Mounia, Ltd.

MOUNIA, LIMITED Mounia, Limited and New York Hotel and Motel Trades Council, AFL-CIO. Case 2-CA-12398 June 19, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 29, 1971, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, General Counsel and Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs, and Charging Party's subsequent Motion To Withdraw Charges, infra. The Board has decided to affirm the Trial Examiner's rulings, findings, and conclusions, except as they pertain to the alleged 8(a)(5) violations, and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Mounia, Limited, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i On April 19, 1972, while the instant case was pending before the Board, Charging Party filed with the Board a motion to withdraw all of its unfair labor practice charges except for its 8(a)(3) charge General Counsel filed a written response consenting to the withdrawal of the 8(a)(5) charge but opposing the withdrawal of the 8(a)(1) charge In view of the General Counsel's opposition, we grant the Charging Party's motion only with respect to the alleged 8(a)(5) violations We therefore dismiss the 8(a)(5) charge without considering its merits M N Landau Stores, Inc, d/b/a Clark's Discount Department Stores, 168 NLRB 273, fn. 1, Tuscarora Plastics Co, 167 NLRB 1059, 1068-69. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On June 3 , 1971, New York Hotel and Motel Trades Council, AFL-CIO, hereinafter called the Union, filed a charge with the Regional Director for Region 2 of the National Labor 697 Relations Board, hereinafter called the Board , alleging that Mouma, Limited, hereinafter called Respondent , engaged in activities in violation of Section 8(a)(1),(3), and (5) of the Act by various acts and conduct including the layoff of seven employees and the refusal to recognize the Union. On September 13, 1971, the said Regional Director, on behalf of the General Counsel of the Board , issued a Complaint and Notice of Hearing alleging violations of Section 8(a)(1), (3) and (5) and alleging further that a strike of Respondent's employees was the result of Respondent's unfair labor practices and accordingly is an unfair labor practice strike. By a duly filed answer, Respondent admitted and denied various allegations and specifically denied each allegation of the commission of an unfair labor practice. The matter came on for hearing before me in New York City on October 27 through November 2, 1971. All parties were represented by counsel and had an opportunity to adduce evidence, call witnesses, and examine and cross-examine them, to argue on the record, and to submit briefs. Briefs have been received from the General Counsel and the Respondent. Upon the entire record and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a New York corporation operating a restaurant in the city of New York . The operation of the restaurant commenced in February 1971. A projection of its gross revenues from the sale of food and beverages on an annual basis reveals that Respondent's volume of retail sales will exceed $500,000 per year, and that its purchases of goods and materials delivered to it from other New York enterprises , each of which received the said goods and materials in interstate commerce directly from States of the United States other than the State of New York and in foreign commerce directly from nations other than the United States, exceeded $50,000. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In December 1969 Arthur Kettler, president and manag- ing agent of Respondent , signed a lease on the space theretofore occupied by the restaurant facilities of the Lancaster Hotel in midtown Manhattan. In January 1970 the corporation commenced construction in the space of a 197 NLRB No. 102 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restaurant designed to simulate similar establishments in the Kingdom of Morocco.' The construction was complet- ed within 4 or 5 months, but the liquor license, felt necessary to the establishment of the restaurant, was not issued until February'19, 1971. At this time the restaurant commenced operation. At the time the restaurant opened, the corporation had an investment in it of some $360,000. Kettler had not previously been in the restaurant business, but operated a discotheque and a nightclub prior to his engagement with Respondent.2 Early in 1970 Vito Pitta, vice president of Local 6 Hotel, Motel & Club Employees Union, which is 1 of 10 local unions affiliated with the Hotel Trades Council, became aware of renovation in the Lancaster Hotel restaurant area and ascertained through the hotel that the space had been leased to Kettler, who was planning to open a new restaurant .3 Pitta contacted Kettler and had discussions regarding signing a contract covering the restaurant employees when the restaurant opened. He asked Kettler to rehire the people who had formerly worked in the same space, but Kettler replied that this would be a specialized operation and that he was looking for French-speaking employees. Pitta pointed out that the Union's membership included a lot of French-speaking people and that it would be able to fill his needs. During the period of time between the construction of the restaurant and its opening, Pitta continued to see Kettler on occasion. On each such occasion he asked Kettler to sign a contract. Kettler apparently temporized in his answer stating that he would have to discuss the matter with his lawyer or that he would have to discuss the matter with Mr. Hassan.4 Kettler also suggested that he would sign a members-only contract which was refused by Pitta, who said he would not accept a members-only contract because all of the people who were employed there before were in the Union. According to Pitta's testimony, which is denied in this regard by Kettler, Kettler agreed at one point to sign a contract and a contract was left with him. Kettler's version is that he agreed to sign a members-only contract and I credit him in this regard. It does not appear that Kettler availed himself of the Union's services in recruiting employees. Some of the employees were recruited in Madrid, Spain, or in Morocco by Hassan and his brother-in-law, apparently another of the principals of the operation, and by Mohamed Sbai, the kitchen supervisor, or steward. Other employees were hired locally; many of them were Spanish speaking. When the restaurant had opened for business, Pitta continued to press Kettler for a contract, but without success, although Kettler continued to offer to sign a contract on a members-only basis. On or about May 10, 1971, the Hotel Trades Council commenced picketing at Respondent's restaurant with signs stating that it was 1 Ninety percent of the furnishings of the restaurant were made in Morocco and flown to the United States. 2 Prior to his nightclub experience Mr Kettler had been employed with the Internal Revenue Service and had retired 3 The Union had members employed by the restaurant which preceded Respondent in the restaurant space at the Lancaster Hotel 4 The reference is to Hassan Bereda, whom the record reveals to be one of the owners of the restaurant. nonunion and the employees were not "enjoying the hours, wages and conditions of the union contract." In the week of June 21 the Union commenced an attempt to organize the employees of Respondent. Meet- ings were held with groups of employees in locations near the restaurant, and some of the employees took authoriza- tion cards into the restaurant and solicited their fellow employees to sign them. As a result of the organizing campaign by June 28 the Union had 25 or 26 signed authorization cards in its possession. At this point, Pitta sought out Kettler and told him that he had a majority of the employees signed up. He again asked the Respondent to sign a contract. According to the testimony of Pitta, when he stated that he had 25 or 26 cards, Kettler said that it was impossible and Pitta said that he would have a meeting the following day with the employees and invited Kettler to attend and see for himself. Kettler agreed to attend this meeting. According to Kettler, Pitta did not, on June 28, request recognition but came into his office to invite him to attend the union meeting. Kettler offered him the use of the restaurant's discotheque room which was not in use,5 and agreed to attend the meeting. On cross- examination Kettler stated that he could not recall the reason for Pitta inviting him to attend the meeting of employees, but admitted that Pitta may have stated a reason and that it might have been to demonstrate to him the Union's support among Respondent's employees. According to Kettler it was not until the following day, June 29, that Pitta demanded recognition and stated that he had 25 or 26 cards, or a majority of the employees signed up. -I discredit Kettler in this regard. It appears that the cards were all signed prior to June 26, Saturday, and were in Pitta's hands' by the close of that day. It is inconceivable under the circumstances that Pitta, with what he believed to be a majority of cards, would have called on Kettler on the following Monday solely to invite him to a meeting without demanding recognition, which he believed he had a right to have at that time. Accordingly I find that recognition was demanded about noon of June 28 .6 Shortly after the demand for recognition was made, about noon on June 28, Hassan Bereda gave the cook, Abdulitif Kdiry, hereinafter called Abdul, a list of the employees in the restaurant and told him to find out from the employees whether or not they favored the Union. Abdul first asked a fellow Moroccan employee, Abdesslam Ouahrouch, who was in the unit, and then was proceeding to other employees when Sbai, who had informed Kettler of Hassan's action in giving a list to Abdul, and had been told by Kettler to get the list back, took the list from Abdul and destroyed it. Neither Sbai nor Kettler made any attempt apparently to ascertain to what extent Abdul had conducted the inquiry. There is no evidence that any attempt was made to reassure either Abdul or Ouahrouch 5 The room has not yet been opened The restaurant is seeking a zoning variation to pernut it to operate a discotheque. 6 Respondent attempts to bolster Kettler's version by pointing out that he almost never comes to the restaurant before 2 p.m. However, the record reveals that Hassan, who exercised top-management authority , had been absent on a holiday for several days, and amved back on Monday, June 28 I believe it is probable for this reason Kettler amved at the restaurant somewhat earlier than his normal custom dictated. MOUNIA, LIMITED 699 that Respondent's questioning did not pose a threat to them because of their union activities. At about 5 p.m. on June 28 Kettler and Sbai laid off seven employees, telling them that the work was slow and they were not needed and that they could expect to be recalled in September, when the discotheque room opened and Respondent anticipated an increase in custom. When the employees were laid off word soon came to Pitta, who was on the picket line at the time. According to his testimony he took Carlos Lopez, another union agent who was assisting him in the organization, and spoke Spanish, to protest the layoff of the employees. The record does not reveal that he did protest the layoff, but instead he asked Kettler if the meeting for the next day was still on, and Kettler said that it was. Kettler left the office and came back in a few minutes and said that there was no need to attend the meeting.? On the following day, June 29, the employees became aware of the layoff of their seven fellow employees. A number of them, led by the bartender of the service bar, Jose Farah (hereinafter called Pepe), all left at the close of their early shift, 2:30 p.m., and joined the picket line. By this time the picket line had been augmented by hired pickets and the signs that they bore included new signs, one contending that Respondent was guilty of unfair labor practice and the other bearing the legend "I was fired for joining the Union." Shortly before 5 o'clock when Pepe and the other employees were due to return to work, Pepe addressed Kettler and said "I suppose that I have been discharged." Kettler told him that he had not been discharged and that he could go back to work at 5 o'clock, his regular time. Pepe, however, stated that he would stay out with the Union and did so. There is no evidence that Pepe or Miguel Herrero, Ide Monduch, Miguel Riquelme or Italo Valentini, other employees who left on June 29 to support the Union, ever returned to work in the restaurant. Also in the afternoon of June 29, Kettler gave Sbai booklets explaining the medical benefits of the Blue Cross Plan. Sbai gave one set to Jules Elmalen, a waiter who speaks good English; 8 Elmalen translated the booklets to Sbai. Sbai also gave a set of the booklets to Abdul and told him that he was going to get the medical benefits specified in the) booklets. Sbai also told Riquelme, who worked until 5 o'clock, at which time he joined the picketing, that Respondent was going to give medical benefits to the employees. Still later on June 29, according to the testimony of Riquelme, he was present with a group of employees when Kettler came into the kitchen and was talking to them. Riquelme speaks no English. Kettler speaks no Spanish. Another employee, Fermin Dura, told Riquelme that Kettler said that he did not want a union in the plant, but wanted to be his own boss, and that he would rather sell his business to some Chinese or Japanese businessmen than have a union. This statement was denied by Kettler. In view of the fact there is no direct substantial evidence that the statement was made, Dura was not called as a witness and Riquelme knew only what Dura told him, I do not find that the statement was made by Kettler. B. Discussion and Conclusions 1. The refusal to bargain The unit: The General Counsel alleges that the appropri- ate unit in the restaurant is a unit of all employees including waiters, waitresses, busboys, captains, bartend- ers, cooks, assistant cooks, hostess, dishwashers, and porters, but excluding the maitre d', stewards, office- clericals, reservation clerks, guards, cashiers, the doormen, the watchmen, and supervisors, constituting a unit appro- priate for the purposes of collective bargaining. The General Counsel would also exclude checkroom attendants who are not listed in the unit alleged to be appropriate in the complaint. Respondent contends that the Board's policy against "fractionalization of a unit" requires the addition of the cashiers, reservation clerks, and checkroom attendants. First, with regard to the reservation clerk, it appears that there is only one such person. She works in the office of the restaurant and aside from general office typing, which she does as a sideline, does nothing but take reservations which, in a restaurant of this sort, is a more time- consuming occupation than in most restaurants because clients frequently require an explanation of the menu and customs of the restaurant. The reservations after 6 p.m., when the reservation clerk goes home, are handled by the maitre d'. There is no evidence indicating that the reservation clerk has anything in common with the other employees of the unit, all of whom are engaged in either food-handling or customer service. She has no face-to-face contact with either customers or fellow employees, and her additional duties are all of the nature of office-clerical employees, near whom she works. I see no community of interest between the reservation clerk and the unit employees, and accordingly I agree that she should be excluded from the unit. The cashiers, on the other hand, work in the kitchen at the entrance to the dining room. Their function is to price the items that the waiters write on their checks when the waiters bring the checks in the kitchen to get their orders. They then check the outgoing food against the checks to ascertain that the waiters are delivering what was ordered and that all food going out of the kitchen is on order by a patron. Their hours are necessarily the same as the hours of the waiters, i.e., the hours the restaurant is serving, and they work in close proximity with the personnel in the kitchen. I find that they have the same employment interests as both the dining room and kitchen employees, and accordingly, belong in the unit .9 The General Counsel would exclude the checkroom 7 Kettler states that this conversation took place on the 29th, and that his decision to refuse to attend the meeting or to pernut it to be held in the discotheque room resulted from Pitta's statement that he had 25 or 26 employees signed up which Kettler considered to be impossible I credit Pitta with regard to this conversation. I believe it took place on the evening of the 28th, after the layoff of the employees 8 Sbai speaks French and was interrogated through an interpreter. He speaks little or no English 9 See Arlington Hotel Company, Inc, 126 NLRB 400, 405. The cashiers appear to be roughly equivalent to the food checkers therein. While Arlington was substantially chipped away by Water Tower Inn, A Partnership, 139 NLRB 842, and LaRonde Bar & Restaurant, Inc., 145 NLRB 270, and finally overruled by the Board in 77 Operating Company, 160 NLRB 972, this was on other issues. It is notable that in each of the (Continued) 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attendants solely on the basis that they have a minimal community of interest with the kitchen, bar and dining room employees. However, the checkroom girl serves the same public as does the restaurant and works the same hours under the same general supervision. She has no community of interest whatsoever with the office-clerical employees, the only significant excluded group of employ- ees, and were she excluded from the restaurant unit, would fall in no definitive grouping. Under the circumstances of this case I find that she has enough community of interest with the food service employees to warrant including her in the unit. 2. The majority status of the union The parties agreed on 37 employees who were in the unit.i° In addition to the 37 employees the three disputed classifications included 4 employees. I have found that the two cashiers and the checkroom attendant are properly in the unit. Accordingly the entire list consists of 40 employees in the unit. The General Counsel introduced 22 cards and also introduced the testimony of Juan Cuello that he signed and turned over a card to an employer organizer. The card was apparently lost. The presence of a signed authorization card is not essential where, as here, the employer's refusal to recognize the union is not based upon its observation of the cards. The operative fact is the designation of the union by the employee, and here, Cuello's testimony is unchal- lenged. I shall add him to the list of employees who authorized the Union to represent them. Pedro Alibrandi signed a card and returned it to Pepe who subsequently lost it. Pepe informed Alibrandi that he had lost the card and had no blank one for him to sign, whereupon Alibrandi told him when he got a blank card to put his (Alibrandi's) name on the card and turn it in. As the General Counsel pointed out in his brief, the Board, under such circum- stances, accepts the designation. The Respondent contends that the cards of 11 of the employees should not be counted because it was demon- strated on the record that they could speak no English, the language in which the cards are written. The record reveals that the large majority of these employees spoke Spanish as their native language. One or more of them spoke French. Communication at the restaurant was apparently always something of a problem because the restaurant manager, Kettler, spoke neither French nor Spanish. The Union, in its organizing, used Carlos Lopez, a Spanish-speaking organizer, and the in-plant organizing was conducted by Jose (Pepe) Farah, to whom Spanish is native, but who also speaks English. There is no evidence that the subjective intent of the employees was other than to authorize the Union to represent them, and there is no substantial attack on any of the signed cards.ii At the hearing Respondent cited cases cashiers were included in the unit. 10 The Respondent contends that Jose Farah quit on June 29 prior to the demand for recognition . The record, however, indicates that Farah joined the strike on that occasion, and did not quit At any rate, I have found that the demand was made on June 28 , rather than June 29. There is no contention that Farah was not employed on June 28 11 Respondent contends that many of the cards are invalid because the contended that the cards of four employees were invalid because the person who identified the cards in each case, Pepe, testified that he did not see the cards signed. However, with regard to each of the employees, Pepe testified that the blank cards were handed by him to the employees who, within a few minutes, returned with the signed card which they acknowledged as they gave to him. The Board regularly accepts this type of evidence as adequate substantiation of designation and I shall herein. Respondent further contends that the cards of Abdul, his wife Isabel, and three of the other Moroccan employees, Bousolo, Ouahrouch and Garro were procured by gross and material misrepresentations by Lopez, who solicited the cards. The record reveals that the employees were concerned about joining the Union because of their respect for Hassan Bereda, a member of the Moroccan royal family, and Lopez told these employees that there was not going to be any trouble with Bereda because "the Company was going to accept." This Respondent charac- terizes as information to the employees that the Company was desirous that they sign cards, an obvious misrepresen- tation and, under the circumstances of the case, suffices to invalidate the cards. The Respondent cites, as authority for this proposition, Alaska Salmon Industry, Inc., and its Member Employers, 122 NLRB 1552, the decision of the Fifth Circuit in N.L.R.B. v. Texas Electric Cooperatives, Inc., Treating Division, 398 F.2d 722 (C.A. 5, 1968). Neither of the cases cited are apposite. They deal with employees who are "not as capable in determining the value of statements as others." There is no reason to assume that any of the five persons involved herein are incapable of dealing with the value of the statements made to them. On the contrary, it appeared that all of the Moroccan employees looked up to Abdul as a leader and an intelligent man. Abdul testified, and there is no question, that he is a person of intelligence. He did not appear to be in any way naive. The record reveals that convincing Abdul to sign a card was the key to the signatures of his followers, particularly the four persons named. When the layoffs took place and the Union determined that the union members in the restaurant should strike, Abdul drew the line at this point, stating that he and his wife would not join in the strike, but that his wife would call in sick if that would help, and in fact, it appears that she did so. At this point there is no question that Abdul knew that the Employer would not welcome the Union with open arms, but nevertheless, was prepared to continue assisting the Union. I do not believe that the cards should be invalidated. I do not believe that the misrepresentation, if such it were, was gross and material as characterized by Respondent; the Respondent's offer to submit the issue to the Board's election processes, as well as his offer to sign a members-only contract, appears to me to give adequate dates or other information, such as the name of the restaurant , were inserted by persons other than the signers . The Board has never so held and Respondent points to no authority for its assertion. The signature of the employee is, in my opinion, the only element necessarily to be affixed by the employee. The fact that some cards are undated is irrelevent in view of extrinsic evidence that all of the cards were turned over to the Union prior to the demand for recognition made on June 28 Accordingly , all, if correctly dated, would have been dated prior to that. MOUNIA, LIMITED 701 foundation to the representation made by Lopez. I reject Respondent's contention in this regard. I have found that 22 of the employees adequately designated the Union as a collective-bargaining representa- tive.12 The unit comprises 40 employees. Simple arithmetic therefore reveals that the Union, at the time of the demand on June 28, represented a majority of the employees in the unit. 3. The layoff The General Counsel contends that the seven employees laid off on June 28 were laid off in order to chill the Union's organizational attempt, and to convince employ- ees that they should not accept the Union as their collective-bargaining representative. The General Counsel admits that there is no evidence of company knowledge. The General Counsel also admits that his contention with regard to the layoff is based solely on the timing and that it is immaterial whether Respondent knew or even whether the employees to be laid off were, in fact, cardsigners, as they all were. I do not agree. Kettler testified that the business of Respondent, commencing roughly at about the time of the Union's picketing, went into a rapid decline. Records supporting the assertions of Kettler in this regard were furnished and they bear him out. Indeed it appears that the, restaurant portion of the business served approximately half as many people in the week ending June 26 as in the week ending March 20, the second week of operation. The food sales were somewhat less than half, and the liquor sales slightly over half. In the cocktail lounge, according to Joint Exhibit 5 prepared and proffered by the parties and hereby received, business dropped from approximately $2,800 to approximately $1,500. Kettler testified that, as a result of the drop in business, the portion of income of Respondent expended on wages exceeded 50 percent, which he explained, based on his 25 years of auditing experience, was too high to permit continuing in operation. As a result of the decline in business, Respondent had, prior to June 28, determined that a layoff would have to take place. Kettler consulted with some of the waiters, and they agreed that they would do their own bussing. Accordingly, all busboys then employed were placed on layoff. Two waiters additionally were laid off, and a dishwasher and a kitchen helper. A second kitchen helper was originally planned to be laid off. However, it appears that Abdul intervened when he learned of this fact stating that he needed the additional kitchen helper who was his vegetable man. Accordingly, his name was taken off the list. When the employees were laid off, they were informed that Respondent hoped to call them back at the end of September by which time Respondent anticipated that it would have received authority to open its discotheque room which it hoped would considerably increase its custom. Kettler testified that the layoff was predicated solely on job classifications and that no names were keyed into the list until Monday, June 28, at which time he consulted with Hassan who had been away on a holiday; and they "slotted in" the names. This was, of course, no problem with regard to the busboys. All of them were laid off. As to the others, Respondent contends, and there is no evidence to the contrary, that three of them were the employees with the least seniority in their job classifica- tions, and the fourth was an unsatisfactory employee. The General Counsel contends that Respondent has hired many employees since the layoff without calling the laid-off employees back. However, it appears that Respon- dent tried to call back the sole dishwasher almost immediately after his layoff because the other dishwashers quit to join the picket line. The laid-off dishwasher already had another job and did not return. Other than the dishwashers, no employees in the job classifications covered by the layoff were hired except for a waiter hired July 31. It appears that each person hired took the place of a person who ceased work other than the laid-off personnel; and, as I construe the exhibits agreed to by the parties, it does not appear that at any time since the layoff has Respondent had any more employees than the figure to which it reduced its employee complement by the layoff. Thus, the waiter who was hired on July 31 presumably took the place of a waiter who quit during the week of July 10.13 I do not believe that the General Counsel has carried his burden of proving by a preponderance of substantial evidence on the record that the layoffs were occasioned by or in retaliation for the employees' desire to be represented by the Union. I believe the evidence offered by Respon- dent, and jointly by Respondent and the General Counsel, of the serious reduction in Respondent's business demon- strates that a layoff was necessary. Under all the circumstances of this case, I can find insufficient union animus to raise more than a suspicion, and suspicions are certainly inadequate, on which to base a finding of a discriminatory discharge. I shall recommend that the complaint be dismissed insofar as the layoffs are alleged to be a violation of Section 8(a)(3) of the Act. 4. The 8(a)(1) allegations The General Counsel contends that, by the action of interrogating the employees through Abdul, Respondent violated Section 8(a)(1) of the Act. I have found that the interrogation took place almost immediately after the Union's demand for recognition. It is not inconceivable that Hassan, having been informed that the Union claimed to represent a majority of his employees, determined to find out for himself and used Abdul, who was in a position of trust and confidence with the employees, to this end. I find that this was indeed a violation of Section 8(a)(1) of the Act. None of the safeguards established by the Board to reassure employees from whom the Employer seeks such information were present, neither addressed to Abdul by Hassan or to anyone else, nor by Abdul to Ouahrouch, the only employee to whom he spoke before the list was recovered by Sbai. Truly, it is a minimum sort of a 12 One of the cardsigners, Carlos Carrabello, does not appear on the stipulated list or on the company records for that week Accordingly, only 22 of the cards appear to be signed by employees employed in the unit at the time of the demand. 13 This was Constantinos Liakas, otherwise identified as "Dino," one of the leading union adherents and one of the two union adherents admittedly known to Respondent. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation under all the circumstances; but, nevertheless, it is a violation and remains uncorrected. The General Counsel also contends that Respondent violated the Act by informing employees that they were about to get Blue Cross coverage. I agree. The Respondent contends that the coverage was merely the implementation of a promise made to the Morrocan employees at the time they were hired either in Madrid or Morocco by Hassan and his brother-in-law and points out that in Morocco all employees are covered by hospitalization insurance. There is no evidence that any of the employees hired in the United States, which comprised most of the employee complement, had ever been told anything about hospitali- zation; and there is no indication that Respondent, prior to the advent of the Union, had ever made any attempt to get hospital insurance coverage for its employees. However, immediately after the demand, Kettler distributed the two insurance booklets that had been left with him to Sbai and through Sbai to the employees, especially Abdul. It was a matter of immediate concern to both Sbai and Abdul, because both of them had pregnant wives at the time and were concerned over the hospital expenses that they were committed to for that reason. Kettler testified that he had contacted insurance companies with regard to hospitaliza- tion insurance and had been informed that there was no point in considering it for at least 6 months because of the rapid turnover of the employees of the'restaurant during the first 6 months of its operation. Indeed the evidence reveals that there was a rapid turnover. There is no explanation of the fact that, in spite of this advice, after 4 months of operation Kettler distributed the Blue Cross booklets with the message that this was the hospitalization that the employees were going to get. Under all the circumstances I find that while Respon- dent may have anticipated ultimately giving its employees hospitalization, its decision to implement its promise given to a few of the employees, many months before, prema- turely, according to the advice that it contends it was relying on, clearly resulted from the employees' union activities. It has long been held by the Board that benefits granted to employees during an organizing campaign have the effect of interfering with their organizing activities in violation of Section 8(a)(1) of the Act. I have no doubt that this was the intended effect of Respondent's action with regard to the insurance. Accordingly I find that Respon- dent's activities constitute a violation of Section 8(a)(1) of the Act. Finally the General Counsel contends that the threat allegedly made by Kettler, regarding selling the restaurant to Chinese or Japanese businessmen because he did not want a union, violates Section 8(a)(1) of the Act. Unquestionably, had the General Counsel adduced evidence that such a threat was, in fact, made by Kettler, I would so find. However, the only evidence adduced was that one employee told another that Kettler had so stated. The intervening employee did not testify. The General Counsel contends that because of the fact that Kettler spoke no Spanish and some of the employees to whom he spoke understood no English, Kettler in effect designated any 14 Fernun Dura, the person who allegedly translated Kettler's remarks, was one of those who signed the union card bilingual employee who happened to hear him as his interpreter for the purpose of transmitting the message. This is an interesting theory and, in fact, it appears that, generally speaking, most messages from Kettler to the non- English-speaking employees were so transmitted. -However, where the alleged coercive statement is denied by Kettler, as it was in this case, the hearsay testimony of the employee is not enough to overcome the fact that neither could Kettler understand the translation nor could the employee who testified understand Kettler, and there is no showing that the translation was correct or was all or in part a product of the possible bias of the translater.14 Furthermore, the testimony of Riquelme places a pantry- man named Carlos at the scene. The only Carlos on the list of employees at this time was Carlos Sgro, who according to General Counsel's brief, was present and prepared to testify, but did not take the witness stand because Respondent stipulated to the validity of his card. The General Counsel does not explain why Carlos was not called to corroborate the testimony of Riquelme, or at any rate to demonstrate his inability to speak English, if that is the case. Under all the circumstances, I find that there is no substantial evidence on which I can find that the threat was made, and I do not so find. I shall recommend that the complaint be dismissed insofar as the threat is regarded. 5. The 8(a)(5) allegation The General Counsel contends that under the Gissel rule 15 a bargaining order should issue. The Supreme Court in that case approved the Board's order of recognition in situations where the union is found to have a majority at the time a demand is made, in circumstances where pervasive and outrageous unfair labor practices had been committed by the respondent employer, having the effect of coercing and restraining employees to such an extent that a fair election would be impossible, or where the unfair labor practices are of such a nature that the possibility of erasing their effects by the Board's traditional remedies, so that an election might be conducted under the Board's "laboratory conditions," is improbable. The Board, in construing Gissel, has weighed the intervening unfair labor practices, both quantitatively and qualitative- ly, to determine whether they would have effects so coercive and pervasive as to require that the election process be put aside and an immediate bargaining order be issued to protect the employees' rights. I must do the same. If the General Counsel had prevailed with regard to the layoffs, and Kettler's threat to sell out, it is conceivable that Respondent's unlawful conduct could be shown to have a tendancy to undermine the Union's majority, and to impede the election processes, but in view of the fact that I have found as violative conduct only the minimal interro- gation by Hassan through Abdul of Ouahrouch and the distribution by Kettler of the Blue Cross booklets which reached only a few employees, as far as the record reveals, I find that the unfair labor practices are of such a minimal nature that they do not render impossible the holding of an election under the Board's laboratory conditions. On the is N LR B. v Gissel Packing Company, Inc, 395 U.S. 575 ( 1969). MOUNIA, LIMITED contrary, I believe that a fair election could be conducted at any time after a proper notice-posting period was to expire. Accordingly, I shall not recommend the Gissel bargaining order in the instant case, nor do I find a violation of Section 8(a)(5) in Respondent's refusal to recognize the Union. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair Labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1 All employees of Respondent at its New York, New York, restaurant, including waiters, waitresses, busboys, captains, bartenders, cooks, assistant cooks, hostesses, dishwashers, porters, cashiers and checkroom attendants, but excluding the maitre d', stewards, office-clericals, reservation clerks, guards, cashiers, the doormen, watch- men, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. Since on or about June 25, 1971, a majority of the employees of Respondent in the unit described above have designated and selected the Union as their representative for the purpose of collective bargaining with Respondent, and at all times since such date the Union, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in the said unit for purposes of collective bargaining. 3. The Employer has not refused to bargain in violation of Section 8(a)(5) of the Act. 4. By unlawfully interrogating its employees with regard their union adherence, and by promising benefits in the form of hospitalization insurance to its employees during their organizing activities, thereby interfering with their organizing activities, Respondent has interfered with, restrained, and coerced employees in the exercise of their rights protected by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated Section 8(a)(3) and (1) of the Act in other regards as set forth above. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 16 ORDER 703 Respondent, Mounia Limited, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: a. Coercively interrogating its employees with regard to their activities on behalf of New York Hotel and Motel Trades Council, AFL-CIO, or any other labor organiza- tion. b. Promising its employees benefits in order to interfere with their exercise of their self-organizational rights. c. In any like or related manner interfering with, restraining, or coercing any employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: Post at its restaurant in New York, New York, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for Region 2, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.18 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 16 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes it In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 18 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered us to post this notice ; and we intend to carry out Dated By the order of the Board and abide by the following: WE WILL NOT ask our employees about their union activities or whether they are in favor of the Union. WE WILL NOT offer our employees benefits in order to keep them from joining the Union. WE WILL NOT in any similar manner interfere with, restrain or coerce our employees in their rights guaranteed by the National Labor Relations Act. MouNIA, LIMITED (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.