Brennan's French Restaurant

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Owen E. Brennan, Sr., Adelaide Brennan, Ella Brennan Martin, Owen E. Brennan, Jr., John T. Brennan, Richard J. Brennan, and Dorothy Brennan Bridgeman d/b/a Brennan's French Restaurant and Hotel, Motel and Restaurant Em- ployees Union, Local 166, AFL-CIO. Case No. 15-CA-1610. September 16, 1960 DECISION AND ORDER On April 25,1960, Trial Examiner Leo F. Lightner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and supporting brief.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings a made by the Trial Examiner the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions and brief, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National 1 The Respondent has filed a motion to strike and dismiss allegations In the complaint and findings in the Intermediate Report relative to violations of Section 8(a) (1) of the Act on the grounds that : ( 1) They were based on Information furnished by and testimony given by witnesses who had either filed charges pertaining to the same subject matter or had submitted statements In support thereof and all such charges were dismissed by the Regional Director ; and (2 ) the charge in the instant case does not encompass all the allegations in the complaint . The record shows that the instant charge is broad enough to encompass all of the 8(a) (1) allegations contained in the complaint The Regional Director's dismissal of prior charges does not preclude inclusion in the complaint of allegations encompassed in the instant charge. Accordingly, we find no merit in the Respondent's motion to dismiss and strike, and we deny the motion. 2 Since Ella Brennan Martin testified pursuant to a subpena served by the General Counsel, any issue as to the ruling of the Trial Examiner relative thereto has become moot We now find It unnecessary to pass upon his ruling and consequently we do not adopt that part of the Intermediate Report entitled "The Subpena Issue." 'In the absence of exceptions , we adopt pro forma the Trial Examiner's recommenda- tion to dismiss the allegations in the complaint that the Respondent, through Richard J. Brennan, had interrogated an employee and had refused to change an employee's work station because of his union activity. As the facts establish the necessary legal jurisdiction , we do not adopt that part of footnote 13 in the Intermediate Report which reads- ". It is thus patent that the standards infer and imply the inclusion of the essential legal jurisdiction." 129 NLRB No. 10. BRENNAN'S FRENCH RESTAURANT 53 Labor Relations Board hereby orders that the Respondents, Mrs. Owen E. Brennan, Sr., Adelaide Brennan, Ella Brennan Martin, Owen E. Brennan, Jr., John T. Brennan, Richard J. Brennan, and Dorothy Brennan Bridgeman d/b/a Brennan's French Restaurant, and each of them, their agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Hotel, Motel and Restaurant Em- ployees Union, Local 166, AFL-CIO, or in any other labor organi- zation, by discharging, refusing to reinstate, or in any other manner discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment. (b) Threatening employees with elimination of jobs or less desir- able working conditions if the employees select the Union, or unless employees withdraw union membership, or threatening employees that they will be hurt because they join the Union; interrogating them as to their union affiliation or adherence, or urging withdrawal and abandonment of their union membership in a manner violative of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Robert B. Unger immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings (including salary and tips) he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report en- titled "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, timecards, personnel records, and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under terms of this Order. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its restaurant at New Orleans, Louisiana, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for a period of 60 consecutive days. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writing, within 10 clays from the date of this Order as to the steps the Respondent has taken to comply herewith. * In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in or activities on behalf of Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees concerning their union membership or union activities, or that of other employees, or urge employees to withdraw and abandon their union member- ship, or to write letters withdrawing their union membership. WE WILL NOT threaten employees with elimination of jobs or less desirable working conditions if the employees select a union. WE WILL NOT threaten employees their jobs will be secure only if they withdraw union membership, or that they will be hurt because they signed a union membership application card. WWTE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the Hotel, Motel, and Restaurant Employees Union, Local 166, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any and all such BRENNAN'S FRENCH RESTAURANT 55 activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL offer to Robert B. Unger immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for any loss of salary or pay (tips), suffered as a result of the discrimination against him. BRENNAN'S FRENCH RESTAURANT, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in New Orleans, Louisiana, on November 16, 17, 18, 19, and 20, 1959, on the complaint of the General Counsel and answer of the individuals above named, doing business as Brennan's French Restaurant, herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947. The parties waived oral argument, briefs filed by the General Counsel and by the Respondent' have been carefully considered. Respondent moved for dismissal of the complaint on jurisdictional grounds. Initially overruled this motion was renewed and decision on it, and a motion to dismiss on grounds of inadequate compliance, was reserved and they are disposed of herein. The Subpena Issue Having procured the issuance and service of a subpoena ad testificandum for Ella Brennan Martin, one of the partners and manager of the Respondent, General Counsel requested her production for testimony, at the outset of the case. Re- spondent contended that under the Board's rules the time within which he could file a motion to quash (petition to revoke) had not expired and that the request for appearance accordingly, was premature. He asserted: "Just what our position will be I do not know. If we believe the subpena should be revoked, we will file a timely motion to revoke the subpena." The facts are undisputed.2 General Counsel noted that Respondent was not asserting "that there are grounds for revocation of subpena." A recess, to permit procurement of judicial authority, was unpro- ductive. Holding, inter alia, that Section 102 31(b) (National Labor Relations Board Rules and Regulations, Series 8) does not state that a subpena shall not be enforced in less than 5 days, or that a party shall not be required to attend a hearing until 5 days after the service of the subpena, and that Respondent had not set forth a desire to file a petition to revoke, I granted a recess to afford Respondent an i Respondent's brief was erroneously mailed to me at the Regional Office, remailed cor- rectly it arrived the day following due date. Having been advised of the secretarial error on due date, I have not rejected on the ground of late filing. 20n November 10, 1959, the subpena was mailed to Ella Brennan Martin at Respond- ent's address. Since November 11 was a holiday, it was delivered on Friday, November 12, returnable Monday, November 16 The hearing opened and questions relative to the subpena were raised and resolved on the latter date. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opportunity to determine if it desired to file such a petition or, in the alternative, to produce the witness. This ruling was appealed to the Board. After recess, a petition to revoke the subpena was filed. The gravamen of the Petition was that the "subpena is defective and void in that the time allowed by Board Rules and Regulations-for consideration of the desirability of filing a Petition to Revoke was not granted." Respondent contended "the request for appearance-is premature," also "that a subpena with a return date prior to the expiration of-5 days has a premature return date and should be revoked." 3 Re- spondent requested the petition, and ruling thereon, be made part of the official record. The question requiring resolution is: "Is a subpoena ad testificandum returnable in less than 5 days inherently defective as a matter of law, allegedly because the return date is premature?" A subsidiary question is: "Is a party, without indicating he does not intend to comply with the subpena, automatically and without other reason entitled to 5 days after issuance and service of a subpena before he can be required to elect to file a petition to revoke or to respond to the subpena?" In my view, both questions require a negative answer. I turn to the Legislative History not because of ambiguity in the Act but to review the reason for the grant of subpena powers. The Legislative History of the Labor Management Relations Act, 1935 (49 Stat. 449) reveals that the grant of power, to Board Members, to issue subpenas requiring the attendance and testimony of witnesses and the production of evidence, etc., followed recognition that without such power recalcitrant parties could not be required to attend hearings and the aims of the statute could be frustrated. The provision for revocation of a subpena, upon proper petition, first appears in the Labor Management Relations Act, 1947, as amended (61 Stat. 136), Section 11(1).4 That these provisions are addressed to a subpoena duces tecum as dis- tinguished from a subpoena ad testificandum appears not only from the unambiguous language but also from the Legislative History .5 The Supreme Court has so held.6 Section 6 of the Act authorizes the Board "to make-such rules and regulations as may be necessary to carry out the provisions of this Act." Lewis Food- Company, et al. v. N.L R.B., 357 U.S. 10. The Board, by rule, has provided for revocation of subpoena ad testificandum.7 The grounds for revocation stated in the rule, except the last clause, pertain exclusively to a subpena requiring "production" of evidence, i.e , duces tecum. That the 5 days, provided both in the statute and the rule, is a limitation within which action must be taken cannot be gainsaid. On the other hand, to hold that a subpena is inherently defective, because premature, if it con- tains a return date of less than 5 days would require abolition of any concept of a "forthwith" subpena. In addition, to so hold, would transfer from the Board, or Trial Examiner, control over and due dispatch of a hearing since Section 11(1) of the Act requires that whenever a subpena is requested it must be issued and repetitive 5 days delays could ensue. Section 102.35(f) (Series 8) of the Board's Rules and Regulations provide: "It shall be the duty of the Trial Examiner-(f) to regulate the course of the hearing. ." This provision becomes meaningless if a party can request a subpena, and the person so subpenaed cannot be required to appear or give a reason "sufficient in law" for not appearing until 5 days have elapsed. Here, the individual so subpenaed, was the manager and a partner of Respondent. She could be, and was, properly called by the General Counsel, to testify as an adverse party under Rule 43(b) of the Rules of Civil Procedure for the United a Page 38, line 13, of the transcript is corrected by substituting the word "subpena" for the word "petition " * Section 11(1), in pertinent part, provides, "Within five days after the service of a subpena on any person requirinz the production of any evidence in his possession or under his control, said person may petition the Board to revoke 5 Legislative History, vol. II (1947), p 1625. a N.L.R B v Duval Jewelry Company of Miami, Inc., et al., 357 U.S. 1. 7In pertinent part, Section 102 31(b) of the Board 's Rules and Regulations provides "Any person, served with a subpena, whether ad testificandum or duces tecum , if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena upon him , petition in writing to revoke the subpena. . . The trial ex- aminer . . . shall revoke the subpena if in [his] opinion the evidence whose production is required does not relate to any matter under investigation or in question in the pro- ceedings or the subpena does not describe with sufficient particularity the evidence whose production is required , or if for any Other reason sufficient in law the subpena is otherwise invalid." BRENNAN'S FRENCH RESTAURANT 57 States District Courts, as amended. Respondent asserted neither "that it did not intend to comply with the subpena" nor "any other reason sufficient in law [why] the subpena [was] invalid." The Compliance Issue At the outset of the case, Respondent moved to dismiss the complaint on the grounds that the Charging Party and/or its affiliated local or parent organizations and/or any other beneficial or affiliated labor organizations connected with it has not been in compliance at all necessary times relevant to this proceeding. Upon acknowledgment, by Respondent, that evidence in support was requisite, decision was reserved. It is disposed of herewith. The Charging Party herein is Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO. The charge was filed July 17, 1959, and served on Respond- ent July 18, 1959. The Local is affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, hereinafter referred to as the Inter- national. There is no State organization of this International in Louisiana, and no joint council of it in New Orleans. Local 166 is a member of Louisiana State Labor Council, AFL-CIO, Central Labor Council of New Orleans and Vicinity, AFL- CIO, and New Orleans Hotel Employees Trades and Crafts Council, AFL-CIO. The International granted a charter to Local 166 on May 1, 1959. Previously, commencing about April 1, 1959, organizing efforts had been under the auspices of the International, whose membership application cards had been used in the effort to organize Respondent's employees. It was the International which filed a petition for election, still pending before the Boards The employees who joined the Union on the basis of their signing the cards of the International are now in Local 166. There is not a scintilla of evidence herein that any other labor organiza- tion or association aided in the effort to organize Respondent's employees. Respondent contends that even though the Board has found Local 166 in com- pliance, the finding was predicated upon information furnished by the Union and Respondent is not barred from testing the truth or falsity of such information. Respondent, acknowledging that under Board decisions it could not test the fact of compliance in this proceeding, claimed a right to test "here whether or not they [Local 1661 have done the things which are really necessary under the statute to comply and whether all the organizations necessary under the statute have com- plied." Further, Respondent urged, "we are not compelled to accept at face value a mere statement that they are in compliance-in fact, [we] don't agree entirely with the Board's interpretation of what is necessary for compliance-what is neces- sary in compliance we are entitled to pursue and to litigate." To the extent this contention is addressed to the administrative finding of the fact of compliance by Local 166, or the International, the Board has repeatedly held that such issue is not litigable in a complaint proceeding. The Board has "repeatedly stated that the Parties to such proceedings should, instead, seek an administrative investigation of those compliance matters which the Board may properly decide in collateral proceedings." Standard Cigar Company, 117 NLRB 852, 854, and cases cited in footnote 6 thereof. See also Pittsburgh Plate Glass Company, 121 NLRB 758, and footnote 3 thereof. Accordingly, the issue as to whether Local 166, and the Inter- national is in compliance, cannot properly be litigated here. Respondent was permitted to develop evidence that Local 166, is a member of New Orleans Hotel Employees Trades and Crafts Council AFL-CIO.9 General Counsel conceded the necessity of compliance of this Council, and advised the Board had found it to be a labor organization, and in compliance .10 Since the necessity of compliance is conceded that issue does not require resolution here. What appears in the paragraph immediately above relative to the fact of compliance applies equally here. The constitution of the Louisiana State Labor Council, AFL-CIO, contains as, article IT, a statement of objectives the following: (a) to aid workers in securing and maintaining improved wages, hours, and working conditions with due regard for the autonomy and integrity of affiliated unions or central bodies; (b) to aid affili- ated unions in organizing; (c) to encourage unionism ; (d) legislative work; and (e) 8 Case No 15-RC-1972. 8 The identity of the membership of this Council was stipulated, as was the fact that the compliance records of the Fifteenth Regional Office reveal that that office mss notified on July 8, 1959, by telegram that the American Guild of Variety Artists, affiliated with the Actors and Artists of America had withdrawn from the New Orleans Hotel Employees Trades and Crafts Council, AFL-CIO. io Dinkler-St. Charles Hotel, Inc., 124 NLRB 1302. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD political activity. Section 2(5) of the Act defines "labor organization" as an organization ". . . which exists for the purpose, in whole or in part, of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." It does not appear from the above that the Louisiana State Labor Council, AFL-CIO, is a labor organization within the statutory definition. The record contains no evidence of activity, by this Council, of the type described in Section 2(5). Accordingly, it is not required to comply with the filing requirements of the Act in order for the Petitioner to be deemed in full compliance. Olin Mathieson Chemical Corporation, 114 NLRB 948, cf. Sterling Processing Corporation, 119 NLRB 1783. The constitution, bylaws, and rules of order of Central Labor Council of New Orleans and Vicinity contains a statement of its objects in article 11, section 1. What has been said in the preceding paragraph appears to have equal application here. While Respondent contends in its brief that this Council is required to be in compliance, the evidence herein is limited to the fact of membership of the Charging Party and the document described as the constitution, etc., of the Council. There is not a scintilla of evidence that the Council has engaged in direct negotia- tions or dealings with employers, or that it has been given such authority. Quite to the contrary, article II provides as an object "to endeavor to amicably adjust all differences and disputes arising between employers and employees; to promote the settlement of disputes by arbitration and thereby discourage strikes; and article X, section 10, provides as the duties of "The Fact Finding and Arbitration Com- mittee" of the Council: "it shall be to offer their services to arbitrate any differences between employer and employee, when called upon to do so by vote of the Council." Respondent has not contended that this Council has in fact ever engaged in col- lective bargaining. Monsanto Chemical Company (John F. Queeny Plant), 119 NLRB 69, 72, 73, and footnotes 17 and 19. It does not appear, for the reasons stated, that this Council is a labor organization within the statutory definition. Compliance, by it accordingly, is not requisite. I so find. Respondent further urges that if the New Orleans Hotel Employees Trades and Crafts Council was required to be in compliance it is equally true that the member unions of that Council and their affiliated international, regional, State, district, and local organizations also were required to meet the compliance requirements. General Counsel asserts that this argument taken to its logical extreme would prevent any local affiliated with the AFL-CIO from obtaining the issuance of a complaint unless all other locals so affiliated were in compliance. Local 166, not the Council, is the Charging Party herein. The language of Section 9(f) and (g) requires prescribed action by "any national or international labor organization of which such labor organization is an affiliate or constituent unit" and subsection (h) requires prescribed action by "each officer of" such organizations. This language by its terms restricts the necessity of compliance to the Charging Party and national and international organizations with which it is affiliated or a constituent unit.I" The rules of statutory construction do not permit enlargement of un- ambiguous language. Accordingly, for the reasons stated, Respondent's motion to dismiss the com- plaint, by reason of a failure of compliance by the enumerated organizations, to the extent that such motion relates to necessity of compliance, is denied. To the extent such motion relates to the fact of compliance I find that issue not litigable herein, reaffirming my ruling excluding evidence purporting to show the administra- tive finding of such fact erroneous. Upon the entire record of the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a partnership composed of Mrs. Owen E. Brennan, Sr., Adelaide Brennan, Ella Brennan Martin, Owen E. Brennan, Jr., John T. Brennan, Richard J. Brennan, and Dorothy Brennan Bridgeman, doing business under the name and style of Brennan's French Restaurant with its office and place of business in New Orleans, Louisiana, where it is, and at all times material herein has been, engaged u See, West Texan Utilities Company. Inc., 94 NLRB 1638, and footnote 1 thereof See also, Lima Electric Products, Inc, 104 NLRB 344, 346, In which the Board held : the At does not require compliance at every level of organization. Cf Potlatch Forests, Inc., 87 NLRB 1193, 1196, and footnote 1 of Intermediate Report. Respondent's contention that compliance of all constituent locals of the same International , covering Respondent's employees, was requisite was rejected. BRENNAN'S FRENCH RESTAURANT 59 in the business of selling food and beverages to be consumed on its premises. During the 12 months preceding May 19, 1959, Respondent purchased food and other supplies of approximately $400,000 in value, of which approximately 10 percent was shipped directly from points outside the State of Louisiana to Respond- ent's premises within the State of Louisiana. During the same period, Respondent had gross sales exceeding $500,000 in value, all of which consisted of food and beverages sold and consumed on its premises. I find that Respondent is engaged in commerce within the meaning of the Act. The Jurisdictional Issues At the outset of the hearing, Respondent moved to dismiss the proceeding on several jurisdictional grounds: (a) that the Board does not have jurisdiction in this case; or (b) if the Board has jurisdiction, that it should not assert jurisdiction in this case; and (c) that in the adoption of its standards the Board did not conform to all the necessary rules and procedures, including those requisite under the Administrative Procedure Act. Ruling on this motion was first reserved, then the motion was denied. At the close of the hearing the motion was renewed and decision reserved. Respondent urges that it is a partnership; all of the partners are members of one family; it is a single restaurant, not affiliated with any chain or other enterprise; all of its sales are retail sales made within the premises of the restaurant; all of the goods sold are consumed by customers on its premises; it does no catering service; it is not only family owned but also family operated. Respondent urges that it is a purely local enterprise and "when the Board seeks to assert jurisdiction over it" the Board in effect is destroying the distinction the commerce clause establishes between commerce "among the several States" and the internal concerns of a State. Respondent. in effect, asserts that in adopting a standard for retail businesses in an annual volume of $500,000 the Board did not couple it with a "flow of goods across State lines" or "the operation of chains in several States." Comparison is made by Respondent, between the standards enunciated by the Board in J R. Knott and Hugh H. Hogue, d/b/a Hogue and Knott Supermarkets, 110 NLRB 543, and the standards enunciated in Carolina Supplies and Cement Co, 122 NLRB 88. In the Carolina Supplies case, as in the instant case, the Respondent made substantial purchases of merchandise outside the State of its operation. In the instant case it is admitted that these purchases approximated $40,000, in the 12-month period, substantially in excess of de minimis. In the Carolina Supplies case the Board pointed to the fact that it had abandoned its former practice of determining juris- diction on a case by case basis in 1950, when it first adopted certain jurisdictional standards, the effect of which was to exclude numerous cases over which it had legal jurisdiction. In adopting its standards in 1950, and in revising them in 1954,12 the Board noted that "further changes and circumstances may again require future alterations of our determinations one way or another." That the Board's standards for retail business are necessarily coupled with a commerce requirement does not appear arguable.13 Respondent's contention on this point is without merit.14 12 Edwin D . Wemyss, an individual, d/b/a Coca-Cola Bottling Company of Stockton, 110 NLRB 840, 842. '8 In the Carolina Supplies and Cement Company case the Board said, "The $500,000 standard chosen by the Board should, in its opinion, reasonably insure that jurisdiction will be asserted over all labor disputes involving retail enterprises which tend to assert a pronounced impact upon commerce " In the same case the Board stated, "In Siemona Mailing Service the Board set forth the considerations which persuaded it that this revi- sion of its jurisdictional policies could best be accomplished by the utilization of revised jurisdictional standards as an administrative aid in making its jurisdictional determina- tions." In the Stiemons Mailing Service (122 NLRB 81) decision issued on the same day, November 14, 1958, the Board stated : "The Board is aware that the revised standards do not cover all enterprises which the broad reach of the Act has reposed within its legal jurisdiction, . . " More recently, on January 25, 1960, in James D. Jackson, d/b/a Jackson's Party Service, 120 NLRB 825, the Board rendered an advisory opinion It stated that where the Board's standard for exercising jurisdiction over a retail concern is met "some proof must be made of legal or statutory jurisdiction-in addition to a showing that the gross volume test has been met." See also cases cited therein. It is thus patent that the standards infer and imply the inclusion of the essential legal jurisdiction. "That Congress has considered, sanctioned, and approved, the Board's standards and its method of adopting standards "by rule of decision" appears patent from the amend- 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent asserts that the Board is precluded from asserting jurisdiction because of its failure to publish, in the Federal Register, jurisdictional standards to govern the Board in its assertion or declination of jurisdiction , in cases involving restaurants. Respondent sets forth certain provisions of the Administrative Procedure Act in support of this contention.15 Acknowledging that before the 1958 standards were adopted the Board afforded interested persons an opportunity to participate in the modification of the rules through the submission of opinions and arguments, Respondent contends that the same procedure was not followed when the Board adopted its standards relative to restaurants. It has been noted above (footnote 14) that in considering and enacting the 1959 amendments to the Act, Congress not only sanctioned previous Board action in adopting standards but under the "proviso" recited issued a mandate to the Board which proscribes the Board from declining to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the "standards" prevailing upon August 1, 1959. The standards here under consideration are included in that interdiction. The Board in Bickford's, Inc, 110 NLRB 1904 (December 16, 1954), announced that it would henceforth treat restaurants as retail establishments, and apply the jurisdictional standards set out in Hogt a and Knott, 110 NLRB 543, to the restaurant industry generally.16 Respondent acknowledges, in its brief, that before the 1958 standards were adopted the Board afforded interested persons an opportunity to participate in the modification of the rules through the submission of opinions and arguments. It is thus difficult to believe that this contention is seriously advanced. Respondent further contends that the Board should not assert jurisdiction. This contention is premised upon the proposition that the employer operates a single local restaurant unconnected with any other organization; that all sales are made on the premises; that all food and drink sold are consumed on the premises; that the operation of the employer's restaurant affects commerce in a very minor and indirect way, if at all. In support of this contention , Respondent recites part of the testimony of a former Chairman of the Board, given in 1949. Respondent also cites cases in which the Board at some previous time has declined jurisdiction. Careful examination of the authorities and points made by Respondent relative to the last issue are obviously directed to a question of policy. In addition to what has been said herein, it appears that all of these same arguments have recently been considered by the Board, having been presented by way of argument by the same law firm, representing another Respondent, and, as recently as December 1, 1959, the Board rejected these contentions, asserted jurisdiction , and ordered an election.I7 Accordingly, for the reasons set forth, Respondent's motion to dismiss on the ground of lack of jurisdiction, or in the alternative that such jurisdiction should not be exercised, is denied. If. LABOR ORGANIZATION INVOLVED Hotel, Motel and Restaurant Employees' Union, Local 166, AFL-CIO, herein referred to as the Union , affiliated with the Hotel and Restaurant Employees and Bartenders' International Union , AFL-CIO, herein referred to as the International, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background; sequence of events The primary issues to be resolved are whether : (a) Respondent, by and through its partners Ella Brennan Martin and Richard J. Brennan , engaged in specific conduct constituting interference, restraint, and coercion of employees ; and (b) ments enacted as part of the Labor-Management Reporting and Disclosure Act of 1959. (Labor Management Relations Act, 1947 , as amended by Public Law 86-257 , 1959.) Section 14 ( c) (1) provides : "The Board , in Its discretion, may, by rule of decision or by published rules adopted pursuant to the Administrative Procedure Act, decline to assert Jurisdiction over any labor dispute involving any class or category of employers , where, in the opinion of the Board , the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction : Provided, That the Board shall not decline to assert jurisdiction over any labor dispute over which it would assert jurisdiction under the standards prevailing upon August 1, 1959." The standards here attacked were adopted prior to August 1, 1959. 15 Cf. The Jacksonville Journal Company, 116 NLRB 1136, and footnote 2 thereof. 10 See Carolina Supplies and Cement Company, supra. 17 Arnaud's Restaurant, Case No. 15-RC-1966, footnote 1 (not published In N.L.R.B. volumes). BRENNAN'S FRENCH RESTAURANT 61 whether the Respondent discriminatorily discharged Robert B. Unger. Respondent denies the conduct and acts alleged to be violations of Section 8(a)(1) and alleges that Robert B. Unger voluntarily quit the employment of the Respondent. That the employer-employee relationship terminated as the result of a conference held July 6, 1959, is not disputed . The specific allegations of the complaint are treated more fully and in detail below. That Respondent is a partnership composed of the individuals named above who are doing business under the name and style of Brennan's French Restaurant is undisputed. Respondent's office and place of business is in New Orleans, Louisiana. Respondent is engaged in the restaurant business, selling food and beverages which are consumed on its premises. Mrs. Ella Brennan Martin is a partner and active manager of the restaurant. Other partners who are active, in varying degrees, in the management of the restaurant are the brother of Mrs. Martin, Richard Brennan, her nephew, Owen E. Brennan, Jr., and her sister Adelaide Brennan. Another sister, Dorothy Brennan Bridgeman, and Barbara Brennan, wife of Owen, are active in the restaurant but not in its management.18 Another brother, John T. Brennan, and Mrs. Owen E. Brennan, Sr. (the widow of a deceased brother) are not active in the restaurant. It would nevertheless appear from the testimony that some decisions relative to the policies of the Respondent resulted from conferences of all or some of the individuals named. In the transcript Mrs. Ella Brennan Martin is frequently referred to as "Miss Ella." Richard J. Brennan is referred to as "Dick ." Owen E. Brennan, Jr., is referred to as "Pip." Respondent's business is open 7 days a week from 9 a.m. until midnight. At all= times pertinent herein, there were approximately 45 waiters; 18 to 20 busboys; be- tween 75 and 85 described as kitchen help (which included chefs, dishwashers, pantry people, cashiers, and bartenders) employed. Waiters worked 9 to 5, 5 to midnight, or split shift. Jim Grady was described as assistant manager , also as the steward in charge of the kitchen. There are two "captains," Aymore Dore and Bill Strauss : One is a downstairs captain and the other is an upstairs captain. It was stipulated that the two captains are supervisors of the waiters and busboys, under the Act, I find accordingly. Frank Bertucci is described variously as "head waiter," as handling the front door, seating arrangements , and reservations and as of one time having responsibility for making out "work schedules ." It appears unnecessary to determine if he is in fact a supervisor under the Act. On or about April 1, 1959, the International publicized an organizing drive among hotel and restaurant employees in the New Orleans area. Pursuant thereto a meet- ing was scheduled at the Vieux Carre Restaurant on April 2, 1959. Robert David Unger, hereinafter referred to as Unger, a waiter employed by the Respondent, was among those attending the meeting . He signed a membership application card on April 2, 1959. At the meeting Unger met Mike Sobol, who at that time, and there- after, was an organizer for the International. Sobol subsequently became acting secretary-treasurer for the Local Union, the Charging Party herein. The Local Union was granted a charter by the international on May 1 , 1959 . Respondent's employees who had signed membership application cards automatically became members of Local 166. The International Union filed a petition for certification, relative to the employees of the Respondent, on April 14 , 1959 , in Case No. 15-RC- 1972. A hearing in that matter was held on May 19, 1959 , and the case is pending before the Board. Sobol credibly testified that Unger approached the Union and supplied them with information that there were employees in Brennan's French Restaurant that were concerned with joining a union , for representation purposes. Sobol supplied Unger with some 40 to 50 authorization cards and advised him of the procedure to follow on April 2. He later received an estimated 25 signed cards from Unger , within 3 weeks of the time he had given the cards to Unger. About three other employees obtained signed cards. Sobol testified that as far as he was concerned there was rs The record permits a conclusion that Mrs. Martin usually worked from 9 a.m to 5 p.m., returning in the evening on occasion. Richard Brennan normally worked from 5 p.m until closing and was in charge in the evenings . Owen E Brennan , Jr., normally worked from 9 a.m. until 5 p in., and Sunday and Monday evenings. He described his duties as approximately the same as those of Richard Brennan, "general overall service of the dining room and whatever other duties become necessary " He also prepared the "schedule of the working hours of waiters and busboys ," discussed below. Adelaide handles the office detail of the business and works from 3 p m. to 11 p m Dorothy Brennan Bridgeman and Barbara Brennan each work about 3 days a week, in the daytime. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only one leader among the employees, obviously referring to Unger. No other union assisted in this organizing effort. The Respondent quickly became aware of the union activity among the employees. Such knowledge was obtained not later than April 7, probably several days earlier. The restaurant was closed on the afternoon of April 9, ostensibly to permit the waiters and busboys to hold a meeting among themselves to discuss the Union. Mrs. Martin acknowledged granting permission for the closing of the restaurant, the holding of the meeting, and the posting of a notice, on April 7. Respondent then posted a notice that there would be a meeting of all other employees (kitchen Help, etc.) on the same afternoon. Respondent admitted knowledge of "organizers outside the backdoor," "excitement about this union picture," and "commotion in the restaurant," prior to April 7. On April 9, 1959, at about 1:30 or 1:45 p.m. the restaurant was closed, to permit the meetings to be held. The waiters and busboys met in two of the upstairs dining rooms. The rest of the employees met downstairs. All of the Brennan, named above as partners, including John T. Brennan, who was not active in the restaurant, but excluding Mrs. Owen E. Brennan, Sr., were in attendance at both meetings. It anpears, however, that of the Brennans only Mrs. Martin addressed the meetings. She stated the families' position in regard to unions. They felt they did not need a union in Brennan's, it was a small restaurant. They felt they had been extremely fair, the employees did not seem unhappy, and "we" did not feel "we" needed a union to run the restaurant.19 Mrs. Martin acknowledged that at both meetings she named three waiters who had been "paying attention to everything but the cus- tomers," Unger, Gilbert Landry, and David Pitre. She told Unger he had better settle down "and forget about all this other activity that had been going on." Con- sidering all of the evidence in the record, particularly the admissions of Mrs. Martin, 7 find that the Respondent did have knowledge of Unger's union activity at about the time of the meeting of April 9.20 B. Interference, restraint, and coercion 1. The testimony The complaint alleges that Ella Brennan Martin throughout the month of April 1959, systematically interrogated employees about their own union membership, etc., and that of other employees; the complaint then alleges specific threats having been made on specific dates. The complaint further alleges that in April and May 1959, Mrs. Martin solicited and urged employees to withdraw and abandon their union memberships, to write letters withdrawing their union memberships to the National Labor Relations Board and assisted employees in the preparation and execution of withdrawal letters; a specific threat in regard to letterwriting is alleged. These allegations are denied by the Respondent and are next considered. Harold Jules Crowson worked as a cook for the Respondent, commencing October 19, 1958 and being terminated May 20, 1959. Early in April, prior to the 9th, he was sent to Mrs. Martin's apartment, next door to the restaurant, for a conference with her. Crowson credibly testified that Mrs. Martin spoke about the Union, wanted to know why the employees were dissatisfied with the present setup, whether he had any idea who was with "them," or who was with the "Union." She seemed interested in the "Teamsters." She asked him if he belonged to the Teamsters. Crowson, at the time, was a teacher at a trade school, as well as a cook for the Respondent, and advised Mrs. Martin that he belonged to American Federation of Teachers, a union. He advised her that he did not know anything about the union activity in the restaurant. He later obtained some eight or nine membership application cards from other employees of the Respondent 21 ii General Counsel stated the purpose of this testimony was to develop the knowledge of the Respondent of the activity of the named discnmina,tee, Unger Mrs Martin could not recall if she said anything about Unger being connected with the Union, during the meeting. She acknowledged, however, that she knew he was very interested in the Union at that time and also acknowledged telling him that he was paying too much attention to the Union while he was on duty, on several occasions. 20 Since General Counsel, upon objection, did not seek to litigate whether certain re- marks alleged to have been made by Mrs Martin at the meeting, were a violation of the Act, I have excluded them from consideration 21 This credibility resolution is confined to the matter of interrogation relative to the union activities in the restaurant and the denial of such inquiry by Mrs. Martin. I am not unmindful of the corroborative evidence of similar interrogations by Mrs. Martin of other employees as related below. Neither am I unmindful of the fact that in certain respects the testimony of this witness was at some variance with a statement he had BRENNAN'S FRENCH RESTAURANT 63 Johnny G. Segura has been employed by the Respondent since 1952. At the time of the hearing he was a waiter. On Sunday, April 12, he encountered Mrs. Martin on the balcony and she told him to have someone else to watch the station that she wanted to talk to him. She wanted to know why he wanted to join the Union and he gave her three or four reasons. He then testified "she took each reason I gave her and and she discussed it with me." Items discussed included security, hospitali- zation, and salary. Mrs. Martin told Segura that she thought he had security and named employees she had helped when they were sick or needed help. On the question of salary she asked if he did not think they could sit down and discuss this and he responded that they had tried to discuss it, at meetings, but that she had avoided the question. In reference to the Union, she told him that he ought to know "what kind of people he was doing business with" and stated she would refer him to her lawyer if he wanted to find out about the Union. She advised him that in the past the Union had burned down restaurants in Chicago and "things like that." She advised him that Bob Unger and Henry Donnegan were responsible for bringing the Union "over here." She stated that "the kind of fellow Robert Unger was if anybody offered to buy him a Cadillac he would probably believe him." She then stated that if her late brother (Owen, Sr.) was still living "he wouldn't let us do these things to her." She also stated that if the matter ever came to a vote everybody in the restaurant would have a vote, including every little Negro on the dishrack. She requested Segura to help her by talking to these people and trying to make them understand. Segura advised her that he did not think it was fair for him to tell people about joining or not joining the Union that it was for them to decide for themselves. Segura did not distribute union authorization cards. He acknowledged that hospitalization had been brought up and discussed prior to April 1959, and that Mrs. Martin had promised to look into it but kept putting the thing off and made excuses. I credit the testimony of Segura. Blaise Anthony Marino was employed by the Respondent as a page boy, from October 1958 until he was terminated about July of 1959. He testified credibly that in April 1959, Mrs. Martin interrogated him in one of the upstairs dining rooms. Like the other conferences, except where otherwise specified, no one else was present. His testimony was "she just talked to me and asked me my opinions on the Union and I gave it to her." He told her he had nothing against the Union because he once belonged to one and received benefits such as hospitalization and life insurance. He quoted her as stating that she was at that time planning to have some type of hospitalization for the employees. He further quoted her as stating that if a union came into the shop she would have to have a desk "for which she could hire people from out of the Union." She also advised him that if the Union came in she would have to "cease a lot of jobs that she made." She also told him that if a union came in that she did not know which people would have jobs anywhere around the restaurant. He also testified that she said "we wouldn't know who would have what job if the Union came into the restaurant." He ac- knowledged that he had signed a union membership application card. He further quoted her as having stated that there would be a vote and that "I was to use my better judgment to think it over, exactly what I felt was right" and "if you signed the card you didn't necessarily have to keep up with the Union because it wasn't necessary." Howard Anthony Jeansonne has been employed by the Respondent for approxi- mately 61/2 years as a waiter, and was so employed at the time of the hearing. He related a conversation with Mrs. Martin on the balcony, upstairs, on a Thursday evening in the latter part of May (May 28). She asked him how he felt about the Union, and he told her he would stay neutral and not take sides. She told him that he should take sides and then told him to "see Eldridge" Emboulas, another waiter. He acknowledged that he had heard "rumors" about the writing of letters prior to the conversation with Mrs. Martin. The following Monday (June 1), Eldridge came to him about writing a letter. On June 1 Jeansonne wrote a letter to the National Labor Relations Board advising that he had withdrawn given a Board investigator on June 4, 1959, as to other events occurring at the time of this meeting and subsequently. The statement is Respondent's Exhibit No. 4. I do not ,credit Crowson's statement that at this conference Mrs. Martin said "the ones that would stick with the house would have a good job. She planned to take care of all of the employees who stayed with the house " His memory was clearly hazy on this point and nothing to that effect appears in his two statements, when it can be assumed that his memory of the events should have been much more accurate, than when he testified 5 months later The record is clear that he did not join the restaurant union until April 29. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Local 166, the Charging Party (General Counsel's Exhibit No. 2). At the same time he wrote a letter to the Union and wrote a letter to Mrs. Martin. The stamps were furnished and the letters mailed by Eldridge. The letter was written in the upstairs dining room and two other waiters identified as David Laviolet and Bruno were there writing letters at the same time, although the witness did not know the nature of the other letters. He obtained the address of the National Labor Relations Board, Regional Office, from Eldridge. I credit this testimony. Albert Jacob Bangs is presently employed by the Respondent as a waiter and has been so employed since January or February 1956. He credibly testified that he discussed the Union with Mrs. Martin on May 28, 1959, the conversation took place as he was reporting for work, Mrs. Martin called him over to her desk, located in the kitchen. She asked him if he had made up his mind which side he was on and he responded "You know what side I'm on." She then asked him if he had written a letter to the Union withdrawing from the Union and he stated that he would write it. She advised him that she did not want promises, when she got a copy of the letter his job would be secure. He advised her that he would write it that night and bring her a copy the following day. She then advised him that she had some plain paper in the checkroom and that he should write the letter for her. Prior to that time, a week or two before, he was in the dining room upstairs, talking to Mrs. Martin, when Eldridge Emboulas came in and asked her if it was all right if he talked to Bangs about the letter and she stated that she did not want anything to do with it, she was having nothing to do with asking him to write a letter. Following the conversation in the kitchen with Mrs. Martin, he wrote a letter to the Union which he mailed on his way to work and wrote one to Mrs. Martin which he gave to Eldridge Emboulas. Johnny G. Segura testified that, about the 10th or 15th day of May, Mrs. Martin called him over and asked him if he had written his letter yet. He asked her "what letter" and she said "you know what letter." He replied that he did not know what she was talking about and she said "don't give me that, you know what letter." He then acknowledged to her that he had heard about a letter "that everybody was resigning from the Union and writing in a letter." She asked him if he was going to write his and he said "no, I don't know." Thereupon she told him "something about after this union was out I'm the one that would be hurt over this." There- upon she accused him of being an organizer, which he denied. He acknowledged that he never wrote such a letter either to the Union or to the Board. I credit this testimony. Vernell Brown was employed by Respondent from August 1957 until he was terminated on May 19, 1959. While so employed he signed a union membership application card. He credibly testified that one day in April he passed Mrs Martin while she was engaged in a conversation with Paul Blange, the chef-cook, and Mrs. Martin said here is a union man and asked him about signing a (union membership application) card and said "don't tell me that you didn't sign one." He responded "yes, ma'am, I signed one." She then said "well, I can tell you, if I were you, I would think twice, because you don't know nothing about the Union. You don't know what you are getting in to, but I do, there's no good in it." This occurred in the hallway upstairs near the service room. Mrs. Martin acknowledged the holding of the individual conferences recited. She talked to Crowson for a different purpose, unimportant here, also to ascertain if he was "happy" with the situation at the restaurant and to get "his impression of our working conditions " She acknowledged talking about the Teamsters being in the city, but specifically denied interrogating him about his membership in the Teamsters or the feelings of other employees toward the Union. She talked to Segura to find out if he had any "gripes," or complaints, about the way things had been going since they moved into the new restaurant (1956). She admitted discussing salary, hospitalization, and security, but denied interrogation about Segura's union membership Admitting she mentioned Unger and Donnegan, she denied saying they brought the Union "over here." Mrs. Martin cast the conference with Marino as a discussion of "telephone courtesy." She acknowledged the discussion of the Teamsters being around New Orleans, and Marino's former membership, and, she said "T cautioned him not to get caught in this fight I heard was going on between the Teamsters and-the Hotel and Restaurant Employees Union. She admitted discussing "hiring halls," but denied asking Marino about his opinion of unions or membership in the Teamsters: which she said, he volunteered. Jeansonne, Mrs. Martin said, requested a conference "about this union thing " She admitted advising him that she did not think he could stay neutral, that he should think the thing out and make up your mind." She did not respond directly BRENNAN'S FRENCH RESTAURANT 65 when asked if she told Jeansonne to "see Eldridge," she did state she had advised "other waiters" that she had investigated and could not advise them about the letters. She admitted receiving copies of letters some waiters wrote to the Board. She re- called the conversation with Bangs, when Eldridge walked in and mentioned the letter, she told the latter she did not want to have anything to do with it, and left. The May 28 conversation, Mrs. Martin claims, was primarily about Bangs failing to punch a timecard.22 She stated Bangs said he was "all mixed up and confused about this union letter writing bit," and she advised him "I have nothing to say about the letterwriting," She specifically denied Bangs' assertions about threats. Mrs. Martin could not recall any discussion about letterwriting with Segura, denied having said "we know you are an organizer," and denied having made the recited threats. She treated as a joke her inquiry of Brown, as to union member- ship, admitted advising him to think twice "before the vote came up," and stated that from talk around the kitchen she got the impression he was interested in the Union. The complaint alleges that during the last week of April or the first week of May, Richard J. Brennan interrogated employees about their own union membership and that of other employees and that on or about May 15, 1959, told an employee he would not grant the employees request to change the employee's work station because of the employee's activity in the union organizational campaign. These allegations are next considered. Vernell Brown testified that in April he had a conversation with Richard J. Brennan relative to the pipes, which had not been functioning properly in the operation of the bar. He stated the conversation lasted 20 or 25 minutes and that among other things Brennan asked him how he felt about the Union but before he could give him an answer Brennan asked him whether he had cause to join the Union "or something like that," The witness acknowledged that he could not remember exactly what was said, but did recall that there was a discussion of the pay raise which he had requested around Christmas time of the previous year. Brennan denied having inquired how Brown felt about the Union. At best, Brown's testimony would permit a finding of nothing more than the fact that a question was asked, no answer given and the subject was not pursued. Robert David Unger, the alleged discriminatee herein, testified that when another waiter, C. J. Latiolais, left the employment of the Respondent he asked Owen E. Brennan , Jr., for a transfer to his station and was advised by Owen E. Brennan, Jr., "you sure must have a lot of guts to ask for a favor here with all the trouble you have caused us." Unger placed this event as happening about the middle of June, the night Latiolais quit. There is no testimony in this record that Richard J. Brennan was requested to or refused to grant an employee's request for a change of work station either on May 15, 1959, the date alleged, or any other date. He specifically denied that such an event had ever occurred because of an employee's activities on behalf of the Union. Owen E. Brennan, Jr., testified that L•atiolais quit about June 1, 1959, and Roland Dupre was assigned to his station, about a week thereafter Unger requested that he be assigned that station and Owen advised him that he did not see how he could make the switch. Owen E. Brennan, Jr., denied the accusation made by Unger relative to what Owen allegedly had said. I find that the quoted remark was made, however, the import is considered more fully infra. Before reaching my conclusions in regard to this testimony, recitation of one other incident is requisite for a proper focus at this posture of the case. On Saturday, May 9, at about 5 p in. Mrs. Martin called together many of the waiters and kitchen employees, including Bangs, Angelo Tocci, and Unger. Crowson described the incident as arising because one of the waiters (Tocci) pulled a paper off the bulletin board describing the unions burning up something. Mrs. Martin told Tocci to take 5 days off, because he had no business taking anything off the bulletin board. Another waiter (Bangs) was given 5 days off, because of an argument with a food checker (Dolores Barbay). Bangs is alleged to have called Dolores Barbay "a pimp " Crowson quoted Mrs. Martin as saying to Bangs that she wished he was like Unger. that he would sav where he stands instead of smiling in her face and working behind her back. Segura corroborated Crowson, he testified that Mrs. Martin said that Unger was the only one that came out and said he was for the Union. organizing for it. Bangs and Unger also corroborated this testimony. I credit this testimony where it conflicts with that of Respondent's witnesses.23 9 The timecard is Respondent's Exhibit No 9 20 Owen E Brennan, Jr., testified that Mrs. Martin took Unger and C. J. Latiolais to task for improper service to customers ; however, he denied that Mrs. Martin said any- 586439-61-vol. 129-6 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Analysis and conclusions Mrs. Martin testified "We had lots of open discussions about the Union-in the kitchen especially. It was very freely discussed." She denied asking any of the -employees how they felt about the Union. She testified: "Ever since I had heard about the beginning of the Union I had talked to quite a few of the employees asking them if they had any gripes, complaints about the house. I was trying to find out whether the house was in order or not. I had heard the Union was in town and I was very interested in knowing what the state of the Union was." [Emphasis supplied.] She advised this activity began around the first of April. During all these interviews she was careful not to ask them how they felt about the Union, she had been advised by her attorney not to inquire about union activity. That the Union was discussed is clear from the testimony of Mrs. Martin standing alone. She would have it believed that she veered a careful course in these discussions, avoiding the threats recited above, and the Union was discussed only when the employee brought it into the conversation. She acknowledged having read some magazine articles about a union burning down restaurants, "I didn't make it a point of reading them to employees but I had it available and I might have shown them one or two." (It was evidently such an article which was torn from the bulletin board by Tocci.) During the hearing, Mrs. Martin claimed difficulty in distinguishing between the Teamsters and the Restaurant Workers Union. She admitted a discussion of the Teamsters with Marino, late in April, and cautioned him not to get caught in the fight between the Teamsters and the other union, even though she had received a copy of the petition for certification, filed by the latter, and there is not a scintilla of evidence of activity by the Teamsters relative to Respondent's employees 24 Mrs. Martin impressed me as a woman possessed of above average intelligence. Her counsel saw fit to note in the record that her testimony was given "vigorously." It was she alone who conducted the interrogations and made the threats here con- sidered. That such interrogations and threats constitute interference, restraint, and coercion and thus are in violation of Section 8(a)(1) has been held in numerous Board and court decisions. I find accordingly. In arriving at my credibility decisions I have carefully considered the demeanor, <candor or evasiveness of the witnesses, the inaccuracies or inconsistencies appearing in the testimony of each and in consideration of the record as a whole, the reasonable probabilities and probative value of the testimony of each witness in the light of the entire record, as well as the interest of each witness in the outcome of the case. Respondent urges that since only six of the employees testified, as to interrogations, that portion of the charge should be dismissed. This suggestion is rejected. Respondent urges that the interrogation did not reasonably tend to restrain or interfere with the employees in the exercise of rights guaranteed by the Act, citing Blue Flash Express, Inc., 109 NLRB 591. The Board has distinguished the Blue Flash decision: as one where interrogation had a legitimate purpose, i.e., the employer sought to verify the truth of an allegation by a union that it represented a majority; it was accompanied by assurances against reprisals ; it occurred in an atmosphere free from hostility to unions. American Furniture Company, Inc., 118 NLRB 1139. The Blue Flash rule was not intended to license or immunize the use of interrogation as an integral part of an unlawful campaign to defeat a union, simply because the interrogation, if considered in isolation separate from such a campaign, would not be found independently coercive. Union Furniture Company, thing about Unger in connection with his union activity. Dolores Barbay similarly affirmed the date and events, the confusion caused by Unger and Latiolais which is discussed infra, and was certain Mrs. Martin had not said anything to the effect that the others should be like Unger, who was willing to say lie was for the Union. Having used the third person on direct examination in regard to the Bangs incident, Dolores Barbay ad- mitted on cross-examination that she was the food checker to whom the "nasty" remark was made and that it was "in connection with union matters " Mrs. Martin acknowledged that she took Latiolais and Unger to task, during this event, for calling the food', fur- nished for the help, "slop" (this is at variance with Owen Brennan's assertion that the reprimand of Unger related to customer service), telling Bangs to watch his "filthy" minouth, and telling Tocci about defying Miss Adelaide Brennan when told to put the article back on the bulletin board. She denied saying that linger was the only one who had come out openly for the Union, and the others should show their true colors, or anything like that It should be here noted that Respondent had been advised, by Ramat and Sobol, on April 8 that the Union was the Hotel and Restaurant Workers, not the Teamsters. This Is important in view of Mrs Martin's claim of confusion on this matter BRENNAN'S FRENCH RESTAURANT 67 Inc., 118 NLRB 1148. More recently, the Board approved an extended consideration of what the Blue Flash rule does not represent. The Trial Examiner noted the employer had no legitimate purpose which would be served by identification of union adherents. Even absent other conduct reflecting animus or hostility toward the Union, it was found that the circumstances under which the questioning was ac- complished, use of company offices, privacy of each interview, and initiation of each interview by the assistant manager, could only indicate hostility to union advocates. The Trial Examiner concluded, "I do not believe the Board could reject the proposi- tion that interrogation is presumptively unlawful without disregarding evidence running through all 124 volumes of its decisions, and substituting for its acknowl- edged expertise an unprofessional naivete." Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031. The instant case encompasses more than mere interrogation. I next examine the evidence relative to the writing of letters, by employees, withdrawing membership in the Union, and letters to the Board concerning the same. Mrs. Martin testified that Eldridge Emboulas was the first employee to discuss the question of letterwriting with her. Whether this conversation resulted from the individual interrogations related above is obscure. Emboulas was not called as a witness. Mrs. Martin testified: "he [Emboulas] came up to me one day and mentioned the fact that he thought quite a few of the waiters were unhappy about the whole union situation. He thought some of them had gotten mixed up in it without thinking about it and they wanted to get out of it and he asked me how they could go about getting out of it. I didn't know what to tell him about how to get out of the Union, and he suggested something about could they write some letters resigning and I told him I didn't know, that I would have to think about it." She then talked to her business adviser, Mr. Alexis, and her attorney, Mr Inman. In her testimony about reporting the results of this investigation to Emboulas, Mrs. Martin specified, "He again asked me about it. I told him that I couldn't advise him on the letters. I couldn't have anything to do with the letters. I told him I didn't think the letters would do any good." She then related that other employees questioned her from time to time about the letters, and she gave them the same advice. None of these other employees appeared as witnesses. Mrs. Martin was asked if she had discussed the letterwriting (letters of iesigna- tion from the Union) with Howard Jeansonne. She responded: "Yes. On several occasions, I think, he discussed all different phases of this union situation. You see, the restaurant being the type that it is, being small, we have always been very close and very friendly. And, they come to me for discussion of everything under the sun, why not for that." That the letterwriting was for the purpose of employees resigning from the Union does not appear disputed. That some of these letters were written on Respondent's premises, during work hours, is likewise not disputed. I have set forth the evidence of particular threats to Bangs and Segura, concerning the writing of letters. Mrs. Martin's direction to Jeansonne to "see Eldridge" may fairly be inferred as a direc- tion to write a letter of resignation from the Union. No other purpose appears in this record. Mrs. Martin acknowledged talking to a number of waiters about the letters, but could not estimate how many in terms of one-half or one-fourth of all waiters. Mrs. Martin acknowledge receiving "what was supposed to be" copies of these letters, but could not recall if she had one from Jeansonne. The only reason such copies were sent to her, so far as this record is concerned, were the enunciated threats. The letter written to the Board by Emboulas (Respondent's Exhibit No. 7) is dated May 25, 1959. The representation hearing was held May 19. However, Emboulas' letter does not set forth the date of his letter of resignation, presumably sent previously or simultaneously.25 General Counsel moved to conform the pleadings to the proof, and, without objection the motion was granted. That some dates are erroneously stated in the =s Since Mrs . Martin testified that Emboulas sought her advice on how to resign from the Union , his letter is set forth in full , it would appear to demonstrate remarkable in- sight for one alleged to be so poorly versed. I, Eldridge M. Emboulas , Jr, would like to inform you that I have notified the New Orleans Hotel Motel and Restaurant Employee's Union of A-F-L-C-I-O Local 166 that I revoke the Authorization which I previously gave to this Union to repre- sent me in dealing with the management of Brennan's French Restaurant on the question of hours, wages, working conditions or any other matters affecting my employment at Brennans Restaurant. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint is clear from the evidence. The matters were, nevertheless, fully litigated, and in no instance was the error in date of substantial consequence. In view of the evidence set forth, I find that the threats made to Segura and Bangs, and the activity of Mrs. Martin in urging the writing of the letters with- drawing union membership did constitute interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. I so find. Joslin Dry Goods Company 118 NLRB 555. The specifications of the complaint relative to Richard J. Brennan are: (1) in- terrogation; and (2) refusal to change an employee's work station because of the employee's activity in the union organizational campaign. The evidence relative to interrogation is confined to a single instance of the asking of a question, and not waiting for an answer. There is no evidence to support the second allegation as to Richard J. Brennan. I shall recommend dismissal of both of these allegations. I have found above that, when C. J. Latiolais left the employment of Respondent, Unger requested Owen E. Brennan, Jr., to transfer him to Latiolais' station and Brennan responded "you sure must have a lot of guts to ask for a favor here with all the trouble you have caused us." I find it unnecessary to treat with Respondent's contention that the complaint was not amended to add a new specification. Re- spondent contends that the evidence reflects a variety of problems between the Respondent and Unger, treated more fully infra, that the remark contained no reference to Unger's union activity, and that it is ambiguous. In support, Respond- ent cites Howard Aero, Inc., 119 NLRB 1531. Even though the circumstances here are clearly distinguishable, a finding on this evidence would be merely cumulative to the findings above. In addition, I am not persuaded that the remark quoted was not ambiguous. I shall for that reason refrain from finding the remark to be a violation of Section 8(a) (1) of the Act. C. The discharge of Unger 1. The testimony The complaint alleges that Respondent terminated the employment of Robert B. Unger on July 6, 1959, for reasons which constituted a violation of the Act. That Unger's employment terminated on the specified date is undisputed. Respond- ent contends that Unger quit, this Unger denies. Unger's employment by the Respondent commenced in June 1951. I have outlined his activity on behalf of the Union, supra. I have also found above that Respondent admitted knowledge of Unger's activity on behalf of the Union. Unger testified that in the first week of this activity, commencing April 2, he obtained about 20 union membership application cards from waiters and busboys. On April 9, at the meeting of the waiters, while the family was present, according to the testimony of Richard Brennan, Unger spoke and said "before this he felt that all of the waiters were for the Union, but now he doesn't think so." Mrs. Martin testified relative to the same meeting that she told Unger that she thought he had better settle down and pay attention to the restaurant and forget about "all this other activity that seemed to be going on and that he stay on his station where he belonged." Late in April, Mrs. Martin called Unger to the office and, in the presence of Richard Brennan and Adelaide Brennan, admonished him for improper service to a party, which included Mrs. Martin, the prior evening. The specific items were that he placed a bottle of wine on a napkin on the floor and in addressing one of the guests referred to her as "honey." At the same time Richard Brennan repri- manded Unger for allowing a customer to pour his own wine. There is no dispute that these events occurred. Unger described Mrs. Martin as becoming "real vio- lent . . . she screamed," whereupon he inquired as to why she did not fire him if he was so wrong. She also accused him of saying something to one of her food checkers, whom she did not identify Unger identified the food checker as Dolores Barbay and acknowledged having called her a "Pimp." Unger then quoted Mrs. Martin as saying that she did not want that to happen any more, that she would tell Dolores to leave Unger alone, and that Unger should leave Dolores alone. I credit this testimony of Unger, where it conflicts with the testimony of Respondent's witnesses I do not credit the latter.26 I have set forth above the incident which occurred on Saturday, May 9. Mrs. Martin and Richard Brennan acknowledged that from May 9 through to his ter- 29 Mrs. Martin, in fact, did not dispute Unger's version of this meeting, except she did not recall the matter concerning Dolores being mentioned at that time. BRENNAN'S FRENCH RESTAURANT 69 mination, Unger did a very good job and could not recall any cause for reprimand or criticism of Unger in that period. Since Respondent acknowledges that Unger was competent, his employment extending over 8 years, and since Respondent denies discharging Unger T see no purpose in setting forth the incidents of discipline in 1956, at length. I now reach the events immediately preceding the termination of Unger and the diametrically opposite versions thereof reflected by the testimony. Unger worked Wednesday, June 24, his days off were Thursday and Friday, June 25 and 26. Late in the eventing of the 25th he received a telephone call from a Mrs. Roma Fritz, who advised that Dolores Barbay tried to reach him to advise him of the death of one of his brothers. He had a friend contact the restaurant to obtain further details. Still later she called the restaurant, sometime after midnight, talked to Frank Bertucci and advised him that Unger was leaving for Ohio for the funeral. Bertucci is alleged to have said "I guess everything will be alright, your job will be here when you come back, and to call and let us know when you get back." Frank Bertucci was referred to by several of the waiters as the "Head waiter." The record is obscure as to whether Bertucci was in fact a supervisor. Unger testified that he arrived back in New Orleans on July 3, Friday morning. He called Brennan's in the afternoon to request Henry Donnegan, a waiter, to ask Owen E. Brennan, Jr., to put him on the schedule to work. Donnegan worked from 5 p.m. to midnight. He called back later and Donnegan advised him that "Pip" said that the schedule is already made out but that he should come in the next day since "Pip" could probably find work for him. Unger later testified that he had a friend call the restaurant sometime after 5 and instructed her to request Henry Donnegan to ask "Pip" to put him on the schedule. He explained his reason for handling the call in that fashion was that he did not want to talk to the Brennans. He talked to Donnegan at about 8 o'clock on Friday night, July 3, and Donnegan advised him -what "Pip" had said. Henry Donnegan, called as a rebuttal witness by General Counsel, testified that Unger called him at home sometime in the early afternoon, on this Friday, and made the indicated request and later called him at work around ,6 o'clock to ascertain what he had learned from Owen E. Brennan, Jr.27 Donnegan then related that as he was going to work he saw Owen E. Brennan, Jr., driving his car, he met him at a street intersection, he told Brennan about Unger wanting to work on Saturday and was advised by Brennan that the schedule was already made out but to have Unger come in anyhow. I credit Donnegan's version of his meeting with Owen E. Brennan, Jr 28 On Saturday, July 4, Unger arrived at the restaurant about 20 minutes to 5 and saw Mrs. Martin, with one of the colored cooks, standing on a sidewalk talking. Mrs. Martin asked him if he was working, he said that he was just coming back, repeating what Donnegan had advised him of Donnegan's conversation with Owen E. Brennan, Jr. Unger testified that Mrs. Martin then told him "Well, why don't you just go home. Take the weekend off and call me Monday as I will be on the desk all day." He testified that he then returned home. I credit this testimony where it conflicts with that of Mrs. Martin, and her husband Paul Martin 28 27I reserve credibility findings on this obvious conflict for detailed discussion in the conclusions. 29 Owen E Brennan, Jr , gave the following version of his seeing Donnegan on this occasion. Around July 3 or 4 be left the restaurant around 4 or 4 •15, and was driving home when he came to a stop at the corner of Dauphine and St. Peters Streets. He stopped momentarily, saw Henry Donnegan coming around the corner and said "Hi Henry, how are you doing." He acknowledged that Donnegan then said something about Unger is back in town but by that time he had driven on. He denied that Donnegan signaled or motioned to him or that there was any conversation other than that related. I do not credit this testimony. 25 Mrs. Martin acknowledged meeting Unger on the sidewalk , but placed the date as the day prior, Friday, July 3. She testified that her husband pulled up in the car to pick her up and Unger came along and asked if he could see her for a minute, she asked him if it was important . "If it isn't can it wait until Monday?" and that Unger replied , " Sure, I'll see you Monday." Paul A. Martin , identified as a head of a public relations firm, a one-time union organizer for the Amalgamated Clothing Workers, corroborated the testi- inony of his wife. On cross-examination Mr. Martin denied ever having discussed this particular incident with anybody before, he stated that he was told that he would be asked some questions but that he did not know what he was going to be asked "Except that in a general way it involved a particular period of time, around the 4th of July." He also testified that he did not know that the incident involved Mr. Unger . I do not credit this testimony. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday, July 6, Unger called the restaurant, at least twice. He talked one time to Mrs. Dorothy Brennan Bridgeman and told her that he was supposed to get in touch with Mrs. Martin and was advised that Mrs. Bridgeman did not know where she was. He went to the restaurant about 1 o'clock, saw Mrs. Bridgeman and asked where Mrs. Martin was and was advised she was in the office. He went to the office but did not find Mrs. Martin there. He left and later returned to the restaurant about 2:30 or 2:45, and was advised that Mrs Martin was in the dining room. He requested Lawrence Perridme to tell Mrs. Martin that he was there and would like to see her, Perridine reported that she was busy. Later Mrs. Bridgeman came back and Unger was then advised, by her, that Mrs. Martin was in the attic. Unger found Mrs. Martin and Mr. Richard Brennan in the attic, which had been used as a storeroom and a portion of which was at that time being converted for use as an office. A conversation between Mrs. Martin and Unger ensued, the respective versions, considerably at variance, are set forth. Unger related that Mrs. Martin first took him to task for having gone to Ohio without calling and receiving permission from a Brennan. He advised her that he had talked to Frank Bertucci, whom he though was in charge when there was no Brennan around . She then admonished him that he should have advised her by telegram or a postcard of his intention to return and observed "you must not think very much of your job." He acknowledged his error. Unger quoted Mrs. Martin as then saying "I don't want you in my restaurant," pointing to a piece of pipe lying on the floor saying "You see that piece of pipe, its not connected to anything around here, that's the way you are." Unger then related that Mrs. Martin pointed out the trouble that the Union had caused in Chicago burning down restaurants and other kinds of trouble it had caused. He acknowledged that when she had mentioned the pipe he said something such as "If that's the way you feel, that's alright with me." Mrs. Martin then stated that Unger and Latiolais started the Union. Unger asked her about putting him on the schedule, she responded negatively, he said "well, in other words I'm fired." She replied "I can't tell you you are fired," she said, "you quit." I said, "No, ma'am, I don't." He stated that this subject was brought into the conversation two or three times. He testified "If I was fired, she wanted me to say I quit." He denied specifically stating that he was quitting or resigning. Mrs. Martin asked him to write a letter stating that he had not been discriminated against, had not been asked to leave his job, and to tell the rest of the help that he was sorry for the trouble he had caused since the Union came in, advising him that he would not have to face the people, she would read the letter. During the conversation rela- tive to the letter, of resignation Mrs Martin mentioned the fact that the Union had already filed unfair labor practice charges because of some other individuals who were allegedly fired by her. He advised her that he would not write the letter and got up to leave and she requested him to sit down again. Mrs. Martin said some- thing about the fact that he would probably go to the Union, he acknowledged saying "To hell with the Union." She responded "Don't lie to me, because that's all you talk about." He then told her that he was not quitting, but that he would go down to the locker and get his clothes out of the locker so that they would not mildew, since she would not put him on the schedule and she would not fire him. They shook hands, inferring an agreement that he would not go to the Union about the matter, in fact he stated he gave her his word he would not go to the Union He also advised her that he would take 2 or 3 days to think over the matter of writing the letter. Unger testified that Mrs. Bridgeman came in when the meeting was almost over and when they were discussing his writing a letter that both she and Richard Brennan stated that if he would write the letter it would save them a lot of trouble and a lot of grief. While Unger testified to other particular matters which occurred during this conversation, all of which were denied by Respondent's witnesses, I do not find relating them here essential to either a credibility resolution or to the conclusions hereafter. Unger testified that when he then went downstairs he saw a cashier named Helen and Dolores Barbay (the latter started work at 4 p.m.). Unger returned later, that week, but did not see any of the family. Mrs. Martin testified that she did not discharge Unger, and acknowledged that he was guility of no misconduct which caused her to discharge him. Her version of the conversation of July 6 was as follows: She told him she was disappointed in the way he handled his bein' away from t'"e reomrant for s"ch a 1"ng period (Friday, June 26 to Friday, July 3, was 1 week, this was Monday, July 6). She understood that he had called in and told the doorman that he was leaving and they had not heard from him about his coming back, he could have let them know of his intentions . She then stated she had not heard about his talking to one of the waiters about coming back, which he mentioned. She advised him that he had been there long enough to realize that anyone who had been away that long should discuss returning with a member of the family, especially the one handling the schedule BRENNAN'S FRENCH RESTAURANT 71 (Owen E. Brennan, Jr.). She told him they could not just let a waiter say when he is going off and just return when he wanted, since they would be unable to schedule waiters for work. About that time Unger said "Well, it doesn't make any difference anyway, I'm quitting." Mrs. Martin expressed surprise that he would not under- stand, after all of his years with the Respondent, that the reprimand was just and due. He advised her that the reprimand did not have anything to do with his leaving, that he was unhappy because some of the people, waiters, were not as friendly as they used to be, that he had an offer from the Hilton Inn (a local restaurant) and did not know whether he was going there or to Chicago or Philadelphia. Thereupon he got up and shook hands with her and said he was leaving and wished them well. When she realized that he was leaving, and realizing that they had had six or seven previous unfair labor practice charges filed against them, and having been told by their lawyer that they should keep track of everything that was going on for their own protection, she asked him to give her a letter of resignation. He inquired why it was necessary and she told him of the unfair labor practice charges. She then told him that he was leaving under pleasant conditions, she certainly was not firing him, and asked him for a letter of resignation. He declined but said he would think about it That was the end of the conversation. She stated that her brother Richard Brennan was there and about midway in the conversation her sister Dorothy walked in, in connection with a reservation. Richard Brennan did not engage in the conversation, except that she believed that he did urge Unger to prepare the letter of resignation since he was leaving voluntarily. Her sister did not discuss the writing of the letter with Unger. The entire conversation lasted about 10 minutes. She denied any discussion of the Union except in relation to the unfair labor practices. She denied that Unger requested that he be put on the schedule, for work. She thought that he was coming to see her in regard to getting back on the schedule. Mrs. Martin specifically denied Unger's testimony that she said she did not want him in her restaurant or that she pointed to a pipe and made the comment about it being disconnected. She testified that there was not any pipe in the office "it had all been cleaned up by that time." She denied accusing Unger of starting the Union in the restaurant, or that he requested to be put on a schedule. She also denied that Unger said "I don't quit " She denied saying anything about the Union causing trouble in Chicago. She denied asking Unger to write a letter stating that he had not been discriminated against or to tell the other help in the restaurant that he was sorry that he had caused the union trouble, or saying that Unger would not have to face the people, she would read the letter to them. Richard Brennan, in general, corroborated the testimony of his sister, Mrs. Martin, as to the events of July 6. He acknowledged that the attic was a former storeroom that they were changing around so that they could have more storage. He testified "we were changing a few little pipes maybe a little duct or something so we could get through and use the other part of the attic." He denied that there was any reference to pipes in his sister's conversation. He also corroborated the denials of Mrs. Martin, set forth above. He quoted Unger as saying that they were parting friends, "we wouldn't hear from him any more because he didn't want anything to do with the Union. He was fed up." He acknowledged that he normally gets to work just before 5 p.m , but might come in early a couple of days a week. He first testified that the last time he saw Unger in the restaurant was "in the attic when he quit," then admitted he had seen him in the kitchen when he was leaving. He then testified that "usually when it is something like that I watch it. An employee quitting or leaving our employment . . . I try to see them to the door." He acknowledged that they had been rearranging the attic "throwing away a lot of old pipes." He was certain the room had been cleared out and there were no loose pipes there on July 6. Dorothy Brennan Bridgeman accidentally walked in during the discussion between Mrs. Martin and Unger on July 6. She went up to get a confirmation on a reser- vation from Mrs. Martin. As she entered Mrs. Martin was telling Unger how disappointed she was in the fact that Unger had been an employee for so long and had not contacted her to tell her when he was returning. Unger then stated that he was going to quit anyway and Mrs. Martin explained it was not necessary for him to quit just because she was reprimanding him (this was obviously the beginning of the conversation according to all the witnesses). Mrs. Bridgeman then quoted Unger as saying that he had been thinking of leaving because some of the waiters were not as friendly as they used to be and that he was going to Philadelphia or Chicago or if he stayed in New Orleans he probably would take a job at the Hilton Inn. She then related that Mrs. Martin tried to talk him into staying but he had definitely made up his mind he was going to leave and thereupon Mrs. Martin asked him for the letter of resignation citing the unfair labor practices, previously filed, 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the reason. She could not recall any of the rest of the conversation but did know that they shook hands. She described the conversation as lasting 5 or 10 minutes and she placed the time as about 2:30 in the afternoon. She had no knowl- edge of what time the conference began. She denied making any comment during the conversation. She denied that the Union was mentioned in any way except in reference to the unfair labor practices. She did not recall seeing Unger in the kitchen earlier that day or advising him that Mrs. Martin was in the attic. She acknowledged that Unger had said that he would think about the requested letter of resignation but she could not recall whether be was supposed to come back or call her. She acknowledged that there had been several group discussions relative to her testimony in which Mrs. Martin, Richard Brennan, and Owen Brennan, Jr., participated. Dolores Barbay, a food checker, acknowledged seeing Unger at the time of his termination, as she came to work at about 4 o'clock, July 6. She related a conver- sation with Unger on Friday, July 10, outside the Saenger Theatre at about 3:30 or 3:45 p.m. She asked Unger if he was working. He said no, he did not have to work and proceeded to pull two checks out of his pocket and said he was working for the Union. Unger also told her that Mrs. Martin could not fire him so he quit, that he could get a job any place, he was thinking seriously of going to Philadelphia but then decided to stay because he could work anywhere else. He also stated that he did not want to make any trouble for Mrs. Martin and that he had no intention of going to the Labor Board or going to the Union, like some of the other fellows had done. Analysis and Conclusions The sole question to be resolved here is whether Unger's termination resulted from his quitting or in the alternative from a discharge for reasons which were violative of the proscriptions of the Act. Clearly, there was no outright discharge in the sense normally implied by that term. If Unger did not quit, the question is whether the refusal of Respondent to schedule Unger for further work was tantamount to a discharge, if so, whether the latter was for reasons proscribed by the Act. It may be presumed from the evidence that Unger worked for the Respondent in a satisfactory manner commencing June 1951 until the advent of the Union in April 1959, his retention, alone, permits that conclusion. When the Union came to town it widely publicized its intention of organizing hotel and restaurant employees, that Respondent took due note of it is clear in this record. Unger attended the first union meeting, obtained union membership application cards, and became the principal proponent of the Union among Respondent's employees, this fact is not disputed. That Unger was known to be such a leader by the Respondent may reasonably be inferred from the testimony. That the Union was "freely discussed" in the kitchen and restaurant, with management participation, was repeatedly urged by Respondent's counsel in his interrogation of witnesses. Particularly was this true in connection with conditions existing prior to the waiters' meeting on April 9th. That Mrs. Martin had numerous private conversations with individual em- ployees to determine if they had any "gripes" and to determine for herself the "state of the Union" was acknowledged by her. That she and the family were opposed to any union coming into the restaurant, her view was they did not need an outside party to run the restaurant, was the subject of her speech on April 9. At that time she specifically mentioned Unger at both meetings as one of three who had been inattentive to duties and she acknowledged telling Unger to get back to work and forget about "other activities" at that time. Unquestionably, she had a right to insist that he desist from union activity during worktime. That she threat- ened employees, relative to union activities, I have found above. In reprimanding Unger in April, albeit a proper reprimand, she took the precaution of having her brother and sister present during the interview. On May 9 when she suspended Bangs and Tocci and reprimanded Latiolais and Unger she made certain of a sub- stantial audience of employees . This was the occasion when she told Bangs that he should be like Unger, who had no hesitancy in revealing his position relative to the Union That there was no further difficulty with Unger after May 9 was acknowledged by both Mrs. Martin and Richard Brennan. We thus arrive at a picture of an employee of more than 8 years' standing whose competence and proficiency as a waiter is not disputed. True, Mrs. Martin and Owen E. Brennan, Jr., went to some length in testifying about the appearance of unhappiness on the part of Unger in the form of constant complaints about his station and other complaints not germane herein. Unger was advised on his day off, June 25, of the demise of a brother. He advised the Respondent, through the head waiter or doorman, of his departure for the funeral. Upon his return 1 week later, the following Friday, he indirectly sought to contact Owen E. Brennan, BRENNAN'S FRENCH RESTAURANT 73, Jr., whose undisputed duties included the making of "schedules" or lists of waiters scheduled to work, for the purpose of getting on the schedule the following day. Henry Donnegan credibly testified that Unger had called him at home, requesting him to contact Owen E. Brennan, Jr., for the purpose of getting Unger on the schedule the following day. He then credibly testified as to his encounter with Owen E. Brennan, Jr., at a street corner, on his way to work, and of his later advice to Unger by telephone.30 Owen E. Brennan, Jr., acknowledged seeing Donnegan at the time and place in question but testified there was no conversation with Donnegan, other than his salutation. Since Brennan's testimony preceded that of Donnegan, on the day before Donnegan testified, and presumably before Re- spondent was aware that Donnegan had been subpenaed, it is indeed difficult to believe that Brennan would have recalled the encounter with Donnegan and to have been able to recite the date, time, and place that he met 1 of approximately 175 employees on a street corner, at which time nothing more happened than his saying, "Hi Henry." Respondent urges than Donnegan's testimony should be disregarded, partially because it was given after that of Owen Brennan, Jr., in which the latter indicated the time he had left the restaurant. I disagree. Owen Brennan, Jr., according to the entire record, normally did not work after 5 p.m., except for two evenings other than Friday, his leaving at or shortly before 5 o'clock would not appear unusual. In the total picture of what happened on July 6, the only question we are trying to resolve here, Unger might well have adopted Mrs. Martin's version of her meeting with him, on the sidewalk outside the restaurant, on Friday, July 3. He could have, as well, contended that that was an effort to return to work or to get on the schedule. Such a contention would not require any change in his version of succeeding events. This testimony by Mrs. Martin was at the very opening of the case, hence, Unger was aware of it before he testified. On the other hand, if Mrs. Martin admitted knowing, on July 4, when she met Unger, that he was then returning to work her version of the July 6 meeting would be substantially altered, that meeting could not be cast as a quitting with no effort to return to work. The demeanor of Donnegan was impressive, in crediting Donnegan I am not unmindful that he became incensed during cross-examination by the imputations and manner of the cross-examiner.31 Next we treat with the reasonable probabilities of the sidewalk encounter between Mrs. Martin and Unger. Mrs. Martin, at the outset of the case, testified, relative to her conversation with Unger on July 6, that she thought he was coming to her to get back on the schedule. It is clear from this, and from her testimony that she did not know anything about his contacting Donnegan, that Respondent would place this event in the posture that Unger, having absented himself for a week, had determined to resign or quit. Obviously any admission, by Respondent, that he made any previous effort to get on the schedule would be fatal to that posture. If Mrs. Martin believed that Unger was coming to see her about getting on the schedule July 6 because he had been away for a death it would appear logical that his purpose in talking to her on the sidewalk must have been the same, absent his effort to get on the schedule through Owen E. Brennan, Jr. If so, Unger's version that he was told to take the weekend off and see her on Monday would appear to fit the situation much more accurately than her version that she asked him if it was important, or, if it could wait until Monday. While Mrs. Martin's recitation of the conversation on the sidewalk was corroborated by her husband, her husband denied having dis- cussed his testimony with anybody and yet his account was substantially a verbatim repetition of the testimony of Mrs. Martin. I do not credit this testimony of either of the Martins. One further point on ,reasonable probability relative to the sidewalk >w In so finding I am necessarily discrediting Unger's version that he had his friend, Audrey, call the restaurant sometime after 5 p in. to ask Henry Donnegan, to ask Pip to put him on the schedule. However, it should be here noted, that this error or misstate- ment does not stand alone, there are a number of statements in the record by Respond- ent's witnesses as well as by some of General Counsel's other witnesses which I do not credit. That Unger anticipated inquiry into certain personal relationships, which immedi- ately followed this testimony, might well account for his evident confusion at this point of his testimony. That Donnegan told Owen Brennan, Jr., Unger was in town was admit- ted by Owen Donnegan could only know of Unger's return by reason of a telephone call, as he was then on his way to work, on Friday. m In so finding I do not credit Donnegan's testimony that Aymore Dore made the schedules until June 1959. The record is clear that after Owen Brennan, Jr., got out of the Army, sometime in 1957, he made the schedules, however in his absence Aymore Dore, perhaps others, made the schedule Why Donnegan was not more observant before testifying on this point, I do not deem important 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting. The meeting admittedly occurred shortly before 5 p.m., Unger as an old employee knew that both Mrs. Martin and Owen E. Brennan , Jr., left at approx- imately 5 p.m. He also knew that the schedules for work were made up ahead of time. Respondent's evidence implies that, without contacting the restaurant in any way, Unger elected to wait until almost 5 o'clock , on a Friday which was normally his day off, to go to the restaurant to see about getting on the schedule . If Mrs. Martin believed that Unger wanted to see her, on Friday , about getting on the schedule she needed do no more than tell him to see Owen E. Brennan , Jr., who was in charge of making the schedules, unless she had some other reason for not wanting him to go to work until she had had a conference with him. General Counsel has pointed out, in his brief, if she merely wished to reprimand Unger about the method of his departure , without proper notice to one of the Brennan's, that she had exhibited no reticence in the past about reprimanding him during working hours. General Counsel urges that the place of the final interview between Respondent and Unger was selected by Mrs. Martin in a desire to avoid the presence of outside witnesses. It would reasonably appear, from all the evidence , that Mrs. Martin, prior to leaving the dining room, knew that Unger was present and had requested to see her. The interview could well have occurred in the kitchen where other interviews had been held , in the presence of other employees . That it was not held in the kitchen must be presumed to have been the choice , deliberate or otherwise, of Mrs. Martin. That the interview began about 2.30 or 2:45 is the testimony not only of Unger but also of Dorothy Bridgeman . Richard Brennan set the time of the meeting as 2 p.m. That it terminated at about the time Dolores Barbay came to work, about 4 p.m., may be presumed from the testimony of both Unger and Barbay, yet Mrs. Martin, Richard Brennan, and Mrs. Bridgeman each described a brief conversation and each testified that it lasted about 10 minutes, the balance of the time is unaccounted for by them. Dorothy Bridgeman testified that her reason for going upstairs, where the con- ference was being held , was for the purpose of seeing Mrs. Martin about some reservations. Mrs. Martin testified "we don't actually make reservations at Bren- nan's." She then went on to explain that for repeat customers they might hold a table if they would call and let Brennan 's know a few minutes before they expect to arrive. She stated "we don't have a reservation system " I find it unnecessary to resolve this discrepancy. Mrs. Martin described Mrs. Bridgeman as walking in "about midway in our conversation." Richard Brennan was asked if his sister Dorothy was there during all the conversation and stated that she came in during the conversation . On the other hand, Mrs. Bridgeman was able to relate that as she entered Mrs. Martin was telling Unger about not calling in and stating that he was returning , unquestionably this is the very beginning of the conference . Accord- ingly, it is questionable whether Mrs. Bridgeman 's recitation of the conversation was the result of first-hand knowledge, or knowledge acquired during family con- ferences held later. I do not credit her testimony where it conflicts with that of Unger as to the events of July 6. General Counsel, in his brief , points to the admission of Richard Brennan that they had been changing some pipes and "throwing away a lot of old pipes ," and his testimony that there were no loose pipes , in the attic at that time . Since this record is silent as to Unger ever having been in the attic prior to the day in question, the question arises how would he have known that there ever were any loose pipes lying on the floor if Mrs. Martin had not pointed to the pipe and said it was not connected to anything and compared it to Unger 's position with the Respondent. On this conflict, I credit Unger. Unger acknowledged that after requesting that he be put on the schedule and after he had been compared to the disconnected pipe he said "if that's the way you feel , that's alright with me." To determine this a "quit" under these circumstances would be to do violence to the normal usage of that term, in the context here presented. Unger testified at some length, not all of which has been set forth herein, to a discussion of the Union and his activities in connection therewith which took place at t',,s meeting, all of which has been denied by Respondent 's witnesses. Disregard- ing Richard Brennan's estimate that the meeting started at 2 o'clock , disregarding Mrs. Bridgeman's estimate that the meeting was about 2:30, and accepting Unger's estimate that it started around 2:45, it clearly did not terminate until shortly before 4 o'clock, since Unger was in the kitchen when Dolores Barbay came to work. Obviously something more than the recitation given by Respondent 's witnesses was required to absorb the period of approximately 1 hour covered by the meeting. Keeping in mind the animus exhibited by Mrs. Martin toward the union activity of the employees , I find that a discussion of Unger's union activities did in fact take place on July 6, and that those activities were the motivation for Mrs. Martin's refusal to schedule Unger for work, as he requested . Both Mrs. Martin and Richard BRENNAN'S FRENCH RESTAURANT 75 Brennan acknowledged that they had no difficulty relative to Unger's work after May 9, this was July 6. Had Unger come to the restaurant solely to advise Re- spondent that he was quitting there is no reason to believe that it would have re- quired a conference of the obvious length of this one. The only alternative to that proposition is that during and as a result of what was said at the conference Unger decided to quit. If what Respondent is seeking to assert is that after Mrs. Martin refused to schedule Unger, he quit, we then have a question of whether the refusal to schedule was tantamount to a discharge 32 The testimony of Dolores Barbay relative to her meeting with Unger on Friday, July 10, was not met with rebuttal testimony. Dolores denied she had complained to Mrs. Martin about Unger, yet Mrs. Martin acknowledged having reprimanded Unger about his language to Dolores, also that she had spoken to Dolores about her relations with Unger. It was Dolores who complained about Bang's language, admittedly about "union matters." It would appear that both employees had called Dolores a "pimp," something less than a term of endearment. It would thus appear implausible, under the circum- stances existing here, that Unger would make Dolores a confidant. On the con- trary it would appear more likely that he might deliberately mislead her by misstating facts. In any event, I do not believe and do not credit her testimony relative to Unger having stated that he had quit. The record clearly reveals that, prior to this meeting, on July 8, 1959, Unger had already been to the Board and had given the Board a statement. The statement is not in evidence, but was supplied to the Re- spondent's counsel, at his request, while Unger was still on the stand. Respondent did not challenge authenticity, or date. It would appear reasonable to infer that Unger's statement of July 8 was not unrelated to the situation here under discussion. In addition, Dolores would have it believed that Unger told her that he would not go to the Union at the same time he was telling her that he was employed by the Union, and exhibited checks indicating that he was on the payroll of the Union. Unger testified that he had started working for the Union on that same Friday. Accordingly, and for the reasons indicated, I do not credit the testimony of Barbay relative to this meeting, to the extent that it seeks to establish an admission by Unger that he had quit Respondent's employment. Throughout this report I have indicated 'acceptance of part and rejection of part of the testimony of a number of the witnesses, finding inconsistencies with the record as a whole or with other portions of the testimony of the same witness; and in some instances apparent discrepancies, faulty memories, and evident exaggerations, it may therefore be appropriate here to note the rule which has previously been stated that "it does not follow that simply because one does not believe a particular thing to which a witness testified that everything he says must then be rejected." Judge Learned Hand stated the rule thus: It is no reason for refusing to accept everything that a witness says because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. N L.R B. v. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2). I find that the refusal by Mrs. Martin to schedule Unger for work, when he so requested, on July 6, 1959, was tantamount to a discharge since he could not work without being so scheduled. I further find that Unger's termination, and Respond- ent's failure thereafter to reinstate him was motivated by his known membership and activities on behalf of the Union and to discourage union and other concerted activities of the employees of the Respondent, and that such conduct was in deroga- tion of the rights of those employees under the Act. I, accordingly, find that said conduct constituted an unfair labor practice affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 32 Cf. Tex-Toga, Inc., 112 NLRB 968. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent having discharged Robert B. Unger because of his union activities, I recommend that Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. Since, the record reveals, waiters received no wages from Respondent, but did receive trips which are regarded as their salary or pay, I recommend that Respondent make him whole for any loss of such salary or pay he may have suffered by reason of Respondent's discrimination against him by a payment to him of a sum of money equal to that which he normally would have earned as tips,33 from the date of his discharge, July 6, 1959, to the date when, pursuant to the recommendations herein contained Respondent shall offer him rein- statement, less his net earnings during said period. This record permits no firm conclusion as to possible seasonal variations in earnings. Under these circumstances, I recommend that the determination of salary or pay (tips) should be based upon the weekly average of tips of Robert B. Unger during the 12-month period im- mediately preceding his discharge.34 Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel, Motel and Restaurant Employees Union, Local 166, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Robert B. Unger, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in, and activities for, the above-named labor organization, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coercion," to the extent therein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 81 T. A O'Donnell, 55 NLRB 828. 24 Patriarca Store Fixtures, Inc, 12 NLRB 93. Knights of Columbus and Office Employees International Union, AFL-CIO, Petitioner. Case No. 1-RC-3913. September 19, 1960 SUPPLEMENTAL DECISION AND ORDER CLARIFYING CERTIFICATION On May 6, 1955, following a Board-directed election,' Office Em- ployees International Union , AFL-CIO,' was certified as the collec- tive-bargaining representative of all clerical employees including 1 The Board's Decision and Direction of Election was not reported in published volumes of Board decisions. 8 Office Employees International Union, AFL-CIO, with its Local 329, which it desig- nated to represent these employees, are herein called Petitioner. 129 NLRB No. 11.