Perko's Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perko's Inc. and Culinary, Cooks, Bartenders and Ho- tel, Motel Service Employees Union, Local 62, Ho- tel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO. Case 32-CA-115 (formerly 20-CA- 12047) June 13, 1978 DECISION AND ORDER BY MEMBERS JFNKINS. MURPHY, AND TRtUESDAILE On December 16, 1977, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- Respondent has excepted to certain credibility findings made by the Administrative Laws Judge. It is the Board's established policy not to over- rule an Administrative law Judge's resolutions with respect to credibilits unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Produers. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have careful) examined the record and find no basis for reversing his findings. The Administrative L.aw Judge found that H. T. Brooks created an impression in employee Janeway that her union activities were under sur- veillance when. in the course of a conversation with then Supervisor Padilla. he commented that the older waitresses were probably responsible for the union activit. However, there is no evidence that this remark was based on actual surveillance or, indeed, on anything other than mere speculation and we find that employees would not reasonably assume from this comment that their union activity was under surveillance. Accordingly, we shall not adopt this finding of the Administrative Law Judge. noting that the remedy ordered herein is not thereby affected. We adopt. however, the Administrative Law Judge's finding that Brooks' instruction to Padilla, in the same conversation, to reduce the hours of Janeway and Rena Smoot, and which also was overheard by Janeway. con- stituted a threat in violation of Sec. 8(a)( I ) of the Act. In so doing, however. we do not rely on the Administrative Law Judge's conclusion that Brooks' comments in this regard were "calculated" to have an impact on Janewav's exercise of her Sec, 7 rights, because he did not know that she was in a position to overhear what he was saying to Padilla. Nevertheless, intent is not material to a finding of coercion within the meaning of Sec. 8(a)(1) of the Act, and thus, without regard to an) "calculated" endeavor on the part of Brooks. and notwithstanding his unawareness of her nearby presence, these comments had a tendency to interfere, restrain. and coerce Janeway in exercis- ing her right to seek collective representation for herself and other employees. Member Jenkins would affirm the Administrative Law Judge's finding of a violation in these circumstances. lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Perko's, Inc., Porterville, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, except that the attached notice shall be substituted for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate the employment of Ruby Louise Janeway, Ernest Padilla, or Rena Smoot, or any other employee, because he or she engages in union or other protected concerted activities. WE WILL NOT engage in any of the following conduct, which interferes with the rights guaran- teed employees under the National Labor Rela- tions Act, as amended, and which violates Sec- tion 8(a)(l) of that Act: Interrogating our employees concerning their union or protected concerted activities. Polling our employees concerning their in- volvement in union or protected concerted ac- tivities. Threatening our employees with loss of em- ployment or with closure of our Porterville restaurant facility because they engage in, or continue to engage in, union or other protect- ed concerted activities. By our unlawful conduct, creating in the minds of employees the impression that their union or protected concerted activities are un- der surveillance by supervision or manage- ment. Reducing the hours of employment of any of our employees because of their involve- ment in union or protected concerted activi- ties. WE WILL NOT discourage membership in Culi- nary, Cooks, Bartenders and Hotel, Motel, Ser- vice Employees Union, Local 62, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, or any other labor or- ganization of our employees, by terminating our employees because they engage in union or other protected concerted activities, or in any 236 NLRB No. 107 884 FIN)INr(,;s 0: FA. I I THt R BSIN ISS OI RI SPFONIF) N T At all times material herein. Perko's. Inc.. hereinafter called Respondent, operated a coffeeshop and restaurant in Porterville. California). and has been a corporation duly organized under the laws of the State of California. and has maintained corporate offices in Fresno, California. During the 12-month period from November 1, 1975, through October 30. 1976. Respondent received gross reve- nues exceeding $500,000 in the course and conduct of its business operations. and during the same period of time Respondent purchased and received goods. materials, and supplies valued in excess of $2,000 from sources outside the State of California. Respondent concedes, and I find, that at all material times it has been an employer engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. iI THE L.BOR OR(ANIlZrlON INSVOi.V !) The evidence establishes, and I find, that at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act. II 11HE AI.L.F(;IA) I NFAIR L.ABOR PRACTI(ES A. The Issues other manner discriminate against any of our employees with respect to their hire or tenure of employment, or any term or condition of em- ployment, except as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of the right to engage in self-organi- zation, to bargain collectively through represen- tatives of their own choosing, or to act together for collective bargaining or mutual aid or pro- tection, or to refrain from any or all such activi- ties. WE WILL NOT reduce the hours of work of Ruby Louise Janeway and/or Rena Smoot be- cause they engaged in union or other protected concerted activities. WE WILL offer Ruby Louise Janeway, Ernest Padilla, and Rena Smoot immediate and full re- instatement to their former positions of employ- ment, or, if those positions are no longer avail- able, to substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay which they may have suffered by reason of our unlawful discrim- ination against them, plus interest. PERKO's, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER. Administrative Law Judge: This case was heard before me at Fresno, California, on August 22. 23, 24, and 25, 1977, pursuant to complaint and notice of hearing issued on May 20, 1977, by the Regional Director of the National Labor Relations Board for Region 20 and an amended complaint and notice of hearing issued by the Regional Director on August 5, 1977. The complaint and the amended complaint are based on charges filed on Oc- tober 18, 1976, by Culinary, Cooks, Bartenders and Hotel, Motel, Service Employees Union, Local 62, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO, hereinafter called the Union, and alleges viola- tions of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, hereinafter called the Act.I The par- ties were accorded full opportunity to call witnesses. present relevant evidence, and to engage in oral argument. The parties waived oral argument and timely filed briefs with me. Based upon my observation of the witnesses, the entire record 2 in this proceeding, and the briefs of the parties. I make the following: Unless otherwise specified, all dates herein refer to calendar 1976. 2 The unopposed motion of counsel for the General Counsel to correct the transcript of this proceeding in certain respects is hereby granted. as el forth in the document hereby received in evidence as A L J Exh I The principal issues in this proceeding are: (I) whether Respondent interfered with, restrained, and coerced em- ployees in the exercise of their Section 7 rights by interro- gating. threatening, and polling Porterville employees con- cerning their membership in and activities on behalf of the Union: by creating the impression of surveillance of em- ployee union activities: and by promising employees im- proved benefits in order to induce them to abandon their membership in and activities on behalf of the Union: (2) whether on or about April 22. Respondent unlawfully re- duced the working hours of Ruby Louise Janeway and Rena Smoot: (3) whether Respondent unlawfulls terminat- ed Janeway and Ernest Padilla: (4) whether on or about May 25. Respondent unlawfully accomplished a further re- duction in the working hours of Smoot: and (5) whether Smoot was constructively terminated. Respondent denies the commission of any unfair labor practices and specifically contends that the reduction in the hours of Smoot and Janeway was made for legitimate business purposes: that Padilla's termination resulted from his voluntary resignation: that the termination of Janewas was for cause unrelated to her activities on behalf of the The amended clrmplainr herein nalned Perklo', In, d h a Perko', Koffee Kup? Ilapps Stea.k. In<: 'Perko I nterpris,,c In.. is Rcprndcnlr and ,is single enmplioers Uit Perk",, Inc t)UlrlnT the ctl1urse oi the hcierine before me. the Cmrnplliinll arid inlrlnded cl rllplallllr ucrc rtoelhel .nellnded as .t' delcie tl.pps Slc.k. Inc r t erk I rlerI rlr Inr . ri n.a ed Re- ,spornenrts nd [t. delete th ine ilccple xer .ll/cCI nrs PERKO'S INC 885 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union: and that Smoot's termination was voluntary and not caused by conduct of Respondent. B. Pertinent Facts 1. Background facts a. Prefatory events At pertinent times H. T. Brooks has been president of Respondent. His son, R. T. Brooks, herein called Randy Brooks, has served as vice president, and Thomas Nast has been secretary and treasurer of Respondent. Respondent is owned jointly by H. T. Brooks and Thomas Nast, who hold equal number of shares in the corporation. Since April, in addition to serving as a corporate officer and a member of the board of directors of Respondent, Randy Brooks has been a manager and supervisor with direct re- sponsibility for making personnel assignments to employ- ees of the Porterville store. In his capacity as supervisor, Randy Brooks assigned duties to employees at Porterville and arranged their work schedules. At pertinent times the employee complement at Por- terville was approximately 22 in number. Ruby Louise Janeway and Rena Smoot entered Respondent's employ as full-time waitresses at Porterville in November 1975. Jane- way was 35 years old at the time of the hearing, and Smoot was 30 years old. In early 1976 Janeway was promoted to the position of head waitress, a nonsupervisory position. Ernest Padilla was initially employed in November 1975 at a related facility in Fresno. He trained as a lead cook be- fore transferring to Porterville in January 1976 where he served as lead cook until the first week in April. In early April he transferred temporarily to Fresno but returned to Porterville on Good Friday and was designated acting as- sistant manager at Porterville on April 18, Easter Sunday, to assist the new manager, Ivars Lusis. Padilla was told by Randy Brooks that he had been designated in an effort to help build morale and to improve the quality of supervi- sion. He told Padilla to maintain the same crew and work with them. In the preceding 5 months, the Porterville res- taurant had had two separate managers, and the predeces- sor to Lusis, Al Bouma, had been terminated just prior to April 18. On or about May 7, Padilla resigned his position as acting assistant manager and resumed his duties as lead cook in which capacity he had served prior to his designa- tion by Randy Brooks. In March, Janeway contacted Ralph Flores, secretary- treasurer of the Union, indicating an interest on the part of Respondent's employees at Porterville in securing union representation. Flores dispatched a number of union au- thorization cards to Janeway, and in due course, on April 5, a meeting was held at Janeway's home. Flores attended the meeting, as did Janeway, Rena Smoot, Ernest Padilla, and approximately eight other employees. Matters relating to organizational efforts were discussed and some authori- zation cards were executed. Janeway, Smoot, and Padilla executed authorization cards on April 5, and in the days that followed they each distributed authorization cards in blank to other employees and solicited signatures. Janeway approached six employees, Smoot, three, and Padilla, two. Earlier in March, Smoot spoke with Al Bouma, who was then serving as manager of the Porterville facility, and complained concerning the high cost of health care bene- fits to employees. She characterized the cost as a "rip off" and observed that the employees would "have to go" union to get the necessary paid benefits. Bouma counseled Smoot to wait a couple of weeks. Then, in March or early April, Bouma told Randy Brooks that there was "union trouble" at Porterville. At approximately this point in time, during the first week of April, Padilla conveyed the same message to Nast. On Easter Sunday, which coincided with Bouma's last day of work in the employ of Respondent, Smoot stated in a teasing manner that Bouma should "stick around" be- cause the employees were "going Union" and would get more money and better benefits. Thereafter, on April 19, a second organizational meeting was held at Janeway's home and seven employees attended. During the meeting, Jane- way collected signed authorization cards and gave them to Flores. Then in April, Rosie Cantrell, a waitress at Por- terville, was approached by Randy Brooks who asked Cantrell whether Janeway, or any other employee, had been handing out union authorization cards. Cantrell an- swered in the affirmative, and by April 23 Randy Brooks had learned that there was "union activity" going on in the store and "some of the people in the store had talked to a union representative." 4 On April 19, 1976, the Union filed a representation peti- tion in Case 20-RC-13492 seeking to represent the em- ployees at Respondent's Porterville facility. Respondent was apprised of the Union's petition on April 22. Ivars Lusis was initially employed in April 1976 and, as found, on or about May 18, he was designated to manage the Porterville facility, a supervisory position. During the first week of Lusis' service as manager at the Porterville facility he conversed on several occasions with H. T. Brooks concerning the Union. Brooks was at the Por- terville facility in conjunction with undertakings associated with the prime rib special which was featured on May 20, 21, and 22. Similarly, he had frequent conversations with Randy Brooks concerning the Union. In speaking with H. T. Brooks, Lusis was informed by Brooks that none of his stores was unionized and that he would not allow the Porterville facility to be organized by the Union. Brooks stated, in this regard, that he would close down the Porterville facility before he would allow it to go union. The initial conversation between Lusis and Randy Brooks transpired when Lusis first reported for duty at Porterville. Brooks summarized for Lusis' information the "union problems" which the Company had had at the Por- terville store and which were anticipated. In this respect Brooks mentioned that Janeway, whom he identified as the principal organizer, had already left the employ of the Company but that she "might be back to cause problems" again. He specified also Padilla, Smoot, and J. C. Reese as employees whom he should "keep an eye on." Brooks added that "under no circumstances" did management want the 4 The foregoing is based upon Ihe credited testimony of Rena Smoot, Randy Brooks, Rub) Louise Janeway. and H. T Brooks. 886 PERKO'S INC. Union in Porterville and noted that "it would be appreciated" if the employees would leave of their own accord. Brooks noted that the Company could not terminate them. During the days that followed, Randy Brooks empha- sized the nature of the union problem to Lusis. He also spoke frequently with Lusis about Smoot and emphasized his concern with her smoking habits, her asserted need for a hairpiece to comply with health and sanitation rules, and the frequency of her husband's presence in the restaurant prior to operating hours.5 On or about April 7, H. T. Brooks met with Ralph Flores and a union attorney in Fresno. During the course of the meeting, Brooks expressed his dislike for unions and stated that if the Union continued its efforts he was going to turn the facility into offices. 6 b. Randy Brooks meets with employees On or about April 21, shortly after he had assumed man- agement of the Porterville facility, Brooks met with em- ployees. The meeting was held in a small dining room in the facility and was attended by most of the employees. Prior to convening the meeting, Brooks had gained the im- pression by virtue of rumors relating to the signing of union authorization cards and the filing of "some type of petition" that the employees were engaged in union activi- ties. He had also formulated an opinion as to which of the employees had attended union meetings. 7 Brooks commenced the meeting by congratulating the staff on a good performance in the face of poor manage- ment. He announced that some scheduled changes might be necessitated by virtue of his effort to improve the opera- tion of the facility, but he assured the employees that the changes would be temporary in nature and should not be viewed with concern. As the meeting progressed, Brooks turned his attention to a summation of certain of the work rules.8 Included in this discussion was the topic of permissible hair length, and in this regard Brooks stated that the waitresses would have to wear their hair up or wear hairpieces in order to main- tain a proper appearance. In this connection, he specifical- ly pointed to Smoot and Janeway and stated that their hair was sufficiently short to comply with the rule. Brooks also told Rosie Cantrell that the large loop-type earrings she was wearing were inappropriate, and she should wear only small earrings while on duty. 5 The credited testimony of Ivars Lusis establishes the foregoing. I credit Randy Brooks and H. T. Brooks only to the extent their testimony corrobo- rates that of Lusis. I have considered the fact that L usis was terminated bs Respondent in July 1976, and the circumstances of his termination. On the entire record, including my observation of him as he testified at the hearing. I am convinced he testified truthfully and without malice towards Respon- dent or its officers. 6 The credited and undisputed testimony of Ralph Flores estabhlishes the foregoing. A careful analysis of the testimony of Randy Brooks and inferences drawn from the record as a whole requires rejection of the testimony oI Brooks to the effect that he did not hear these rumors until nud-Mais or early June. s Included in the rules was a prohibition against smoking in the restaurant and a requirement waitresses "wear their hair up" while on duty. As the meeting was in the process of adjourning, Smoot approached Brooks and expressed her concern over the planned schedule change. In substance, Smoot explained to Brooks that she had always worked the same schedule and any change in her schedule would pose difficulties for her because she did not have a babysitter for her children. Brooks noted that the more senior employees would be permitted to retain their work schedules, and Smoot should not be concerned.9 Under practice prevailing at pertinent times at the Por- terville facility employees became aware of their work schedule for the ensuing week by virtue of schedules posted on Saturday evenings covering the following 7-day period. Individual employees became apprised of their own specif- ic work schedule in various ways, either by telephone or by personal observation of the content of the schedule follow- ing its posting. As a general rule, the waitress schedule was prepared by the manager of the Porterville facility, but, at pertinent times commencing with mid-April, Randy Brooks prepared some schedules and directed the prepara- tion of others. Due to unforeseeable developments of a personal or op- erational nature throughout any week, the work hours of any given employee did not always conform to his or her scheduled hours or days of work. 2. The alleged unfair labor practices a. Lusis speaks with McMurrer Soon after becoming manager at Porterville, Lusis ap- proached Terry McMurrey. a dishwasher at the Porterville restaurant, while McMurrey was on break and seated at the employee break table.' Lusis asked McMurrey if he had signed a union authorization card. He also inquired if McMurrey were going to join the Union. McMurrey re- sponded that if he wanted to join the Union, it was his own business. A few days later Lusis again approached McMurrey near the timecard rack and asked him if he were going to sign a union card and join the Union. McMurrey did not respond directly but told Lusis that he had another job to do and had to leave.I b. It. T Brooks and Padilla meet On or about April 21, H. 1'. Brooks visited the Porterville facility and engaged in a conversation with Padilla. The t Ihe foregoing is hbaed primarily upon the credited tesilmons of Rena Smoot and Ruhb I ulose J.ianeas I credit the testimnonS of Rands Brooks onill to the extent tha t his iesrinlon' is supportive of. or consistent with. the foreigoiing findings Specifica ll,. I do not credio Hrooks' tetiemomn to the effect that he gase Smin l. 1t no .ssuranes aga.inst a change In her wrk sched- ule In tcstilsing concerning this topic. Brooks proffered testimons during .arilus stages of the proceeding whicnh wa internalli inconsistent and self- clnlradictor'. "' I find I usls l a .ia .uper.sotr 'lrithin Ihe meaning of the Act when this consersatlion transpired. Ihr forego,\ln s :!. ino.rsn the credited testimnonl of lerrs McMur- res As I obsersed himn tesltfs during the course of the hearing, McMurres impressed me as a credible witness with respect io these itidclt, ; ind I flli no hasis flr discrediting his description of these ecent, Is.art I ili c ulld n11 recall having engaged McMurres in these ci'nsxera.til.tI but he s.sii uniilc to testifs that the conversa.i on ha.i nol trin spired 887 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation transpired at the employee break table in the small dining room. As they spoke, Brooks asked Padilla what he knew about the "union situation" at the store. Padilla surmized that a couple of employees had either seen or were planning to see a union representative. As Brooks and Padilla were seated together at the break table, Smoot passed by carrying several food platters. Smoot was aware that she was being observed by Brooks and Padilla. Brooks inquired if that were "Lou." Padilla replied that the waitress was Rena Smoot. Brooks com- mented that she looked as though she had been "slinging hash" for a long time. Padilla answered that Smoot and Janeway were probably the best two waitresses in the Por- terville operation. Brooks responded that there were "a lot of older" waitresses in the Porterville operation, and they were probably causing the union activity. Brooks stated that he preferred younger waitresses and instructed Padilla to hire three or four and to cut the working hours of Smoot and Janeway. Janeway was sitting several feet away during the latter portion of the conversation and overheard Brooks' comments.' 2 c. Padilla calls Randy Brooks After speaking with H. T. Brooks, Padilla placed a tele- phone call to Randy Brooks and, in due course, spoke with him. He told Brooks that he was confused by the conflict in instructions he had just received from H. T. Brooks and his own earlier instructions to retain the same work force at Porterville. In this connection, Padilla told Randy Brooks that his father had just instructed him to cut back on the hours of work for Smoot and Janeway and to employ three or four new waitresses. Randy Brooks stated that manage- ment thought that Smoot and Janeway were "sticking the Union in the Porterville store" and informed Padilla, in substance, to follow the instructions that H. T. Brooks had given him. Brooks added that Padilla should make out a schedule which would eliminate the high tip days of Satur- day and Sunday from Janeway's schedule and instructed Padilla to make Smoot work on Sunday. Padilla stated that he would make out a schedule, and Brooks informed Padil- la that he would be in that afternoon to check the schedule and approve it." 2 The foregoing is based upon a consideration of the testimony of Ernest Padilla and Ruby Louise Janeway I credited the testimony of H T. Brooks only to the extent that it is consistent with the foregoing findings. Specifical- ly, I am convinced Brooks' reference to the Union was not limited to an expression of a desire to have no discussion in the store by employees on duty, and I do not credit Brooks' denial of references during the conversa- tion to the involvement of older waitresses in the union activity and instruc- tion to Padilla to hire younger waitresses and cut the hours of Smoot and Janeway. In refusing to credit Brooks. I have taken into consideration his testimony to the effect that some of his most proficient waitresses were older women, and that he intended his "slinging hash" reference as a commentary on Smoot's proficiency. However, these concepts are in no manner inconsis- tent with the finding, which I make. that at the time in question Brooks harbored a desire not to have his Porterville facility unionized, and it is likely that he inferred from information at his disposal that interest in achieving a benefits program available through the auspices of a union ran highest among older waitresses. 3 The foregoing is based on the credited testimony of Ernest Padilla. I have carefully considered the testimony of Randy Brooks, and I am unable to credit his denials of the substance of his conversation with Padilla The d. The schedule changes accomplished As instructed, Padilla prepared a work schedule covering the last week of April. In the draft schedule, as submitted to Randy Brooks, Padilla removed Janeway from her Sat- urday and Sunday shifts and reduced her total number of hours of work to approximately 28. Smoot was scheduled to work a similar number of hours, and her work schedule was substantially revised. She was permitted to remain on her Sunday shift. A significant reduction in the total num- ber of scheduled hours for both Janeway and Smoot result- ed. The hours of no other waitress were reduced; some of the waitresses were assigned to work on days of the week to which they had not previously been assigned; and the hours withheld from Janeway and Smoot were allocated among three other waitresses, including a newly employed waitress, thus accomplishing an increase in the total num- ber of scheduled hours for two members of the previously existing waitress staff. '4 e. Janeway and Smoot react (I) Janeway talks to H. T. Brooks Both Janeway and Smoot learned of the schedule changes and when Janeway learned of the proposed change in her work schedule, she placed a telephone call to Randy Brooks and inquired as to the reason for the change. Brooks stated that the Company desired to bring younger waitresses into its employ, and the change had been made because of Janeway's age. Janeway stated that she did not think the decision was fair and that nothing had been mentioned to her theretofore. The telephone con- versation was a brief one, and Brooks assured Janeway he would get back to her. Soon thereafter, Randy Brooks con- tacted Janeway by telephone and stated that his father wished to speak to her. Janeway spoke to H. T. Brooks. testimony of Brooks on cross-examination with respect to this conversation vaned in a material sense from his testimonial denials elicited on direct examination. Moreover, the pretrial affidavit of Brooks strongly suggests the question of cutting the hours of Smoot and Janeway which arose dunng the subject telephone conversation, and a possible nexus between the change in hours and their involvement in union activities was broached. While there is a consistency between Brooks' testimony on direct examina- tion to the effect that he had no knowledge of their involvement with the Union at the time of the conversation and his supportive testimony on cross-examination in this respect, I found Padilla's descnption of the nature and content of the conversation more persuasive, and I credit him. 4 The credited testimony of Ernest Padilla, considered in light of the supporting testimony of Ruby Louise Janeway and Rena Smoot, establishes the foregoing. Padilla testified from his own recollection concerning the approximate number of hours deleted from the schedules of Janeway and Smoot for the last week of Aprl and the approximate increase in the hours of the three waitresses who benefited from the allocation of those hours. He was in possession of no document which supported his estimate. In reaching the determination that the cut in hours for Janeway and Smoot was "signifi- cant," I have considered Padilla's testimony together with that of Janeway. Smoot, Randy Brooks. and Ivars Lusis. I find it unnecessary to determine the precise number of hours deleted from the proposed schedule covering the work of Janeway and Smoc t during the last week of Apnl. Padilla testified that in accomplishing the schedule changes he assigned Smoot to work a Sunday shift. Significantly, Smoot's testimony contains no such reference and, considerin;l the importance to Snioot of Sunday as a free day in order to permit her to attend to the needs of her family. I am unable to credit Padilla's testimony that Smoot was assigned to work on Sundays. 888 PERKO'S INC. At the outset of the conversation, Janeway identified herself, and Brooks indicated he was aware of her problem. Thereupon, Janeway stated that her hours had been cut and that she would like to know the reason. Brooks in- quired if Randy told her the reason. Janeway answered in the affirmative and stated that Randy had informed her that her hours had been cut because he wanted to get "younger girls in there." Brooks answered, "Okay, then there is your answer." Janeway stated that she did not think this was fair and reiterated her earlier comment to Randy Brooks to the effect that the question of age had not been broached with her during the entire course of her employment with the Company. Brooks responded, "Well. that is what you get for joining the damn union." Janeway stated that she did not know what Brooks was referring to. and Brooks asked, "You didn't sign a union card?" Jane- way answered in the negative, and Brooks asked if Jane- way were certain. She responded affirmatively, and Brooks asked her if she would take a lie detector test. Janeway said she would, and Brooks again posed the question to her. Janeway answered, "Yes sir, if you will take it too, I will take one." Brooks asked why he should submit to a lie detector test, and Janeway then recounted the content of the conversation which she had overheard in the restaurant between Padilla and Randy Brooks relating to the suspect- ed role of the older waitresses in the effort to unionize the facility, as well as the related instruction issued by Brooks to reduce her hours of work and those of Smoot. Brooks was noncommittal in responding to Janeway's narrative and dropped the discussion of a lie detector test. However, he inquired if Janeway had a hairpiece. She stated that she did not, and Brooks instructed her to wear one the follow- ing day while she was on duty or she would be terminated. Janeway answered that her hair was too short to permit her to wear a hairpiece, but Brooks reiterated his instruction. adding he didn't care if she had to tie the hairpiece on. As the conversation drew to a close, Brooks stated that he was coming down to the store to take personal charge for a "couple of weeks" and that if he observed any of the waitresses smoking in the restaurant they would be termi- nated. Brooks added that before he would let the Por- terville facility "go union," he w,'ould convert it into an office complex.' 5 5 The foregoing is based upon the credited testimony of Rub) Louise Janeway. I have carefully evaluated the testimony of H. T. Brooks relating to this conversation and am unable to credit his version of the dialogue between him and Janeway. In crediting Janeway and rejecting the testimony of Brooks, I am convinced, contrary to the description proffered by Brooks. that during the course of the conversation Janeway neither confessed her activity on behalf of the Union nor proclaimed her dislike and disinterest In the Union. Further, I am unable to credit Brooks' testimony to the effect the subject of a lie detector test entered the conversation as a result of Janeway's profession of willingness to submit to such a test in order to establish her lack of involvement in the Union. While I am aware of the economic dependency upon her job which resid- ed with Janeway at the time of the conversation in question, as I observed Janeway testify at the hearing she did not impress me as a submissive indi- vidual easily cowed, and I discern no reason why, at that point in time. Janeway would have felt compelled to initiate a dialogue concerning her involvement with the Union. Nothing that Randy Brooks had stated in the earlier conversation would have served as a precursor to such a reference. and it is more likely, in my view, that the reference to union activities (2) Smoot speaks to Padilla When Smoot learned of the reduction in her scheduled hours, she approached Padilla and asked the reason for the reduction. Padilla told Smoot he had been instructed by Randy Brooks to cut back on the hours of the "older girls" and to employ some younger waitresses. Padilla volun- teered that Brooks wanted to oust the employees who were the instigators of the Union and that that was the real rea- son for the reduction. Smoot replied that she would not quit regardless of whether her hours were reduced or not.'6 f. Janeway and Nast converse The day following Janeway's conversation with H. T. Brooks, Thomas Nast placed a telephone call to Janreway. Prior to doing so, Nast had spoken with Brooks. In con- versing with Janeway, Nast identified himself as an attor- ney representing Perko's, and he stated that he was calling in regards to the conversation which had transpired the previous day between Janeway and Brooks. Nast then stat- ed, "Mr. Brooks told me that you had volunteered to take a lie detector test." Janeway agreed to take the test, and Nast gave her a telephone number to call. Then, Janeway responded that she would not take the test unless she cleared it with her attorney. Nast asked Janeway to pro- ceed to obtain such clearance and to let him know. Janeway then stated that she had a complaint to register and proceeded to inform Nast of the instructions which she had received from H. T. Brooks to wear a hairpiece. Jane- way informed Nast she had purchased a wig for $18 and could not wear it."7 Nast told her that she did not have to wear the wig, and she would be reimbursed if she would send him the bill. Janeway assured Nast she would do so and the conversation ended. Soon thereafter, Janeway placed a telephone call to Nast and informed Nast that her attorney had instructed her not to speak further with Nast concerning the matter. Nast noted her statement, thanked her for her call, and the con- versation ended. '8 originated with H. T Brooks This is so because, by the time this conversa- tion transpired, Brooks had developed a keen interest in countering the unionization effort which he opposed Moreover, a careful analysis of Brooks' testimony, as well as my observation of him as he appeared before me and testified as a witness with respect to the instant conversation. reveals an element of evasiveness and inconsistence which detracts substantially from the belhevability of Brooks' version of the conversation A careful analysis lof Brooks' testimony on direct examination and cross-examination. as well as a consideration of the pertinent content of his pretrial affidavit as delineated during the course of his testimony before me. requires a rejection of Brooks' testimony with respect to the instant conversation I6 the credited testimony of Rena Smoot establishes the foregoing. Ernest Padilla was not interrogated concerning this conversation. L The record establishes that following her conversation with Brooks. Janewas purchased ai hairpiece and wore it in the restaurant prior to going on duty as a means of focusing attention on the Incompatibility of her short hair style with the wearing of a hairplece. "' The foregoing is based upon the credited testimony of Thomas Nast I am unable to credit Janeway's version of the conversation. Intially. I relec Janeway's testimony to the effect that Nast informed her during the course of the consersation he had a tape recorder affixed to the telephone which permitted him to record the conversation if he decided to do so Moreover. I find implausible Janewas's testimony to the effect Nast asked her if she had signed a union card Further. I discern no convincing reason why a Con rin ued 889 DECISIONS OF NATIONAL LABOR RELATIONS BOARD g. The managers' meeting A few days later on or about April 27, H. T. Brooks held a meeting of store managers at the Saven Restaurant. In attendance were Randy Brooks, Ernest Padilla, and the managers of three other facilities operated under the direc- tion of H. T. Brooks. At the outset of the meeting, H. T. Brooks approached Padilla and asked how Janeway had found out about the reduction in her hours. Padilla replied that he did not know, but he surmized that Janeway may have overheard their earlier conversation because she had been sitting nearby when they had conversed a week earlier concerning the cutback." During the meeting, the organiz- ing effort at the Porterville store became a topic of discus- sion, and Randy Brooks stated that the Union was creating "pull-tug situation" in Porterville. H. T. Brooks noted the planned opening of the Selma store might have to be post- poned until the "Union situation" was settled. As the dis- cussion progressed, H. T. Brooks instructed Padilla to get rid of Smoot and Janeway, and he suggested that to facili- tate this he appoint Rosie Cantrell to the position of lead waitress and increase her pay. He also inquired if either Smoot or Janeway were smokers, and upon receiving an affirmative answer, he suggested Padilla issue a memoran- dum stating that employees who smoked either on or off duty would be terminated. He also instructed Padilla to enforce a rule requiring Smoot and Janeway to wear hair- pieces. Brooks subsequently retracted his nonsmoking sug- gestion stating that it might appear suspicious. In this con- nection, Brooks observed if the National Labor Relations Board ever learned he was "harassing" his employees he would be "in a lot of trouble." He observed, however, he would deny any such allegation. For his part, Randy Brooks observed the Union had harmed the Porterville em- ployees because the efforts to organize had caused conflicts and harmed morale. Randy Brooks stated, in effect, the friction derived from the notion of the employees that management did not want a union. 20 second telephone conversation initiated by Janeway would have been neces- sary if, as Janeway asserts, she had given a definitive commitment to Nast to submit to a polygraphic test during the initial conversation. As I view the matter, Nast was not so unsophisticated in the potential pitfalls of dealing openingly and directly with Janeway to have spoken in the manner attribut- ed to him by Janeway. l9 Janeway had spoken by telephone to Padilla following the earlier con- versation and had related what she had overheard. 20 The foregoing is based upon the credited testimony of Ernest Padilla. I credit the testimony of Randy Brooks and H. T Brooks only to the extent it is consistent with the foregoing findings. None of the three managers who attended the meeting was called as witnesses. although two of the three were shown to still be in the employ of Respondent. I specifically do not credit the testimony of H. T. Brooks to the effect the meeting in question did not transpire unitl May, and at the point in time of the meeting, he had no kniowledge of the Board or its processes. Further. I do not credit H. T. Brooks' testimony that there was little or no talk of the organizational effort underway at Porterville. This testimony is at variance with that of Randy Brooks and Ernest Padilla. On the whole. H. T. Brooks' accounting of his recollection of the meeting is not worthy of credit. The accounting contained in the testimony of Randy Brooks was highly equivo- cal and rationalized and will not stand careful scrutiny when compared against the more convincing testimony of Padilla. h. The extent of the schedule change Smoot and Janeway credibly testified that they worked a diminished number of hours during the last week of April. However, Smoot's work schedule for the following week was again revised to accord her a greater number of sched- uled hours of work. The record reflects that, for the 2-week period ending May 5, Smoot actually was compensated for 71.5 hours of work, as contrasted to the 86.5 hours of work for which she was paid during the 2-week period ending April 2 0.21 i. Randy Brooks speaks with Padilla and Janeway In the meantime, on the afternoon of May 2 after Jane- way had completed her shift, she participated in a conver- sation with Padilla and Randy Brooks. Brooks had ap- proached Janeway and stated that he wished to speak with her and Padilla. Thereupon Brooks stated that he believed the employees respected Padilla and Janeway, and he in- quired if they could obtain the confidence of the employees and assist him in extracting the Company from the "union mess." He noted in this regard if this could be done, it would be a "a feather in his hat" with his father and that he would reward Padilla and Janeway. Both Janeway and Pa- dilla were noncommittal. Brooks added that if the Union were not successfully countered, the "store would be closed 22 j. The termination of Janeway The termination of Janeway transpired on May 4. Jane- way had come to the Porterville restaurant as a customer during her off-duty hours. While she was in the coffeeshop portion of the facility, Randy Brooks approached Janeway and engaged her in a general conversation. After they had conversed together for a short period of time, Janeway re- quested Brooks to cancel her company insurance explain- ing she had purchased some insurance from another source because she could obtain "a more reasonable rate." A cus- tomer was seated at the counter approximately 5 feet away when Janeway made this comment. Upon hearing Janeway's request, Brooks requested Janeway to come with him into his office. Janeway picked up her cup of coffee and followed Brooks into his office. After Janeway had entered the office, Brooks kicked the door closed with his foot and said, "Lou, you have to quit talking about the company." Janeway responded that she did not know what he was talking about. Then, Brooks asked Janeway if she had signed a union card. Janeway answered in the affirma- tive and Brooks stated, in substance, that in doing so Jane- way was inferring the Company was no good. Janeway stated that this was not accurate, but by signing a union card she was merely seeking to have better insurance and " During the 2-week period ending April 20, Janeway was compensated for 83 hours of work. The payroll records in evidence do not reflect the number of hours for which Janeway was paid between April 21 and May 4, when she was terminated. 22 The foregoing is based upon the credited testimony of Ruby Louise Janeway. I do not credit the testimony of Randy Brooks with respect to this incident. 890 PERKO'S INC. benefits from the Company. Thereupon Brooks stated that he was going to speak with Nast. 23 Thereupon, Brooks placed a telephone call to Nast and stated to Nast, "Louise is in the store causing a problem at the front. She is running the company down, saying she is overcharged for insurance in front of customers. She wants to talk to you." Nast told Brooks to wait a moment and he secured a file containing, among other records, a timecard and insurance records pertaining to Janeway. When Nast was ready to converse with Janeway he so indicated, and Brooks handed the telephone to Janeway who commenced her conversation with Nast. As they began to speak togeth- er, Janeway received the impression Nast was recording the conversation. She communicated her suspicion to Nast. Nast was using a speaker telephone which amplified the voices of the participants in the conversation and which rendered use of the conventional receiver unnecessary. Nast's secretary heard Janeway speaking. Nast denied he was recording the conversation but Janeway said in a raised voice, "Get off that thing." She added that if Nast would do so she would talk to him. Nast refused, and Nast instructed her to give the telephone to Brooks. Janeway did so. Brooks came on the line and Nast stated, "lf the wom- an will not talk to me, I cannot solve the problem. So ter- minate her." Brooks answered, "Okay," and the conversa- tion ended. At this point, Brooks turned to Janeway and said, "Lou, I hate to do it, but Mr. Nast says I have to fire you, and I have to do it." Brooks assured Janeway it had nothing to do with her work performance or her ability as a waitress. He noted, however, she was being terminated because she had called H. T. Brooks a liar. Janeway denied having done so. The meeting ended on this note.24 Smoot observed Brooks soon after Janeway's termina- tion, and he appeared visibly shaken. He denied having terminated Janeway. Later that evening Brooks contacted Janeway by tele- phone and again stated his regrets over the necessity of 23 The foregoing is based upon the credited testimony of Ruby Louise Janeway. I have carefully considered the testimony of Randy Brooks in light of that of Janeway. Rena Smoot, the related testimony of James Nast, and the content of Brooks' pretrial affidavit. This analysis provides no basis for crediting Brooks to the effect that, in the office Janeway lodged com- plaints about the high cost of the company insurance coverage and the failure of the Company to compensate her for overtime worked, thus giving rise to a verbal dispute in which voices were raised. Janeway's testimony lends no support to this version, and the record establishes, in speaking subsequently to Nast, Brooks' concern was only with Janeway's asserted disparagement of the Company in front of customers. On the other hand, I do not credit Janeway's testimony to the effect that before calling Nast, Brooks stated he was going to have to fire Janeway. This testimony is illogical when viewed against subsequent happenings, and Janeway showed a lack of certitude on this score when questioned on cross- examination. 24 The foregoing is based upon a composite of the credited testimony of Ruby Louise Janeway, Thomas Nast, and Janis John. I have also consid- ered the testimony of Randy Brooks and credited it only to the extent it is consistent with the foregoing. To the extent the testimony of either Nast or Janeway is at vanance with the above finding, I reject their respective testi- mony. In this specific regard, in finding that Janeway was firm and definitive in her refusal to speak with Nast on the telephone instrument over which he was then conversaing, I reject the testimony of Janeway to the effect that her declination was not terse, declarative, or loudly spoken. having to terminate her. As he had earlier done, he assured Janeway her work performance was not a factor and that the action was taken on orders of Nast.2 5 k. The May 5 employee meeting After close of business on May 5, the day following Janeway's termination, the Company held a meeting of employees at its Porterville facility. The employees were paid for the time spent in attending the meeting. Nast pre- sided at the meeting, and Randy Brooks was also in atten- dance. Nast commenced the meeting by sketching a brief his- tory of the Company and outlining its corporate structure. He alluded to financial losses suffered at the Sanger facility of the Company and stated that Randy Brooks was at the Porterville facility to assist in improving its operation. In this connection, Nast stated that the Porterville restaurant was also losing money and alluded to the need for cutting the hours of work of employees. Nast referred to the rela- tionship between the wages of the employees and the pros- perity of the Company and stated that if the operation prospered, the employees who desired it would receive a raise and would benefit. He asked the employees to give management "another chance" and wait for a time to see what happened. During the course of his remarks, Nast expressed the preference of the Company for a nonunion operation but assured the employees of their right to decide the question free from threats or coercion either from employer or union sources. As the meeting progressed, employees endeavored to draw Nast into a discussion of specific issues relating to the organization of the operation, but he refrained from any philosophical exchange. However, Nast stated, in this re- gard, the Company had a right to know what had been said to the employees regarding the Union, and he asked the employees to raise their hands if they had been promised anything by the Union. There was no show of hands. Nevertheless, Nast stated that he was aware that em- ployees had signed authorization cards and expressed a de- sire to know who had signed cards and who had "dealings" with the Union. He then asked for a further show of hands. Again, no hands were raised. At this juncture, Chuck Mc- Lenithan, a supervisor of the Company, addressed the group and remarked about the apparent "feeling of ani- mosity between employees and management" that was dis- cernible to him. He suggested that the employees "open up." In response, one of the employees made a statement invoking Nast's response that the Company could not in- terfere with the employees' rights to organize. This led to a recess of the meeting, and Padilla, who had been in atten- dance, left the meeting room. However, Padilla returned to the meeting when it re- sumed and addressed a question to Nast. He referred to Janeway and stated that, "probably the best waitress in the store" had been terminated. Padilla asked if it were true Janeway had been terminated for refusing to talk to him. - The credited testimony of Ruhb Louise Janeway and Rena Smoot es- tablishes the foregoing. 891 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nast confirmed that this was the reason. Padilla then noted Janeway had not been on duty at the time of her refusal and inquired into Nast's authority to have taken the action. Before Nast could answer. Smoot interjected and asked if it were not true that Janeway had been terminated because of the Union. Nast offered no reply. As the meeting continued. Smoot inquired whether the hours of work had been cut because of the Union. Before Nast could answer, McLenithan interjected and stated the schedule modification had been placed into effect in an attempt to reduce labor costs. Smoot asked, "Well, if that is true, how come newer girls are getting the hours I had?" McLenithan denied that the reduction in hours was related to the Union. Dee Edwards, a waitress at the Porterville facility, then expressed her concern over the fact only Smoot and Padilla seemed to understand the background of the matter then under discussion and only they knew "anything about the Union." This caused Padilla to assert, "We all knew what we were getting into when we signed these cards, and what was ahead of us." Nast commented, "Well, wait a minute, I thought that nobody talked to the Union." 26 1. The termination of Ernest Padilla (1) Padilla's resignation as acting assistant manager A few days after the termination of Janeway, Padilla spoke with Brooks in the kitchen of the Porterville facility. He informed Brooks he was no longer willing to serve as acting assistant manager and expressed his unwillingness to participate in the manipulation of the work of employ- ees, including Smoot, in order to "get rid" of them because management thought them to be interested in unionizing the operation. Padilla stated that he did not believe such manipulation was right. Randy Brooks replied that his fa- ther had told him to "kind of cool it," but Padilla adhered to his decision to resign as acting assistant manager. As they spoke, Brooks inquired whether Padilla felt the Union was causing conflict among the employees. Padilla remarked that some of the employees favored a union while others did not. As a consequence of this discussion, Padilla resigned his position as acting assistant manager and returned to his former position as lead cook with no supervisory authority. 27 26 The foregoing is based primarily upon a composite of the credited testi- mony of Ernest Padilla. Rena Smoot, and Thomas Nast. I have also consid- ered the testimony of Randy Brooks. Marie Edwards, J. C. Reese. and Peter Alamanaza and credit that testimony only to the extent it is consistent with the findings above made. Specifically. I do not credit the thrust of the testimony of Alamanaza, Reese, and Edwards relating to the paucity of dialogue concerning the Union during the course of the meeting. The testi- mony of Nast establishes he did ask employees for a show of hands with respect to union contacts and exaggerated claims advanced by union repre- sentatives to employees. In this context. I am unable to credit Nast's denial to the effect that no reference was made during the course of the meeting to union authorization cards or to the termination of Janeway. I conclude his recollection in this regard is faulty, and I find the testimony of Smoot and Padilla more reliable in this regard. 27 The foregoing is based upon a composite of the credited testimony of Ernest Padilla and Randy Brooks. (2) The termination effectuated During Padilla's shift on May 19, he approached a booth in the main dining room of the Porterville facility in which H. T. Brooks was seated. Brooks told Padilla he wished to speak to him in order to review a set of general work rules which Brooks had in his possession. Padilla sat down, and he and Brooks briefly discussed the rules. As they were seated in the booth, Brooks asked Padilla if he was still angry over the termination of Janeway. Brooks added that he did not wish Padilla to be angry because they were good friends and wished Padilla to be part of the management team. Brooks noted that he had too much invested in the Porterville facility to permit it to be unionized, and assert- ed that he would rather change the restaurant facility into an office complex. Padilla responded, in substance, that he had heard so many conflicting positions from so many differ- ent individuals that he did not wish to talk about the matter of the Union and his own future. 28 On May 21, 22, and 23, Respondent ran a prime rib sepcial at its Porterville restaurant. On Saturday evening, May 22, at approximately 6 p.m., Padilla entered the res- taurant accompanied by Janeway and her son. Padilla had not worked during that day or the previous day because they were his normal days off. Janeway had not been in the facility since her termination. Padilla, Janeway, and Janeway's son entered the restaurant as customers and were seated at a booth in the main dining room immedi- ately upon entering the restaurant. After they had been seated for a few minutes, they were observed by H. T. Brooks who was present at the facility in connection with the special. Upon observing Janeway, Brooks approached the booth where Janeway and Padilla were seated and asked Janeway if she had not been informed she was not to be in the Porterville facility or any of the other facilities operated by the Company. Janeway answered in the nega- tive, and Brooks stated he was informing Janeway of this and admonished her to leave when she had completed her meal. Brooks left and returned to the kitchen where he was assisting in the preparation of the food. Padilla, Janeway, and her son were served and in ap- proximately 30 minutes completed their meal. They lin- gered for 5 or 10 minutes, and Brooks was aware of this. He placed a telephone call to Nast and thereafter ap- proached the booth and sat down next to Padilla. Janeway and her son were seated across the table in the same booth. In a conversational tone, Brooks stated that he wanted Pa- dilla and Janeway to leave the store. Janeway answered that they were merely having dinner, and when they had completed the dinner, they would leave. Brooks stated that if it were necessary he would call the police, and Janeway stated that if he desired to do so he should. Brooks asserted that Janeway was coming into the store and poisoning the minds of the employees, but Janeway answered she was merely having dinner. Brooks interjected that the differ- ence between Janeway and himself was his money, and Janeway answered that if he was going to "burn in hell" his money would do him no good. Brooks responded that, in the meantime, his money would help him "take care of 28 The credited testimony of Ernest Padilla establishes the foregoing. 892 be be permitted to work. Brooks stated that if Padilla was creating disturbances he should be asked to leave the res- taurant.3 0 Padilla was summoned to the telephone and he spoke with Brooks. Brooks asked Padilla what he was doing at the restaurant, and Padilla answered that he was there to work. Brooks stated, "You quit last night," but Padilla stat- ed that he had not done so. Brooks asserted, in substance, that Padilla's lying would not alter the matter, and added Padilla should watch the people with whom he associated. He made further reference to Padilla's asserted relationship with Janeway to which Padilla responded, "Mr. Brooks, I don't know what you're trying to do, but I did not quit." On this note, Padilla hung up the telephone. Padilla did not work in Respondent's employ thereaf- ter. Hie subsequently applied for unemployment compensa- tion, and he informed the agent there existed a "discrepen- cy" or "uncertainty" with respect to whether he had quit or was terminated. Then, approximately a month after filing for unemployment compensation, Padilla dispatched a let- ter to Brooks indicating his willingness to resume his em- ployment. In the letter Padilla also made reference to "sec- ondhand reports" from employees of the Company to the effect Brooks was interested in reinstating him. This led to an exchange of correspondence and a face-to-face conver- sation between Brooks and Padilla. The conversation transpired at a facility of the Company approximately 5 weeks after Padilla had filed for unem- ployment compensation. In speaking with Brooks, Padilla stated, in effect, he could not understand why he had been treated in the manner he had been. Brooks stated, in sub- stance, that he realized Padilla had done a good job, but he objected to the people he "hung around with." Padilla sug- gested that he was speaking about Janeway, Smoot, and the Union, but Brooks was not responsive in this regard and expressed the hope Padilla had "learned a lesson." Brooks added he did not want Padilla to "associate with those kind [sicJ of people anymore." Padilla responded that Brooks could not tell him with whom he could associate. Padilla added that Brooks "could take the job back" be- cause he didn't want it. The conversation ended, and Padil- la did not thereafter speak with Brooks concerning em- ployment." m. Brooks speaks with Smoot On May 19 H. T. Brooks spoke with Smoot in the small dining room of the Porterville facility. The conversation was initiated by Brooks who asked why Smoot had been avoiding him. Smoot stated that she had not been doing so, but Brooks asserted that Smoot had made a comment that morning to the effect he, Brooks, had come to the restau- rant to "harass" Smoot about the Union. Smoot asked Brooks what she was supposed to believe since he had not even attended the grand opening of the Porterville restau- rant. Brooks stated that he was not there to harass but to 1" The credited testimons of Ialrs Iusl, and Ernesl Padilla supports Ihe foregoing. The foregoing is based prlmarlls upon Ihe credited testirmons of Ernest Padilla,. as supported in certain iniLances hs the testilmons of Rena Smoot. I do not credit the iestrimlns of } I H Brooks to the extent it i, Inconsistent aith the foreotlng findings. sluts like you." Brooks then spoke directly to Padilla and stated that he had better make up his mind whether he wanted to "go any place" with the Company or whether he preferred to associate with "people like this." Padilla respond- ed, "Mr. Brooks, you are helping me make up my mind." Thereupon, Brooks arose and left the booth smiling. After he had done so, Janeway's son asked the meaning of the word "slut." At the time of this conversation, and prior to the time Brooks approached the booth, the 100-seat restaurant was fully occupied and customers were waiting to be seated. Upon leaving the booth, Brooks summoned the police. In essentially contemporaneous fashion, Padilla, Janeway. and her son left the booth and departed the restaurant. As they exited, they were met by two police officers, and a brief discussion ensued. No citations were issued nor ar- rests made.29 After Padilla and Janeway had left the restaurant, Brooks informed Ivars Lusis, then serving as assistant manager of the Porterville facility, that Padilla had quit. Brooks instructed Lusis to find a replacement for him. The following morning at approximately 5:30 a.m., Pa- dilla reported for duty at the Porterville facility wearing part of his uniform. Lusis asked Padilla what he was doing there, noting he had been informed by Brooks that he had quit. Padilla stated he was present to report for duty and that he had not quit his job. Padilla added that it looked like a "set-up" and noted he was scheduled to work and was going to work. Lusis responded, however, that Padilla was not going to work and scratched Padilla's name from the cooks' schedule. Nonetheless, Padilla proceeded to the kitchen, but Lusis would not let him enter. He told Padilla that if he wished to speak with Brooks, he would be in the facility later on and Padilla should sit out in front and wait. Padilla acquiesced, and Lusis placed a telephone call to Brooks. In due course, Brooks returned the call, and Lusis related the events which had transpired. Brooks responded that Padilla had quit and under no circumstances should 29 The foregoing findings are based primarily upon the credited testimony of Ernest Padilla and Ruby Louise Janeway. I have also considered the testimony of H. T. Brooks and credit it only to the extent it is consistent with the foregoing findings. Specifically, I credit the testimony of H. T. Brooks to the effect that during the critical portions of the presence of Janeway and Padilla in the restaurant there was a demand for table accommodations due to the influx of customers. Moreover, I credit Brooks to the effect Padilla and Janewas lingered at their table after the completion of their meal. Janeway and Pa- dilla conceded they were at the restaurant for a minimum of 60 minutes. and finding that Brooks approached them initially very soon after thes were first seated is based upon their testimony. Further, both Padilla and Jane- way estimate that approximately 30 minutes was consumed in the service and completion of the meal. The second conversation at the booth between Brooks, Janeway, and Padilla was not an extended one, and it is thus clear Brooks was essentially accurate in his testimony he was motivated to ap- proach the table a second time by the demonstrated intention of Padilla and Janeway to continue to occupy the booth while customers were waiting table accommodations. On the other hand, I am unable to credit the testimony of H. 1. Brooks suggesting his comments to Padilla and Janewa) were essentially bland and limited at the outset to his desire to have access to the booth in order to serve waiting customers. The testimony of neither Padilla nor Janewav In any of its elements supports the inferences of Brooks' testimon . and other record evidence establishes hostility to employees whom he believed to be supportive of the organizing effort. as well as his resort to direct. earths terminology in articulating his directives concerning them. PERKO'S IN(. 893 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assist in revitalizing the operation and helping the employ- ees to do their jobs. Brooks handed Smoot a copy of em- ployee rules stating these were going to be followed, and everybody was going to do their job. Smoot observed that if management would leave the employees alone and stop causing conflict between them, this could be accomplished. Brooks denied management was the source of conflict and reiterated he was merely interested in having the employees do their job. Smoot stated that Janeway had "done a good job" and inquired why she had been terminated. Brooks did not respond and Smoot stated, "Well, you know I am for the Union." She added that if a vote were held, every- thing would be straightened out. Brooks replied that he was not going to have his "stores going Union." Smoot responded that the employees were interested in organizing only the Porterville facility. In this connection, Brooks stated that he would convert the facility to office buildings or sell it to someone else and permit them to hire new employees. This led Brooks to explain the extent of his financial investment in the operation and, in context of Brooks' remarks, Smoot observed that Nast had stated the hours of employees had been cut because of the Union. Brooks responded, "Yeah, and if you don't like that, I can cut them out altogether." Smoot asked if that was a threat and Brooks responded, "When you threaten a child, don't you usually carry. through?" Smoot answered, in substance, that she raised her voice all the time to her children but had never carried out her threats. This ended the conversation between them. o. The May schedule changes During the week that followed, the scheduled working hours for many employees, including Rena Smoot, were modified by Lusis. Lusis accomplished these schedule revi- sions on the recommendation of H. T. Brooks. Brooks had suggested that Lusis hire new employees to "replace the people that were expected to be leaving in the future" and to schedule sufficient hours of work for them to integrate them into the operation. In order to achieve this, Lusis cut the hours of work of certain of the personnel. Smoot's hours were reduced, and she was scheduled for Sunday work. Lusis accomplished this because he felt it was "expe- dient" to cut the hours of work of the employees to whom Brooks kept referring. In explanation for his actions, Lusis testified: Generally, just the fact that someone's hours had to be cut, and based on what Mr. Brooks had informed me, he said it would be advantageous if she [Smoot] did leave, and I felt that possibly in the process of cutting her hours, she would leave .... When he made the schedule change, Lusis was aware that Smoot had not theretofore been scheduled for Sunday work because of a babysitting problem. Lusis anticipated that under future schedules he would continue to assign Smoot to a Sunday shift. p. Smoot resigns her employment n. Smoot speaks with Lusis A few days later, on Padilla's last day of work, Smoot spoke with Lusis at the employee break table and asked Lusis why Padilla had been sent home. She asserted he had not quit. Lusis replied he had been following Brooks' in- structions. As they conversed together, Smoot asked Lusis when they were going to get rid of her. She added, "You know they are trying to get rid of me because of the Union and everything. They think I helped start it." Lusis replied that he knew "everything they have been doing," adding rhetor- ically, "But I didn't say that." Smoot answered that she would not quit, and the Company would have to terminate her in order to get rid of her. Lusis replied that this may come sooner than Smoot might think. Lusis then added the Company had been "thinking about tearing the wall out of the small dining room and remodeling" but with the prob- lems they were having with employees, management might close the facility for 2 or 3 months and remodel completely. As the conversation continued, Lusis and Smoot dis- cussed the percentage of votes necessary to obtain union representation. Lusis ventured the prediction that the Union would not prevail because the employees would not vote for it. Smoot asked why management would not let the matter go to a vote. Lusis responded, in substance, management harbored apprehension over the outcome of the election. 2 r2 rhe credited and undisputed testimony of Rena Smoot establishes the foregoing, Ihe testimony of T erry McMurrey lends support to Smoot's testl- Smoot learned of the scheduled change on Tuesday, May 24, when she reported for work in time for her 6:30 a.m. shift. She spoke with Lusis and explained to him she could not work the proposed schedule, because she had to pick up her children at school at 4 p.m. on weekdays. She noted that Randy Brooks had assured her neither her hours nor days of work would be changed. Lusis responded that when Randy commenced managing the facility, he could start scheduling the work. Lusis added, "Besides, I don't want your husband in here before we open in the morn- ing." Smoot asked for an explanation of this, stating, in substance, that Lusis had observed her husband in the res- taurant prior to opening and had never commented to her about the matter. Lusis was noncommittal and refused to modify the schedule. The following morning, Smoot entered the restaurant at approximately 7 a.m. and informed Lusis that she was re- signing. Smoot apologized for the short notice but ex- plained she could no longer take the "harassment" as evi- denced by the schedule changes and the directives concerning the length of her hair. She added that she could not take "all the conflict" and continue to work under the existing conditions and so was quitting. Smoot inferred the "harassment" had resulted from her interest in the Union, but Lusis denied this. Smoot handed Lusis he.' apron and Lusis said, "Well, I don't blame you." Soon thereafter Lusis contacted the Fresno office by telephone and requested that Smoot's final paycheck be issued because she had resigned. Approximately 30 min- moln. I do not credit the denial interposed by H. T. Brooks. 894 PERKO'S INC. utes later, Nast telephoned Lusis and with reference to Smoot said, "Congratulations. How did you do it?" Lusis replied Smoot had quit because of the schedule changes he had made. 33 During the month of May, following Janeway's termina- tion and prior to the separation of Smoot from employ- ment, H. T. Brooks spoke with Smoot and asked when she was going to put her hair up. Smoot responded that her hair was too short to be "put up" and consequently there was nothing she could do about the matter. Brooks did not thereafter speak with Smoot on the topic. However, approximately 45 minutes later, Lusis ap- proached Smoot, and Smoot inquired why Brooks was "bugging" her about her hair. She observed that her hair was too short to be put up. Lusis responded that he could not understand the matter either. On several occasions prior to the termination of Smoot, however, H. T. Brooks spoke to Lusis concerning the length of Smoot's hair and inquired if she had "gotten her hair up." Moreover, Randy Brooks pursued the matter fre- quently with Lusis. Lusis spoke to Smoot about the length of her hair, and Smoot took the position her hair was too short to be worn in the style suggested. Lusis found Smoot's hairstyle unobjectionable when measured against the standards applicable to foodhandlers and waitresses in the restaurant business.34 Smoot credibly testified, in substance, that commencing soon after she started working at Porterville, her husband came daily to the restaurant while she was on duty. Her husband, Rusty Smoot, was working nearby and would pa- tronize the restaurant as a customer. He frequently patron- ized the restaurant in the early morning hours and would be in the facility with Smoot 30 minutes before the restau- rant was opened to the public. After Lusis registered his disapproval of the practice on May 24, Rusty Smoot ceased coming to the restaurant during the early morning hours. It was not uncommon for employees to dine in the restaurant as customers with their families.3 5 3. Respondent's defense outlined As of March 31, the Porterville facility was operating at a loss. Representatives of the Company testified the sched- ule of hours for all waitresses at the Porterville facility, 33 A composite of the testimony of Rena Smoot and lvars Lusis supports these findings. I am unable to credit Lusis' testimony that, in assuring Smoot the difficulties she was experiencing in her employment were not related to her union activities. he felt he was speaking the truth. This frag- ment of testimony is inconsistent with the thrust and meaning of much of Lusis' testimony relating to Smoot and cannot be reconciled. I do not credit Lusis in this respect. 34 The foregoing is based upon the credited testimony of Rena Smoot and Ivars Lusts. At the time of the heanng. Smoot's hair was short when mea- sured by any commonly accepted standard. Lusis was of the opinion that Smoot was wearing her hair longer at the time of the hearing than the period preceding her resignation. 5 Both Smoot and Janeway smoked. and they testified that at no Ilme prior to the mid-April period coinciding with the emergence of the organiz- ing effort were they ever reprimanded for their smoking habits while on restaurant premises. There is no evidence suggesting that they smoked on duty at any time material. H. T. Brooks testified, in substance, that the rules he sought to enforce at Porterville relating to smoking were common ones in the industry and were ones in effect throughout his restaurant chain. including Janeway and Smoot, was modified to lower the ratio between cost of labor and volume of sales; to more evenly distribute the hours of work among the waitresses; to facilitate improved opportunity on the part of supervi- sion to observe all employees; and to improve the efficien- cy of Smoot, Janeway, and all other waitresses by bringing their hours into close conformity with the standard of 30- 35 hours per week customary in the industry. H. T. Brooks denied that these schedule changes were related, in any manner, to the organizing efforts in progress at Porterville in April and May. He testified further that schedule changes are routine in the restaurant business, and the re- scheduling of the hours of work of Smoot and Janeway was in no manner unusual. In this connection, payroll records in evidence reveal that following Janeway's termination. waitresses at Por- terville frequently worked an average approximating 35 hours per week and the hours of many exceeded that fig- ure. In a similar context, H. T. Brooks testified that he did not consider either Janeway or Smoot to be too old to serve proficiently as waitresses and knew some of his best wait- ress employees to be 20 years senior to either Janeway or Smoot. Insofar as hair styles for waitresses are concerned, Brooks testified that he required the hair to be worn "off the neck" or that hairpieces be worn. This was a universal require- ment in Respondent's enterprise, according to Brooks. Randy Brooks testified that, after coming to Porterville, he observed Janeway while she was on duty at the restau- rant facility. He testified in this respect that as he observed her performing her work duties, she was "very loud" and "a little bit later than she should have" been in picking up her orders. She had a tendency, according to Brooks, to excessively engage in conversations with customers and he, Brooks, overheard some of those conversations and was informed by other employees concerning certain other as- serted remarks made by Janeway to customers. Nast testified that more than once Randy Brooks in- formed him of Janeway's alleged tendency to converse ex- cessively with customers, and Brooks also told Nast she repeatedly spoke to employees about alleged overcharges on the part of the Company for insurance coverage. Nast further testified that he was informed by Randy Brooks that Janeway had spoken both to other employees and to customers about her "overtime pay." Respondent proffered testimony to the effect that at var- ious times during the term of her employment Janeway had raised issues concerning the Company's asserted failure to properly credit her with overtime work and the alleged pol- icy to overcharge for insurance coverage. Additionally. the record establishes, as found, Janeway requested Nast to compensate her for a hairpiece which she purchased at the instructions of H. T. Brooks. Conclusions A. Interference. Restraint, and Coercion I find that Respondent violated Section 8(a)( I) and (3) of the Act. as alleged in the amended complaint. 895 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the outset, it is essential to conclude the Union's organizing effort on behalf of the employees at Respondent's Porterville facility was, in a sense, a van- guard effort on behalf of an employee segment of a dy- namic and growing enterprise with many separate facil- ities; none of which had ever been organized by any labor organization. The record establishes that principal authori- ty over the operations of the enterprise resided with H. T. Brooks and Thomas Nast, with Brooks having the more intimate day-to-day involvement in the operational aspects of the coffeeshop and restaurant chain. The record estab- lishes also that Brooks and Nast opposed unionizing of the chain and sought to foreclose a successful effort by the Union at the Porterville facility. A careful analysis of the record evidence convinces me the opposition of Brooks and Nast to the concept of an organized employee segment at Porterville led them to adopt counter techniques which exceeded the permissible limits of Section 8(c) of the Act and which intruded markedly into the protected area of employee activities defined by Section 7 of the Act. While the approach of Nast was low-keyed, the conduct of Brooks in seeking to counter prounion manifestations of his employees at Porterville was neither subtle nor well dis- guised. Brooks' approach may have been attributable in small measure to his lack of sophistication in labor rela- tions matters, but this trier of fact is compelled by the rec- ord to conclude that, in point of fact, Brooks' verbal forays defining his open opposition to a unionized facility were intentionally open, direct, and abrasive with the object of maximizing their tactical effect. In this connection, his statements of opposition communicated both to supervi- sion and management alike were sufficiently frequent to disclose not only a fixed attitude of opposition to union representation for his employees, but to define the parame- ters of a carefully coordinated campaign to diffuse the or- ganizing effort, and to fine-tune the eventual exodus from employment of the leading employee proponents thereof. Thus, conduct and statements, which in a different context and on a different record would be, at first blush, discount- able on credibility grounds as unlikely to emanate from a responsible manager, take on a persuasive hue and require acceptance and credence when attributable to the prime mover of the instant Company, H. T. Brooks. In short. I find merit in the contention of the General Counsel that the utterances of Brooks to or in the presence of rank-and- file employees over a span of 5 weeks, during the height of the Union's organizing efforts, were impermissible within the meaning of Section 8(a)(1) of the Act. Chronologically the initial intrusion by Brooks, into the protected area accorded employees by Section 7 of the Act to freely select a collective-bargaining agent, transpired at the Porterville facility during the course of a conversation between Brooks and Padilla overheard by Janeway. As found, Brooks, in substance, in speaking with Padilla, in- cluded Smoot and Janeway in the group of "older" wait- resses "probably" causing the union difficulties in the store. The evidence establishes to my satisfaction, as con- tended by the General Counsel, that Janeway overheard these comments as well as the instructions Brooks issued to Padilla to hire younger waitresses and to accomplish a cut- back in the hours of work for both Smoot and Janeway. These statements heard by Janeway clearly were calculated to have an inhibiting effect upon Janeway in exercising her right to seek collective representation for herself and other employees at the Porterville store. The comments in ques- tion constituted impermissible threats and created in the mind of Janeway the concept Brooks was engaging in sur- veillance of the union activities of his employees. Hendel Manufacturing Company, Incorporated, 197 NLRB 1093 (1972); Marland One-Way Clutch Co., Inc., 200 NLRB 316 (1972). Closely related to the foregoing, both in time and in the character of the intrusion of Brooks into the privileged area accorded employees by Section 7 of the Act, is Brooks' comment to Janeway on April 22, or thereabouts, when Janeway called Brooks by telephone to inquire about the reduction in her hours. As found, Brooks, in substance, declared that the reduction was but a concomitant conse- quence of Janeway's involvement in the Union. The Gen- eral Counsel correctly defines this statement as a violation of Section 8 (a)(1) of the Act. Celotto, Inc. d/b/a Dreamland Bedding, 221 NLRB 1082, 1085 (1975). In further chronological sequence, Brooks, during the course of the same conversation with Janeway, unlawfully interrogated Janeway concerning her card-signing activi- ties in support of the Union. Brooks issued a clear threat of plant closure by declaring his own personal determination to convert the Porterville facility into an office complex, rather than permit the Union to organize the Porterville employees. Falcon Tank Corp., 194 NLRB 333 (1971); Swain Manufacturing Company, 201 NLRB 681, 684 (1975). As the record discloses, and as is disclosed by the evi- dentiary findings above made, conduct impermissible un- der Section 8(a)(1) of the Act was not limited to H. T. Brooks alone, but was perpetrated also by Randy Brooks, the son of H. T. Brooks, and by Thomas Nast. Thus, within 10 days of being subjected to unlawful in- terrogation and threats by H. T. Brooks, Janeway was again the recipient of an implicit threat to her economic well-being when she was informed by Randy Brooks, dur- ing the course of a conversation between Janeway, Padilla, and Brooks, the Porterville facility would be closed if the union efforts succeeded. This threat, closely tied to an ac- companying request that Janeway and Padilla use their standing among the employees to assist the Company in countering the organizing effort of the Union, was clearly impermissible under Section 8(a)(1) of the Act. The impli- cation of reward to flow from any successful effort by Janeway and/or Padilla adds to the gravity of Randy Brooks' unlawful solicitation. Allou Distributors, Inc., 201 NLRB 47, 52 (1973); JFB Manufacturing, Inc., 208 NLRB 2, 6 (1973); Swain Manufacturing Company, supra. Further, as contended by the General Counsel, Randy Brooks unlawfully interrogated Janeway on May 4, during the course of a conversation in his office, when he ques- tioned her about her card-signing activities. Perhaps the most telling assault by management upon the freedoms accorded its employees to organize tran- spired during the course of the May 5 meeting presided over by Nast and held at the Porterville facility. The asser- tion by Nast to the assembled employee group to the effect that employes had been in contact with the Union and that 896 PERKO'S INC. the Company had a right to know what had been stated to employees by the representatives of the Union was clearly impermissible when joined with a technique of polling em- ployees by a raise of hands on the series of questions relat- ing to employee contact with the Union and involvement of employees in union activities on company time. This conduct on the part of Nast constituted unlawful interro- gation and polling of employees and created the impres- sion that their union activities were under surveillance by management. See Murcole, Inc.. 204 NLRB 228, 234-235 (1973); Fredeman's Calcasieu Locks Shipyard, Inc., 206 NLRB 399 (1973). See also Struksnes Construction Co. 165 NLRB 1062 (1967). The unlawful nature of the statements and conduct of Nast was not changed by the fact that they were preceded by a permissible 8(c) speech by Nast and by oblique assurances to employees that the show of hands would result in no reprisals. Crow Inc., 206 NLRB 439, 443 (1973). The evidence compels the further conclusion that H. T. Brooks again returned to his verbal assault upon employee efforts to organize the Porterville store when, on May 19, during the course of his conversation with Smoot, he ex- pressed his unwillingness to permit his restaurant operation to be unionized and his related preference to convert the Porterville facility into an office building or to sell it out- right.36 As found, these statements were accompanied by references which would compel Smoot to conclude that her employment at Porterville would be ceased if Brooks car- ried out his unlawful threat. The threat took on added sig- nificance because of its juxtaposition to the suggestion of Smoot the matter of union representation be settled by an election. See Mike O'Connor Chevrolet-Buick-GMC Co., Inc., et al. 209 NLRB 701 (1974). The entire interlude as- sumed a more aggravated character when Brooks retorted he could cut Smoot's hours entirely as a reaction to her involvement in the union effort. As the General Counsel correctly contends, the statement connoted a willingness on the part of Brooks to terminate Smoot rather than coun- tenance her involvement with the Union. See Loggins Meat Co., supra. The coordinated nature of Respondent's unyielding ef- fort to defeat the organizing effort of the Union is dis- played by Ivars Lusis' interrogation of McMurrey as to whether he had signed a union card and the May 22 state- ments of Lusis to Smoot who was inquiring into the recent termination of Padilla. The evidentiary findings, herein made, compel the conclusion, as contended by the General Counsel, that in informing Smoot that her termination might transpire with unexpected haste Lusis unlawfully threatened Smoot in violation of Section 8(a)( I) of the Act. This is so because, in speaking with Smoot, Lusis had con- ceded that management had been harassing Smoot in order to get her to resign her employment, and he accompanied his prediction by a further advisory to the effect that in the face of the problems being encountered with the employ- ees, management might revise its plans to partially remodel 3' On the same day, Brooks expressed this same sentiment to Ernest Pa- dilla who had returned to a rank-and-file position as lead cook. The General Counsel does not allege this as a violation of Sec 8(a(1 ), and I make no finding to that effect. the Porterville facility by opting to close down entirely for a significant period in order to completely remodel. I find, in agreement with the General Counsel, this latter state- ment by a supervisor and managing agent constituted an unlawful threat of adverse economic consequences to flow from continued union activity. B. The U'nlawful Discrimination I. Summary conclusions In further agreement with the General Counsel, I find Respondent violated the Act by accomplishing a reduction in the scheduled hours of work of Janeway and Smoot; by terminating Janeway and Ernest Padilla and by causing the constructive discharge of Smoot. The opposition of Re- spondent to the unionizing of its Porterville facility is clear- ly established, and the willingness of management to trench upon protections accorded employees by the Act in order to give efficacious effect to its antiunion policies is indelibly revealed by 8(a)(1 violations found above. The record evidence, carefully analyzed, provides ample basis for the finding here made that management was fully con- vinced of the involvement of Janeway and Smoot in the advocacy of collective representation at the time it under- took to reduce and reschedule their hours of work and to otherwise secure their voluntary severance through a pro- cess of harassment. Similarly, there can be no valid chal- lenge to the implicit contention of the General Counsel that Padilla's exodus from the work force occurred at a time when H. T. Brooks and Thomas Nast had learned of his association with, and ideological affinity to, Janeway's advocacy of the Union. 2. The unlawful schedule adjustments It would unduly burden this decision to recount the fac- tual findings supporting the conclusion, which I reach, that H. T. Brooks issued the operative directives designed to foster the disenchantment and the eventual resignation of Janeway and Smoot. He did this, I find, by mandating a negative or adverse adjustment in their work schedule and by badgering them to comply with the letter of minor work rules pertaining to the wearing of hairpieces and on-duty smoking. In this regard. the credited record evidence estab- lishes Brooks confided to supervision and management the union-related basis for his instructions, thus compelling re- jection of Respondent's contention that the rules were fair- ly applied and enforced against all employees as part of a "new broom" approach to regenerate the quality of opera- tion at Porterville. Specifically, with respect to the modifi- cation in the working schedule of Janeway and Smoot, Brooks instructed Padilla to cut the hours of employees whom he identified by name and whom he suspected of supporting the Union, and he candidly conceded to Jane- way and Smoot the connection between the scheduled changes and their own involvement with the Union. In the face of ample evidence of Brooks' personal opposition to the Union. and the resultant harassment of Janeway and Smoot both contemporaneous and subsequent to the work schedule changes, the economic explanations proffered by 897 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in support of the schedule modification will not stand scrutiny. In this regard, Respondent does not challenge the proficiency or efficiency of either Janeway or Smoot. Yet, only Janeway and Smoot, among the day wait- resses, were subjected to a switch of working days and a significant reduction in their scheduled hours. Moreover, Respondent's own records contain data suggesting a high degree of sophistry in the foundational contention the hours of Janeway and Smoot prior to the schedule modifi- cation were excessive when measured against industry norms and against optimum labor percentage criteria. In point of fact, there is little support in the record for the notion that a more favorable labor percentage was achieved by the reduction in the hours of work of either Janeway or Smoot, and, as contended by the General Counsel, there is persuasive data to support the conclusion subsequent to the expulsion of Janeway and Smoot from the work force, that other waitresses maintained a work schedule as intense as that which Respondent asserts was inappropriate managerially and operationally for Janeway and Smoot. But such an assessment is essentially superflu- ous for if some elements of economic justification for im- plementing the schedule changes are assumed, the conclu- sion compelled by the record evidence is that the schedule modifications were primarily effectuated to harass Jane- way and Smoot by visiting adverse economic and personal consequences upon them with the object of causing them either to abandon their leadership effort in the union un- dertaking or to accomplish their resignation from the work force. 3. The constructive discharge of Smoot Most closely identified analytically with a "successful" fruition of Respondent's scheme is the separation of Rena Smoot. The General Counsel is quite correct in the contention that, in the days immediately preceding Smoot's resigna- tion, she was subjected to renewed schedule modifications calculated to reduce her income and to work personal hardships upon her. It is not sufficient on the record before me to contend, as Respondent inferentially does, that Smoot merely experienced the inconveniences normally to be expected in the employment relationship arising from operational changes calculated to improve efficiency and profits. Rather, the credited evidence establishes that Smoot's scheduled hours were reduced and she was forced to work on Sunday as an integral element of a plan ad- vanced by top management through supervision to encour- age Smoot's voluntary resignation. It is also clear from sub- stantial evidence of record that Smoot's resignation was desired not because of any lack of proficiency on her part as a waitress, but solely because she had been, and was continuing to be, instrumental in furthering the organizing efforts of the employees. Thus, management was fully aware of Smoot's union activities, and the new Porterville manager, Lusis, drafted the schedule changes affecting Smoot in direct response to the inducements of Randy Brooks. The record compels the conclusion the scheduling of Smoot for Sunday work was especially onerous because of her family responsibilities, and management fully appre- ciated the negative impact flowing from this action. Addi- tionally, it is essential to conclude management fully antic- ipated the schedule change would have a "last straw" ef- fect, for in the days which had preceded the schedule modification, not only had Smoot been the recipient of a threat to her job tenure at the hands of the principal owner of the enterprise, H. T. Brooks, but she had been subjected to petty verbal harassment concerning her hair style, even though Lusis, the principal conduit of Brooks' criticism of Slasoot's hair length, considered it fully acceptable under industry norms and clearly suspected Brooks' motives in hounding Smoot.37 Moreover, in the preceding 3 weeks Smoot had seen Janeway and Padilla leave the Company under circumstances suggesting to her a causal relationship between their espousal of the Union and their loss of em- ployment. Clearly, given the context of the described events, including the termination of her compatriots; the threat uttered to her by Brooks on May 19; the reduction in her work hours and adverse adjustment in her scheduled days of work; and the petty harassment concerning her hair, it was reasonable for Smoot to have assumed that her work environment and income would continue to erode because of her past involvement with the Union. In a real sense, viewed from Smoot's vantage point, she had no ac- ceptable option short of acquiescence except resignation. She chose the latter course. When compelled by exigencies supplied by the employer, a severance under the described circumstances becomes unlawful and is viewed as a con- structive discharge violative of Section 8(a)(1) and (3) of the Act. Pre-Cast Mfg. Co., 200 NLRB 135 (1972).38 4. The termination of Janeway Similarly violative of the Act was the termination of Janeway following her refusal on May 4 to continue to engage in a telephone conversation with Thomas Nast. I find no merit in Respondent's contention that Janeway was terminated for cause. In evaluating the validity of the General Counsel's aver- ral that Janeway's termination was unlawful, scrutiny must be given to the precise circumstances in which her sever- ance was effectuated. It is to be remembered that Janeway was a principal proponent of the Union at the Porterville facility, and she had been identified by management as such. Moreover, as found, H. T. Brooks had initiated a program of harassment designed to secure Janeway's resig- nation or her abandonment of her support of the Union. Further, she had been bluntly informed by H. T. Brooks that a nexus existed between her involvement in the union cause and the reduction in her scheduled hours of work, and she was threatened with economic hardship to follow, 7 Smoot may well have viewed Lusis' order to cease bringing her hus- band to the restaurant prior to opening hours as a further element in the war of nerves directed against her, but her assessment is misplaced because Lusis was not acting in a disparate manner and there was sound basis for his directive. 38 As the General Counsel correctly notes. Smoot's submission of her resignation came as no surprise to Lusis who accomplished the schedule changes and, for his part, Lusis received the congratulations of Nast when he informed Nast of Smoot's decision to leave Respondent's employment. This evidence is deemed to support the finding of a violation. 898 PERKO'S INC. if the Union effort was successful. Finally, Randy Brooks was acquainted on May 4 with the desire of his father, H. T. Brooks, to force Janeway from the employment rolls if she did not prescind from her advocacy of the Union. The crucial telephone conversation with Nast on May 4 had been preceded, to be certain, by a request initiated by Janeway that her company insurance coverage be discon- tinued. As noted by Respondent, the request was uttered in the public area of the restaurant, but her request was ad- vanced in conversational tones and she verbalized no dis- paragement of the coverage available through the Compa- ny, although she noted she had obtained alternate coverage at more reasonable rates. Randy Brooks, who was the re- cipient of the request, interpreted the request as open and adverse criticism of the insurance program offered by the Company, although Brooks' mental interpolations, more than the literal content of Janeway's request, served as the basis for Brooks' interpretation. Because of his sensitivity to the insurance matter, with its obvious symbolic and lit- eral association to the larger question of employee benefits. Brooks associated Janeway's request to terminate her com- pany insurance coverage with a generic, underlying dissat- isfaction on Janeway's part with working conditions, which had manifested itself in Janeway's advocacy of a union; and Brooks interrogated Janeway about her card signing and union activities. It is significant, in my view of the record, that in contact- ing Nast by telephone on May 4 and thereby initiating the exchange between Janeway and Nast which led to Janeway's termination, Brooks misrepresented to Nast the nature of Janeway's actual remarks earlier made in the public area of the restaurant, distorting them by incorrectly asserting Janeway had publicly disparaged the Company. This distortion resulted, I find, partially as a result of the knee-jerk mental process described above, and partially from a realization on the part of Randy Brooks that by casting his report to Nast in the negative tones and shad- ings enumerated, Janeway's hold on her job would be di- minished, in furtherance of the enunciated objective of H. T. Brooks." It was, then, in context of Brooks' basical- ly inaccurate description of Janeway's conduct and com- ments in the restaurant that the truncated dialogue be- tween Janeway and Nast transpired. It is, of course, true that when she was handed the tele- phone by Brooks and heard the amplification of the voices over Nast's speaker telephone at the other end, Janeway refused to converse with Nast on the instrument which he was then using. It is further true Janeway was intemperate in her refusal, but her reluctance was not entirely unrea- sonable, for Nast conceded testimonially that others had commented about the voice distortions caused by his speaker phone. Nevertheless, Nast treated Janeway's refus- al to converse with him as a provocation sufficient to war- rant her summary termination. He did not remonstrate with her. He did not warn her of the consequences of her refusal. He gave her no second chance. He summarily or- 39 Randy Brooks' subsequent protestations of regret over Janeway's ter- minations were undoubtedly guilt-ridden but, the record shows Rands Brooks was an obedient, if somewhat reluctant, minion in carrying out the dictates of top management comprised of H. T Brooks and Thomas Nast. dered her termination. In all the circumstances, even as- suming an element of discourtesy and disdain in Janeway's remarks sufficient to constitute insubordination, the evi- dence memorialized by the instant record compels rejec- tion of the notion Nast was motivated solely by nondis- criminatory considerations in terminating Janeway.4 Rather, the record evidence requires the conclusion, which I reach, that Nast saw in Janeway's declination an oppor- tunity for accomplishing Janeway's termination on color- ably legitimate grounds, thus fulfilling the objectives of management to control union advocacy by expunging it through "resignations" or submission. The record contains insufficient evidence to support the assertion of Respondent the information in Nast's posses- sion, concerning grievances which Janeway had expressed to supervision and management pertaining to work-related matters, contributed in any significant respect to Nast's decision to terminate Janeway. The time available to Nast to accomplish a careful evaluation of Janeway's personnel file assertedly containing a documentation of Janeway's grievances against the Company was, by any reasonable interpretation of Nast's own testimony, too brief to have permitted anything more than a cursory glance at its con- tents and a related correlation of that material with other information subject to Nast's immediate recall. Rather, the record suggests, far from being a reasoned response based on an evenhanded evaluation of Janeway's merits as an employee, Nast's actions were calculated and opportunis- tic, generated by hostility towards Janeway because of her leadership in espousing the Union. Notably, the deep an- tipathy of top management towards Janeway found expres- sion in the conduct of H. T. Brooks even after her termina- tion, as witness the otherwise inexplicable behavior of H. T. Brooks towards Janeway on the night of May 22 when she visited the restaurant as a customer to partake of the prime rib special. In sum, I find the principal motivation of Nast's decision to terminate Janeway was Janeway's involvement in seek- ing to obtain union representation for the employees at the Porterville facility. Given the presence of discriminatory motivation, on the part of Nast who accomplished the ter- mination, it is of no decisional consequence there existed sufficient grounds otherwise justifying Nast's action. I con- clude and find Janeway's termination violated Section 8(a)(3) and (1) of the Act. 41 5. The termination of Ernest Padilla I also find that Respondent terminated Ernest Padilla because of his affinity to Janeway's advocacy of collective representation and his own role on behalf of the Union. ". The General Counsel notes that Janeway was in an off-duty status when she conversed with Nast and was acting out of sufferance and not duty in speaking with Nast This is doubtless so, but arguendo off-duty insubordination mas well form a sufficient basis for termination, absent antiunion considerations 41 That Janeway sought alternative relief by filing a charge with the Equal Employment Opportunity Commission does not alter the matter It is suffi- cient that the allegations of the complaint with respect to Janeway's termi- nation were supported hb the preponderance of the credible evidence In ans event. the EEOC charge was not mutually exclusive with the redress sought by the auspices of the Board 899 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the evidence establishes, the events which led to the termination of Padilla were telescoped within a time frame of less than 3 weeks. On May 10 Padilla resigned his posi- tion as acting assistant manager and returned to the rank- and-file responsibility as lead cook. He accomplished his resignation by a statement of his unwillingness to continue to "manipulate" the employees in order to assist the Com- pany in countering the Union. Padilla declared his refusal to Randy Brooks, and in explanation for his decision stat- ed also that he suspected Janeway's termination had result- ed from her involvement with the Union. This statement was but a reiteration of a state of mind which he had dis- closed in an open meeting on May 5 in the presence of Nast and Randy Brooks. Then, just 3 days prior to the events which led directly to Padilla's severance, Padilla was identified by Randy Brooks as one of the employees who was sympathetic to the Union. It is significant the declaration of Padilla's status came during the course of a conversation between Randy Brooks and Ivars Lusis, who had been newly designated as the manager of the Por- terville facility. There is no basis for assuming Randy Brooks was merely articulating his own suspicions, or that top management was indifferent to Padilla's support of the union cause. On the other hand, it is not significant that management had not acted earlier to purge Padilla from the work force. He had accorded no pretext for severance action, and there is basis enough in the record for inferring that prior to the May 22 incident management had har- bored hopes of Padilla's "redemption" and was biding its time in the event he did not recant. Suffice to find, as I do, there existed a significant degree of disapproval and ani- mus on the part of Respondent's management, including H. T. Brooks, towards Padilla when, on the evening of May 22, Padilla made an appearance at the Porterville fa- cility for the purpose of dining as a customer of the restau- rant together with Ruby Louise Janeway and Janeway's son. As I view the record evidence, only the presence of deep and overriding hostility on the part of H. T. Brooks towards Janeway could have motivated Brooks to have acted to her in the manner in which he did. In a related context, only a smoldering resentment fanned by Padilla's May 22 display of unity with Janeway would serve to ex- plain the ultimatum issued by Brooks to Padilla concerning the lack of wisdom in terms of continued progress with the Company of Padilla's continued association with Janeway. It is clear that in warning Padilla concerning his associa- tions with Janeway, Brooks was concerned with Janeway's activist propensities; he was not proffering an abstract commentary on Padilla's social life. Again, nothing in Padilla's behavior on the night of May 22 prior to his de- parture from the restaurant had given Brooks a rational ground for accomplishing Padilla's summary termination, a fact which Brooks recognized when he abstained from formally declaring Padilla's severance. It is, then, an accurate measure of the hostilities which Brooks harbored towards Padilla because of his identity with the union cause and its principal proponents that he so readily seized upon Padilla's ambiguous declaration of his employment intention by set- ting in motion the operative instruction sufficient to accom- plish Padilla's severance. Again, as I view the record, nothing transpired during the course of the incident in the restaurant on the evening of May 22, as would have justified so ready an acceptance of Padilla's asserted proffer of a resignation. Certainly if objective evaluation of Padilla's conduct had governed Brooks' decision the following day, on May 23, when Pa- dilla reported for work ready to assume his duties, Brooks would have acted with greater compassion towards Padilla than he displayed. Instead, he acted with anger and leveled charges which served merely to emphasize his own preoc- cupation with Padilla's association with Janeway, the union activist. The record evidence requires the conclusion that Padilla's termination was caused in principal part because of his demonstrated affinity towards the union cause and those who had advanced that cause among the employee group at Porterville. I find the explanation advanced by Respondent as to Padilla's termination was pretextual, and his discharge violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in section I11, above, occurring in connection with the operations of Re- spondent, described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has committed certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. The parties having stipulated and agreed that Perko En- terprises, Inc., is a legal successor to Respondent, and the parties having further stipulated that Perko Enterprises, Inc., would be bound by any remedial order which might ultimately issue in these proceedings, it is hereby specifical- ly found that Perko Enterprises, Inc., together with Re- spondent Perko's, Inc., are and shall be jointly and sev- erally bound by the provisions of the remedial order herein. Having found that Respondent discriminatorily termi- nated the employment of Ruby Louise Janeway, Ernest Pa- dilla, and Rena Smoot because they engaged in union or other protected concerted activities, and having further found that for the same reason, Respondent unlawfully re- duced the hours of work of Janeway and Smoot, all in violation of Section 8(a)(3) and (1) of the Act, I shall rec- ommend that Respondent offer Janeway, Padilla, and Smoot immediate and full reinstatement to their former positions of employment, or if said positions are no longer available, to substantially equivalent positions, without 41 Although the record suggests that a form "reinstatement" was offered to Padilla by Respondent which he declined to accept, said offer of rein- statement was not unconditional in nature and did not serve to eradicate or terminate the reinstatement obligation of Respondent with respect to Ernest Padilla. 900 PERKO'S INC. prejudice to any seniority or other rights and privileges to which said discriminatees may be entitled.42 I shall also recommend that Respondent make whole Janeway. Padil- la, and Smoot for any loss of earnings they may have suf- fered by reason of the discrimination against them. Back- pay shall be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950). together with interest thereon in accordance with the policy of the Board. set forth in Florida Steel Corporation, 231 NLRB 651 (1977).43 Because the violations of Section 8(a)(3) and (1) of the Act perpetrated by Respondent go to the heart of the Act. a broad cease-and-desist order shall be recommended. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the fol- lowing: CONC.LUSIONS OF LAW 1. Perko's, Inc., and Perko Enterprises, Inc., are em- ployers engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Culinary, Cooks, Bartenders and Hotel, Motel. Ser- vice Employees Union, Local 62, Hotel and Restaurant Employees and Bartenders International Union. AFI CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Perko Enterprises, Inc., is a legal successor to Perko's. Inc., and is jointly and severally, together with Perko's, Inc., subject to the terms of the remedial order herein. 4. By interrogating employees concerning their union activities; by polling employees concerning their senti- ments concerning the Union, and/or their involvement in union activities; by threatening employees with cessation of business or closure of the Porterville restaurant facility for the purpose of discouraging their involvement in union activities; by creating the impression that the union and protected concerted activities of employees were under sur- veillance by supervision and management; by reducing the scheduled hours of work of employees in order to discour- age support for the Union and involvement in union or protected concerted activities; and by threatening employ- ees with termination in the event they continued to engage in union or protected concerted activities, Respondent en- gaged in conduct in violation of Section 8(a)( l) of the Act. 5. By terminating the employment of Ruby Louise Jane- way and Ernest Padilla. and by constructively discharging Rena Smoot, all because they engaged in protected con- certed activities in support of the Union, Respondent en- gaged in conduct in violation of Section 8(a)(3) and ( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 43 See, generally, Isis Plumhing & Iteuing (-,.. 138 N RB 716 ( 1962 ORDER 44 The Respondent, Perko's, Inc.. Porterville. California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Culinary. Cooks, Bar- tenders and Hotel. Motel. Service Employees Union, Local 62. Hotel and Restaurant Emplosees and Bartenders Inter- national Union, AFL C10, or any other labor organiza- tion, by unlawfully terminating the employment of its em- ployees. or by causing the constructive discharge of any employee, or by discriminating in any other manner with respect to the hire or tenure of employment or term or condition of employment of any employee in violation of Section 8(a)(3) of the Act. (b) Interrogating employees concerning their union ac- tivities; polling employees concerning their sentiments con- cerning the Union, or their involvement in union activities: threatening employees with cessation of business or closure of the Porterville restaurant facility for the purpose of dis- couraging their involvement in union activities: creating the impression that the union and protected concerted ac- tivities of employees were under surveillance by supervi- sion and management: reducing the scheduled hours of work of employees in order to discourage support for the Union and involvement in union or protected concerted activities: and threatening employees with termination in the event they continued to engage in union or protected concerted activities. (c) In any other manner interfering with, restraining, or coercing an' employee in the exercise of the right to en- gage in self-organization, to bargain collectively through representatives of their own choosing or to act together for collective bargaining or mutual aid or protection. or to refrain from an,: or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make Rubs Louise Janeway. Ernest Padilla, and Rena Smoot whole for any loss of wages which they) may have suffered by reason of the discrimination against them, in accordance with the recommendation set forth in the section of this Decision entitled. "The Remedy." (b) Preserve and, upon request. make available to the Board, or its agents, for examination and copying, all pay- roll records, social security payment records. timecards, personnel records and reports, and all other records neces- sar' to analyze the amount of backpay due under this rec- ommended Order. (c) Post at its Porterville. California, restaurant and cof- feeshop, copies of the attached notice marked "Appen- dix. " 45 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed 4 In the esent no exceptlim ;ire filed a, pro, idedl hb Sec 102 46 of the Rules and Reguliarons of Ihe Naton.l I .Ihtr Relations Board. ihe finding.l conclusions, and recommended Order herein shall. .t ploided in Sc, 10248 of the Rules and Regulalons. he. aIdpled hi Ihe Boa.lr d 1 beomelll Its findings. conclus.Ins. and ( rder. and .ll ibjec.iiinn Iheret, h a.ll he deemn ed waived for all purposes ~ In Ihe esenrt that Ihe Boird , Order is enf.orced h, in Judgmenl of a t n!lied Salte ( i irl if Appe, sl the isords In the iltlce re.adillu Pusted h, O)rder of the N.ltional i .ihor Reliatlion Boaird" hall read "Potcd Pursuant ( ' in unlied 901 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director of the National Labor Relations Board for Region 32, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. 902