "casuals," should have become union members and that he did not learn that differentials were maintained or that employees were denied membership until shop steward LaBella in- formed him of this in February 1977. According to Coluzzi. as LaBella was remiss in not reporting the above practices to him sooner. he, Coluzzi. on learning of same. immedi- ately removed LaBella as shop steward. The General Counsel contends that. by maintaining the above practices. Respondent Narragansett and Respondent Union thereby violated Section 8(a)(3). (2). and (I) and Sec- tion 8(b)( I )(A) and (2) of the Act. respectively. The General Counsel also contends that Respondent Narragansett in- dependently violated Section 8(a)( I) of the Act by: ( I ) threatening employees, inter alil with discharge to dissuade them from joining the Union: (2) attempting to inhibit A u- gusia Jacke, LaBella's successor as shop steward. in the per- formance of her duties in that capacity: and (3) by coer- cively interrogating Augusta Jacke in the presence of other employees as to why employees sought assistance from the National l.abor Relations Board. Further. the General Counsel contends that Respondent Narragansett indepen- dently violated Section 8(a)(3) of the Act by terminating Robert Jacke in late November 1976. and providing less employment for his mother, . uglla Jac( e lfor the month of' December 1976 because they tried to restore Robert Jacke his membership in the Uinion. Still further. the (;eneral Counsel contends that because 11argaret II r,,er testified 6G(. Exh 10. G.(C. Exh I . While he ehlhl des not listl CRe/hi as a nmalire d'. I find on the basis of the crediled and uncontr;ldicted tsim nioln. ha! during this period of line. he luncnrmed reglll.lrlr as a n re d' adversely against Respondent Narragansett Kwith respect to allegations in the earlier consolidated compliint. she was discharged approximatelN I week later and Respondent therehb violated Section 8(a)(4) of the Act. As noted previously. Respondent Narr.gansett denies all the substantive allegations. With regard to the 8(a)(4~ alle- gation. Respondent contends that clrner as discharged principall\ because she canceled an assignment the last minute on a busy weekend. Moreover, said Respondent as- serts that Werner's discharge is not properl, before the Board at this time, but rather should be deferred under the grie vance-arbitration machiner) in the collective-bargain- ing agreement. In this connection, Respondent inion in its answer contends that all the allegations in the earlier con- solidated complaint should be stayed and deferred, pending arbitration. Respondent ULnion did not file an, brief and elected not to appear when the hearing ias reopened for the purpose of litigating the 8(a)(4) allegation. B. Slervi.o' andrd/or gen(yl Stoni o C l'I'i tti . and LaBella G(s (l/lli. The record reveals that on 1MondaIys through Wednesday for the period Jul3 i, to I)ecember 31. 1976. and a all othee times material herein. Colletti booked weddings. bar mitzvahs, and other banquets for the Inn. In doing so. Colletti would. inter alia, arrange the floor plan and explain the various prices for food, flowers and liquor and sign the contract on behalf of the Inn. In addition, on Saturday and Sundays during the above noted period he worked for the Inn as an orchestra leader. I'he uncontro- verted and credited testimony" also discloses that Colletti hired employees and adjusted their work schedules. While President Orlando testified that in his absence, his son-in- law. Peter Ottavio, and his nephew. Carmine Dliattino. were "in charge of everything" at the Inn, the record discloses that their weekl, salarN was $375. whereas Colletti earned $395 per week. I also find it significant (as noted previouslxy that it was Collett in Jul 1976 who exhorted the emplox- ees to help bail ()rlando out ofi inancial difficulties hby iltcr ila. accepting a lower pa) rate for weekend parties and who thereafter posted the ne,. rates on the bulletin hboard in the kitchen over his signature. In these circulmstninees, and on the basis of the entire record, the e idenlce is trong intd convincing that at all times material herein Colletti was all agent who acted on behalf of Respondent Narragansett alld a supers isor within the meaning of Section 2( I ) of the Act. Joe Sotlile: The uncontroerted and credited testimony discloses that, at all timhes material herein, Sttile held him- self out as a manaiger9 and in this capacit!. threatened em- plo\.ees with suspension and other reprisals for refusing to work as assigned. John Panico. uh, ho has worked t the Inn as bartender. headwaiter and maitre d'. testified credibl, and without contradiction that 75 per cent of the time he served as maitre d' he wais assigned that position hb Sottile. Orlando testified that Sottile's duties were sml;tar lo (ol- R( , it/ . ,t. ind a llh ttid not tIt .al the hca.ril. and .no ris ll wa;s advsanced lor the lailure 1to call hee Inlti lAII 1 al i llll I1 es 9 According tIo Respondent Narragmleit Presdl itti Orli()l ii ( ,o//, 11tl ,id Sttle presurned the title "nllnlger" ;nd ";tt air ot ;lmtihlit hzcsltlt' Il1es · lork[edl in the ront lftice" 127 I)i( 'ISIONS 01 NAI IONAL I.ABOR RI-lAIIO()NS B()ARI) letti's (described above) in booking parties and scheduling employees for work. According to Orlando, it was not until sometime in 1977 that he (Orlando) "took Sottilel away from hiring personnel.""' (Emphasis supplied.) On the basis of the foregoing and the record as a whole. I find that Respondent Narragansett is responsible for the acts and conduct of Sottile as an agent' and supervisor within the meaning of Section 2( I I) of the Act. Paul LaBell. The (General Counsel asserts that the acts and conduct of LaBella from the time he became a maitre d' around November 1975 are chargeable to Respondent Narragansett on an agency and supervisory basis and con- comitantly chargeable to Respondent UnIion on an agency basis until February 1977. at which time he was removed as union shop steward. As one of about five or six maitre d's. aBella served as host in charge of a party or affair held in one of the party rooms at the Inn. As such, he could select his favorite wa;lit- ers. waitresses, and bartenders, and these employees. ap- proximately 10 in number, were responsible to him for party assignments. Thus, as maitre d'. he assigned waiters and waitresses to the tables, which they were to set up and service. Furthermore. he assigned a waitress to handle the smorgasboard table at cocktail hour and other employees to set up the wedding reception room. lHe was expected to exercise his judgment in resolving problems as they arose at the various table stations. Employees had to check with him as maitre d' before they could be excused. Other maitre d' responsibilities involved reporting em- ployee misconduct. In this connection, the maitre d' gener- ally would wait until the end of the party, at which time, he would put in writing the misconduct and accompany the employee involved to the office to see Orlando for further disciplinary action. While the record is somewhat confusing as to the precise amount of pay LaBella earned per party as maitre d'. it is clear that he earned substantially more than waiters, waitresses, or bartenders. On the basis of' the foregoing. and the record as a whole. I find that Paul LaBella, as maitre d' at all times material herein, responsibly directed employees with regard to party functions at the Inn and was a supervisor within the mean- ing of Section 2(11) of the Act. With regard to LaBell's agency status, it is noted that Orlando considered maitre d's part of management. Thus, he testified that "Colletti and Sottile] have attended meet- ings between management which also consisted of all the maitre d's because maitre d's are part (of tnaiageimet,l. too. and we do have discussions on how to improve business, the service to the people, and better relations between employer and employees." (Emphasis supplied) In attempting to as- certain whether Orlando specifically considered LaBella part of management the following testimony was elicited: "The only allegations of 8(a)Xl) conduct involving Siode occurred in 1976. 1 See N.L. R.B. v. The Brohill Companyv 514 F2d 655, 657, n. 5 (8lh (ir. 1975), wherein the court commented: Assuming arguendo that McWilliams was not a supervisor wuihin the meaning of the Act. it is clear from the evidence that other employees felt that he was their "boss" and that the Company had placed him in a position where employees could reasonably believe that he spoke and acted on behalf of management. Q. You consider Mr. LaBella a part of mana.ge- men1t' A. lie is maitre d'. lie would be at one lo those meetings like the rest of the maitre d's. Q. You consider him part of malnagetment'? A. I ould consider him. all maitre d's, as part of management. 12 In these circumstances, noting particularly that l.aBella was considered part of' management and attended mnanage- ment meetings wherein, intr alia. "relations between em- ploser and employees" were discussed. I find that Respon- dent Narragansett placed LaBella in a position whereby employees could reasonably believe he spoke on manage- ment's behalf. Accordingly, I find additionally that the statements and conduct of L.aBella are chargeable to Re- spondent Narragansett on an agency basis.' With regard to lIaBella's agency status ,i.s-a-'s Resptn- dent UInion, the record reveals that he was the union shop steward from November I. 1975, to February 1977. UInion business representative Carl ('oluzzi testified that L.aBiella's responsibilities included handling grievances, accepting union membership applications and initiation fees. collect- ing union dues, and was charged with "knowfingl when a so-called casual employee work[ed a sufficient amount of' time to become a regular employee." In this regard. ('oluzzi conceded that he did not provide ";any criteria"'' for LaBella in determining when a casual employee converted to regu- lar status. While a shop steward's acts are not always attributable to the Union, I find that Respondent !nion is responsible, on an agency basis, for L.aBella's statements and conduct wis-a-risthe allegations herein, given the real and apparent scope of his authority.' 4 In sum, I find that Respondent Narragansett and Re- spondent Union are responsible on an agency basis for La- Bella's conduct while he served in the dual role as supervi- sor and shop steward respectively. ('. I/ie Q)uo/a Svst'en The Gieneral C(ounsel asserts in his brief that Respondent Narragansett violated Section X(a) I),. (2), and (3) and con- comitantly, Respondent Uniotn violated Section 8(b)( I)(A) and (2)' by maintaining a practice whereby union members received a higher pay rate than nonmembers and whereb the Employer made contributions to the nion's vacation and welfare funds only on behalf of union members. 12 Counsel for Respondent Narragansett objected at the hearing and again in his brief on the basis that the question posed was mproper in frm and called or a nebulous conclusion I disagree. I find that the testimony is patently clear that Orlando considered L.aBella as part of management. In any event. counsel for Respondent Narragansett had the opportunity to clear up any asserted ambiguities and elected not to question further. " See, e.g. Ian-Dee Pak. Inc. 232 NI.RB 454 (1977); Samuel l.e/er and Ilar O.stericher. a ( partnership. d hb a Ri tr Manor Iealtlh Related -il- n,. 224 NLRB 227. 235 (1976). 4 See. e.g.. Laborers and Id (Carr ers l.al Ao 341. aI zXrled Iih Lihbor ers' Iniernaonil Union of Nor th 4.t neri,, AI . (10 (Barnn tuir JO -I -Luon urdi. 223 NLRB 917. 919 (1976)1. 5 IThe consolidated complaint does nor, contain a conclusinary Xbh)(2) allegation See n 26. infra. 128 NARRAGANSETT RESTAURANT CORP. The record discloses that Respondents maintained a union-seniority list comprising 35 names, all union mem- bers.'" According to the General Counsel, this list represent- ed a union quota whereby other employees not included thereon were denied membership, a higher wage rate, and other fringe benefits. Thus, waitress Joanne Sarno. who be- gan working at the Inn in August 1975. testified credibly and without contradiction that in December 1976 she asked LaBella for a union application and was told by him that there was a quota and that she would have to wait her turn." She testified further that she received a $5-per-party wage rate increase in March 1977 only after she was per- mitted to become a union member. John Panico, who began working at the Inn in June 1975 and was still employed therein at the time of the instant hearing, also testified credibly and without contradiction that his wage rate per party increased after he became a union member. Panico. who was also an assistant shop steward at the time of the hearing, testified that in October or November 1976. he questioned aBella as to the reason other employees could not become union members, to which LaBella replied. "My hands are tied. Phil (Orlando) would only allow a quota system in the Union." He told Panico further that Orlando would only allow approxi- mately 30 employees in the Union at any given time. Still further credible testimony discloses that Margaret Werner, a former waitress and bartender," was suspended from the Union for nonpayment of dues from October 1975 to April 1976, and for that period she received the lower nonunion pay scale, and the Company did not contribute to the union vacation and welfare funds on her behalf.' Wer- ner credibly testified without contradiction that her previ- ous pay scale and other benefits were not restored until after her union suspension ended and she once again be- came a member in good standing. Evidence tending to sup- port Werner's testimony is found in three letters from Re- spondent Narragansett's payroll department to Augusta Jacke. union shop steward, on March 10 and 28 and Ma 3. 1977, respectively, requesting a list of union members in good standing so that the Company could make welfare t G.C. Exh. It. 7 Sarno also testified without contradiction that on an earlier occasion in July 1976. she mentioned to Manager Sorile that she had been trying to gel into the Union and was told by Soitile that "if/she] were to plurur Ih ,,liitcr Ishe] would be terminated." I find Sotlhe' threat a classic vlilall, n ol Sec 8(aXl) of the Act. In crediting Sarno's testimony. I rely not on[) on demea- nor, but also on the fact that her testimony was largely uncontradicted. Furthermore, it is noted that she was still in Respondent Narragansett's employ at the time she testified. As such, she testified adversely to her pecu- niary interest a matter not to be lightly disregarded. See. e.g.. Federal Stainless Sink Div. of Unarco Industries. Inc. 197 NLRB 489. 491 11972): Gateway ransportation Co., Inc.. 193 NLRB 47. 48 (1971); Georgia Rug Mill, 131 NLRB 1304. 1305, fn. 2 (1961) i' As previously noted, Werner was discharged approximately I week after she testified. She filed an unfair labor practice charge alleging a discrimina- tory discharge, which culminated in a complaint alleging a violation of Sec 8(aX4) of the Act in Case 29-CA 5925. Thereafter and pursuant to the General Counsel's motion, Cases 29-CA 5417 and 29 CB-2765 were re- opened and consolidated with Case 29-CA 5925 for the purpose of litigating Werner's alleged discriminatory discharge This matter ill he treated sepa- rately infra iS As this occurred more than 6 months prior to the filing of the instant charges and as the Company's actions relative to Warner's suspension are not alleged independently as violative of the Act. I Aill not consider this as a separate violation, hut rather as evidene of modus operanha. and vacation fund payments. Thus. the letter dated March 10, 1977. which is similar in content to the other itio letters. in its entiret' reads as follows::" March 10. 1977 Augusta Jacke. Union Shop Steward 44 Kane Street Lindenhurst. New York 11757 Dear Mrs. Jacke: Kindly supply me with a list of members in ood standing as of February I. 1977. Also kindly supply me with a list o members in good standing tas of March I. 1977. Since we do not have these above requested lists it is impossible for us to complete the necessary union forms to pay the welfare and vacation fund payments. Please submit aIs soon as possible. Fhan k You. Vers triul! ours. PAYRO()li. )1DPT. NARRA(iANSI I INN While Respondent Narragansett's owner. Orlando. ac- knowledged that he provided a higher pas riate ald other fringe differentials to union members. he asserts that doing so was not predicated on union membership. but rather because union members were "regular emplovees" and all other employees were "casuals." According to Orlando. the first 35 names that appear on the Employer's pay roll sheets T' are regular employees. and b virtue thereof: are union members and entitled to the union scale. The names of employees numbered 36 through 70 represent "casual" employees and are nonunion employees who assertedly work only when regular when regular employees cancel out or when there is a need for additional staffing for an affair. These so called "casual" employees earn a lower rate of pay. Thus. Orlando in referring to the payroll sheets for Julv 19. 1976. testified that Dennis Harrington. a "regular" waiter and number 8 on the list. received $26 for a Sunda night aflair. whereas Joanne Sarno, a "casual" waitress and number 61 on the list, received $25 for that Sunday night. Orlando testified that Harrington received $26 because "that is regular pay for a union person for Sunday night." (Emphasis supplied) Orlando, when asked why Harrington received a higher pay rate than Sarno, explained: "[Har- rington] was probably a union member." I find Orlando's distinction between "regular" and "casual" in the circum- stances of this case nebulous and, in any event. not sup- ported by the credible evidence. According to Orlando's unsubstantiated testimony,. the Union required regular employees to perform 75 per cent of their assignments to maintain their status. However. his tes- timony at a subsequent point tended to suggest that there wasn't any such requirement. but that he would like to see such a system established. Thus. he stated. "We (Company 2°See G C. Exhs 23 A. 23 B (March 28)., and 23 C (Mas 3) ' G.C. Exh. 20 129 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD and Union) should have a stipulation that if they (regulars) do not work a certain amount of jobs per month they would fall in the casual list." It is noted that there is no 75-per-cent requirement contained in the collective-bargaining agree- ment. The parties stipulated and the record reflects that casuals perform the same work as regulars and share com- mon supervision. Further testimony by Orlando tending to show that there is no real distinction between "regulars" and "casuals" other than union membership is that a casual employee may convert to regular status only when a regular employee is terminated or retires. This is so even if the casual works more often than the regular employee. In this regard. Or- lando testified that "some of these casuals work more than the regulars ... we still call him as casual because the other people still hold their seniority line." Not only does the foregoing tend to militate against a finding of a legal basis fr distinguishing regulars from ca- suals, but it also convincingly supports the General Coun- sel's contention that Respondents maintained a quota Y.vs- ternm. I find an exchange between Counsel for Respondent Union and Orlando particularly' revealing insofar as deter- mining whether union membership is the actual basis for pay rate differentials and other benefits. This exchange was as follows: Q. Therefore I take it that the reason you distin- guished in pay between worker A and worker B is be- cause one of these persons was a casual worker? A. Yes. Q. And that it had nothing to do with the fact that he may or may not be a union member? A. All the regulars were union members. Q. Were some of the casuals union members? A. They might have, but if- i they ere casual und were union members, thev got paid union scale. [Empha- sis supplied.] Still further evidence tending to show that nonunion em- ployees were treated differently was the notice broken down in union-nonunion categories which was posted by Man- ager Colletti on the union bulletin board in the kitchen at the Inn in July 1976 (G.C. Exh. 10) concerning, inter a/ia, the bartenders' pay cuts. With regard to Respondent's Union's complicity vis--vis the union membership quota and wage and other differen- tials for union members, the uncontroverted testimony dis- closes that Shop Steward LaBella refused to accept and process union applications to maintain said membership quota, and that he told applicants that they would have to wait their turn. I find union business representative Coluz- zi's efforts to absolve himself and the Union from responsi- bility for LaBella's acts and conduct unpersuasive. It is noted that Coluzzi appointed LaBella shop steward with a wide range of responsibilities, including accepting and pro- cessing union membership applications. While LaBella also was charged with maintaining the time worked by so-called casuals for conversion to regular status, I find it significant to note relative to the Union's responsibility that Coluzzi admittedly did not provide criteria for LaBella in exercising these duties. I further find incredible and reject Coluzzi's assertion that he did not learn that Respondent Narragan- sett paid lower rates to nonunion employees and failed to make contributions to the union vacation and welfare funds until LaBella informed him of these practices in February 1977. According to Coluzzi. LaBella informed him that the aforenoted practices had been going on for approximately 8 months and he, Coluzzi, thereon removed L.aBella as shop steward for not doing his job. As Coluzzi conceded that he appeared frequently at the restaurant, sometimes once a week. 1 find that his denial of previous knowledge that union members received favored treatment does not smack of candor.22 In sum. I find that the record establishes by a preponder- ance of the credible evidence that since on or about July 19, 1976, Respondent Narragansett and Respondent Union have maintained the union membership quota system de- scribed above whereby. inter alia, union employees were favored over nonunion employees with respect to rates of pay, vacatio n and welfare benefits, and employment oppor- tunities. The Board has long held that by providing such preferential treatment for union members an employer vio- lates Section 8(a)(1). (2). and (3) and concomitantly a union violates Section 8(b I )(A) and (2) of the Act.23 Accord- ingly. I find that by maintaining the quota system, by other- wise discriminating between union members and nonunion employees. Respondent Narragansett thereby violated Sec- tion 8(a)( I), (2). and (3)24 and further find that Respondent Union in maintaining these practices thereby concomi- tantly violated Section 8(b)(l )(A)2" and (2) of the Act.2 1 I2 I was not impressed with Coluni as a witness. I found his estimony largely disjointed, unresponsivr. equivocal. and inconsistent. For example, at one poin ('oluui testified that he removed LaBella as shop steward immedi- ately after the latter informed him hat Respondent Narragansett had been paying union enmployee higher pa rates and other benefits than nonunion employees lHowever, at another poin. he asserted that ater he learned from I.aBella about the higher pa: rates or union employees. he discussed this and other problems n a Imeeting at the Inn with a group of about 30 employ- ees and later that da in ited Orlando to the same meeting to further discuss the situation ('Cluti cstified that t tis meeting. Orlando sat on his left and "Paul .;llBella, Ohiip welal ;it that time, sat on my right."'' (Emphasis supplied I Coluzzi also equlisocalted as Io when L.aBella first informed him about the difierentials based on UInion membership: at one point, he testified that it was alfter the unflair ;lhabr practice charges were filed. whereas at a subsequent point he asserted that he could not determine the temporal se- quence. 21 See Newspaper and Mail Deliverers' L nion of' New York and Vicinity IRockaway News Supply Company. Inc.]. 94 NL.RB 1056 (19511. 24 See, e.g., mpre.ssions. Inc., 221 NRB 389. 406 407 ( 1975); DJ. Eihomr lteat Co.. Inc.. 208 NLRB 41, 43 (1973); Merrs Bros ol/ Missouri. I11(.. 151 NLRB 889. 901 ( 1965, wherein he Board ound. iter alra, that respondent, by withholding welfare payments for nonunion employees. iolated Sec. 8(a)12) and (3) of the Act:; Rokanawr News Supplyv (npaunv, Inc., supra " Respondent Union. in maintaining the quota system and related acts and conduct. breached its obligation to represent all unit employees airly. thereby violating Sec. 8h)( I ((A) of the Act. However, the record is devoid of any probatire evidence tending to show that Respondent Union failed and refused to process grievances. While there is some record testimony tending to show that Augusta Jacke, a waitress, had a conversation with LaBella about the large number of settings at each station, this by itself does not establish that she intended to file a formal grievance, or that it' one was filed, the Union would have refused to process it. Accordingly. I shall dismiss this additional allegation of 8b)( I )(A) conduct. 26 While it is noted that the consolidated complaint does not allege a spe- cific 8(b)(2) violation, par. 8 therein does allege the predicate basis fior con- eluding that Sec. 8(b)(2) had been violated In these circumstances and as the matter has been fully litigated, I ind that Respondent Union's acts and conduct violated not only Sec 8(bt I )(A) but additionally Sec. 8(bX2). See. e g., Cono Graphic.s, Inc., 217 N tRB 1061, In. 2 (1975). 130 N ARRA;ANS.TT RESARAN I' ('O()RP I). IlaBella' Dual Role' The General Counsel contends that Respondent Narra- gansett additionally violated Section 8(a)(2) by virtue of Supervisor LaBella serving as union shop steward. Appar- ently the General Counsel is of the view that LaBella's su- pervisory status per se is sufficient basis to hold Respondent Narragansett responsible for the role played b LaBella in union affairs. While I find that in the circumstances of this case the statements and conduct of LaBella as shop steward are chargeable to Respondent Narragansett, it is on the basis of an actual conflict of interest and not merely on the basis of supervisory status. In the area of employer liability for its supervisors' participation in union affairs, the Board has long rejected a per se approach. Rather, the Board determines liability on a case-by-case basis, noting the na- ture of supervisor participation, i.e.. whether the individual is a member of a union negotiating committee, and whether a high or low level supervisor is so involved.2? In the instant case LaBella is clearly a low-level supervi- sor. However, as shop steward, LaBella, inter alia, helped maintain and perpetuate the unlawful quota system. It also is undisputed that, as shop steward, LaBella could accept and process applications for union membership and had the authority to process grievances. As previously determined, union membership carried benefits denied nonunion em- ployees. The credited and uncontroverted testimony dis- closes that LaBella, for his part, refused to accept and pro- cess union applications until someone on the seniority list (quota) either was terminated or retired. As noted previ- ously, LaBella told employees that Respondent Narragan- sett's owner, Orlando, would only permit approximately 30 employees in the Union at any given time. This, of course. principally inured to Respondent Narragansett's benefit in- sofar as it did not pay the higher union pay scale and make contributions to the Union vacation and welfare funds for these nonunion employees. Employee Margaret Werner credibly testified that LaBella told employees at a meeting to elect a new shop steward in February 1977 that Orlando wanted him to continue to be the Union Shop steward. Given the fruits of the unlawful quota system, it was surely advantageous for Respondent Narragansett to maintain LaBella in the dual role as supervisor and shop steward.9 In view of LaBella's instrumental role in limiting union membership, the concomitant benefits to Respondent Nar- ragansett, and the fact that LaBella had the authority to process grievances, I find that as supervisor shop steward he was engaged in an actual conflict of interest. As such, Re- spondent Narragansett wrongly and unlawfully permitted "? See Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174 (1951). 2s See, e.g.. Schwank Incorporated 229 NLRB 640. 641 (1977) (managerial and high level supervisors); Allied Chemical Corp., 175 NLRB 974 (1969) (a foreman who was at the same time the vice president of the Union) Beach Electric Co., 174 NLRB 210 (1969) (low-level and intermittent supervisors). 29 Art. XV of the Union's constitution and bylaws (G.C. Exh. 9) declares in pertinent part, "No captains, headwaiters or employees in a supervisory job category may be designated as a Shop Steward." Thus, the appointment of LaBella, a maitre d' and supervisor, is at odds with the spirit. if not the letter, of the Union's constitutional provision. Cf. Nassau and Suffolk Con- tractors' Association, Inc, supra at 179 I.aBella. as a supervisor, to serve as shop steward. Accord- ingly. I find that Respondent Narragansett unlawfulls in- terfered with the proper administration of the It nion, thereby additionally iolating Section 8(a}(2) and (I ) of the Act.'" E. .4 tugu.l Jatcke and Robert Jack, Augusta Jacke.: Augusta Jacke has been emplosed b Re- spondent Narragansett since on or about January I. 1968. first as a waitress and more recently as a bartender. On several occasions in October and November 1976. Augusta Jacke spoke to Paul l.aBella about getting her son, Robert. back into the Union and was told by LaBella that the quota was filled. In early December 1976, Augusta asked Manager Sottile why she was not scheduled to work a certain party the following week and was told that another employee specif- ically was requested. Later that month, she complained to Sottile about an assignment to a second employee named Bridgett Bjornsson who had less seniority than Jacke. Sot- tile explained that Bjornsson also was requested specifi- cally. While Augusta Jacke worked as a bartender at the Inn during the month of December 1976.11 the General Counsel contends that she should have been assigned more work, (specifically, the jobs assigned to employees with less seniority than Jacke). According to the (ieneral ounsel. Augusta Jacke was bypassed because of her efforts to se- cure reinstatement in the Union for her son, Robert. im io- lation of Section 8(a)(3) and (1) of the Act. In support thereof: the General Counsel notes the contractual provi- sion which states inter alia that l[i]n the event of assignment of work the most senior employee shall be the first hired."" The General Counsel also relies on statement by Manager Colletti to Margaret Werner in mid-December 1976 that Robert Jacke will not be scheduled any more "because Bobby (Robert Jacke) has a big mouth and his mother (Au- gusta) will be next .... The record discloses that it is not uncommon for employ- ees junior in seniority to be assigned certain parties because customers specifically have requested those employees. Even Augusta Jacke conceded that she, too, has been as- signed jobs by request. Gisen the history of junior employ- ees working by request and noting the minimal time frame involved (only several jobs during the month of December). I am not persuaded that Colletti's threat was carried out insofar as it related to Augusta Jacke.? In these circum- stances, I find that the General Counsel has failed to estab- lish by a preponderance of the credible evidence that Re- spondent Narragansett discriminatorily denied Augusta Jacke additional assignments for the month of December 1976. Accordingly. I shall dismiss this allegation. The General Counsel also contends that Orlando made statements in violation of Section 8(a)( l) to Augusta Jacke on two occasions in February 1977. On one occasion. shortly after Jacke became the shop steward. Orlando re- "0 See IT7 Arc Serviu.s. In, . 238 NL.RB 116(1978: EE CE (. In, . 171 NLRB 982 (1968). l See G.C Eh 20(f) for the weeks dated December 13. 20. and 27 G (;.C. Exh. 2 I find, however, for reasons stated hbelo,. that Colleis statlement is significant since it related to Robert Jacke 131 I)(('ISIONS ()Of NA IONAL, ILABOR Rl.A IIONS BOARI) marked. "Being you are the shop steward. I don't want you bothering the people asking them to join the Union and going around with your big mouth. That is not you job. It is Mr. Caluccis's Isicl job." On the other occasion, Orlando had a conversation with Jacke in the presence of employees Werner and Hill wherein Orlando asked why the employees went to the Labor Board. Jacke testified: "'I tried to explain to him what had happened. why we felt forced to go to the Labor Board." to which Orlando responded that he did not think it was right. I find that, in both instances. Orlando's remarks represented an unlawful intrusion with regard to employees freely exercising their rights guaranteed by Sec- tion 7 of the Act. Accordingly. I find that Respondent Nar- ragansett thereby violated Section 8(a)( ) of the Act.4 Robert Jacke.' Robert Jacke began working as a waiter at the Inn around February 1973. He joined the Union a few months later. Sometime in 1974 he voluntarily left his em- ployment at the Inn and withdrew his union membership. The parties stipulated, and I find. that Jacke returned to work in January 1976. and that he last worked during that calendar year on November 22. The record discloses that Jacke was reinstated either in February or March 1977. The General Counsel contends that Respondent Narragansett discriminatorily discharged Jacke and failed and refused to employ him as a waiter from November 23. 1976. to March 1977 in violation of Section 8(a)(3). As previously noted. Robert Jacke's mother. Augusta, spoke with LaBella on several occasions in October and November 1976 about getting her son back into the Union. In addition. the credited and uncontroverted testimony dis- closes that Robert Jacke also pressed LaBella on several occasions about union membership during the same time. On each occasion. Robert and his mother were told by La- Bella that he could not do anything because the member- ship quota was filled. Finally, in November, Robert, in the presence of Margaret Werner. voiced displeasure with La- Bella's inaction on his behalf and declared to him that he would get someone else to be the shop steward or he would even seek the job himself to represent employees and not management." Werner substantially corroborates Jacke's testimony regarding this encounter. While the record discloses that Respondent Narragansett treated Jacke as a so-called "casual" employee during 1976. the record also reveals that, inconsistent with its asserted policy of assigning "casuals" in order of seniority, Respon- dent Narragansett assigned "casuals" with less seniority than Jacke after November 22." Jacke testified credibly and without contradiction that he called Manager Sottile on a number of occasions in November and December and was told each time that all the assignments had been made. Margaret Werner credibly testified without contradiction that she asked Manager Colletti in December why Robert t4 While I was troubled by the nature of the leading questions relatle to these allegations. I credit the remarks attributable to Orlando as substantially accurate. on the basis of Jackes overall demeanor and noting that her testi- mony in this area was not controverted. 3 It should be noted that I have previously found LaBella to be a statutory supervisor and agent of Respondent Narragansett. ' For example. employees Curcio. McCabe. Angione. and Bjornsson were assigned jobs in December 1976. although they were junior in niority to Robert Jacke. See G.C. Exh. 12(a)(d). Jacke was not working, and he replied (as noted previ- ously), "llie will not he scheduled any more because [he] has a big mouth .... " Manager ('olletti's statement is at odds wiih the position taken in Respondent Narragansett's brief that "Robert Jacke voluntarily left his employment." Further testimony tending to show that Jacke wias dis- charged was provided by Union Business Representative ('oluzzi. Coluzzi testified that the Union received a money order from Robert Jacke for membership. and he checked with LaBella to confirm that Jacke was employed al the Inn. LaBella told ('oluzzi in December 1976 or January 1977 that Jacke was no longer employed and he. ('oluzzi. therefore returned the money order to Robert's mother, Au- gusta. ('oluzzi testified further that in February he asked Orlando why Jacke was fired, and that Orlando told him that Jacke was a poor bartender. According to ('oluzzi. he (('oluzzi) was responsible for getting Jacke reinstated. al- though he did explain the reasons lor his doing so. In reviewing the key factors relative to Jacke's alleged discharge it is noted. aiftr lia. that (I) Jacke activel, pur- sued union membership which. inter walia challenged the quota system; (2) Respondent had knowledge of Jacke's efforts through the dual role of supervisor shop steward LaBella; (3) employees with less seniority than Jacke were assigned jobs when he was not: (4) no adequate explanation was presented fir not providing work for Jacke during the relevant timeframe and (5) Respondent Narragansett, by its officers and agents, admitted to others that Jacke was discharged. while contending in its brief that he voluntarily quit. In these circumstances, and on the basis of the entire record, I find that the General Counsel has established by a preponderance credible evidence that Respondent Narra- gansett discharged Robert Jacke on or about November 23. 1976. as alleged. 1? F. Margarelt l'erner Margaret Werncr had been employed by Respondent Narragansett for approximately 9 years. principally as a waitress and. more recently. as a bartender. On July 28. 1977. she testified adversely to the interests of Respondent Narragansett and Respondent Union in connection with the original consolidated complaint. She last worked at the Inn on August 5. 1977. Werner was scheduled to work from 4:30 to I I p.m. on August 6: however, she got ill and had her husband call the restaurant at or about 11:30 a.m. and canceled her assignment for that evening. The next day, Victor Robinson, personnel director, in- formed Augusta Jacke (LaBella's successor as shop stew- ard) that Werner was suspended. A few days later Werner received a copy of a letter dated August 10 sent by Robin- son to the Union. the body of which reads as follows: ' In the circumstances of this case. noting particularly that Rherr Jake wrongfully was denied union menmbership and that he had provided eidence supporting the allegations against the Union. it does not appear likely that Jaurek interests would be protected adequately by deferring to the arbitral process. See Kansas Meat Packer.s, DiiAsilon of I Arito Food. In,.. 198 NLRB 543 (1972). See also fn 46, inira. 38 See fn. 18 above. In addition. Werner credibly testified that in D ecember 1976, she asked Manager Colletti why more employees could not join the Union, and he replied. "If they want to join the Union. they would be fired before they join." I find (olleti's threat to discharge employees In these circumstances a lutiher vilation oi Sec. 8(a) I), 132 NARRA(GANSFI' RESTAURANT CORP. The success of Narragansett Inn depends upon the reliability of our employees. We are. therefore. sus- pending the services of Marge Werner due to the fact that she cancelled 80 per cent of the work that was offered to her for the week ending August 7. 1977.'9 By a letter dated August 16, Werner wrote to Respon- dent Narragansett as follows: I have just received your letter informing me of my suspension, which I feel is unjust. All my cancellations have been approved by Victor M. Robinson your Personnel Director except for Sat- urday August 6 at which time I was suddenly' taken ill. Realizing, I was unable to work I immediately called the Narragansett Inn so a replacement could be found. I am filing a grievance with my union for any loss of pay incurred during the allege [sic] suspension. The company never responded to the aforenoted letter and elected to suspend Werner permanently. The General Counsel contends that Werner was suspended on August 7 and thereafter terminated because she testified adversely approximately I week earlier, and Respondent Narragan- sett thereby violated Section 8(a)(4) and (1) of the Act. Re- spondent Narragansett contends that Werner's termination should be deferred to pending arbitration under the Board's policy enunciated in Collyer.' With regard to the merits, it contends that the decision to suspend Werner was made the evening of August 6 and was based on "Orlando's pique, anger and resentment at Werner's cancelling out at the last minute and his inability to find a replacement and having to draft a dishwasher from the kitchen to fill her spot." Ac- cording to Respondent. Narragansett the suspension was converted to a termination when Orlando assertedly discov- ered on August 6 that Werner had another job,2 and on August 8 Respondent learned that she had canceled 18 to 25 jobs offered to her the previous month. Thus, Respon- dent Narragansett argues that Werner's cancellation on August 6 and the aforenoted revelations were sufficient to justify its actions. I disagree. While a restaurant may experience difficulties in covering assignments due to late cancellations, these occurrences do not appear uncommon in the day-to-day operations of such a business. Thus, the record discloses that Werner was merely one of a number of employees at the Inn who have, from time to time canceled assignments." It is significant to note that there is not any evidence tending to show that any "G.C. Exh. 34. 'eG.C. Exh. 35. n" Collyer Insulated Wire, A Gulf and Western Svytemr Co.. 192 NLRB 837 (1971). n2 In its brief, Respondent Narragansett acknowledges that Werner's other job did not involve conflicting hours. It also is noted that a number of em- ployees had other jobs or were students. e G.C. Exhs. 39 (a)-(e). As noted earlier. Werner canceled at or about 11:30 a.m. Other late cancellations are as follows: Duryea Oddo Woods Rocco Sarno Montello Cornelia Hawthorne 7/3, at 11:30 a.m. 6/29. at I p.m. 6/25, at 1:45 p.m. 6/25, at 1:30 p.m. 6/16, at II a.m. 6/12, at I a.m. 6/12, at 10:50 a.m. 2/18, "I hour before" of these other employees were suspended or otherwise disci- plined. In these circumstances, noting particularl\ that other employees were not similarly disciplined for late can- cellations. I find Respondent Narragansett's stated reason for suspending Werner is pretextual. Similarly I reject as pretextual Respondent Narragansett's assertion. as stated in its August 10 letter (G.C. Exh. 34). that the suspension was "due to the fact that [Werner] cancelled 80 per cent of the work that was offered to her bfor the week ending August 7. 1977." While the record discloses that some employees had heard of a 75-per-cent or 80-per-cent rule. it appears that these employees understood the rule to cover a 12-month period and not merely any given week.s In any event. I note that the contract is silent on the subject and find, on the basis of the entire record, that there is no such firm 75- per-cent or 80-per-cent cancellation rule leading to suspen- sions or other disciplinary treatment. I further credit Wer- ner's testimony that she had never been reprimanded re- garding cancellations previous to her suspension on August 7. 1 find most revealing and significant however Orlando's concession in July 1977 before the consolidated case was reopened that since he was owned the restaurant froml 1960, no waiter, waitress, or bartender had ever been fired. With such a backdrop. I find that in selecting We'rner. an em- ployee at the Inn for about 9 years, for suspension and termination approximately I week after she testified ad- versely to his interest, Orlando was motivated discrimina- toril) .n On the basis of the foregoing and the entire record. I find that Respondent Narragansett would not have suspended or terminated Werner except for the fact that she testified adversely to its interests.', Accordingly I find that Respon- dent Narragansett violated Section 8(a)(4) and (11 of the Act. IV. T EFFE('I OF IIIE UNFAIR I AB(R PRA('TIl(S IP()ON ('OMMERCt The activities of Respondent Narragansett and Respon- dent Union. as set forth in section III, above, occurring in connection with the business operations of Respondent Narragansett set forth 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 " In this regard Werner's record compares favorably with other emplo'- ees. Thus. for the period August 1, 1977. through August 1, 1978. Werner missed 67 parties, or 31 per cent of 219 possible parties, whereas employees De Angeles and Hawthorne missed 41 per cent of 144 and 143 possible parties. respectively. and employee Ganley missed 40 parties, or 30 per cent of 132 possible parties. " According to Respondent Narragansett Werner's purported illness on August 6 was feigned. It is noted that Werner substantially obtained a doc- tor's note for her visit on August 6. (G.C. Exh. 33) In any event, whether Werner was actually ill on that occasion in the circumstances of this case I do not deem material. This case turns on whether Respondent Narragansett would have suspended or terminated Werner but for her adverse testimony. ' find Respondent Narragansett's alternative argument that 'erner's charges be deferred to pending arbitration also without merit. Not only are there findings herein that Respondent union has failed to represent unit employees fairly. but more particularly rts-vs Werner. it is noted that she had testified adversely to the interests of xboth Respondent Union and Re- spondent Narragansett. Moreover, as an 8(a)(4 violation is in issue there is an overriding policy to protect the Board's processes. See McKinley Trans- port .irnited, 219 NLRB 1148. 1151 (1975) 133 I)t('ISIONS O() NATIONAl. LABOR R:I.ATIONS BOARI) labor disputes burdening and obstructing commerce and the free flow of commerce. CON I.L SIONS t()I LAW: I. Respondent Narragansett is an employer within the meaning of Section 2(2) of the Act, and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Narragansett independently violated Sec- tion 8(a)(1) of the Act by threatening to discharge employ- ees for joining the Union, by attempting to inhibit the shop steward from performing her union responsibilities, and by coercively interrogating said shop steward in the presence of other employees concerning the reasons said employees sought assistance from the National abor Relations Board. 4. Respondent Narragansett interfered with the adminis- tration of the Union in violation of Section 8(a)(2) and (I) of the Act by recognizing and dealing with Paul I.aBella as a shop steward and agent of the Union while Paul LaBella was a company supervisor. 5. Respondent Narragansett violated Section 8(a)(I). (2). and (3) of the Act by favoring union-members over non- union employees with regard to rates of' pay, vacation and welfare contributions, and employment opportunities. 6. Respondent Narragansett violated Section 8(a)(3) and (I) of the Act by terminating employee Robert Jacke on or about November 23, 1976, because of his efforts to secure union membership. 7. Respondent Narragansett violated Section 8(a)(4) and (1) of the Act by permanently suspending employee Marga- ret Werner because she gave testimony under the Act. 8. The General Counsel has not established by a prepon- derance of the credible evidence that Respondent Narra- gansett violated Section 8(a)(3) and (1I) of the Act by dis- criminating against employee Augusta Jacke with regard to job assignments for the month of December 1976 because of her efforts to secure union membership for her son, Rob- ert Jacke. 9. Except to the extent set forth in Conclusions of Law 3 through 7 above, Respondent Narragansett has not other- wise committed unfair labor practices as alleged in these consolidated cases. 10. Respondent Union violated Section 8(b)(2) and (I)(A) of the Act by maintaining in force and effect an arrangement, understanding, and practice with Respondent Narragansett whereby Respondent Narragansett favors union members over nonunion employees in the manner set forth above in Conclusion of Law 5. I1. The General Counsel has not established by a pre- ponderance of the credible evidence that Respondent Union violated Section 8(b)(1)(A) of the Act by failing and refusing to process grievances. 12. Except to the extent set forth above in Conclusion of Law 10. Respondent Union has not otherwise committed unfair labor practices as alleged in these consolidated cases. 13. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Having found that Respondent Narragansett has er.- gaged in unfair labor practices within the meaning of Sec- tion 8(a)( ). (2), (3), and (4) of the Act, and that Respon- dent Union has engaged in unfair labor practices within the meaning of Section 8(hb)( )(A) and (2) of the Act, I shall recommend that they be ordered to cease and desist there- from and take certain affirmative action designed to effectu- ate the policies of the Act. Having fobund that Respondent Narragansett and Re- spondent Union violated Section 8(a)(I), (2), and (3) and Section 8(b)(1)(A) and (2)., respectively, by maintaining in force and effect an arrangement, understanding, and prac- tice favoring union employees over nonunion employees with regard to pay rates, employer contributions to union welfare and vacation funds, and employment opportunities, I shall recommend that Respondent Narragansett and Re- spondent Union (collectively Respondents) be ordered jointly and severally to make these nonunion unit employ- ees whole for any loss of earnings and benefits with interest that they may have suffered by reason of Respondents' dis- crimination against them since July 19. 1976 a date 6 months prior to the filing and service of charges herein and consistent with Section 10(b) of the Act.47 In addition, having found that Respondent Narragansett discharged employee Robert Jacke on or about November 23, 1976. in violation of Section 8(a)(3) and (I) of the Act, I shall recommend that Respondent Narragansett be ordered to make him whole for any' loss of earnings and other bene- fits he may have suffered by reason of the unlawful dis- crimination practiced against him from the date of dis- charge until he was unconditionally offered reinstatement.4 Furthermore, having found that Respondent Narragan- sett permanently suspended employee Margaret Werner on or about August 6, 1977, in violation of Section 8(a)(4) and (I ) of the Act, I shall recommend that Respondent Narra- gansett be ordered to offer her full and immediate reinstate- ment to her former job or. if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and to make her whole for any loss of earnings she may have suffered from the date she was discharged to the date of Respondent Nar- ragansett's offer of reinstatement, Back pay is to be com- puted according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289 (1950). Payroll and other records in possession of Respondent Narragansett are to be made available to the Board or its agents to assist in such computation. Interest on backpay shall be computed in accordance with Florida Steel Corporation 231 NLRB 651 (1977).49 The serious unfair labor practices found herein strike at the heart of the rights guaranteed by the Act, and. accord- "7 While it appears that Respondents removed restrictions on union mem- bership and eliminated differentials predicated on union membership in ear- ly 1977, the precise date these changes were made cannot be determined conclusively from this record. Accordingly, it is recommended that this mat- ter be deferred to te compliance stage of this proceeding. " The record reveals, and I find that Robert Jaeke was reinstated as a "regular" employee in late February or early March 1977. ' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 134 TIlm RImMII)N NARRAGANSETT RESTAURANT CORP. ingly a Board Order shall be recommended directing Re- spondent Narragansett and Respondent Union to cease and desist from in any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. '. L. R.B. v. Entwistle Mfg. Co.. 120 F.2d 532, 536 (4th Cir. 1941); P. R. Mallon & Co., Inc., v. N.L.R.B., 400 F.2d 956. 959 960 (7th Cir. 1968) cert. denied 394 U.S. 918 (1969): 177TT Aric Services. Inc., supra. On the basis of the above 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 S0 A. Respondent Narragansett Restaurant Corp., its offi- cers, agents. successors, and assigns. shall: 1. Cease and desist from: (a) Threatening to discharge employees for joining the Union, attempting to inhibit shop stewards from perform- ing their union responsibilities; and from coercively interro- gating employees with regard to the reasons they sought assistance from the National Labor Relations Board. (b) Interfering with the administration of Local 69, lo- tel and Restaurant Employees and Bartenders International Union, AFL CIO, by recognizing or dealing with ans per- son as job steward of that union while that person is its supervisor. (c) Favoring union employees over nonunion employees with regard to rates of pay, vacation and welfare contribu- tions, and employment opportunities. (d) Discharging or otherwise discriminating against em- ployees because of their efforts to secure union member- ship. (e) Permanently suspending or otherwise discriminating against employees because they gave testimony under the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Union Local 69, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO. make whole all nonunion employees for any losses of pay and benefits with interest in the manner set forth in the section of this Decision entitled "The Rem- edy" by reason of the discrimination predicated on their nonmembership in the Union from July 19, 1976. (b) Make employee Robert Jacke whole for lost earnings and benefits in the manner set forth in the section of this Decision entitled "The Remedy." (c) Offer employee Margaret Werner immediate and full reinstatement to her former job or, if this position no longer exists, to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges, and " 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 findings, conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations. e adopted by the Board and become its findings. conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. make her whole for lost earnings and other benefits in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board and its agents. for examination and copying. all pay- roll records, social security payment records, timecards. personnel records and reports, and all other records neces- sary to ascertain the backpay due under the terms of this Order. (e) Post, at its place of business. copies of the attached notice marked "Appendix A."" Copies of said notice, on forms provided by the Regional Director tor Region 29. shall be signed by an authorized representative of Respon- dent Narragansett and posted immediately upon receipt thereof: and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken b Respondent Narragansett to insure that the notices are not altered. defaced. or covered hb an! other material. (f) Notify the Regional Director. in writing. within 20 dass from the date of this Order. what steps Respondent Narragansett has taken to comply therewith. B. The Respondent Local 69. Hotel and Restaurant Em- plosees and Bartenders International Utnion, A.I'l, ('10. its officers, agents. and representatives. shall: i. ('ease and desist from: (a) Maintaining in force and effect an arrangement. uln- derstanding, and practice with Respondent Narragansett whereby said Respondent Narragansett lavors union meil- hers over nonunion enmploees with regard to pa rates. vacation and waelf.re contributions, and emnplominent op- portunities. (b) In anv other manncer restraining or coercing emplo',- ees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the follow ing atfirma ti,.e actiotn. which is neces- sars to effectuate the policies of the Act: (a) Jointl witih Respondent Narraganlsett Restaurant Corp. make whole all inounion emploces; for any loss of pas and benefits with interest in the manner set forth in the section of this Decision entitled "l'he Remied3" b reason of the discrimination predicated on their nonlembership in the Union from July 19. 1976. (b) Post at its business offices, hiring hall. and meeting places copies of the attached notice marked "Appendix B."52 Copies of said notice, on forms provided by the Re- gional Director for Region 29. after being dul 5 signed bh its authorized representative, shall be posted b\ it immedialtel upon receipt thereof and be maintained hb it lfor 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members customarils are posted. Reasonable steps shall he taken by it to insure that said notices are not altered. defaced, or covered b ann other material. (c) Deliver to the Regional Director for Region 29 signed I In the event that this Order is entorced b a Judgment of a nited States Court of Appeals, the words In the notice reading "Po.lted hE Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the UInited Stales Court o( Appeals [inircing an, Order of the Ni- tional Labor Relatons Board" "2 See fn. Sl abose 135 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD copies of said notice in sufficient numbers to be posted by Respondent Narragansett Restaurant Corp. in all places where notices to employees customarily are posted. (d) Notify the Regional Director for Region 29. in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that those allegations in the con- solidated cases as to which no violation has been found are hereby dismissed. APPENDIX B N()TIF To MEMBERS POS IlI) BY ORDER OF IIE NAII()NAI LABOR REI.ATIONS BOARI) An Agency of the United States (;overnment WI: WII.L NOI maintain an arrangement. under- standing, and practice with the Narragansett Restau- rant Corp. whereby said Narragansett Restaurant Corp. favors union members over nonunion employees with regard to pay rates, vacation and welfare contri- butions, and employment opportunities. WE WILl. NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. Wti WlI.L, jointly with the Narragansett Restaurant Corp., make whole all nonunion employees for any losses of pay and benefits with interest by reason of our discrimination predicated on union membership. I.O)(AI. 69. Holl AND) RESIAURANI EMPIOYI+s AND BARTENDERS INTERNAIIONAI. UNION. AFL ('10 136