Royal Fork of Washington, Inc.

ROYAL FORK OF WASH 185 Royal Fork of Washington , Inc. and Hotel, Motel and Restaurant Employees Union , Local No. 294 affiliated with Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Case 19-CA-4134 October 17, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA 2. Add the following as the last indented paragraph of the notice: WE WILL notify the above-named employee, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act, and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On June 24, 1969, Trial Examiner George Christensen issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of such allegations. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition, and in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Royal Fork of Washington, Inc., Yakima, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 5 and renumber the following paragraphs accordingly: 5. Notify the above-named employee if presently serving in the Armed Forces of the United States, of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. GEORGE CHRISTENSEN, Trial Examiner The Examiner conducted a hearing at Yakima, Washington, on January 14 and 15, 1969, into issues raised by a November 25, 1968, complaint' alleging that Royal Fork of Washington, Inc. (Respondent) violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (Act) in July and August of 1968.1 There is no dispute over jurisdiction, the status of the Union as a labor organization, the appropriateness of the employee unit the Union sought to represent, and the supervisory and agency status of the Respondent's general manager, Will Long, and its unit manager, Ron Wine' The issues are whether Long and Wine coercively interrogated or conversed with various unit employees in July; whether Respondent on about August 1 imposed more onerous working conditions on union supporters among its employees than they had previously had; whether certain wage increases were granted about July 31 in the regular and ordinary course of business or to discourage union support, whether Respondent discharged unit employees Wayne Duff and Myrtle Darst in July because of their union activities or for cause; whether Respondent constructively discharged unit employees Glenn Cassidy, Ronald Craig and Michael Munsterman in August and, if so, whether they were so discharged because of their union activities or for cause, whether David Hayson was a supervisor at the time of his discharge in July and, if not, whether he was discharged for union activity or for cause, whether the Union on July 18 and subsequently represented a majority of Respondent's employees in the unit, whether the Respondent refused to recognize and bargain with the Union because of a good-faith doubt of its majority representative status or for the purpose of gaining time to undermine the Union and dissipate its support among the unit employees; lastly, whether by any one or more of the above acts, if found, Respondent violated Section 8(a) of the Act. All parties appeared at the hearing and were afforded full opportunity to introduce evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs were submitted by the General Counsel and the Respondent. Based upon his review of the entire record, observation of the witnesses, perusal of the briefs and research, the Examiner enters the following- 'A charge and amended charges were filed with the Regional Office on September 20, October 21, and November 22, 1968 'All events occurred in 1968 'The supervisory status of Ethel Pierce, the head cook, and Edwin Schaffner, after his promotion from the unit to replace David Hayson as assistant unit manager, is likewise undisputed 179 NLRB No. 28 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The Respondent admitted the jurisdictional facts and conclusions alleged in the complaint regarding commerce and labor organization. The Examiner therefore finds and concludes that the Respondent was an employer engaged in commerce and in a business affecting commerce and the Union was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act at all times pertinent II. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1 Allegations I The individual interrogations and July 30 meeting The Union mailed a letter to Unit Manager Wine at Yakima on July 22 asserting its representation of majority of Respondent's unit employees, declaring its willingness to submit its authorization cards for a cross-check against current payroll records by a disinterested party, notifying Respondent it had filed a petition with the Board for certification as the employees' majority representative,4 and stating it desired a meeting with the Respondent for the purpose of negotiating a contract covering their wages, hours and working conditions. It was received by Wine and brought to the attention of General Manager Long on July 24.' Between that date (July 24) and July 30, Long and Wine conducted a series of interrogations of the unit employees On July 24, Long asked Michael Munsterman whether he had joined the Union; Munsterman replied that he had. Shortly thereafter, at the serving line, Wine asked Munsterman who the union "instigators" were; Munsterman replied that he would rather not say. Wine then stated that he knew who one of them was, namely, Myrtle Darst Munsterman agreed that was so, and stated he and Ronald Craig were also He also named Paul Haysom as a union supporter.6 Wine stated he would like to have Munsterman repeat his statements to Long. Munsterman and Wine proceeded to Long's office, where Munsterman repeated to Long that he, Craig and Darst were the union leaders among the employees Long expressed his dismay at the employees seeking union representation, stated they were going behind his back, that unions were communistic, and that he was going to fight the union. Craig came into the restaurant later that same day (July 24) to turn in his time (he was not scheduled to work that day) Munsterman advised Craig he had told Long and Wine that he, Craig and Darst were the union leaders among the employees. Long saw Craig and told him he wanted to talk to him. Craig waited awhile but, aware he would be late if he did not leave to go home and change clothes for an appointment, left without seeing Long. Long telephoned him after he arrived home, and asked him why he was supporting the Union Craig responded that he did not believe the employees were 'Case 19-RC-4879 With the approval of the Regional Director, the petition was withdrawn without prejudice in February of 1969 'Haysom's testimony that Wine and Long discussed the letter with him on July 24 is undisputed 'Wine so testified being treated right Long asked who else had joined. Craig did not respond. Long stated he was disappointed in Craig and his going behind his back to the Union. He ended the conversation by saying he would see Craig in the morning. The following day Craig was called into Long's office. Both Long and Wine were present Long repeated his inquiry as to why Craig had joined the Union, and Craig gave the same answer As he had with Munsterman, Long characterized support of unions as a step towards communism, that unions were bad for Craig and for his children, stated that he (Long) did not want his children growing up in a place where a person could not run his own business, asserted the employees were being treated fairly, and expressed his disappointment in Craig for supporting the Union Long also contacted Carol Roberts at the restaurant in late July, and asked her if she had signed a union card She replied that she had Long then asked why in hell she had signed something like that, to which she made no response Long also interrogated Dorothy Bergens between July 24 and July 30 on the subject of whether she had signed a union authorization card and received a negative response. Wine interrogated Richard Granberg and Michael Mastel He asked Granberg whether he had signed anything showing his intention to join the Union Granberg replied that he had. Wine asked him why. Granberg responded that he did not think he was receiving a fair wage for the work he was performing. Wine replied that he ought to look for a better job if he was dissatisfied with his present one Granberg stated he had been looking, but without success Wine ended the exchange by wishing Granberg good luck in his job search. As to Mastel, Wine opened the conversation by asking Mastel if he had signed a union card Mastel said that he had. Wine asked him why. Mastel replied that he liked the money it had been indicated the Union might secure for the employees. Wine rejoined that Mastel could look for a higher paying job, at which Mastel remained silent. Wine subsequently referred to Granberg as Jimmy Hoffa and to Mastel as Dave Beck. Both Long and Wine also interviewed Edwin Schaffner during the latter part of July' On learning that Schaffner had signed a union authorization card, Long reiterated his disappointment in Schaffner and his negative opinion of the Union and unions in general . Schaffner was asked to name all of the employees he knew who had signed cards for the Union Schaffner named Craig, Munsterman, Darst, Mastel, Earl Wayne Duff, and was not sure as to others. Long did not testify, Wine did not deny any of the statements attributed to him other than a general denial that he knew Darst was a union leader at any time prior to her July 28 discharge (which is not credited) and conceded that he and Long did interrogate unit employees because, as he put it, "Mr. Long did not have the feeling that the majority of the employees were interested in the union. .." The Respondent called a meeting of all unit employees at the restaurant after the close of business on July 30. The meeting commenced at approximately 10.00 p.m. It was attended by Long, Wine and most of the unit employees (the day help did not attend). Long chaired the meeting and repeated the comments he had made earliei to individual employees regarding his opposition to the Union He asked why the employees were dissatisfied. The employees responded with complaints over not being 'Schaffner was still within the unit at this time ROYAL FORK OF WASH. 187 furnished uniforms, lack of adequate ventilation, working conditions and wages. Long stated that since some jobs had been eliminated (Darst, Duff and Haysom were discharged in late July)' there was more money for wage increases and suggested that employees desiring wage increases see him the following day Craig asked why Darst, Duff and Haysom were terminated Long declined to give a reason. Long also asked those who had signed cards for the Union to hold up their hands. Some of the employees who had signed held up their hands. Craig commented that three who had signed cards were not there, i e., Darst, Duff and Haysom. The Respondent did not deny the interrogations nor the testimony of what occurred at the July 30 meeting; the defense advanced was that they were noncoercive and good-faith inquiries to determine the validity of the Union's July 22 claim of majority representative status among the unit employees. It is clear, however, that both the individual inquiries and the July 30 poll went far beyond the limits set out in the Struksnes decision' for such efforts, as the Board stated in that case In our view any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights .. . That such fear is not without foundation is demonstrated by the innumerable cases in which the prelude to discrimination was the employer's inquiries as to the union sympathies of his employees. . . We have . determined . . to adopt the following criteria Absent unusual circumstances, the polling of employees will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed. (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere In this case, neither Long nor Wine advised the employees they interrogated individually about their union support between July 24 and 30, nor those who were asked to hold up their hands at the July 30 meeting if they were union supporters, that they were simply trying to determine if the Union's July 22 claim of majority representative status was valid, nor did they assure such employees that no reprisal was intended, nor did they employ a secret ballot The late July discharge of union adherent, Haysom, admittedly for having sought to conceal his affiliation with the Union, the late July discharges of union adherents, Darst and Duff,'° the termination of Van Finger at the opening of the July 30 meeting, and the antiunion tone of Long's remarks both in the individual interrogations and at the July 30 meeting, hardly constitute the noncoercive atmosphere required by 'Michael Van Finger also was terminated at the July 31 meeting Wine asked what he was doing there (Van Finger had earlier indicated he intended to quit) Van Finger replied that he still was an employee and wanted to know what was going on Wine asked him what date he was quitting Van Finger said he had not decided. Wine told him he would make up his mind for him , at which Van Finger stated in that case, he would quit Wine then requested that he leave the meeting and Van Finger did so, before the meeting commenced 'Struksnes Construction Co, Inc, 165 NLRB No 102 the Board's Struksnes decision. The Examiner therefore finds and concludes that by their interrogations of unit employees Munsterman, Craig, Roberts, Borgens, Granberg, Mastel and Schaffner between July 24 and 30 concerning their union support and activities and those of other employees, as detailed above, Long and Wine violated Section 8(a)(1) of the Act. The Examiner further finds and concludes that by his poll of unit employees on July 30 at the mass meeting concerning their union support, as detailed above, Long violated Section 8(a)(1) of the Act 2. The wage increases and interrogation of Corning and Emhoff The complaint alleges four wage increases granted about July 30 to take effect August 1 were violative of Section 8(a)(1) of the Act in that they were intended to influence the employees to which they were granted either to refrain from supporting the Union or to cease their union support. The Respondent defends on the ground the increases were granted either due to promotion, changed (increased) job responsibilities or meritorious job performance. The four employees who received increases effective August 1 were Edwin Schaffner, whose rate of pay was increased from $1.60 to $1 80 per hour, Ann Corning, whose rate of pay was increased from $1.25 to $1.40 per hour; Ronald Craig, whose rate of pay was increased from $1.35 for work during the week and $1 50 for weekend janitorial work to $1.60 per hour for all work performed, and Steven Emhoff, whose rates of pay were the same as Craig's before the increase, to $1.50 for all work performed. Schaffner's increase accompanied his promotion to a position outside the bargaining unit, i e., to assistant unit manager Prior to the promotion, Schaffner worked as a dishwasher, on the floor (carrying and removing trays, serving coffee and desserts, cleaning tables, etc.) and as a meatcarver Subsequent to the promotion, he made up the work schedules of the floor and kitchen help, assigned and supervised their work, kept books, took charge of cash receipts, including deposit thereof daily at the bank, and exercised general supervision over the operation of the restaurant, in conjunction with Wine during Wine's presence and completely during Wine's absence or unavailability. His new rate of pay ($1.80) was 5 cents less than the rate the predecessor in his position had received immediately prior to his discharge. On the basis of the foregoing, the Examiner finds and concludes that Schaffner's August 1 increase was reasonably related to his increased job duties and new position, in compensation therefor, not for the purpose of persuading Schaffner to desist from his prior support of the Union, and therefore not violative of Section 8(a)(l) of the Act Corning went to Long's office on July 31 pursuant to his invitation at the July 30 meeting to visit him if a wage increase was desired She requested a raise. Long asked -her why she felt entitled to one, and they discussed her duties and job performance Long asked her if she had joined the Union (she had not been interrogated previously about her union sentiments) and she replied that she had not. The parties stipulated at the beginning of the hearing that Long gave Corning a 5-cent increase to "The 8(a)(3) issues arising from the discharges of Haysom, Duff, and Darst will be discussed later in this Decision 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a rate of $1 30 per hour, Corning testified, however, without contradiction or objection, that she was granted a 15-cent-per-hour increase to $1 40 per hour" Emhoff approached Wine at the July 30 meeting and asked for a wage increase Several previous requests had been denied. Wine brought Long into the discussion with Emhoff, in the course of which Emhoff was asked if he had signed a union pledge card, to which he replied that he had not He was informed that he had his raise Craig conferred with Long and Wine after the July 30 meeting about a raise and was advised they would think about it Craig saw them again the next day (at Long's office) Long told Craig he and Wine had discussed a raise for Craig and decided to give him $1.60 per hour, effective August 1 As Craig left Long's office, Wine commented that he hoped Craig would now forget the Union It is apparently Respondent's position that the Corning raise was a merit increase, since there was no change in her job duties or performance accompanying the increase In the case of Emhoff and Craig, their job duties did change in late July. They assumed cooking duties during the late afternoon-evening hours performed by Myrtle Darst, a full-time employee, prior to her July 28 discharge. Respondent contends that their August 1 increase was granted solely due to their changed job duties and not to influence their attitude towards the Union The timing of the increases to Craig, Emhoff and Corning (shortly after Long and Wine learned of the union campaign among the unit employees and immediately after learning that dissatisfaction with current wage scales and union assurances it would seek higher rates was a primary factor in employee support of the Union), the grant of Emhoff and Corning's request immediately after ascertaining that neither had signed an authorization card for the Union, Wine's comment that he hoped the higher raise granted to Craig than that granted to Emhoff would lead Craig to abandon his support of the Union, however, all support a contrary inference or, at the very least, a mixed motivation for the grant thereof The Examiner therefore finds and concludes that Respondent's motivation in substantial part in granting the Corning and Emhoff increases was to influence Corning and Emhoff to refrain from union support and to influence Craig to cease his support of the Union, and therefore violated Section 8(a)(1) of the Act The Examiner further finds by interrogation of Emhoff on July 30 and Corning on July 31 concerning their support of the Union, as detailed above, Long further violated Section 8(a)(1) of the Act. 3. Imposition of more onerous working conditions The complaint alleges that Respondent violated Section 8(a)(1) of the Act by the assignment of more onerous working conditions by Long or Wine to union supporters among its employees on or about August l than they had received previously Craig testified that he went on a 1-week vacation starting July 31, after his conversation with Long and Wine about his $1 60 raise, returning to work about August 7; that following his return, Wine maintained a constant surveillance over his working activities, on three evenings made him stay later than usual to perform duties normally carried out by the janitor, i.e , cleaning under tables, mopping the large refrigerator unit, cleaning the The Examiner credits Corning's testimony tops of stoves, and generally criticized him Other employees testified that Wine made them work harder than they had been required to work prior to Wine's hire (on July 15) However, there was general corroboration both by Craig and other employee witnesses that working conditions became more onerous for all the employees, both union suppporters and nonsupporters, after Wine assumed a management role at the restaurant on July 15, that Wine was belligerent and zealous in his relations with the employees from the time he started work, whereas prior to Wine's hire Long and Haysom's administration had been relaxed and comfortable. On the basis of the foregoing, the Examiner finds and concludes that the General Counsel failed to meet his burden of establishing that more onerous working conditions were imposed by the Respondent upon union supporters than upon nonsupporters on or about August I, and will recommend that this allegation of the complaint be dismissed B The Alleged 8(a)(3) Violations I The Haysom discharge David Haysom was hired as a busboy at $1 65 per hour when the restaurant opened in late March He was a college student at the time As noted heretofore, Long was in charge of the operation at that time and for several months thereafter Long made Haysom his assistant manager a few months after the restaurant started business. He was in complete charge of the restaurant operations during Long's absences, and was paid $2.00 during the periods of such absence While Long was there, he was paid $1.85 per hour. His major function was to direct the work of the busboys on the floor. He also collected and deposited the money receipts, and had keys to the safe and the doors He opened and closed the restaurant He interviewed applicants for busboy positions, on one occasion during Long's absence discharged one busboy, and relieved the busboys and sent them home when and if the workload appeared to warrant decreasing the staff on duty. On about July 13, Haysom injured his back in a slip and fall at the restaurant. He was off several days and only worked sporadically from that time to his July 29 discharge Wine commenced employment as the local manager of the restaurant on July 15 On July 18, Haysom, Schaffner, and Granberg visited the Union's office and conferred with Business Agent Donald Carter. During the visit Haysom executed a union authorization card and gave it to Carter. On July 24, Haysom, who was off work, was requested to come to the restaurant to confer with Long and Wine On his arrival, Long asked him what he knew about the Union's July 22 letter referred to earlier, which Long had before him. Haysom said he didn't know anything about it. Wine asked him who the Union's leader was. Haysom said he didn't know. Wine then asked him if Myrtle Darst was the leader. Haysom repeated that he did not know. Haysom was then asked if he had signed a union authorization card, and replied that he had not At the conclusion of the conference, Haysom asked when he should report in for work and was told to call in the following Sunday, July 28. As noted heretofore, Munsterman informed Wine that Haysom had signed a union authorization card. When ROYAL FORK OF WASH. 189 Haysom telephoned Wine on July 28, Wine asked him to come in and talk to him the following day When Haysom arrived the following day, Wine informed Haysom he had learned that Haysom had signed a union card and asked him why he had stated to the contrary Haysom admitted that he had signed a card and said he was afraid to tell Long and Wine that he had done so Wine replied that he did not want a liar as his assistant manager and that Haysom was discharged The major question is whether or not Haysom was a supervisory employee and therefore excluded from the protection of the Act at the time of the discharge. The Examiner finds and concludes that he was He possessed the authority to assign work to the employees under his direction or relieve them of work, to discharge employees under his control, to handle money receipts, to open and close the restaurant, and to run the restaurant in the absence of the manager. It is further notable that there was no dispute over the supervisor status of Edwin Schaffner, Haysom's successor. Inasmuch as supervisors within the meaning of Section 2(11) of the Act are not entitled to its protection, the Examiner finds and concludes that the Haysom discharge was not violative of the Act and shall recommend that the portion of the complaint so alleging be dismissed 1S 2 The Duff discharge Earl Wayne Duff was employed by Respondent as a busboy when the restaurant opened in late March He was a college freshman at the time Shortly thereafter, he was assigned to work as a dishwasher and continued in that job until his discharge. His wife often accompanied him to the restaurant and waited until he completed work, sitting out in the restaurant section On a few occasions in May and June, she entered the kitchen area where the dishwashing work was performed and assisted the dishwashers Sometime in June, Duff was informed by Long and in turn informed his wife that since she did not have a health card, she should cease doing any work in and stay out of the kitchen area Mrs. Duff continued coming to the restaurant with Duff thereafter and sat in a booth in the restaurant area while she waited for him to complete work, oftentimes bringing along a book to read Duff executed an authorization card for the Union on July 16 and turned it over to Craig for delivery to the Union When Duff drove to work the evening of July 20, he was accompanied by his wife and Mastel. They arrived at the restaurant about 6.30 p m Mastell and Duff went to work in the dishwashing area Duff's wife sat down in the restaurant area. Mastel's wife arrived shortly before Mastel and Duff came out into the restaurant area to eat their dinner, at about 9 00 p.m. The two men informed their wives there were many dishes to be washed, they would probably not finish up until about midnight, and suggested the two women decide whether or not to wait and let them know. Shortly thereafter, Duff's wife decided to go home with Mastel's wife in the Mastel car and to give Duff the keys to the Duff car so the two men could go home in it. The two women went into the kitchen area, where they were stopped by Mrs. Long, who asked if there was anything 49 "National Freight , Inc. 154 NLRB 621, Sopp's Inc, 175 NLRB No she could do for them. Mrs Duff replied no, there wasn't, and continued on towards the dishwashing area Mrs Mastel went back to the washroom Before Mrs Duff reached her husband, Mr Long appeared and shouted angrily at Mrs Duff, ordering her to get out of the kitchen, and to stay out. Long then turned away and Mrs Duff started out of the kitchen area, still not having spoken to Duff. On her way out, Mrs Duff admittedly made a gesture towards the place where Long had appeared which Mastel described as giving Long "the finger " Wine observed the gesture Mrs Duff subsequently gave the keys to the Duff car to Mrs Mastel, who in turn gave them to Wine for delivery to Duff with the message the two women were going home The Mastel and Duff apartments were across the hall from one another Wine conferred with Long and insisted that Duff should be fired, Long acquiesced Wine called Duff to the office after he completed work and told him he was discharged When queried as to the reason, Wine said it was because Duff's wife told Long to kiss her rear Duff argued he should not be discharged for something his wife did. Wine replied that Duff was responsible for his wife's conduct. Duff related the exchange to his wife on arriving home and she denied making any statement to Long The next day Duff and his wife went to the restaurant to see Long Wine met them and escorted them to the office In the course of discussing the discharge, Wine said the incident of the previous evening was not his only reason for discharging Duff, that he was dissatisfied with Duff's work as well At the same conference, Wine dismissed an inquiry as to whether Duff's union support had anything to do with the discharge with the statement that he did not know anything about a union and later, to a repeat inquiry, that a union would not make any difference The General Counsel contends that Duff was discharged because of his support of the Union and not for the reasons given by Wine While the original reason given by Wine for the discharge does appear rather flimsy, and Duff was not advised at any time during the preceding several months of any shortcomings in his work performance, it is nevertheless necessary to establish that Wine had some awareness or knowledge that Duff was a union supporter before it may be maintained that this was the reason for his discharge The record is devoid of any evidence of knowledge on the part of either Long or Wine that Duff was a union supporter prior to his July 20 discharge The Examiner therefore finds and concludes that the General Counsel failed to meet his burden of establishing that Duff was discharged for union activity and accordingly shall recommend that the portions of the complaint so alleging be dismissed 3 The Darst discharge Myrtle Darst was hired on April I, a few days after the restaurant opened, as a cook She acted as a relief cook and salad maker for the day cook and generally worked during the evening hours performing the cooking tasks required during the dinner period (the major items were prepared by the day cook for dinner, but chicken was fried and various short-order items were prepared during the dinner hours) She was hired by Long and guaranteed a minimum of 40 hours of work per week There were two other full-time adult cooks, Ethel Pierce, the chief cook and supervisor, and Dorothy Borgens, both of whom 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normally worked days Darst was paid $1.65 per hour to start, and was earning $1 75 per hour at the time of her discharge It was Darst who suggested the possibility of seeking union representation to Craig, who was the leader of the students working at the restaurant. She made the intial contact with the Union in early July and executed one of the union authorization cards on July 16 Darst asked for and received permission from Long in May to take a short vacation without pay extending from Thursday, July 25 through Sunday, July 28 Darst usually worked on relief on Saturday and Sunday On the weekend previous to her scheduled vacation, she did not work either Saturday, July 19, or Sunday, July 20, due to illness She was still ill on Monday, July 21, and called the restaurant. She spoke to Don Franklin, an efficiency expert assigned to work with Long and Wine to improve the restaurant operation where possible by cutting costs, increasing productivity, etc Franklin told her not to worry, he would cover her work that evening, and to call again the next day. She telephoned the next day, Tuesday, July 22, and talked to Wine He told her he wanted her to come to work on Thursday, July 24, at 7.00 to 7.30 a in. She told Wine that Long previously gave her permission to take a vacation commencing that Thursday and ending the following Sunday, so she could not come in Thursday morning Wine replied that she might as well take off Tuesday and Wednesday, July 22 and 23, and have a good vacation. She thanked him and said she appreciated his giving her the additional time. On the morning of July 24 prior to leaving for her vacation, Darst went to the restaurant to pick up her pay for the previous working period Wine gave her the pay, told her to call him on her return on Sunday for her working schedule for the following week, and expressed the hope she would enjoy her vacation. As detailed above, Wine thereafter learned that Darst was one of the leaders of the movement to secure union representation. Darst telephoned Wine on Sunday, July 28, to secure her working schedule for the following week Wine informed her that she was discharged When she asked why, he stated her job had been eliminated. She asked how a cook's job could be eliminated , since the cooking still had to be done He simply repeated that her job had been eliminated. She asked to talk to Long, and was informed he was out of town. On Long's return the following Tuesday, July 30, Darst went to see him. Long told her they wanted to reduce labor costs and had decided to have the boys do the necessary cooking in the evening hours. Wine also entered the conversation and said if he had his way, he would have fired Darst the first few days he was there, because she refused to taste some carrots she had cooked. This was a reference to an incident about July 16, when Darst was going to make a ham casserole at Long's instructions She was doubtful whether to use some carrots left over from the previous day, and asked Long to taste them to ascertain whether they should be used or discarded. Wine asked her why she didn't taste them herself. She said they made her ill Long then tasted the carrots and said they seemed alright and to use them, which she did. The next day Wine called her at home (she was off work) and asked what she had done to the casserole She asked what he meant. He said they wanted to put it on the line the next day but found it was sour and couldn't be used. She replied that it was probably sour because the carrots were sour to start with. In the course of the July 30 conversation, Long also referred to friction between Darst and Dorothy Borgens as a reason for her discharge. This was a reference to an incident several months previous, when Long had informed Darst she was creating problems with the day help by not doing the backup work ( preparing salads, etc. in the evening for use the following day). Darst asked her supervisor, Ethel Pierce, what she was doing wrong. Pierce said she didn't have any complaints over Darst's work, but she thought Dorothy Borgens had come to work and found no backup work performed, so it put her in a bad position. Darst said Dorothy should have said something to her, she didn't realize she was supposed to have some backup work done for the next shift Darst then asked Borgens about it, at which Borgens threatened to quit Long came in and suggested a meeting. At the meeting Long admitted that Borgens had not made any complaints. It appeared that Pierce had complained to Long without saying anything to Darst. There were no further problems or complaints subsequently, and Borgens and Darst continued on excellent terms. The restaurant did attempt to use the student help to perform the cooking tasks after Darst's discharge. However, the effort lasted for only a few weeks. Mrs. Pierce complained of the extra burden it placed on the two full-time cooks, both in constantly attempting to train boys to do the work and because the loss of one full-time cook placed too heavy and exhausting a workload on her and Borgens In late August, the restaurant hired an additional full-time adult cook, Harriet Cobb. Respondent's president, Jerry L. Caven, testified that it is the policy of the restaurant chain which he heads and of which the Yakima restaurant is a part, to employ student help to the maximum degree possible, to realize the twin objectives of aiding the community and students by providing employment which fits in with school schedules and at the same time holding down labor costs. Wine testified that Franklin, Long and he jointly decided to reduce labor costs and maintain their policy of encouraging student employment by discharging Darst and replacing her with student help The carrot-tasting incident and the Borgens-Darst matter were also cited as grounds for the discharge. The thrust of the labor cost reduction contention is reduced by the simultaneous increases of 15 cents per hour to Emhoff and 25 cents per hour to Craig for performing the cooking tasks for a short period after Darst's discharge and her replacement by another full-time adult cook approximately a month after her discharge The carrot tasting and Borgens incidents are obviously afterthoughts, without substance, occurred sometime before the discharge, and do not reflect adversely on Darst. On the morning Darst picked up her check (July 24) Wine was friendly and requested that Darst call him on her return from vacation for her work schedule the following week, subsequently Wine learned Darst was the leader of the Union's organizational efforts, on her return from vacation, Wine informed her she was discharged and in a conference a few days later was antagonistic and informed Darst he would have liked to have fired her a few days after he came on the job. The Trial Examiner finds and concludes that this complete change of attitude on Wine's part and the decision to discharge Darst was prompted by his and Long's acquiring knowledge that Darst was the leader of the Union ' s organizational campaign and not in any cost reduction program or for ROYAL FORK OF WASH. 191 not tasting carrots or because of any friction between Darst and Borgens, and further finds and concludes by virtue thereof the Respondent violated Section 8(a)(3) and (1) of the Act 4. The Cassidy termination Glenn Cassidy was employed by Respondent as a busboy in May He was a high school student He continued in the capacity of busboy until the termination of his employment He executed a union authorization card on July 18 and turned it over to Craig for delivery to the Union At the employee mass meeting on July 30, Cassidy held up his hand when Long asked all those present who had signed cards for the Union to do so The General Counsel contends that Cassidy was constructively discharged by the Respondent on August 4 because of his union support. In the Examiner's judgment, the following testimony by Cassidy himself completely refutes that claim. Q When did you leave the Royal Fork' A You mean when did I quit? Q. Yes. A August 4 Q. Why did you quit the Royal Fork9 A. Because I didn't like Mr. Wine I didn't like working conditions, and my mother was pressuring me to quit because of the deal she heard about serving liquor while we were working. While Cassidy related some acts of Wine directed towards making him work harder, it was not established that they occurred after July 30, nor were other than Wine's generally agressive conduct toward the employees. The Examiner finds and concludes that Cassidy quit of his own accord for the reasons he himself stated and was not constructively discharged by the Respondent because of his support of the Union, and therefore shall recommend that those portions of the complaint alleging to the contrary be dismissed. 5 The Craig and Munsterman terminations As discussed and found heretofore, Craig and Munsterman were leaders with Darst of the union organizational effort among Respondent's employees, this fact was known to Long and Wine after July 24, and Craig was given a substantial wage increase and assigned to cooking duties during the evening hours along with Emhoff after Darst's discharge The General Counsel contends that Craig and Munsterman were constructively discharged by the Respondent on August 14 because of their union activities. Munsterman, however, testified he had decided to quit his employment on August 14 even before he reported for work that evening He too cited his dislike of Wine as one of the major reasons he decided to quit He also cited his unhappiness with Wine's vacillation over giving him a wage increase he had requested and thought he had received on July 31. From the time of his employment in April, Munsterman worked as a busboy He was being paid $1 35 per hour when he approached Wine on July 31 pursuant to the July 30 invitations at the mass meeting. Wine told Munsterman that he had been one of the employees considered for a raise and that as a matter of fact he had one Wine then told Munsterman he could take the rest of the day off if he desired since he had requested and received permission to be off work for several days commencing August 1 to make a vacation trip to San Francisco. Munsterman returned to work about August 7 and asked Wine what his new rate was Wine replied that he could not give Munsterman a raise after all, because labor costs had increased Munsterman then asked if he could change his work assignment from busing to cooking Wine said that he could and that as soon as he learned to cook without supervision, he would receive a raise He then began working with Mrs Pierce, learning to cook, besides continuing to perform other restaurant work in the kitchen, at the serving line, and on the floor, as the occasion required. At this time Craig was receiving $1.60 per hour and Emhoff $1.50 per hour As noted heretofore, Munsterman stated that he had decided to quit at the end of his shift on August 14, and he so advised both Craig and Emhoff that evening However, all three actually quit about midway through the shift, after an altercation between Emhoff and Wine. It occurred when a customer refused to accept some sliced roast beef from Emhoff at the serving line. Both Munsterman and Craig were in the kitchen nearby The customer stated she did not want any left-over beef Emhoff tried to assure her it was good beef but Wine interceded, upbraided Emhoff for attempting to serve the beef, and told him to take it back in the kitchen and get the customer some fresh beef. Emhoff took the beef back in the kitchenwhereWine instructed Craig to put the beef in a different pan with a few more slices added, and then bring it back to the serving counter The customer was then served. Emhoff, upset over the incident, announced he was quitting shortly thereafter Craig joined him and said he was quitting too Munsterman, not to be left out, also quit, and the three left together. Emhoff, the direct recipient of Wine's ire, made no claim of constructive discharge and frankly stated that he quit of his own accord because of Wine's disagreeable conduct and the embarrassment it caused him As earlier noted, Munsterman had decided to quit before he started work that evening and only advanced the hour of his termination - he had intended to finish out the shift until the beef incident occurred. Craig stated that the beef incident was the last straw, as far as he was concerned, that he was just fed up with Wine and the way he ran the restaurant As earlier noted, Emhoff did not sign a union authorization card and had so informed Long and Wine, while Craig and Munsterman had signed cards and were leaders in the campaign to secure union representation On these facts, the Examiner finds and concludes that the General Counsel has not proved that Wine constructively discharged Craig and Munsterman because of their support of the Union but rather finds that they voluntarily quit their employment because of their dislike of Wine and his arbitrary methods, and shall recommend that those portions of the complaint alleging these two discharges to be violative of the Act be dismissed C The Alleged 8(a)(5) Violations 1 The unit As noted heretofore, the parties agreed that the unit set forth in the Union's July 22 letter in which it claimed majority representative status is an appropriate unit under Section 9 of the Act and the Examiner so finds. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The union majority The General Counsel alleges that on the date the union letter was sent, July 22, the Union represented a majority of the employees in the unit. The parties concede that Dorothy Borgens, Glenn Cassidy, Ann Corning, Ronald Craig, Myrtle Darst, Steven Emhoft, Lyn Gauthier, Richard Granberg, Tim Haney, Michael Mastel, Michael Munsterman, Rick Pettengill, Carol Roberts, Edwin Schaffner, and Michael Van Finger were in the unit at that time The General Counsel contends that David Haysom and Earl Wayne Duff should also be included, and the janitor, Laurence Weinman, should be excluded The Respondent contends that David Haysom and Earl Wayne Duff should be excluded and the janitor should be included Inasmuch as the Examiner has entered findings that Haysom was a supervisor at all times pertinent and that Duff was discharged for cause on July 20, he finds that Haysom and Duff should be and they hereby are excluded from the unit as of July 22 Wine testified that Weinman was employed as a janitor to clean the premises and worked daily at his assignment at a fixed rate of $4.00 per day, by agreement with Long. He was, therefore, a regular part-time employee, as were most of the student help. Weinman was in the active employ of the Respondent at all times pertinent. It is the finding of the Examiner that Weinman had sufficient community of interest with the balance of the unit to warrant his inclusion therein, and he so finds Adding Weinman to the agreed inclusions set out in the second paragraph above, there were 16 employees in the unit The record establishes that as of that date the Union had secured eight valid authorization cards from unit employees Cassidy, Craig, Darst, Granberg, Mastel, Munsterman, Roberts and Schaffner. Therefore, the Union did not represent a majority of the employees in the unit at that time, as it claimed. Lacking such majority status, the Respondent was not under any duty to bargain with the Union on July 22 or at any time subsequent, either generally with respect to the unit employees' wages, hours and working conditions, or with respect to the wage increases granted to various employees subsequent to July 22." For the reasons stated above, the Examiner finds and concludes that the Respondent did not violate Section 8(a)(5) of the Act and shall recommend that all portions of the complaint so alleging be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce and in a business affecting commerce and the Union is a labor organization within the meaning of Section 2(2), (5), (6) and (7) of the Act. 2. By interrogating employees concerning their union sympathies, affiliation and desires and those of other employees, by granting wage increases to influence employees in their attitude towards and support of the Union, and by discharging Myrtle Darst for engaging in union activities, all as set forth above, the Respondent has engaged in and is engaging in unfair labor practices violative of Section 8(a)(1) and (3) of the Act "In addition to the August I increases earlier discussed , the record establishes that increases were given to Borgens sometime in August, to Granberg in late August or September, and to Mastel in September 3. The Respondent did not otherwise violate the Act. 4 The aforesaid unfair labor practices occurring in connection with Respondent's operations in interstate commerce will tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof unless remedied in accordance with the provisions of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action of the type conventionally ordered in such cases as provided in the Recommended Order below, which are necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act RECOMMENDED ORDER On the basis of the entire record and the foregoing findings and conclusions, the Examiner recommends that the Respondent, its officers, agents, successors, and assigns, be ordered to 1. Cease and desist from interrogating its employees concerning their and other employees' union membership, desires, sympathies and affiliations. 2. Cease and desist from granting wage increases to its employees to influence their support of the Union 3. Cease and desist from discharging employees for leading an effort to secure union representation for the employees or for otherwise supporting the Union 4 Offer Myrtle Darst immediate and full reinstatement to her former or substantially equivalent position at the rate of pay and with all other rights, privileges and benefits she would have enjoyed but for the discrimination against her, and make her whole for any losses in earnings and benefits she has suffered by reason of the discrimination against her in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co , 138 NLRB 716 5. Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay and other benefits due under these recommendations. 6. Post at its restaurant in Yakima copies of the attached notice marked "Appendix "' ° Copies of such notice on forms furnished by the Regional Director for Region 19 shall be signed by the Respondent or its authorized representative and posted by it immediately on receipt thereof and maintained for a period of 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material 7 Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board' s Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " ROYAL FORK OF WASH 193 herewith.' 5 IT IS RECOMMENDED that allegations of unfair labor practices other than those found above be dismissed "in the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that After a trial in which all sides had a chance to give evidence, the National Labor Relations Board found that we, Royal Fork of Washington, Inc., violated the National Labor Relations Act, as amended, by 1. Asking questions of our employees about their affiliation with or support of Hotel, Motel and Restaurant Employees Union Local 294, an affiliate of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO; 2. Asking questions of our employees to find out which employees were leaders of the move among them to secure representation by the Union named above in bargaining collectively with us to improve their wages, hours and working conditions, which employees supported the move, and which did not, 3 Giving wage increases to influence nonsupporters of the move for union representation to continue to refrain from supporting the Union and to influence supporters of the Union to cease supporting the Union, 4. Discharging Myrtle Darst for leading and supporting the movement among the employees to secure representation by the Union. The Board ordered us to promise our employees that we would not do these things again, nor in any other way interfere with, restrain, or coerce them in the exercise of their rights under Section 7 of the Act to- Organize themselves into a union Form, join, or help unions Bargain as a group through a union representative of their choice Act together for collective bargaining or for mutual aid and protection Refuse to do any or all of the above. We therefore promise that: WE WILL not question any of our employees about their union activities, support or those of other employees; WE WILL not grant wage increases to influence our employees to refrain from supporting a union or to influence them to cease supporting a union; WE WILL not fire any of our employees for leading or participating in a move to secure union representation for the purpose of bargaining collectively with us for improvements in their wages, hours and working conditions; WE SHALL give Myrtle Darst her job back and make up any losses in pay or other benefits she has suffered since we discharged her, with interest at 6 percent WE WILL not interfere with, coerce or restrain any of our employees in their exercise of their Section 7 rights as set out above Dated By ROYAL FORK OF WASHINGTON, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Republic Bldg., 10th Floor, 1511 Third Ave., Seattle, Washington 98101, Telephone 583-74-73