Maxwell's Plum

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MPC Restaurant Corp . and Hardwicke's Plum Ltd., d/b/a Maxwell's Plum and Dining Room Employ- ees, Local 1 affiliated with Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO and Chefs, Cooks, Pastry Cooks and Assistants Union, Local 89, Hotel and Restaurant Employees and Bartenders International Union of America, AFL-CIO. Cases 2-CA-12166-1, 2-CA-12166-2, and 2-CA- 12207 July 7, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 30, 1971, Trial Examiner Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and Local 89 filed an answering brief. 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 has decided to affirm the Trial Examiner's rulings, findings, conclusions and to adopt his recommended Order as modified herein.2 The Trial Examiner, as more fully set forth in his Decision, found that Marcel LeBloas, a cook, was discharged in violation of Section 8(a)(3) several weeks after the inception of Local 89's organizing campaign and 4 days after signing a union authonza- tion card. Although there was no direct evidence that the Respondent was aware of this minimal union activity, the Trial Examiner inferred that the Respon- dent checked LeBloas' background, knew that his previous employers recognized a union, and conclud- ed that LeBloas was a member of Local 89. The Trial Examiner further inferred, based on this "'knowl- edge" of LeBloas' previous union affiliation, that the Respondent suspected that LeBloas was among the first to sign a union authorization card. Couplingthe Respondent's knowledge and suspicions with the inconsistency between the reasons given LeBloas for his discharge and that advanced at the hearing, the Trial Examiner found that LeBloas had been discriminatorily discharged. We conclude that the Respondent's exception to this finding has merit. I This task, complicated by sheer volume, has been rendered more difficult by Respondent's frequent failure to abide by Sec 102.46 of the Board's Rules and Regulations, Series 8, as amended 2 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Although LeBloas' discharge in the context of this case and the shifting reasons given therefor are highly suspicious, we are unable to find proof that Respondent was aware of his union activities. The link between fact and ultimate inference is simply too tenuous. Similarly, contrary to the Trial Examiner, we conclude that there is not a preponderance of evidence to support the finding that Respondent's granting of life insurance benefits to its kitchen employees following Local 89's request for recogni- tion violated Section 8(a)(1). The record indicates such benefits were under consideration well before the Respondent was aware of Local 89's organizing campaign and a sufficient nexus has not been established between the campaign, timing, and effect of the benefit to establish unlawful impact or motive. The Respondent has also excepted to the Trial Examiner's validation of Osvaldo Avelino's authon- zation card. Avelino testified, in Spanish, that Jose Ferreira "told" him to sign and "made" him sign an authorization card as well as testifying that Ferreira asked him to sign a card and that he signed because he liked the idea of the union . Careful review of Avelino's total testimony convinces us, as it did the Trial Examiner, that Avelino was not implying that he signed a union authorization card under duress but that he merely intended to say that he was requested or asked to sign the card. In finding that the Respondent violated the Act the Trial Examiner relied to some extent on the fact that Robert Tanzi, an acknowledged supervisor who played a major role here, was not called by the Respondent to testify. The Respondent has excepted to this reliance on the grounds that Tanzi had permanently left the country and that a request to take his deposition had been denied by the Regional Director. We are satisfied that such reliance was not critical and do not rely on Tanzi's absence to the extent we otherwise adopt the Trial Examiner's Decision. It is, therefore, unnecessary for us to consider whether the Respondent's apparent failure (no record citation or allegation to the contrary appears in Respondent's exceptions or brief) to explain Tanzi's absence to the Trial Examiner would warrant an unfavorable inference. Finally, we note that the Trial Examiner erroneous- ly found that Collins' credited testimony established that Fareri, the assistant general manager, had admitted that Miranda and Wolf were discharged "because of the union." Review of the transcript Trial Examiner's resolutions with respect to credibility unless the clear proponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings 198 NLRB No. 13 MAXWELL'S PLUM reveals no such testimony by Collins. However, both Miranda and Wolf testified to separate admissions by Fareri to that effect, Wolf in those words. Since the Trial Examiner specifically credited their testimo- ny on this point earlier in his Decision, this error had no prejudicial effect. 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 as modified below and hereby orders that the Respondent MPC Restaurant Corp. and Hardwicke's Plum Ltd., d/b/a Maxwell's Plum, New York, New York, its officers, agents, successors, and assigns shall take the action set forth in the Trial Examiner's recommended Order as modified. 1. Delete "Marcel LeBloas" from paragraph 2(a) of the Trial Examiner's recommended Order. 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the U.S. Government WE WILL, upon request, bargain with the Chefs, Cooks, Pastry Cooks and Assistants Union, Local 89, Hotel and Restaurant Employees and Barten- ders International Union of America, AFL-CIO, as the exclusive representative of all the employ- ees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and if an understanding is reached, embody such an understanding in a signed agreement. The bar- gaining unit is: All kitchen employees employed at Max- well's Plum, exclusive of waiters, bartenders, stewards, guards, watchmen, professional employees, and all supervisors as defined in Section 2(11) of the Act. WE WILL offer the dischargees listed below full reinstatement, and pay them for the earnings they lost as a result of their unlawful discharges on the dates set opposite their names, plus 6-percent interest: Dischargees Discharge Dates Carlos Miranda Sept. 23, 1970 Richard Esposito Sept. 23, 1970 Michael Wolf Sept. 25, 1970 Jose Ferreira Oct. 6, 1970 15 WE WILL NOT discharge or discriminate against any employee for supporting Local 89 (the kitchen employees' local) or Local I (the dining room local), or any other union. WE WILL NOT coercively question you about union support or union activities. WE WILL NOT threaten you with discharge for union activities. WE WILL NOT make promises and grants of wage increases and benefits unilaterally or with- out notification to or consultation with Local 89 and Local 1, for the purpose of discouraging membership in said Local 89 and 1, or support thereof in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT unlawfully interfere with our employees' union activities. MPC RESTAURANT CORP. AND HARDWICKE'S PLUM LTD., D/B/A MAXWELL'S PLUM (Employers) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance wth the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-0300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: Respondents' Max- well's Plum' is a plush Manhattan restaurant which the Respondents state in their brief "affords its clientele the I "Maxwell's Plum" is the "nom de plume" of Respondent MPC Restaurant Corp, and Respondent Hardwicke's Plum, Ltd., doing business under the trade name and style of Maxwell's Plum, as a joint venture. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD very best service in New York City" by reason "partially ... of its atmosphere and decor,2 and . . . the teamwork of all its employees." The Plum employs approximately 100 kitchen and dining room employees. In the fall of 1970, independent drives were started by Charging Party Local 89 to organize the Plum's kitchen employees and by Charging Party Local 1, to organize its dining room employees.3 The complaints herein allege various unfair labor practices by the Respondents in their operation of the Plum. The complaint in Cases 2-CA-12166-1 and -2 was issued on December 4, 1970, pursuant to two charges filed by Local I on September 29, 1970, copies of which were duly served on the Respondents. The complaint in Case 2-CA-12207 was issued on January 5, 1971, pursuant to a charge filed by Local 89 on November 16, 1970, a copy of which was duly served on the Respondents. The two complaints were consolidated for trial by an order dated January 7, 1971. The Respondents in their answers to the two separate complaints deny any unfair labor practices. The consolidated proceeding was tried before me over a period of 20 trial days between March 9 and April 21, 1971, at New York, New York. The transcript of the record consists of 3,356 pages. Briefs were received on June 14, 1971, from counsel for General Counsel, for Local 89,4 and for the Respondents. These have been carefully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS-JURISDICTION The two Respondents herein, both of which are organized under the laws of New York, have at all times here material constituted a joint venture for the purpose of controlling and operating a restaurant under the aforemen- tioned trade name and style of Maxwell's Plum, located at First Avenue and 64th Street, New York, New York, which also constitutes the joint venture's place of business. During the past year, which is representative of its operations, Respondents, in the course and conduct of their business, received gross revenue in excess of $500,000 from the retail sale of food and beverages, and purchased and caused to be transported and delivered to their restaurant beverages and foods and other goods and materials valued in excess of $50,000 which were transport- ed and delivered to such restaurant in interstate commerce directly from States other than the State of New York. It is admitted that the Respondents are and have at all times here material been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS The two Unions named in the caption are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues In the fall of 1970, as heretofore indicated, Local 89 and Local I started independent campaigns to organize the Plum's kitchen and dining room employees, respectively. Only one of these two unions, Local 89, sought recognition as the authorized exclusive bargaining agent of the employees it sought to organize; namely, the Plum's kitchen employees. The complaint in Case 2-CA-12207 alleges that Local 89 sought recognition on the basis of the possession of signed authorization cards from a majority of the employees in the appropriate unit and that the Respondents' refusal to bargain with Local 89 is a violation of Section 8(a)(5) of the National Labor Relations Act. Respondents have utilized perhaps as much as one-half of the total trial time in the case to the defense of that issue. The joint venture's chief defense is an attack on the appropriateness of a unit of its employees confined to its kitchen employees. It takes the position that the only appropriate unit in its case is an overall unit consisting of both its kitchen and dining room employees, notwithstand- ing the holding in Toffenetti Restaurant Company, Inc., 133 NLRB 640, involving another Manhattan restaurant, in which the Board held that a separate unit of the employer's I kitchen I employees to be an appropriateI unit. To overcome the precedent of the Toffenetti case, Respon- dents attempted to show that current collective-bargaining agreements in the restaurant industry in the Manhattan area call for overall appropriate units covering both kitchen and dining room employees. Findings on this attempt will be made below. In addition, the joint venture challenges the very existence of a request from Local 89 for recognition, the possession by Local 89 of a majority of authorization cards from employees in the alleged appro- priate unit, and the validity of enough of these cards to destroy the alleged majority. Unlike Local 89, Local 1-i.e., the Dining Room Employees Union-has made no request to the Respon- dents for recognition as the bargaining agent for the dining room employees it sought to organize. There is thus no 8(a)(5) issue with respect to Local 1. Events subsequent to the initiation of the organizational drives of the two Unions at the Plum embrace alleged discriminatory discharges of both dining room and kitchen employees, alleged threats of discharge or other reprisals to dining room employees for supporting Local 1, and alleged promises and grants of benefits to dining room employees to induce them to refrain from supporting Local 1. They 8 The lavish decor of the Plum is reflected in photographs in evidence as financial ability of the Unions to purchase the more than 3,000 page Resp. Exhs. 36 to 38. transcript of the hearing herein , the Trial Examiner invited briefs from them 3 The full names of the Charging Parties are shown in the caption above sans references to the transcript, based upon their trial notes Local 89's 4 Inasmuch as counsel for the Unions expressed grave doubts about the brief is based on trial notes MAXWELL'S PLUM also embrace alleged unlawful interrogations, alleged promises of wage increases and the granting thereof, and alleged promises of various insurance benefits to kitchen employees to induce them to refrain from supporting Local 89. The issues as framed by the pleadings are: (1) whether all of Respondents' kitchen employees at its Maxwell's Plum restaurant, exclusive of waiters, bartenders, stewards, guards, watchmen, professional employees and all supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act; (2) whether on or about October 21, 1970, a majority of Respondents' kitchen employees as described above, designated and selected Local 89 as their representative for purposes of collective bargaining with the Respondents; (3) whether Local 89 made a request to the Respondents on or about October 21, 1970, for recognition as the exclusive bargain- ing representative of Respondents' above-described kitch- en employees; (4) whether the Respondents on or about October 21, 1970, refused and still refuses to recognize Local 89 as the bargaining representative of Respondents' kitchen employees; (5) whether the Respondents at various dates in September and October 1970 discriminatorily discharged various of its kitchen and dining room employees; and (6) whether Respondents engaged in various acts of interference, restraint, and coercion (a) by on or about October 22, 1970, offering and promising various kitchen employees wage increases to induce them not to support Local 89, (b) by granting at the pay periods ending October 28 and November 4, 1970, wage increases to various kitchen employees to induce them to refrain from assisting Local 89, (c) by during the month of November 1970 promising and granting to its kitchen employees various types of insurance, such as health, group life, accidental, death, and dismemberment insurance to induce them not to support Local 89, (d) by in November 1970 offering and promising its kitchen employees paid holidays and double pay for holiday work to induce them not to support Local 89,5 (e) by unlawfully interrogating its kitchen employees on or about October 1, 1970, concern- ing their support of Local 89, (f) by threatening its dining room employees on or about September 24, 1970, and other unknown dates with discharge or other reprisals for supporting Local 1, (g) by offering and promising dining room employees on or about September 24, 1970, and various other unknown dates, life insurance policies, health benefits, and other benefits and improvements in their working conditions to induce them to refrain from supporting Local 1, and (h) by on or about November 1970 granting to their dining room employees life insurance benefits to induce them from giving assistance to Local 1.6 5 This is alleged in par 16 of the complaint in Case 2-CA-12207. As General Counsel offered no proof in support of the allegation, it will be recommended for dismissal for failure of proof 6 On some of the issues noted above as framed by the pleadings, there has been partial failure of proof by General Counsel In all such instances, the portions of the allegations on which no proof was adduced will be recommended for dismissal for failure of proof B. Preliminary Issue as to Appropriate Unit 17 From the large amount of trial time the Respondents expended and sought to expend on the issue of the appropriate unit herein and from the priority and space they give it in their brief, it is at once obvious that the Respondents deem the most crucial issue in the case to be whether its kitchen employees constitute, as alleged in the complaint, an appropriate unit. The reason for this position is apparent . As "Point I" in their brief, Respondents assert that, "The only appropriate unit for purposes of collective bargaining is an overall unit of [all of] Respondent's [sic]7 employees." In other words, the Respondents contend that the appropriate unit should consist of a unit composed of all of its employees, made up of both its kitchen and dining room employees, with the usual exceptions. Of the two unions here involved as Charging Parties, only Local 89, the kitchen employees union, has the apparent strength to demand recognition as the bargaining agent for the Plum's kitchen employees, based on the alleged possession of authorization cards from a majority of the Plum's kitchen employees . On the record, Local 1, the dining room or waiters' union, has no such strength as there is no allegation in the complaint (Cases 2-CA-12166- 1 and -2) that Local 1 represents a majority of the Plum's dining room employees , nor does it appear to the Trial Examiner that the Respondents have any fear that its dining room employees will be soon organized because of the vast disparity of earnings between them and the kitchen employees. The Plum's waiters earn around $400 per week, mostly in tips with only $1.14 per hour coming from wages under New York State minimum wage laws whereas the weekly pay of the Plum's kitchen help, such as here involved, is approximately $104 based on an hourly pay on the average of $2.60.8 The kitchen employees do not receive any tips. Thus a favorable decision on Respondents' position that the only appropriate unit here is an overall unit of all of the Plum's employees with the usual exceptions would assure the Respondents of not having to deal with any unions and simultaneously render academic the issues of (a) whether Local 89 made a request for recognition as the bargaining agent for the Plum's kitchen employees , (b) whether Local 89 had in its possession authorization cards from the majority of the Plum's kitchen employees to represent them on the date it requested recognition , and (c) whether the cards are valid for authorization purposes-all of which questions the Respondents have placed in issue. The difficulty with Respondents' position that the appropriate unit should be an overall unit of all of its employees is that it turns counter to a decision rendered by the Board as long ago as 1961 in Toffenetti Restaurant Company, Inc., supra. In that proceeding, the Board found the "existence of an area pattern [New York City] for I As Maxwell's Plum is owned and operated as anoint venture by the two corporations named above, the reference to their employees should be "Respondents' employees," rather than "Respondent's employees" as used in Respondents' brief. s This is a rough estimate, but accurate enough to show the wide disparity in earnings between the Plum's waiters and its kitchen help 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining on the basis of separate kitchen units in restaurant establishments ...." (Emphasis supplied.) Local 89 is a chartered local union for kitchen employ- ees, with delegated jurisdiction over the Boroughs of Manhattan, the Bronx, and Richmond in New York City. John Rey, secretary-treasurer of Local 89, has been an officer and organizer for Local 89 for more than 35 years. Rey's undisputed testimony9 shows that since the decision of the Board in the Toffenetti case the area practice in the Greater New York City area has continued to be for kitchen employees to be represented separately as a unit in first class restaurants. His testimony further shows that similarly it is also the area practice for dining room and bar employees to be represented separately in first class New York restaurants. These area practices are in line with other evidence showing that (kitchen employees) Local 89, (dining room employees) Local 1, and (bartender employ- ees) Local 15-all sister locals under Hotel & Restaurant Employees and Bartenders International Union of Ameri- ca, AFL-CIO-are organized exclusively along craft lines. Maxwell's Plum as a first class Manhattan restaurant would in the absence of very special circumstances be subject to these area practices. During the course of the trial herein, the Respondents, by use of numerous dragnet subpoenas duces tecum, subpenaed literally hundreds of restaurant union contracts from the two local unions, here involved as Charging Parties, from numerous other restaurant locals, and from the files of the New York State Labor Relations Board in an effort to prove through them that the area practice in the Greater New York City area calls for overall units of all employees in each restaurant establishment, contrary to the established holding of the Board in the Toffenetti case and Rey's testimony that the practice is for kitchen and dining room employees to be organized and represented separately. The subpoenas duces tecum served by the Respondents on the two Charging Parties herein and upon numerous other restaurant unions required the production of, "All collec- tive-bargaining agreements currently in effect" between the subpenaed union and restaurant employers in the city of New York or in named counties in the State of New York. (Emphasis supplied.) (Resp. Exh. 23.) Of the approximately 750 collective-bargaining agree- ments under subpoena duces tecum Local 89 has in its files, 110 thereof were submitted to Respondents by Local 89. The uncontested testimony of Secretary-Treasurer Rey of Local 89 establishes that these 110 contracts are represent- ative of Local 89's 750 collective-bargaining contracts. The record further establishes that these 110 contracts show units consisting exclusively of kitchen employees, except that in approximately five contracts thereof the unit included some employees whose status as kitchen employ- ees might be questionable, such as "runners" who earn tips and dining room porters who could be classified as dining room employees. But even in these five instances, the number of questionable kitchen employees as against the number of unquestionable kitchen employees is fractional. For example, the Forum of the Twelve Caesars, a Manhattan restaurant, employs 33 employees, of which 30 are out-and-out kitchen employees and only 2 are bar porters who may or may not be classified as kitchen employees. The fact that the 110 contracts submitted pursuant to subpoena duces tecum by Local 89 to Respondents contain such few instances of kitchen units with fractional numbers of employees whose status as kitchen employees is questionable is further proof that the 110 contracts submitted by Local 89 to Respondents were not culled to reflect units consisting exclusively of simon-pure kitchen employees, but are truly representative of the 750 collec- tive-bargaining contracts Local 89 has in its files and as such corroborate both the Board's holding in the Toffenetti case and Secretary-Treasurer Rey's testimony that the area practice in New York City is for kitchen employees to be represented separately as a unit in first class restaurants. The 110 submitted collective-bargaining agreements are for the most part with first class restaurants. After Local 89's initial response to Respondents' subpoenas duces tecum as set forth above, the Trial Examiner, on April 7, 1971, during the course of the trial, prevailed upon Local 89 to make available to Respondents more of its collective-bargaining agreements for inspection at the local's offices. On that date at Local 89's offices, Secretary-Treasurer Rey turned over to one of Respon- dents' counsel for inspection approximately 250 of the Local 89's collective-bargaining agreements in addition to the 110 contracts that it had heretofore submitted to the Respondents. From noon to 5 p.m., Respondents' counsel examined 147 of the 250 contracts and then left the Local 89's office without staying to examine the remaining 103 collective-bargaining contracts. It is inferred from the fact that Respondents did not seek to offer any of the 147 examined collective-bargaining agreements into evidence that they all showed units composed exclusively of kitchen employees. Summarizing, the Trial Examiner finds and concludes that Respondents, pursuant to their subpoena duces tecum upon Local 89, had the opportunity to examine and did examine 257 contracts of the approximate 750 collective- bargaining contracts Local 89 has in its files and that the record shows that the units described therein consist virtually entirely of kitchen employees. The Dining Room Employees Union, Local 1, in response to Respondents' subpoena duces tecum likewise calling for all of its current collective-bargaining agree- ments, submitted 30 out of its total of approximate 700 such agreements as "representative" of all of its agreements and declined to submit any further agreements under a motion to quash or limit, the subpoena duces tecum. Mr. Darby, the principal counsel for Respondents, agreed to that the 30 submitted contracts "only contained classifica- tions for non-kitchen employees," but declined to stipulate that they are representatives of all of Local l's contracts. The 30 submitted contracts were, for the most part, with such fine and well-known Manhattan restaurants as Toots Shor, Le Provencal, Al Cooper's, Sweet's Parisien, Via Veneto, Dawson's Steak House, Cyrano, the Boathouse, 9 Respondents adduced no testimony to the contrary. contracts, none of the 30 contracts were offered in evidence and if offered 10 Because of this agreement covering the essential point of the 30 would have served no useful purpose. MAXWELL'S PLUM Gallaghers, and Frankie & Johnnie's. Although it is a relatively new restaurant, Respondents' Maxwell Plum is of the same class or genre. In subrrutting these 30 contracts as representative, Mr. Pinto, the principal attorney for Local 1, stated to the Trial Examiner, "I can tell you without equivocation that Local I has not one contract which represents any persons or units or any other person who is not a dining room employee and each and every one of its separate and distinct contracts will bear this out ... ." Although Mr. Darby declined to accept the 30 contracts as representative, he admitted in effect that he had no evidence and presented no evidence to the contrary. He did not call an available officer of Local 1 for cross-examination on whether or not the 30 submitted contracts were representative. In addition to the subpoena duces tecum served on Local 89 and Local 1, the Respondents served virtually identical subpoenas duces tecum upon some 12 to 13 other restaurant unions, requiring each of them to likewise produce, "All collective-bargaining agreements currently in effect" with owners of restaurants in New York City and in various counties of the State of New York. (Emphasis supplied.) The broadside subpoenas duces tecum brought forth motions by Locals I and 89 to quash, revoke, or in the alternative to limit the subpenas on numerous grounds. The motions were granted to the extent the subpoenas duces tecum required production beyond the 257 collective- bargaining agreements submitted by Local 89 and the 30 submitted by Local 1, primarily because the Board had already held in the Toffenetti case, supra, that the area pattern in New York City was for kitchen employees to be represented separately for bargaining purposes and be- cause the collective-bargaining agreements submitted by Locals 89 and 1 under Respondents' subpoenas duces tecum confirmed and corroborated the Board's holding in the Toffenetti case. Similar motions by numerous other restaurant unions subjected in the same way to Respon- dents' dragnet subpenas for all of their collective-bargain- ing agreements were granted for the same reasons.'1 In summary, it is found both under the Board's holding in the Toffenetti case and by the independent evidence adduced in the instant proceeding that the area pattern in Manhattan is for separate bargaining units for kitchen, 11 The Trial Examiner granted the motions to quash or limit the various subpoenas duces tecum on the following grounds (1) The Board has held in the Toffenetti case that there is an areawide pattern in New York City for bargaining on the basis of separate kitchen units in restaurant establish- ments, (2) the testimony of John Rey, secretary-treasurer of Local 89, shows that the area pattern for separate kitchen units as found by the Board some years ago in the Toffenetti case still prevails in the greater metropolitan area of New York City, (3) the collective-bargaining agreements submitted by Local 89 and Local 1, pursuant to Respondents' subpenas, confirm and corroborate the practice of separate units for kitchen and dining room employees as found by the Board in the Toffenetti case , (4) further submission of more of such agreements would be merely cumulative, (5) Respondents are misusing the subpena process for exploratory or discovery purposes, (6) counsel for Respondents has admitted that he has no proof or knowledge that Local 89 or Local I represented any restaurant employees other than kitchen and dining room employees, respectively; (7) the subpenas served on the various restaurant unions impose an unreasonable burden and could hamper their operations, (8) Respondents have introduced no evidence from their own sources showing that Local I and 89 represent employees other than dining room and kitchen employees, respectively, (9) and the time for a cutoff and to move on to other issues had 19 dining room, and bar room employees in restaurant establishments.12 Recognizing the possibility of the above finding, the Respondents seek to avoid its impact, first by the contention that due to the difference in facts under which the Toffenetti case reached the Board from that in the present case the Toffenetti decision is not controlling here. The Toffenetti case reached the Board on a request for review of a Regional Director's Decision and Direction of Election. The Regional Director in his Decision under footnote 2 stated that Local 89, the same Union here involved as one of the two Charging Parties, sought a unit of kitchen employees but the employer wanted to add to the unit such other employees as laundry workers, maintenance-repairman, cashiers, etc. The Regional Direc- tor in the same footnote stated that both Local 89 and the employer sought "to exclude waiters, waitresses, and bus boys because all of such employees are currently represent- ed by another union." (See attachment to Resps. Exh. 25.) Based on the Regional Director's implicit finding in the Toffenetti case that neither the petitioning union, Local 89, nor the employer therein, "sought an overall unit," the Respondents contend that the present case is different and distinguishable because the Respondents as owners of Maxwell's Plum do seek an overall unit. Respondents do not offer any explanation of why this difference has any relevant meaning to the issue herein of why the kitchen employees of Maxwell's Plum do not constitute an appropriate unit as alleged in the complaint. If anything, this factual distinction brings added emphasis to the Board's finding in Toffenelti that the area pattern for New York City is "for the bargaining of separate kitchen units in restaurant establishments" inasmuch as it shows that Toffenetti in accord with area practice recognized the right of its dining and kitchen employees to be represented separately by different craft unions. Another distinction Respondents seek to draw between its situation and that in the Toffenetti case is that in Toffenetti "the unit structure" for separate units for kitchen and dining room employees had been established "by the consent of the parties" whereas here there has been no such consent by the Respondents. From this distinction, the Respondents assert that the employer in Toffenetti "tacitly conceded the appropriation of the proposed arrived in view of the full opportunity already given the Respondents to develop by evidence their theory that the only appropriate unit for Maxwell's Plum was an overall unit of all of its employees. Apparently totally unconvinced by these reasons, Respondents in their brief at In 4 on p. 26 complain . "Respondent requested the Board to grant permission to appeal the Trial Examiner's ruling revoking its subpoenas . . Following the conclusion of the trial, the Board issued a telegraphic communication on April 23, 1971, denying Respondent's request. The ruling of both the Trial Examiner and the Board are erroneous and prejudicial and deprive the Respondent of due process." It is this inability to face intractable fact that prolonged the trial of this case from an estimated 3- or 4-day trial to a 20-day trial 12 In the Toffenetti case, supra, the Board in a footnote pointed out that its decision in Toffenetti "is not to be construed as a modification of existing Board policy as to hotel units" In hotel-motel-restaurant situations for reasons, that do not have to be set forth here, it has been Board policy to allow overall employee units. The Respondents' reliance on Westward-Ho Hotel Co, 437 F 2d 11 10 (C A. 9), for support of its position for an overall unit of all of Maxwell's Plum er..ployees is misplaced because that case dealt with a hotel-restaurant situation ; Maxwell's Plum has no hotel or motel accommodations-it is strictly a New York City restaurant. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departmentalized representation" whereas here the Res- pondents oppose departmentalization and seek in its place an overall unit. But here again, if anything, the fact that the employer in the Toffenetti case recognized that its dining room and kitchen employees are entitled to separate units is additional proof of the area practice of separate units for dining room and kitchen employees. Respondents finally seek escape from the Board's holding in the Toffenetti case under the claim that the "similarity of job functions of Respondent's employees warrants an overall unit of determination." In support of this contention, the Respondents adduced evidence show- ing that its waiters and other dining room employees have some duties which take them into the kitchen to perform and that on occasion some of its kitchen employees perform duties in the dining rooms of Maxwell's Plum. Thus, the record shows that Respondents' waiters, for example, mix precut salads with dressings, add condiments to steak tartar (raw chopped steak), scoop up ice cream for dessert orders, put garnishes on hot meat dishes, arrange vegetables, parsley, and tomatoes on serving dishes to make them "look nice," prepare espresso coffee, and assemble their orders in the kitchen from either the hot or the cold food sections. With respect to the Plum's kitchen employees, the record shows that the Plum's executive chief, whose principal duties are in the kitchen, will from time to time enter the dining room in his white chef's uniform to observe the manner in which the waiters serve the food to the guests and that on the occasions the restaurant serves buffet meals some of the kitchen help will take their places behind the buffet tables to offer assistance to the patrons. The record further shows that some of the Plum's restaurant functions are handled by both kitchen and dining room employees, such as the preparation of coffee, the cutting of bread, the ladling of ice cream, and the placement of garnishes on dishes, such as olives, lemons, parsley, pickles, and fruit. Notwithstanding these mixed duties, the kitchen personnel is under the direction of kitchen supervisors and the dining room personnel is under the direction of dining room supervisors. Although the above overlapping of kitchen and dining room employee functions does exist at Respondents' Maxwell's Plum restaurant, the difficulty with Respon- dents' contention that such overlapping warrants an overall appropriate unit of all of its employees is that that kind of overlapping is not unique to the Plum but is common practice at all good restaurants in New York City where without exceptions, when organized as all the well known restaurants appear to be, they are organized along craft lines with a separate appropriate unit for kitchen employees and a separate appropriate unit for dining room employees. This is established by the uncontradicted testimony of Local 89's aforementioned Secretary-Treasur- er Rey and Local I's Business Agent Morris Swirn, who between them have approximately 85 or more years of experience in the restaurant trade in New York City. Accordingly, the Trial Examiner finds that the slightly overlapping functions of Respondents' kitchen and dining room employees not only do notjustify an overall unit for all of the Plum's employees but would be contrary to the universal practice of all good New York City restaurants, with similar employee functional overlapping , of having their kitchen and dining room employees organized separately by different craft unions for representational purposes. Conclusion Based on the foregoing findings of fact, the Trial Examiner finds and concludes that all kitchen employees of the Respondents, employed at their Maxwell's Plum restaurant, exclusive of waiters, bartenders, stewards, guards, watchmen, professional employees and all supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as alleged in the complaint in Case 2-CA-12207 under paragraph 9 thereof. C. Issue as to Whether Local 89 Had Majority of Plum's Kitchen Employees Signed Up To Represent Them It is undisputed that Maxwell's Plum had a total of 39 kitchen employees at the time Local 89 made its alleged demand for recognition on or about October 21, 1970. General Counsel contends that Local 89 had 23 union authorization cards from the Plum's 39 kitchen employees on the date of its demand for recognition. With these 23 cards General Counsel further contends that Local 89 had a majority of 2 cards for representation even if the total number of union authorization cards is reduced from 23 to 21 to reflect the elimination of 2 cards from employees Respondents contend were fired for cause and not discriminatorily, prior 13 to Local 89's alleged request for recognition, and even if the total disputed kitchen staff figure remains at 39 rather than 36 in accordance with General Counsel's contention that the figure should be reduced to 36 to reflect the alleged fact that 3 of the 39 kitchen employees were statutory supervisors, not entitled to be included in the card count for a majority. Respondents concede that, even under these most favorable assumptions in their favor, Local 89 would still have a majority of 1 card; that is, 21 cards for umon representation out of the Plum's kitchen staff of 39 employees, subject, however, to Respondents' claim that so many of these cards are invalid for one reason or another as to destroy the majority in favor of Local 89. These claims of invalidity will be considered below in appropriate order. In the findings in a later section of this Decision it is determined that kitchen employees Marcel LeBloas and Jose Ferreira were discriminatorily discharged prior to the time of Local 89's request for recognition because of their union activities. These two employees had signed union cards in favor of Local 89 prior to their discharge, but their two cards were not included in the counts for majority 13 As will be seen below, General Counsel contends that the cards of the counted because they were discriminatorily discharged prior to Local 89's two involved employees, Marcel LeBloas and Jose Ferreira, should be demand for recognition MAXWELL'S PLUM shown in the above two paragraphs . Due to the determina- tion made below that they were discriminatonly dis- charged, the Trial Examiner here finds that they were still Respondents' "employees" under the Act at the time Local 89 made its demand for recognition and that Local 89 was therefore entitled to include their cards in the count for a majority at the time of its request for recognition. With these two additions, Local 89 would have 23 cards out of the 39 employees employed in the Plum 's kitchen and thus a majority of 4 cards. The above counts as noted are on the assumption most favorable to Respondents that the Plum's kitchen staff consisted of 39 nonsupervisory employees on the date of the Union's request for recognition . General Counsel's position, however, is that the 3 stewards among Respon- dents 39 kitchen employees are in fact supervisors within the meaning of the Act and that the kitchen unit is thus only 36 in number. The indicated stewards are Robert Willis, Dominic Augello, and Joe Largana ; Local 89 has no union authorization cards from these three stewards. With a kitchen unit of only 36 employees brought about by the elimination of the 3 stewards from the unit, Local 89's claimed majority of 4 under the findings of the above paragraph would be increased to 5. Similarly with a kitchen unit of only 36, under Respondents' own count, Local 89 would have a majority of 4. But as Respondents deny that the three stewards have statutory status as supervisors, there is an issue as to their status. The testimony of kitchen employees Jose Ferreira, the aforementioned discriminatee, and Santos Bonet, a runner, who still works for the Plum, leaves no room for doubt that they received work orders from the Plum's stewards. Ferreira, a Spanish-speaking man who could testify only through an interpreter, could only remember the first name of the man he worked under as "Joe" when he first started employment at the Plum, but his testimony is clear that "Joe" was known as a steward. Santos, who as a Spanish- speaking person had much difficulty testifying in English notwithstanding his long residence in the United States, identified Joe Largana and Robert Willis as the stewards he worked under and still works under . It is also found by inference that the Joe under whom Femera worked was the same Joe Largana. From the credited testimony of Ferreira and Santos , it is found that Respondents' stewards have at all times here material had and exercised the authority to "assign" and "responsibly to direct" certain kitchen employees in Respondents' restaurant, and accord- ingly are supervisors within the meaning of Section 2(11) of the Act.14 The testimony of Local 89 Secretary-Treasurer Rey shows that this is in accord with the universal practice of better restaurants, such as the Plum, in the greater New York City area. Because stewards are deemed supervisors 14 Even the grudging answer of Warner LeRoy, Maxwell's Plum's self- described "owner," to a question put to him by his own counsel appears to admit that his stewards had the authority to assign work to other employees. Asked by his counsel, "Do the stewards who work in your restaurant direct other employees in their jobs during the course of a day?" LeRoy replied, "They would direct other employees only to the extent that they would ask someone to pick up something in a storeroom . " The testimony of Robert Willis, the only Plum steward to testify herein with respect to his authority over other employees , was evasive Speaking of Bonet, his runner, Willis under cross-examination testified that, "when I receive the meat, he 21 by the Union, Local 89 does not accept stewards as members. Summarizing the entire record, it is found and concluded that at the times here pertinent the Respondents' kitchen unit without the 3 stewards consisted of 36 nonsupervisory employees on the date of Local 89's request for recognition and that the local on that date had authorization cards from 23 of these 36 employees to represent them in bargaining negotiations with Respondents, or a majority of 5.15 However, as noted, Respondents raise questions as to the validity of so many of the Union's authorization cards as to destroy Local 89's majonty if Respondents' validity objections to the cards are sustained. One of Respondent's objections to the validity of the employee-signed cards is that they were not dated by the employees, but by Local 89's Secretary-Treasurer Rey. Respondents contend that, "To establish a majority as of the date of an alleged demand for recognition, authoriza- tion cards should be concurrently signed and dated by employees to substantiate the majority status of the union." Respondents offer no authority to support their contentions that "authorization cards should be concur- rently signed and dated by employees." The record leaves no doubt that the employees after signing the cards meant for the union officials to fill in all blanks in the cards, including the dates, since most of the signers were foreign born and illiterate in the English language. Union Representative Rey's credited testimony shows that he inserted the dates on the cards either at a union meeting or upon receipt thereof from an employee- solicitor. Despite some initial confusion of memory, Rey's detailed and credited testimony leaves no doubt that he dated the 23 cards on the dates shown thereon, to wit, 19 on October 1, 1970, and 4 on October 21, 1970. Rey's credited testimony further shows that each of the 23 signed cards were dated and otherwise filled out prior to the time Rey called upon the Plum's owner, Warner LeRoy, with Local 89's request for recognition. These findings are corroborated by the fact that a copy of a letter of record herein by counsel for Local 89 shows that on October 22, 1970, he mailed an election petition 16 to the Regional Director, together with the 23 signed cards as showing of interest. (G.C. Exh. 15.) But in the opinion of the Trial Examiner these cards, validated as they were at the trial as expressing the free will and desires of the employees to be represented by Local 89, would be valid even without any dating thereon under the showing that Local 89 had possession of the signed cards at the time it made request for recognition to Respondents. Respondents' other validity objections relate to eight specific cards on various grounds. Two of these relate to the aforementioned discriminatees, Marcel LeBloas and Jose Ferreira. Respondents contend that their authoriza- [Bonet] will help me put it away He will help me taking morning requisition[s] upstairs " When asked, "Who tells him to do that?" Willis evaded the question with the reply, "His job description is written ... " 15 Counsel for General Counsel contends that Local 89 at the times here pertinent had a majonty of only four cards as against the above finding of a majority of five, but whether the figure is four or five Local 89 had a majority under either count. 16 Pursuant to normal practice, the petition is being held up pending the resolution of the charges herein 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion cards "should not be counted in determining Local 89's majority status since neither employee was employed on the critical date." Inasmuch as heretofore indicated it is determined in a later section of this Decision that these two employees were discnminatorily discharged prior to Local 89's request for recognition and therefore were "employ- ees" within the meaning of the Act at the time of the request, their cards are found valid and entitled to be counted in determining the local's majority status. It is found that their cards were properly included in the above- determined majority count. The remaining six cards to which Respondents object on various grounds of validity are those of kitchen employees Juan Alicea, Luis Sigollen, Dionicio Lorenzo, Manuel Lugo, Victor Vintimillia, and Osvaldo Avelino. Respondents object to the card of Alicea, a cook, on the ground that the card does not bear his personal signature. Alicea acknowledged that the card does not contain his personal signature, but his credited testimony shows that he instructed and authorized a fellow kitchen employee to sign his name on the card in evidence herein as he was engaged at the time in his kitchen duties as a cook. His testimony further shows that having worked in restaurants for 10 years he fully understood the meaning and purpose of the card and that it reflected his free will and desire to be represented by Local 89 in collective-bargaining negotiations with the Respondents. Under these circum- stances the Trial Examiner finds Alicea's card valid and properly included in the count of Local 89's majority. Respondents next object to a card bearing the signature of Luis Felix Sigollen, a dishwasher (G.C. Exh. 3-C), on the ground that he "was not employed at the time he allegedly signed the card." Like virtually all other cards, Sigollen's card was left undated at the time he signed it but the card was later dated October 21, 1970, by Local 89's secretary-treasurer, Rey. Sigollen's signed card was ob- tained by the aforementioned discnminatee and kitchen worker, Jose Ferreira. According to Respondents' records Sigollen's first day of employment at the Plum was October 19, 1970. Respondents seek to show through Ferreira's testimony that he obtained Sigollen's signed card on September 27 or 28, 1970, or some 3 weeks prior to the time he was employed by the Plum. This is the basis for Respondents' contention that Sigollen's card should not be counted in the count for union majority on the ground that Sigollen was not employed by the Plum at the time he signed the undated card. Sigollen's card was 1 of some 15 such other cards Ferreira obtained from other coworker kitchen employees at various times in September 1970. Some 7 months later at the trial herein Ferreira, as might be expected, found it difficult to remember with certainty the precise dates on which he received each of the signed but undated cards he had solicited from his coworkers. His rememberance of the date on which he solicited and received Sigollen's signed card was by reference to his uncertain memory of the date on which he received the card from another kitchen employee, Ampara Almonte, as the following excerpts from the transcript show: Q. [By counsel for General Counsel] Was that [Almonte's card] signed in your presence? A. Yes. TiuAL EXAMINER: When? A. I do not recall. s s s • s Q. [By General Counsel] Was it before you were released by the doctor on October 6th? MR. DARnY: Objection.... r • s • s Q. Did you ever report back to work after your injury had healed? A. Yes. Q. Did you receive that card [Almonte's] after your injury had healed? A. Yes. Q. Did you receive that card before that date? A. Yes. Q. I will ask you if you received a card from Luis Feliz [Sigollen]. A. Yes. Q. Do you remember the approximate date that you received that card from him? A. On the same day that I received the first card you showed me [Almonte's card].17 I don't remember the exact date. [Emphasis supplied.] If full reliance were given in Ferreira 's above testimony, it would appear that he obtained Sigollen's signed card some time prior to October 6, 1970, more specifically on September 27 or 28, 1970, but as there is no evidence that Sigollen worked for Respondents in September 1970, and no evidence in the case that he was on Respondents' premises prior to October 19, 1970, it is obvious that Ferreira could not have gotten a signed card from Sigollen the latter part of September and that Ferreira was thus honestly mistaken in giving September 27 or 28, 1970, as the date on which he received Sigollen's signed card. Accordingly, the Trial Examiner does not credit Ferreira's testimony that Sigollen signed his card in September 1970. At the trial, the Trial Examiner placed the Respondents on notice that it would be a "wholly unlikely inference" that Sigollen signed a union card for Local 89 before he began his employment with Respondents on October 19. In view of this state of the record, the Trial Examiner further placed the Respondents on notice that the burden of going forward to show that the card, bearing the date of October 21, 1970, was actually signed by Sigollen about a whole month prior thereto or before he began his employment at Maxwell's Plum was upon the Respondents . This burden of going forward was not met by Respondents . The Trial Examiner finds that Sigollen signed his union authoriza- tion card in the presence of Ferreira and upon his solicitation on a date no earlier than October 19, 1970, when Sigollen took up employment with Respondents and no later than October 21, 1970; that the card was dated 17 Ferreira testified that "I don't recall exactly" when he received Almonte's signed card but "believed" it was on September 27 or 28, 1970. MAXWELL'S PLUM October 21, 1970, by Secretary-Treasurer Rey; and that the card was in Rey's possession at the time he made his request to the Respondents for recognition of Local 89 as the collective-bargaining representative of the Respon- dents' kitchen unit. The Trial Examiner further finds that Sigollen's card is valid in all respects and was properly includable in the count for Local 89's majority. Respondents next object to the validity of the cards of Dionicio Lorenzo, pantryman, and Manuel Lugo, dish- washer, both of whom had to testify through a Spanish interpreter. Lugo, even through the interpreter, showed considerable difficulty in grasping some of the questions and in verbalizing his answers. Respondents in their brief admit that both Lorenzo and Lugo testified that they signed their union authorization cards in the latter part of September 1970. However, Respondents contend that there are contradictions in the testimony of these employees which indicates that their cards were signed on October 22 rather than in late September 1970. As October 22 is, as the Respondents state, "the day after Local 89 claims it demanded recognition," they contend that the cards signed by Lorenzo and Lugo were signed too late to be counted as cards on hand to show majority when Local 89 made its request for recognition on October 21. The record, however, does not bear out Respondents' contention that the cards in question were executed in October. Lorenzo testified that his card was signed in the presence of Ferreira and Hernandez at a location just outside the restaurant. The record otherwise identifies Hernandez as a business agent of Local 89. Respondents seek to fix the date of that meeting as being October 22, 1970, based on other evidence that there was a meeting outside of the restaurant on October 22 at which Ferreira and Hernandez were present. But Lorenzo's credited testimony plainly shows that the meeting he referred to with Ferreira and Hernandez took place, "Around the 17th of September or maybe a day later." There are no contradictions in Lorenzo's testimony on this as claimed by Respondents. Although Lorenzo testified that he signed the card in the presence of both Ferreira and Hernandez, he not only definitely fixed that date as around September 17, 1970, but stuck to that date under the vigorous cross- examination of counsel for Respondents. There is nothing inconsistent with this testimony and a possible later meeting between Lorenzo with Ferreira and Hernandez outside the restaurant on October 22, 1970, if such took place. The Trial Examiner fully credits Lorenzo's testimo- ny that he signed his card around September 17, 1970. Lugo's card is considered next. Although Respondents admit that Lugo testified that he signed his card the latter part of September 1970, a close examination of his testimony shows that he was never asked and never mentioned the date on which he signed his card. Based on Lugo's obscure testimony that he signed the card, "When they went there to the restaurant," in reply to the Trial Examiner's question, "Who gave you the card?" the Respondents seek a finding that the card was signed on October 22, 1970. There is nothing in the record which would support such an inference. Lugo's card bears the date of October 1; the testimony of Local 89 Secretary- Treasurer Rey shows that the card was in his hands on 23 October 1, and that he inserted that date. Accordingly, it is found that Lugo's card was signed and in the possession of Local 89 long prior to the date it demanded recognition of Respondents as the collective-bargaining representative of its kitchen unit. Respondents also attack the validity of the cards of Lorenzo and Lugo on the ground that their testimony that they were "for the union" is ambiguous. Their testimony, however, leaves no doubt that they fully understood that the cards they signed were an authorization to the Union to represent them in collective bargaining with the Respondents. Based on the above findings, the Trial Examiner finds that the cards of both Lorenzo and Lugo are valid, timely, and were properly included in the count of Local 89's majority at the time it demanded recognition from the Respondents. The card of Victor Vintimillia is also objected to on validity grounds. Vintimillia was hired by the Plum as a dishwasher on August 28, 1970. His credited testimony shows that he signed the union authorization card in evidence herein as General Counsel's Exhibit 12 about a month after he started work at the Plum. He signed the card at a location outside of the restaurant but adjacent to it upon the solicitation of a man he believed to be an employee of the restaurant, whose name he could not recall. His credited testimony further shows that, immedi- ately after he had signed the card, all of its other blank spaces, including the date line, were filled in by the solicitor. The card is dated October 1, 1970, and the Trial Examiner finds that the card was signed on that date. Respondents' attempt to show that the card was signed on October 22, 1970, finds no support in the record, directly or by inference. The Trial Examiner finds that the card was properly included in Local 89's majority count at the time it requested recognition from the Respondents. Finally Respondents object to the validity of the union authorization card of Osvaldo Avelino, a dishwasher, on the grounds that the aforementioned Jose Ferreira "told" him to sign the cards, that Ferreira "went to each person to make him sign the card," and that Ferreira "talked to me about the benefits of the union." Respondents contend that "These statements do not establish that Avelino knew that the card for the purpose of authorizing Local 89 to bargain collectively for him." Any reading of Avelino's testimony shows that the above quotations from Avehno's testimony are taken out of context of his total testimony and that while the words "told" and "made" may be literal English translations of his Spanish, Avelino obviously merely intended to say that Ferreira requested or asked him to sign the authorization card. In more natural translations of his testimony, the transcript at other places shows that Ferreira "asked" him to sign the card. Ferreira as a fellow kitchen employee was not in the position to "tell" or "make" other employees sign a card. It is clear from the whole of Avelino's testimony that he fully understood and sympathized with the efforts being made to bring Local 89 in to represent the Plum's kitchen employees in collective bargaining with the Respondents and that he signed his own union authorization card for this purpose. His direct testimony shows that he signed his 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card "because I liked the idea of the union" and because he "had already worked in another place where was a union" and knew what it was all about. It is found that Avelino's card was signed by him personally prior to the time Local 89 made its request to Respondents for recognition, that Avelino knew that the purpose of the card was to give Local 89 the authority to represent him in collective bargaining with the Respondents, and that his card was properly included in the majority count claimed by Local 89 at the time it made its request for recognition. Contrary to Respondents' assertion,18 there is no evidence of any kind in the case that any of the cards were obtained by threats or coercion. Summarizing, it is found that each of the 23 union designation cards of record herein represent the free will and desire of each of the employee-signatories thereon to be represented by Local 89 in collective bargaining with the Respondents. Based on the foregoing evidentiary findings, it is found and concluded that Local 89 had authorization cards from a majority of the employees in Respondents' kitchen unit at the time 19 Local 89 made its request to Respondents for recognition as the exclusive collective-bargaining repre- sentative of its said unit. D. Issue as to Whether Local 89 Requested Recognition and the Date Thereof and Whether the Respondents Refused Recognition The complaint in Case 2-CA-12207 alleges that Local 89 on or about October 21, 1970, requested the Respondents to recognize it as the exclusive bargaining representative of its kitchen unit for purposes of collective bargaining, and that the request was denied as of the same date. Secretary-Treasurer Rey of Local 89 testified in support of the allegations. Warner LeRoy, Respondents' chief executive and self- described owner of Maxwell's Plum, on the other hand, by his testimony denied the allegations. LeRoy admits that he had a visitation from Rey and two of his associates in the latter part of October 1970, at the premises of the Plum. However, he denies that he received any request at that visitation from these union representatives for recognition of Local 89 as the bargaining representative of the Plum's kitchen employees. LeRoy also denied that the meeting took place on October 21 and instead claimed that the date of the meeting was October 23. Respondents, on the basis of LeRoy's testimony, contend that they "did not refuse to recognize Local 89 since no demand for recognition was made." Of the two versions of the Union's visitation to Maxwell's Plum, the record compels the crediting of Rey's version. It is undisputed that Rey and LeRoy have known each other for a period of at least 2 years prior to the time here under discussion because of a prior contact relating to Local 89's efforts to organize the Plum's kitchen employ- ees. Rey's testimony shows that he and two of his associates called upon LeRoy in the mid-afternoon of October 21, 1970, where in Rey's own words he, as spokesman for Local 89, "told Mr. LeRoy I am coming here to see you again because we have the majority of the employees of the kitchen of your restaurant signed up with the union, and I would like to have an appointment to discuss a collective-bargaining agreement." LeRoy replied that he would refer the matter to his attorney. This testimony by Rey, both as to the substance of the meeting and the date thereof, was corroborated by Anthony Kolgate, one of the two union representatives from Local 89 who accompanied Rey. The date of the meeting is further corroborated by Rey's diary which shows that it took place on October 21, 1970, a Wednesday. Following his meeting with LeRoy, Rey caused a petition for an election to be filed with the Board. The petition (Resps. Exh. 21) alleges that a request for recognition was made to and denied by Respondents on October 21, 1970. The petition was transmitted for filing under a transmittal letter dated October 22, 1970. (G.C. Exh. 15.) The petition and its transmittal letter of October 22 is not only further proof that the meeting between Rey and his colleagues with LeRoy must have taken place on October 21 but also shows that LeRoy's testimony that the meeting took place on October 23, rather than October 21, is patently wrong. [The question of whether a union's request for recogni- tion was made on a particular day or a day or two earlier or later should have little or no bearing on the question of whether or not the involved Employer unlawfully rejected the request. But in the present case the Respondents have gone to great length in an attempt to show that the meeting of the union representatives with LeRoy took place on October 23 rather than October 21. Counsel for Local 89 contends that this is because Respondents seek to make it appear that there was no connection (on another issue) between their alleged promises of wage increases and Local 89's request for recognition by their attempt to show that the promises of the wage increases were made prior to Local 89's request for recognition. This is in line with Respondents' contention that they "had no knowledge of Local 89's organizational drive when it granted wage increases." (Resps. br., p. 63.) The Trial Examiner finds that Respondents' true motive for seeking a finding that Rey's meeting with LeRoy took place on October 23 instead of its actual date of October 21 as found above is that it would be supportive of Respondents' efforts to obtain a finding on another issue herein that the wage increases the restaurant granted to its kitchen employees in October 1970 was not for the purpose of thwarting the efforts of Local 89 to organize these employees as charged in the complaint. The latter issue will be dealt with below in a subsequent section of this Decision.] LeRoy's version of the meeting he had with Rey, which is wholly different from Rey's, is as follows: I saw them, I said hello, how are you. They said fine. They said, you know, everything is union these days. I said, well, that's not for us to discuss. And I said, why don't you gentlemen come here to dinner sometime, I would be glad to have you as my guests. And they said thank you, and that was the whole conversation. 18 Resps br at p. 31, fn 9 19 As shown below, the date on which Local 89 made its request to Respondents was October 21, 1970. MAXWELL'S PLUM The Trial Examiner rejects this version of the meeting as wholly incredible in the light of the entire record including countenance factors, but also for the reason as stated in Local 89's brief, "it bears no relationship to the way real people-especially veteran union officers-behave." Based on the foregoing evidentiary findings of fact, the Trial Examiner finds and concludes that on October 21, 1970, Local 89 requested Respondents to recognize it as the exclusive collective-bargaining representative of their employees in the above-described kitchen unit and requested Respondents to bargain collectively with it as the exclusive bargaining representative of their employees in the said unit, with respect to rates of pay, wage, hours of employment, and other terms and conditions of such employees. The Trial Examiner further finds and con- cludes that on the aforementioned date of October 21, 1970, the Respondents refused, and since that date have continued to refuse, to recognize Local 89 as the exclusive collective-bargaining representative of Respondents' em- ployees in its described kitchen unit. E. Issue as to Whether Respondents Discriminatorily Discharged Two Kitchen Employees 1. Discharge of Jose Ferreira From the conclusionary findings in this section, it was stated above-in connection with another issue that Jose Ferreira and Marcel LeBloas "were discriminatonly discharged prior to the time of Local 89's request for recognition (October 21, 1970), because of their union activities." The basic evidentiary findings upon which these conclusionary findings were reached are stated below. Jose Ferreira, a young man of 20, was hired by Respondents as a dishwasher on March 3, 1970, and some 2 months later was promoted to pantryman whose duty, among others, was the preliminary preparation of lobsters for service to diners. The complaint alleges that Ferreira was discriminatorily discharged on October 6, 1970.20 Respondents' answer, while denying any discrimination in Ferreira's discharge, appears to admit that his discharge took place on the alleged date of October 6, 1970, but at the trial Respondents sought to prove that the discharge took place much earlier, to wit, in the last week of August 1970. As the issue as to the date of Ferreira's discharge appears to have been tried by consent, it will be treated as an issue herein notwithstanding Respondents' failure to deny the allegation that Ferreira was discharged on October 6. This issue is incidental to Respondents' principal defenses that Ferreira was discharged for cause and that Respondents had no knowledge of Ferreira's union activities at the time of his discharge, but is important because if his discharge occurred in August, Respondents could not be charged with knowledge of Ferreira's union activities as they did not start until September 17, 1970. On August 21, 1970, about 4 p.m., Ferreira received a serious knife-cut injury to the back of his right hand while 20 Par. 6 of the complaint in Case 2-CA-12207 simply alleges that Ferreira was discharged on October 6, 1970, and LeBloas, the day before Par. 8 of Respondents' answer reads "It admits the allegation contained in 25 working in the kitchen of his Employer. The accident happened as he was handling a lobster. There are several versions of the accident. Ferreira's version is as follows . He testified that after he picked up the lobster and was carrying it back to a table for preparation, he somehow slipped and fell and severely cut the back of his right hand with the knife he had in his other hand. It is undisputed that Ferreira, bleeding profusely, was taken to a hospital where his hand was treated and the cut stitched. It is also an admitted fact that at the time of the accident the supervisor of the kitchen, Jean Brecq, the executive chef, was away from the restaurant on vacation. It is also undisputed that Ferreira after some 4 hours at the hospital returned to the restaurant and reported to Robert Tanzi, a dining room manager, in the absence of Brecq. Ferreira's credited and undisputed testimony also shows that Tanzi sent him home, but told him to come back when he felt better. Respondents contend, however, that Tanzi fired Ferreira a week or so later in the last part of August because he held him responsible for the accident in which he was injured. Respondents did not call Tanzi to establish that he had fired Ferreira a week or so after the accident, but rely on the testimony of Brecq as hereafter more fully related that when he got back from his vacation in the first week of September, Ferreira spoke to him (Brecq) about having his job back and that at that time he "told him that he had been discharged the week before and I was just repeating to him again that he couldn't work any more for Maxwell's Plum." Ferreira categorically denied that such a conversa- tion took place and testified that it was not until October 6, 1970, when he told Brecq that he had a medical release and was ready to return to work that Brecq told him he could not have his job back. On September 14, 1970, the Respondent reported Ferreira's injury of August 21 to the Workmen's Compen- sation Board of the State of New York. The report states that the injury occurred while Ferreira was handling a lobster with a knife and does not mention that anyone else was involved with the accident. The report requires the filing of a form C-11 "each time there is any change in the employment status" of the employee (i.e., Ferriera) "as reported in item 22 above." Item 22 asks, "Has employee returned to work?" Respondents replied "No" to this. The transmittal letter on the report does not show that a form C-11 was transmitted with the report and the report does not have a form C-11 attached to it. (G.C. Exh. 14 a and b.) After his treatment at the hospital, Ferreira was under the care of a private physician for his injured hand until October 6, 1970. On that date his doctor released him and told him that he could go back to work. Reporting back to work that same day, Ferriera's credited testimony shows that after Brecq, who is in complete charge of the kitchen, had told him that he could not come back to work at the Plum any more, Tanzi, the aforementioned manager of one of the Plum's two dining rooms, came by and entered into the conversation. Ferreira's credited testimony shows that in response to his question as to why he could not have his Par. 6 of the complaint that the persons named therein were terminated from employment." 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job back, Tanzi replied, "You cannot work here any more because you put your nose M places you don't have to." The Trial Examiner finds that this was a reference to Ferreira's efforts to get the Plum's kitchen employees organized as detailed below. Respondents did not produce Tanzi to deny that he had made the statement attributed to him by Ferreira. Brecq's denial that Tanzi made the statement is not credited. The record as a whole shows that Respondents have been at all times extremely sensitive, alert, and resistant to any union efforts to organize their restaurant. Prior to his third and final visit of October 6 to his physician, Ferreira had made office visits to the doctor on September 2 and 16 and after each of these office visits he would stop at the Plum to visit with the employees in the kitchen where he expected to return to work as soon as he had a medical release. After leaving the restaurant's premises on his visit of September 16, he was met by Jorge Hernandez, a union organizer for Local 89, on the street dust outside the employees' entrance of the restaurant. From where they were standing they were visible from the adjacent interior of the restaurant. Hernandez inquired whether Ferreira worked in the restaurant and upon receiving an affirmative answer, he sought his assistance in organizing the Plum's kitchen employees. Ferreira readily agreed; he then signed a union authorization card in the presence of Hernandez, and received a supply of such cards for distribution among Plum's kitchen employees. The next day, September 17, 1970, Ferreira obtained the signatures of about four of his fellow employees on the union cards; on September 18, 1970, he signed up about six more kitchen employees; and on September 27 or 28, 1970, he succeeded in getting four more cards from Respondents' kitchen employees. All of these solicitations by Ferreira took place in Respondents' kitchen and all the cards were signed in the kitchen. Respondents' defense is that Ferreira was discharged for cause because his own misconduct caused the accident of August 21, 1970, and that the discharge took place in the latter part of August within a few days after the accident and not on October 6, 1970, as testified by Ferreira. It is part of Respondents' defense that Ferreira was discharged by Tanzi during Brecq's absence from the kitchen on vacation. It is also part of Respondents' defense that Brecq told Ferreira as early as the first week in September 1970, when Ferreira asked him whether he could have his job back when he had a release from his doctor, that he (Ferreira) had "been discharged the week before and I (Brecq) was dust repeating to him again that he couldn't work anymore for Maxwell's Plum." Tanzi was never called by Respondents to testify that he had terminated Ferreira. Respondents rely on Brecq's testimony to prove that Ferreira had been discharged in August within a few days of his kitchen accident. To prove that the accident was caused by Ferreira's horseplay, Respondents called Evans Pierre, an 18-year-old boy from Haiti who works in the Plum kitchen during the summer and attends high school in Brooklyn during the school year. Pierre impressed the Trial Examiner as being a highly intense and emotional person. Pierre's testimony shows that both he and Ferreira, with whom he is on unfriendly terms, were in the same part of the kitchen on August 21, 1970, when Ferreira was injured while handling a lobster, but his'testimony of, what led up jto; the accident'is entirely different. It will be recalled that Ferreira testified that as he was carrying the lobster he slipped and fell and cut his right hand with the knife he had in his left hand. Pierre, on the other hand, testified that the accident happened as Ferreira in horseplay was trying to put the open-clawed lobster in his hand against Pierre's resistance and that at Ferreira's second attempt at this, he held up a knife against it and that somehow the knife slipped and both he and Ferreira received cuts on their hands. Respondents also reported Pierre's injuries to the Work- men's Compensation Board, as it did in Ferriera's case, stating the accident to Pierre occurred on August 21, 1970, while he was cleaning a lobster.21 The two Workmen's Compensation reports show that both Pierre and Ferreira were taken to the same hospital but for some unexplained reason, Respondents' report on Pierre is dated August 28, 1970, and the one on Ferreira is dated September 14, 1970. The report on Pierre, like the one on Ferreira, does not show that anyone other than Pierre was involved in the accident. The report on Ferreira shows a question mark after the question as to the "Probable length of disability." The same question in Pierre's report is answered "Ten days," but his testimony shows he was back at work the next day whereas it took Ferreira some 6 weeks to recover from his injury. Wajih Jahl, a relief cook, testified in behalf of the Respondents as a witness to the accident of August 21, 1970, claiming that he was present at the accident. His testimony is inconsistent. In his direct testimony he stated that he was in the same area in which Ferreira and Pierre were at the time of the accident, but that his back was turned to them when he heard a commotion and that, when he turned to see what had happened, he saw Pierre with a knife in his right hand trying "to hit a lobster22 and he hit Jose [Ferreira] and himself." On cross-examination Jalil was asked by counsel for General Counsel, "was [it] your opinion when you turned that Mr. Pierre was trying to hit the lobster?" Jalil replied inconsistently with his above direct testimony, "I don't say that. I say I saw the knife-and the same time I turned around it was in the hand of both guys." A final version of what led to the kitchen accident of August 21, 1970, was given by Francisco Gabriel, who at the time of the trial had been in Respondent's employment for about a year as a preparation man in which position he did such things as prepare salads and hamburgers. His union authorization card having been received in evidence upon the testimony of Ferreira who had solicited it, he was first called by counsel for Respondents in an effort to show that he did not understand the nature of the card, but this effort failed and the examination fortified the fact that he knew when he signed the card that it was to bring the 21 The two reports are identical as to the date of the accident and the accident occurred while the employees were preparing a lobster approximate time of the day thereof. Similarly the description of the 22 Presumably in Ferreira's hand accident in each report is virtually the same Both reports state that the MAXWELL'S PLUM Union in to represent the kitchen employees. Counsel for General Counsel thereupon took Gabriel over as a rebuttel witness for examination concerning the kitchen accident of August 21. Gabriel testified that he was present at the time of the accident and that the only other person there besides Ferreira, Pierre, and himself was Jorge Martinez. He stated flatly that the aforementioned Wajil Jalil was not at the scene of the accident. Gabriel described the accident as follows: "Jose Ferreira was chopping the lobster. The Haitian [Pierre] came over and tied to develop a fight with Ferreira. He went from behind and wanted to cut the lobster. Jose Ferreira was surprised, acted and jerked and at that moment he was cut. " His further testimony shows that by the word "fight" he meant that Pierre was horseplaying with Ferriera. Martinez, the only other person who saw the accident (according to Gabriel), was not called by Respondents as a witness. Gabriel's testimony shows that he had not spoken to anyone about the accident prior to his questioning as a rebuttal witness. Since Gabriel's testimony was unrehearsed and spontaneous, this factor weighs heavily in favor of the credibility of Gabriel's testimony. The Trial Examiner credits the versions of the accident given by Ferreira and Gabriel and rejects all other versions. The Trial Examiner also credits Gabriel's testimony that Jalil was not at the scene of the accident when it happened. Jahl's own conflicting testimony as to what happened at the accident gives credence to Gabnel's flat assertion that Jalil was not present at the place and time of the accident. Ferreira under cross-examination acknowledged that another person was also involved in the accident, but could not give any details concerning that other involvement. This appears to be because the accident happened so suddenly and unexpectedly and left Ferreira bleeding so profusely that he became generally unaware of anyone except himself. His testimony shows that a nerve in his middle finger was severed in the accident. On the basis of all the evidence of record, the Trial Examiner finds that both Ferreira and Pierre were involved and injured in the accident. The Trial Examiner further finds upon the basis of the credited versions of the accident that it was brought about by Pierre's misconduct or horseplay not by Ferreira. Since the Trial Examiner does not credit Jalil's testimony that he was present when the accident happened , he does not credit his testimony that he reported the accident to the back dining room manager, Tani. Discussion and Conclusions Respondents are seeking to show that they terminated Ferreira for cause because they held him responsible for the accident of August 21, 1970, and that his termination took place in the last part of August 1970, because of that incident. If it were found that Ferreira was discharged in late August 1970, it would naturally follow that Ferreira was not discriminatorily discharged even if he was not at fault for the accident because the record leaves no doubt that his union activities did not commence until September 17, 1970, and that thus the Respondents could not be charged with terminating him in August 1970 for his subsequent union activities. The record, however, compels the conclusion that 27 Respondents discharged Ferreira on October 6, 1970, as alleged in the complaint and not in late August 1970. Tanzi, the supervisor whom the Respondents assert fired Ferreira late August 1970, for misbehavior leading to his accident, was not called by Respondents as a witness. Thus there is a credibility issue between the testimony of Brecq, the top kitchen supervisor , who testified that he told Ferreira the first week in September 1970 that he had been fired the week before in his (Brecq's) absence and would not be rehired, and the testimony of Ferreira who testified that Tanzi told him right after the accident to come back to work as soon as he was well and further testifying flatly denied that he had any conversations thereafter with anyone about coming back to work until October 6, 1970, when he was told by Brecq for the first time that he would not be taken back. As between this conflicting testimony the Trial Examiner credits Ferreira's testimony based on his observation of the two witnesses and a number of other factors. One of these is that Respondents should have called, but did not call, Tanzi to prove its assertion that he had actually discharged Ferreira about a week after his accident in late August. Another is that the above findings show that the accident of August 21, 1970, was not Ferreira's fault and that Respondents were thus seeking a pretext to justify Ferreira's discharge and were seeking to date it back to relate to the accident. Although it is customary for large employers to keep exact employment records , Respon- dents, who hire more than 100 employees , produced no record evidence of the date of Ferreira's discharge. Furthermore, Respondents' Workmen's Compensation report of September 14, 1970 , on Ferreira's accident of the preceding August 21 , does not show or in any way indicate that he had been terminated , but on the contrary carries the inference that he was still an employee of Respondents. The fact that Ferreira was permitted to pay fairly prolonged visits to the employees in Respondents ' kitchen shows that he regarded himself as an employee on sick leave and that management regarded him in the same light. Respondents' contention that they had no knowledge of Ferreira's union activities on the date of his discharge on October 6, 1970, cannot be credited. As shown above, Ferreira's credited testimony shows that on the date of his discharge when Ferreira asked why he was not taken back now that he had a medical release, Tanzi replied that it was "because you put your nose in places you don't have to." As shown above, the Trial Examiner finds that this was a clear reference to Ferreira's extensive union activities in organizing the kitchen help which could not have escaped Respondents' notice as Ferreira had single-handedly signed up approximately 14 employees in Respondents' kitchen while they were at work. In summary it is found that Ferreira was discriminatorily discharged on October 6, 1970, because of his union activities in behalf of Local 89. 2. Discharge of Marcel LeBloas The complaint alleges that Marcel LeBloas was discrimi- natorily discharged on October 5, 1970. Respondents' defense is that LeBloas was hired as a temporary replacement for another employee on leave and discharged 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when that employee returned to work. Although the Respondents at the trial would not stipulate as to the exact date of LeBloas' discharge, the Respondents in their bnef concede that the discharge, as alleged, took place on October 5, 1970.23 LeBloas' testimony shows that he was hired on June 10, 1970, and was terminated by Chef Brecq after a week's notice on the now agreed date of October 5, 1970. LeBloas testified that Brecq gave him as the reason for his termination that, "There wasn't enough work so we had to cut off on the personnel." On the date of his discharge, Brecq gave LeBloas a letter on a Maxwell's Plum letterhead addressed "To Whom It May Concern," reading, "Due to an overall cut in the payroll we have found it necessary to terminate the services of Mr. Marcel LeBloas," signed by Brecq as chef. LeBloas had had a prior brief period of employment with Respondents between the latter part of 1969 and early part of 1970 which he had voluntarily severed. LeBloas at the time of the trial herein had been a member of Local 89 for some 8 years. Asked whether Brecq knew of his membership in Local 89, LeBloas answered, "I think so, but "I'm not sure." It is a certainty that Brecq, a man.of quick intelligence, would not have hired LeBloas as a sauce cook without having inquired as to where he had prior employment and experience as a sauce cook and that Brecq would have knowledge of whether or not the restaurants LeBloas had worked for were union shops or not, particularly in view of the extreme sensitivity the record here as a whole shows that Respondents have about having their restaurant unionized. From these findings, the Trial Examiner infers and finds that Brecq suspected or knew that LeBloas was a member of Local 89 at the date of his hire. LeBloas' credited testimony shows that, about a week before his discharge and prior to Brecq's notice to him that he would be terminated, he signed a union authorization card at the offices of Local 89, signifying his desire to be represented by that Union in collective bargaining with the Respondents. The card bears the date of October 1, 1970, but the date was inserted by a union representative, not by LeBloas. The October 1 dating of the card does not alter LeBloas' above-credited testimony that he signed the card prior to the time Brecq told him he was dispensing with his services. There is no evidence that Brecq knew about LeBloas' card at the time he notified LeBloas of his termination, but it is inferred and found from Brecq's knowledge of LeBloas' union background that Brecq would suspect that LeBloas would be among the first to sign a union authorization card. Brecq testified that he had hired LeBloas as a temporary replacement for sauce cook Daniel DeNais who was going or had gone to France on a 3-month leave of absence to get married; that he hired LeBloas "on the basis he would replace" DeNais; and that when DeNais came back he would automatically have his job back. He further testified that he gave LeBloas 1 week's notice of termination when DeNais returned to New York for reemployment with Respondents. LeBloas, upon cross-examination when asked if he had been hired as a temporary employee, replied, "I think so," but immediately qualified that answer by stating that, "Nobody had told me anything." Similarly in his pretrial affidavit LeBloas stated, "I think that I was hired as a temporary employee to replace Daniel DeNais." However, LeBloas has nowhere stated that he was told this by Brecq at the time of his hiring. On the contrary, he testified that when he was hired Brecq told him that it was because "we needed more people." In a followup question, he was asked if Brecq told him when he was hired that he would have to leave the job after a period of time. LeBloas emphatically and flatly denied this with the answer, "No, not at all." The Trial Examiner credits this testimony by LeBloas; Brecq's testimony that he hired LeBloas as a temporary employee is not credited. LeBloas gave the impression of being scrupulously honest in his reply to questions put to him. It is inferred and found that LeBloas' reply, "I think I was hired as a temporary employee to replace Daniel DeNais," is a mere expression of his opinion based on what LeBloas heard from coworkers at Respondents' restaurant after he commenced his employ- ment there and not upon anything Brecq had told him. Discussion and Conclusions The principal credibility findings have been made above. These show that at the time of LeBloas' termination notice Respondents through Brecq either knew or strongly suspected that LeBloas was and had been a member of Local 89 for years and that he would lend support to any movement by Local 89 to organize Respondents' kitchen employees, as in fact he did by signing an authorization card. The foregoing credibility findings also show that Brecq at the time of LeBloas' hiring did not tell him that he was being hired as temporary employee. The fact that Brecq gave one explanation to LeBloas for his termination at the time he gave him notice thereof, namely, that it was due to an "overall cut in payroll," and a wholly different explanation at the trial for his discharge, namely, that it was due to his having been hired as a temporary replacement for another employee now ready to return to work, gives further support to the above finding that Brecq did not tell LeBloas at the time of his hiring, as claimed, that he was being hired as a temporary employee. It is evident that Respondents, searching for a pretext to fire LeBloas to disguise the fact that it desired to terminate him because of his union sympathies, first hit upon the idea of making it appear that he was discharged because of an "overall cut in payroll" and then shifted to what looked like a better pretext that this discharge was because he had been hired as a temporary replacement. It is noted with respect to the first reason given for LeBloas' discharge that there is nothing in the record, which contains a great deal of employment data in connection with other issues, to show that Respondents engaged in any overall reduction in payroll in the month of October 1970. If the genuine reason for LeBloas' discharge had been that he had been hired as a temporary employee, Brecq would have told him so in the first place instead of telling him it was because of 13 Respondents' answer to the complaint in Case 2-CA- 12207 admits of Ferreira, the date of LeBloas' discharge was litigated by consent that the date of LeBloas' discharge was October 5, 1970, but, as in the case MAXWELL'S PLUM an overall cut in payroll. Both reasons are pretexts for his termination because of his union sympathies. It is found and concluded that LeBloas was discnmina- tonly terminated on October 5, 1970, because of his known or suspected union sympathies at a time when Respon- dents were acutely aware of an intense drive by Local 89 to organize Respondents' kitchen employees. F. Issue as to Whether Respondents Discriminatorily Discharged Three Waiters The Charging Party involved in the discharge of the waiters here under consideration is the Dining Room Employees Union, Local 1, whose membership is confined to dining room employees in contrast to the aforemen- tioned Local 89 whose membership is limited to kitchen employees. It will be recalled that both Local 1 and Local 89 commenced virtually simultaneous drives in the latter part of September 1970 to organize these two separate classifications of employees at Respondents' Maxwell's Plum restaurant. The two independent campaigns appear to have coincided by sheer happenstance. The complaint here under consideration (Cases 2-CA-12166-1 and -2) alleges that the Respondents on or about September 23, 1970, discnminatonly discharged employees Carlos Miranda, Richard Esposito, and Michael Wolf. The three men held positions as waiters. Respon- dents' defense is that the three employees were discharged for various derelictions of duty and behavior. Respon- dents' waiters as observed at the trial are highly articulate men of better than average education and of engaging appearance and manner who earn approximately $400 a week, mostly from tips, in contrast to the bulk of Respondents' kitchen help who are meagerly educated, inarticulate, Spanish-speaking men who earn about $104 per week. Maxwell's Plum has two dining rooms, one referred to as the Back Room and the other as the Front Room or Cafe. The Back Room is the more elaborately decorated and commodious dining where meals are a la carte with checks coming to about $10 to $11 per person. The Cafe is less formal, has smaller tables where the average check is between $5 and $6 per person. Respondents seek to place their best and most experienced waiters in the Back Room where they work in pairs, with one waiter taking the order and the other seeing that the order is filled in the kitchen and served when ready. In the Cafe a single waiter performs both functions. The three dischargees here involved worked as waiters in the Back Room. They worked under the direct supervision of Edmund Collins who held the position of captain of the Back Room. Miranda and Esposito worked as partners, with Esposito taking the orders from patrons and Miranda seeing that the orders were filled and served. Wolf worked the kitchen-end of a partnership with a partner not involved in this proceeding. Miranda and Esposito were discharged on September 23, 1970. Wolf, who was off work on September 23 and 24, was terminated on September 25, 1970, but the decision by 24 Collins impressed the Trial Examiner at the hearing as being a completely sincere and honest witness Any reading of the transcript of his testimony conveys the same impression. 29 management to terminate all three of these waiters was made at a management meeting held about 3 p.m. on September 23, 1970. The terminations were by Sylvain Fareri, assistant general manager, under directions of owner LeRoy and his general manager, Jacquest Alliman, who that day left for Europe to attend the funeral of his father. Miranda worked for Respondents for about 6 months prior to his discharge. About a week before his termination he called at the union offices of Local I to see if the Union could get him ajob at some other restaurant because of his dissatisfaction with working conditions at Maxwell's Plum, one of his complaints being the long hours of work. There he was persuaded to undertake organizing the dining room employees at Maxwell's Plum. He began his organizational efforts immediately among his coworkers. On September 23, 1970, after work about 1 o'clock in the morning, an organizational meeting of the Plum's waiters was held at Local l's offices attended by seven or eight waiters, including Miranda, Esposito and Wolf. The prime mover in this organizational drive was Miranda. The record is undisputed that management held a meeting at LeRoy's order later that same day about 3 o'clock in the afternoon which was attended by LeRoy as owner of Maxwell's Plum and Alliman and Fareri, as general and assistant general managers, respectively. Although denied by Respondents, the fully credited testimony of Collins24 establishes that he was also present at the meeting at the request of Faren in his capacity as captain or immediate supervisor of the waiters in the Back Room.25 According to Collins' credited testimony, LeRoy opened the meeting with the assertion that some of the waiters were trying to start a union. He called upon his managers to name the union ringleaders. In response to this demand, Feren gave him the names of Miranda, Esposito, and Wolf. LeRoy mentioned the names of two other waiters who might also be involved in starting up a union, but accepted Collins' word that he didn't think they were "involved." LeRoy thereupon ordered Fareri "to get nd of them tonight," to wit, Miranda, Esposito, and Wolf. This task fell to Faren rather than Alliman because the latter had received word of the death of his father in Europe and was flying to France that day to attend the funeral. The meeting lasted only a short time. Shortly after the meeting, Miranda, aware that a management meeting had taken place, asked Collins, "What was going on?" Collins made no immediate response to the question, but told Miranda that he would meet him at a nearby bar. There some 15 minutes later he informed Miranda that manage- ment had knowledge of his union activities and intimated that he was in danger of losing his job. When Miranda got back to the Plum about 4:30 p.m., to start the dinner shift, Faren called him aside and told him that he was discharged without giving him any reason for the action. Miranda pressed Fareri for the reason for his discharge. Faren's first explanation was that it had been ordered by Alliman. Miranda argued with Faren for the real reason 25 Although Faren did not expressly deny that Collins was in attendance at the meeting, his testimony seeks to give the impression that Collins was not at the meeting That impression is not credited. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for his termination, calling attention to the fact that he had worked under him for 6 months and that he deserved to know the genuine reason for his discharge. Miranda's credited testimony shows that Fareri finally told him that it was because he was trying to get a union in at the restaurant. A few minutes later Fareri similarly fired Esposito. Like Miranda, Esposito sought the reason for his discharge, but his credited testimony shows Fareri declined to give him any reason at all for his termination. Wolf, like Miranda and Esposito, had also attended the union meeting held after working hours about 1:30 in the morning of Wednesday, September 23, 1970, at Local I's union offices, but thereafter was off duty until Friday, September 25 when he reported for work for the noon shift at I1 a.m. Shortly after he had reported, Fareri took him aside and told him that under instructions from Alliman he was discharging him. Not satisfied with this explanation, Wolf asked why he was being discharged and Fareri told him it was because of dissatisfaction with his services. Incredulous, Wolf told Faren that that was hard to believe because LeRoy had complimented him on his service and that Alliman had told him only a month or two ago that, "You're still the best waiter we have." 26 Wolf kept pressing Fareri for the real reason for his discharge. His credited testimony shows that Fareri finally told him that he was being discharged "because of the union" which the Trial Examiner finds to mean because of his union activities or sympathies. Respondents through the testimony of LeRoy, Alliman, and Brecq offered a variety of reasons for the discharge of the three waiters on the grounds of dissatisfaction with their work, attitudes, and behavior. These reasons are not credited. Discussion and Conclusions The record leaves no doubt that Miranda, Esposito, and Wolf were discriminatorily terminated because of their known union activities and sympathies. The credited testimony of Collins, who as a supervisor attended the management meeting of September 23, 1970, shows that at that meeting owner LeRoy ordered the termination of these three waiters identified by Fareri as the ringleaders in the movement to organize the Plum's waiters.27 The timing of their discharges on the very same day following the post- midnight union meeting attended by the three dischargees is further proof that the three waiters were fired because of their union activities. Fareri's admission (as established by Collins' credited testimony) that at least two of the terminatees, Miranda and Wolf, were discharged "because of the union" is still further proof that the sole reason for the termination of all three of the waiters was their union activities. Finally, the record contains evidence (as shown 26 The Trial Examiner credits Wolf's testimony that he received these compliments from LeRoy and Alliman. 27 Such direct evidence by a supervisor on decisions made internally by management to fire designated employees because of their union activities is most unique in 8(a)(3) proceedings. 28 Although Wolf was discharged on September 25, 1970, for all practical purposes he was discharged on September 23, 1970, when Miranda and Esposito were discharged. 29 Par 8 of the complaint also alleges threats by Respondents of "other in the next section of this Decision) that LeRoy himself told his waiters at a meeting held with them the day after the discharges of Miranda, Esposito, and Wolf 28 that these three employees were terminated because they tried to organize his waiters. G. Issues as to Whether Respondents' Dining Room Employees Were Subjected to Various 8(a)(1) Violations The complaint (Cases 2-CA-12166-1 and -2) involving Respondents' dining room employees alleges three inde- pendent 8(a)(1) violations by Respondents as follows: Paragraph 8 of the complaint alleges that the Respondents through agents LeRoy, Alliman, and Fareri on September 24, 1970, and on subsequent dates warned their (dining room) employees to refrain from becoming members of Local I or giving it any assistance or support and threatened them with discharge for failure to refrain from such conduct.29 Paragraph 9(a) of the complaint alleges that the Respondents by LeRoy and Alliman on Septem- ber 24, 1970, and on subsequent dates offered and promised to their (dining room) employees life insurance policies, health benefits, and other benefits and improve- ments in their working conditions and terms of employ- ment to induce them to refrain from becoming members of the Union or from giving the Umon support or assistance. Paragraph 9(b) of the complaint alleges that Respondents by LeRoy in November 1970 granted to their (dining room) employees life insurance benefits to induce them to refrain from becoming members of the Union or giving it any assistance or support. Counsel for General Counsel offered the testimony of waiters Marcel Specia and the aforementioned Edmund Collins, the former captain of Respondents' Back Dining Room, but since late October 1970, a waiter in Respon- dents' Front Room or Cafe, in support of the above-noted allegations, except the allegation that asserts that Respon- dents granted their employees life insurance in November 1970 on which other evidence was adduced. Specia at the time of the trial herein had been a waiter in Respondents' Back Dining Room for 7 months. He is a native of France of French and Italian extraction and although he had been in this country for 8 years, he displayed great difficulty in grasping the questions put to him in English and even greater difficulty in finding words in English to express his answers to the questions.30 In addition the Trial Examiner noted that he had severe emotional difficulties as a witness which made him tongue- tied, apparently because of apprehensions that his testimo- ny might cost him his job. This manifested itself, especially towards the end of his examination, in long delays in answering questions or in complete silences to questions put to him, even when they seemed innocuous. Neverthe- reprisals, including threats to close the restaurant or to reduce the number of hours and days worked by employees" if the employees did not refrain from becoming or remaining members of the Union or giving it any assistance or support. Inasmuch as no evidence was adduced in support of this allegation, it will be recommended for dismissal for failure of proof. Similarly, the allegation that Respondents' agent, Fareri, engaged in the proscribed conduct alleged in par . 8 of the complaint will be recommended for dismissal for failure of proof 30 No effort was made to have Specia speak through an interpreter. MAXWELL'S PLUM 31 less the Trial Examiner is convinced from the demeanor observation of Specia at the trial and from a careful reading of his testimony in the transcript that his testimony is reliable and credible except for an initial answer to a highly sensitive question which he later reversed as shown below. Specia attended a meeting of the Plum's dining room employees called by LeRoy in the nud-afternoon of September 24, 1970, following the previous day's discharge of waiters Miranda, Esposito, and Wolf by Fareri.31 Fareri was also at this meeting called by LeRoy, but apparently made no remarks to the assembled employees. General Manager Alliman was not at the meeting as he had flown the night before to France because of news of his father's death there. The meeting lasted about a half hour. Specia's credited testimony shows that LeRoy forthright- ly told his dining room employees at the meeting that he did not want a union at the Plum and made it plain that he would fire any employee who tried to organize a union at the restaurant. Initially out of obvious fear for his job, Specia denied that LeRoy had said anything at the meeting about having fired three or four dining room employees the day before because of their union activities, but when shown his pretrial affidavit and reassured that the law protected him against reprisals by his employer because of his testimony, he positively and directly testified that four employees had been discharged because of their union activities as appears from the transcript as follows: MR. BANKS, counsel for General Counsel, after refreshing the witness' memory from his pretrial affidavit, asked: Mr. Specia, what did Mr. LeRoy say was the reason that the four waiters were not working there any more? A. He say . . . he don't want nobody organize the union in this place, that is the reason . . . the guys lost the job. He32 try to organize the place, the union in the place. TRIAL EXAMINER: Is that what Mr. LeRoy said to the employees at the meeting? . . . Did Mr. Leroy, if I understand your testimony correctly, tell you and the other employees that these four men33 were discharged because of their union activities? THE WITNESS: Mr. LeRoy, he say I don't want .. . nobody try to organize the union in my place ... . TRIAL EXAMINER: You have already said that a half dozen time. I am asking, did he say that he discharged these four people because they were engaged in organizing the company? THE WITNESS: Yes. Specia's credited testimony further shows that LeRoy also told the assembled dining room employees that Maxwell's Plum was a "nice" place to work because it employees received "nice" benefits such as Blue Cross hospitalization and life insurance. These remarks by LeRoy to the dining room employees are deemed to be promises of such insurance coverage as the record, as hereinafter detailed, shows that the great bulk of Respon- dents' dining room and kitchen employees did not become the recipients of health and hospital insurance until after the September 24, 1970, meeting at which LeRoy told the employees that they were already receiving such benefits. Linked as this promise of fringe benefits is with LeRoy's described antipathy to having a union shop and the warning that he would discharge employees who sought to organize the restaurant, it is found that LeRoy promised health and life insurance to his dining room employees if they refrained from becoming members of the Union or giving it any assistance or support. Collins, the aforementioned waiter and former captain of Respondents' Back Dining Room, testified to another meeting of waiters called and addressed by General Manager Alliman, which Collins attended. Collins was certain as to what Alliman said to the assembled waiters at the meeting but uncertain about the date of the meeting. He finally fixed the meeting as having taken place "probably within a week or so" after the September 23, 1970 (a Wednesday), termination date of Miranda and Esposito,34 which was also the date that Alliman flew to France. As Alliman did not return from France until September 27 and to work until September 29,35 it is found that the meeting which Collins described in his testimony took place on September 29, 1970, or within a day or two thereafter. Collins' credited testimony shows that Alliman told the assembled waiters at the meeting that some of their fellow waiters, whom he did not identify, had been fired and followed that up with the warning that "if anybody was to show us any kind of card to sign for the Union, we were not to sign this card because management would find out who signed the card-if he [the solicitor] tells you they will never find out, don't believe it. We can find out. We will know ...." Asked by counsel for General Counsel if Alliman said anything else at the meeting, Collins creditably replied that the "basis" of the meeting was "about us not signing any [union] cards," but that Alliman also spoke to the waiters about the advantages of a H.I.P. health plan which the Respondents had for their employ- ees. Collins further creditably testified that Alliman had never before mentioned such health coverage in prior meetings with Respondents' waiters. Because of Collins' uncertainty as to the precise date of the meeting here under discussion, Respondents in their brief seek to show that the meeting Collins had reference to was the meeting called by LeRoy on September 24 which Alliman could not have attended because he was in Europe and Respondents therefore contend that the testimony given by Collins as reported above is "spurious and fabricated." But the record is clear that Collins was not referring to the meeting called by LeRoy but to an entirely separate meeting called by Alliman after his return from France at which he could not remember whether LeRoy "showed up or not." LeRoy's own testimony shows that 31 The testimony of LeRoy, Faren, and Specia shows that this meeting Wolf was discharged because of his union activities , but he is not here took place on the day after Miranda and Esposito were terminated Wolfs involved as a discnminatee. termination came 2 days later pursuant to earlier management decision . 34 Wolf, the third discnminatee, was discharged on September 25, 1970 32 Specia obviously meant the plural of the pronoun "he " 35 According to Alliman's testimony 33 Apparently a fourth waiter in addition to Miranda , Esposito, and - 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting he held with the dining room employees on September 24 was one of many that management holds with its employees. As quoted by Respondents in their brief, LeRoy testified, "There are meetings held at least every week and sometimes several times a week, either with large groups of employees or with smaller groups to discuss individual problems." Finally it is established by stipulation and the record that Respondents for the first time granted life, accidental death, and dismemberment insurance, not only to their dining room employees, but to all of their employees as of November 1, 1970, which gave each employee life insurance coverage in the amount of $7,500. Conclusions From the evidentiary findings made above, it is found and concluded that General Counsel has fully sustained by credited testimony the allegations of paragraphs 8 and 9(a) and (b) of the complaint in Cases 2-CA-12166-1 and -2 as set forth in the opening of this section of the Decision and that by reason thereof the Respondents are in violation of Section 8(a)(1) of the Act as alleged in paragraph 10 of the same complaint. H. Issue as to Whether Respondents' Kitchen Employees Were Unlawfully Interrogated by Respondents' Assistant Manager and Executive Chef The complaint (Case 2-CA-12207) involving Respon- dents' kitchen employees alleges under paragraph 10 that Respondents by their agent, Robert Tanzi, interrogated some of the restaurant's kitchen employees concerning their membership in, activities on behalf of, and sympathy in and for the Union. In support of the allegation General Counsel relies on the testimony of the aforementioned kitchen employees, Santos Bonet, a runner, and Osvaldo Avelino, a dishwash- er. At the time of the trial herein, Bonet had been in Respondents' employment for about a year, and Avelino, for about 9 months. Bonet, as heretofore shown, signed a union authorization card for Local 89 at the solicitation of discnminatee Ferreira on or about September 16 or 17, 1970, at the premises of the Plum. His credited testimony shows that the following events occurred thereafter. On or about October 1, 1970, Ferreira stopped in at the restaurant again and invited Bonet and several other kitchen employees to meet, during their lunch hour, Hernandez, a Local 89 organizer, who was standing on the sidewalk some 20 feet from the restaurant's employees' entrance. This meeting of the kitchen employees with an outsider (Hernandez) was observed by one of Respondents' stewards, a position heretofore determined to be that of a statutory supervisor, who in turn informed Tanzi, the assistant general manager of the Plum, of what had taken place. Tanzi, surmising that the man the kitchen employees were talking to just outside the employees' entrance to the restaurant was a union organizer, called a meeting of the restaurant's kitchen utility employees that same afternoon about 5 p.m. A total of six employees, including Bonet, all of whom had signed union authorization cards, attended the meeting. With Executive Chef Brecq serving as interpreter , Tanzi queried the employees as to whether they had signed union cards. Bonet and the other employees in attendance, on Bonet's advice, answered "No" because they feared they would lose their jobs if they said, "Yes." Tanzi instructed them, "Before you sign cards, come and talk to me." Avelino started his employment as a dishwasher with Respondents on September 7, 1970. He signed a union authorization card on or about September 21, 1970, also at the solicitation of Ferreira. His credited testimony shows that on or about October 23, 1970, he attended an evening meeting of the restaurant's dishwashers called by Chef Brecq primarily for the purpose of notifying them of a pay raise and certain fringe benefits (as set forth in the next section of this Decision), but that during the course of the meeting Brecq also interrogated some of the dishwashers, including Bonet, on whether they had signed union cards. The following excerpt from Avelino's credited testimony leaves no doubt that the cards on which Brecq interrogated the employees were union authorization cards, not medical information cards as Respondents contend: Q. (By General Counsel) Did he ask you about the union? A. He asked us if we had signed a card. I told him I didn't know what this was all about. Respondents seek to have Bonet's above-described testimony showing that Tanzi on or about October 1, 1970, about 5 p.m. interrogated him and other coworkers about whether they had signed union cards discredited on the ground that he was "an incredible witness" because he denied that his pretrial affidavit had been read back to him before he was asked to sign it, because he made conflicting statements about which one of Respondents' supervisors was responsible for his promotion from dishwasher to runner, and because in his testimony he mentioned that some of the kitchen help went out at noon on or about October 1, 1970, to meet only Business Agent Hernandez whereas in his pretrial affidavit he stated that there were two business agents on the scene to talk to the kitchen employees. The Trial Examiner regards these peripheral discrepancies, if they be such, as too insignificant and inconsequential to affect the over credibility the Trial Examiner assigns to Bonet's testimony as related to central facts based on demeanor evidence and a careful study of his transcribed testimony. Respondents also rely on the testimony of Supervisor Robert Willis, a steward, that Tanzi did not interrogate the involved kitchen employees on whether they had signed union cards. This testimony of Willis, even if true, does not negate Bonet's testimony since Willis' testimony related to a meeting Tanzi had with kitchen employees on October 22, 1970, whereas Bonet's testimony related to a meeting Tanzi had with kitchen employees on October 1, 1970. In any event the Trial Examiner does not credit Willis' denial that Tanzi engaged in the described interrogation of Respondents' kitchen employees. It is most significant that Respondents did not call Tanzi as a witness to deny Bonet's testimony that he (Tanzi) had interrogated kitchen employees on October 1, 1970, about whether they had signed union cards. Respondents' attack on Avelino's above-described testi- MAXWELL'S PLUM 33 mony follows a different tack. Respondents offer Brecq's testimony to show, contrary to Avelino, that he "did not ask employees if they had signed a card for Local 89," but instead had only exclusively asked the employees if they had filled out certain medical informational cards in connection with company fringe benefits for employees. This testimony by Brecq is not credited. The above-quoted and credited testimony by Avelino clearly shows that Brecq did interrogate his kitchen employees as to whether they had signed union cards. Conclusions Based on the above evidentiary findings, the Trial Examiner finds and concludes that Respondents on or about October 1, 1970, by its agent, Tanzi, and on or about October 23, 1970, by its agent, Brecq, interrogated their kitchen employees about whether they had signed union authorization cards for Local 89. The Trial Examiner also finds, based on the above evidentiary facts and Respon- dents' manifest antiumon attitude and hostility as reflected by the entire record, that the described interrogations were coercive in nature and, accordingly, in violation of Section 8(a)(1) of the Act. 1. Issues as to Whether Respondents Promised and Granted Their Kitchen Employees Wage Increases and Fringe Benefits To Induce Them To Refrain From Union Activities The complaint involving Respondents' kitchen employ- ees under paragraphs 14 and 15 thereof also alleges that Respondents in October and November 1970 offered and granted wage increases and various fringe insurance benefits to their kitchen employees to induce them to refrain from supporting Local 89. The facts pertaining to Respondents' wage increases for certain of its kitchen employees and the inauguration of various insurance benefits for all of Respondents' employ- ees are for the most part not in dispute, but Respondents' timing of these beneficial changes and the motivations for these changes are very much in dispute. Essentially, Respondents' defense for the pay raises is that they were granted under company policy to effect wage increases from time to time as justified by ment and by company earnings . Basically, Respondents' defense for the granting of various, employee insurance benefits from and after October 21, 1970, is that such benefits were planned long before Local 89 began its organizational drive and were designed not only for the restaurant's kitchen employees but also for the Plum's dining room and bar employees. It was found and determined above that Local 89 made a demand upon Respondents on October 21, 1970, for recognition as the exclusive bargaining representative of their kitchen employees for purposes of collective bargain- 36 There is no dispute between General Counsel and Respondents that both the day- and night-shift meetings took place on the same day, although there is a dispute as to the precise date of such meetings The previously noted and credited testimony of Bonet and Rey show that the day-shift meeting took place on October 23, 1970 Avelino's testimony shows that the night-shift meeting at which the wage increases were announced took place on the same day that the day shift received the same information 37 Despite Brecq's claim that he was present at the day-shift meeting at ing. As detailed below the record shows that Respondents announced and granted certain pay raises and insurance benefits to their kitchen employees subsequent to the aforementioned critical date of October 21, 1970. It is an undisputed fact that Respondents' management upon orders from owner LeRoy notified the restaurant's day- and night-shift kitchen employees at separate meet- ings of each group on an identical day in the latter part of October 1970 of pay raises of from $2.25 to $2.60 per hour or $16 per week for dishwashers and from $2.25 to $2.75 per hour or $24 per week for saladmen and a runner. (Joint Exh. I D and E.) In all some 11 dishwashers received the $16 raise and 3 other kitchen employees received the $24 raise. Similarly, it is an established fact that the very first paychecks in which these wage increases were reflected were received on October 29, 1970. However, the testimony offered by General Counsel and Respondents is conflicting as to the precise date in the latter part of October that the announcements were made of the pay raises . Bonet, the aforementioned kitchen runner who was in attendance at the day-shift meeting at which the pay raise announce- ments were made, testified that meeting took place on either October 22 or 23, 1970. More precisely, the testimony of Union Representative Rey shows that the meeting in question took place on October 23, 1970, as on that day he received a telephone call from Bonet telling him that the wage increases had been just announced. Rey based his recollection of the precise date of the meeting from his office diary under date of October 23, 1970, on which he had jotted down the substance of Bonet's telephone call as of the date of the call. (Charging Party Local 89's Exh. 19.) The Trial Examiner credits the joint testimony of Bonet and Rey, as corroborated by Rey's diary, that the day-shift meeting at which the wage increases were announced took place on October 23, 1970. Brecq's testimony that the meeting in question took place in mid-October is not credited. Bonet's wage increase was $24 per week. The aforementioned dishwasher Avelino was present at the night-shift meeting at which the wage increases were announced. It is found that this meeting also took place on October 23, 1970.36 The night-shift meeting was called by Executive Chef Brecq who appears to have been the sole spokesman for management present at the meeting, as Assistant Manager Tanzi appears to have been, at the earlier day-shift meeting.37 Brecq made the announcement of the wage increases for the dishwashers . It is undisputed that after the wage increase announcement Brecq passed out blank insurance forms for either hospitalization or medical care or both. During the course of the meeting, Brecq also mentioned Respondents' plan to provide life insurance benefits for their employees. The credited testimony of Avelino shows that Brecq told the assembled kitchen employees that the various employee benefit which the wage increases were announced , Bonet's credited testimony shows that Tani presided over the day-shift meeting and that Brecq was not present at that meeting Bonet's testimony that Brecq was not at the day-shift meeting is corroborated by Union Agent Rey's aforementioned contemporaneous diary note of October 23, 1970, which notes (based Bonet's telephone call of the same day to Rey ), that the Plum's stewards, not Brecq announced the pay increases 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insurance plans he was referring to "was better for us than to accept the Union" (In the preceding section, it was found that Brecq at the same meeting had coercively interrogated Avelino and other employees about whether they had signed union authorization cards for the Union.) In justification for the granting of the pay raises reflected for the first time in the paychecks of October 29, 1970, to the restaurant's I I dishwashers, 2 saladmen, and I runner (Bonet), owner LeRoy testified that the pay increases were based on the following considerations: "One, it's based on trying to get the best people to work at the restaurant .... As we make greater profit we give raises." LeRoy testified that the wage increases in question were made on the basis of increased profits for the fiscal year ending October 1, 1970, but Respondents did not offer in evidence their profit-and-loss statement for that fiscal year or any other to bear out LeRoy's assertion. As proof of company policy to grant wage increases from time to time, the Respondents introduced in evidence a document (Resps. Exh. 42) showing wage increases for various employees from December 29, 1969, through November 2, 1970. Although the exhibit shows a group increase of the hourly scale for the Plum's numerous waiters from $1 to $1.14 which was required under the New York State minimum wage laws, the document fails to show any similar group wage increases for kitchen employees prior to the group wage increases for kitchen employees here under discus- sion. Such prior wage increases as appear in the exhibit for kitchen employees appear to be for individuals and not for groups of employees and for the most part appear to be promotions from positions above that of dishwashers to even higher echelons of kitchen help inasmuch as the recipient employees received wages in excess of $3 per hour which is more than the 11 dishwashers, 2 saladmen, and I runner received even after their wage increases. It is also noted that while the record herein appears to support LeRoy's testimony that he tried "to get the best people to work at the restaurant" insofar as that assertion applies to his chefs and waiters, there is no evidence it also applies to Respondents' dishwashers who appear fungible. The history of insurance benefits, hospitalization, medi- cal, and life, provided by Respondents for their employees, both before and after Local 89's demand of October 21, 1970, for recognition, is as set forth below. Respondents on March 25, 1970, entered into a con- tract38 with Associated Hospital Service of New York, Inc., wherein the latter company agreed, effective as of April 1, 1970, to furnish Blue Shield hospitalization insurance to 18 out of Respondents' then 100 restaurant employees. Under the terms of the contract, the remaining 82 uncovered employees, therein described as "Exclusions," would become eligible for coverage upon completion of 90 days' employment with Respondents, subject, however, to the condition that within the first 30 days after the 90-day period they have filled out and filed with the Respondents for forwarding to the insurance carrier an information card (Resps. Exh. 35), which calls for such information as the name, address, and birth date of the employee, the names and birth dates of his spouse and children, and the signature of the employee and date thereof. Failure to file the card within the indicated 30-day period makes the employee ineligible for the hospitalization insurance for a period of up to a year until the annual reopening of the contract. The names of the first 18 employees covered as of April 1, 1970, by the Blue Cross hospitalization insurance are set forth in Respondents' Exhibit 17 and include such managerial employees as General Manager Alhman, Assistant Manager Fareri, Executive Chef Brecq, and Gloria Messer who is owner LeRoy's personal aide. The exhibit does not show the names of any of the 23 kitchen employees who signed union authorization cards for Local 89; some of these would not have been eligible for the hospitalization insurance as they were not in the employ- ment of Respondents on April 1, 1970; others could have been in Respondents' employment for a period of 90 days on April 1, 1970, but the record is silent on this. The exhibit shows the name of only one kitchen employee, Franz Kluebenshies, whose hourly rate of pay of $4.16 indicates a higher paid type of kitchen employee, probably a cook, then Respondents' dishwashers who received $2.60 after their raise from $2.25 per hour.39 As late as October 1, 1970, a billing from Associated Hospital Service shows that the Service was providing Blue Cross hospital insurance for only 25 of Respondents' employees who at that time still numbered about 100 employees in all. (Resps. Exh. 18(c).) Of the original 18 insured employees, 10 are still shown as insured on this October 1, 1970, AHS bill; 8 of the original 18 were dropped and 15 new named employees were added, whose numbers included Assistant Manager Robert Tanzi. None of the 23 kitchen employees who signed union authoriza- tion cards for Local 89 are shown on the new October 1, 1970, listing of insured employees 40 In the absence of any proof to the contrary, it is inferred and found that as of October 21, 1970, when Local 89 made its demand for recognition, the number of Respondents' employees provided with Blue Shield hospital insurance was the same as on October 1, 1970. Respondents offered testimony, mainly by owner Le- Roy's general factotum Gloria Messer, purporting to show that the reason why only 25 out of Respondents' 100 employees were covered with hospital insurance as late as October 1, 1970, was that Respondents had great difficulty in getting their largely, illiterate Spanish-speaking kitchen employees to properly fill out the simple information cards required by the insurance carrier as a condition precedent for the coverage, calling as shown above for such simple information as the date of birth of the insured and his dependents and the signature of the employee within the required 30 days after the first 90 days of employment. No explanation was offered by Respondents for their failure to also get such cards from their waiters who of necessity must speak English in order to take orders and must be 38 The contract is in evidence as Resps Exh. 13, but the full terms and 39 The findings of the above paragraph are in part based on a conditions thereof as set forth above are based on both the contents of the comparison of the names listed in G.C. Exh 17 with those listed on Resps contract and the testimony of two representatives of Associated Hospital Exhs 42(a), (b), and (c) Service, to wit, Peter M Wiley, its district sales manager, and Bright 40 The findings of the above paragraph are based on a comparison of the Langley, Jr., its enrollment representative names listed on G C. Exh 17 with those listed on Resps Exh. 18(c) MAXWELL'S PLUM 35 able to write out their food orders in English. Of the 100 or so employees employed by the Respondents at all times here pertinent, about 56 are waiters, captains, or seaters.41 As of the effective date of April 1, 1970, only 3 of Respondents' 56 or so waiters, Horsch, Ribblett, and Frank Hurney, appear to have been covered with Blue Cross hospital insurance furnished by Respondents. As of October 1, 1970, only 6 of the Respondents' 56 waiters or captains were covered by hospital insurance furnished by Respondents.42 The premium cost of Blue Shield hopsital insurance to Respondents per employee is the same, regardless of whether the employee earns $100 or $400 per week. However, the total cost of Blue Shield insurance is dependent upon the number of Respondents' employees covered by such insurance under the insurance plan adopted by the Respondent effective as of April 1, 1970. It is established by the testimony of Bright Langley, Jr., an enrollment representative of Associated Hospital Service, that Respondent under the Blue Cross plan they adopted had control over the total premiums due under the plan by the simple expedient of not soliciting the required application forms (i.e., the above-described information forms that must be filled out and turned into Respondents for forwarding to the Blue Cross people within 30 days from the completion of 90 days of employment with Respondents) from employees they do not desire to have covered by the plan. Under the plan, the Respondents paid the entire premium costs for each employee without contribution from the employee. The testimony of LeRoy's chief executive aide, Miss Messer, that Respondents made genuine but unsuccessful efforts to get the required Blue Cross information cards from Respondents' restaurant employees is not credited. Although most of Respondents' lower echelon kitchen employees who appear to constitute the majority of the kitchen unit are Spanish-speaking and English illiterates, they are not stupid. It can hardly be doubted that if they had been approached and told that they could have free hospital insurance for only filling out an information card and were given the minimal assistance required for this in English by their stewards or Respon- dents' office personnel, they would have lost no time in doing so. The record shows that Respondents at most made a minimal and feeble effort to obtain such cards from their employees. Only one such effort in documentary form is of record. In that attempt some 12 to 15 applications sent to Blue Cross were rejected, mostly because the application forms (i.e., the above-described information cards the employees had to make out) failed to 41 Resps. Exhs 42(a), (b), and (c) A seater seats the guests at their tables. 42 The above findings are based on a comparison of Resps Exh 18(c) with Resps. Exhs 42(a), (b), and (c). 43 The record shows that Blue Cross would have honored any and all information cards received from Respondents' employees provided they were timely filed even if they had missing data as such data could be supplied later However, the sine qua non is that the Associated Hospital Service had to be in possession of such cards within the 30 days following the first 90 days of the employee's employment with Respondents Without the filing of the card within that period, there was no hospital insurance liability by the insurance carrier. 44 The opening sentence of the letter (Charging Party 89's Exh 10) reads "When our group was formed in April 1970, we were under the show the employees' beginning date of employment. That is a data the Employer could have easily and more accurately supplied and inserted 43 (Resps. Exh. 34 and related testimony.) No explanation was offered by Respon- dents as to why they did not secure the Blue Cross application forms from their waiters. As shown above the Respondents discriminatorily discharged three of their waiters, two, Miranda and Esposito, on September 23, and one, Wolf, on September 25, 1970, and similarly on October 5 and 6 discriminatonly discharged two, Ferreira and LeBloas, of their kitchen employees, the former for their union activities in behalf of Local 1 and the latter for their union activities in behalf of Local 89. As heretofore noted the chief instigator of the effort to organize the kitchen unit in behalf of Local 89 was Ferreira who was fired on October 6. As shown above Ferreira started his union organizational efforts on September 17, 1970, and by September 18 he had signed up 10 of the Plum's kitchen employees. From the findings dealing with the discriminatory discharge of Ferreira, it is found that the Respondents had knowledge or strong suspicion of the union activities of Ferreira, and waiters Miranda, Esposito, and Wolf by September 22, 1970. On September 22, .1970, Respondents discussed with Blue Shield representative, the aforementioned Langley, a substitution of Associated Hospital Service's Blue Cross "Strict Adherence Agreement," retroactive to April], 1970, for Respondents' then existing Blue Cross insurance agreement as described above. By letter dated October 29, 1970, owner LeRoy made application to AHS for its Strict Adherence Agreement as a replacement for Respondents' existing agreement,44 retroactive to April 1, 1970. By letter (G.C. Exh. 18) dated November 13, 1970, AHA agreed to the substitution, retroactive to April 1, 1970. The letter acknowledges receipt of a payment from Respondents "of the full subscription cost" for all of Respondents' employ- ees who had completed 90 days of employment. The essential difference between Respondents' original Blue Cross agreement and the Blue Cross "Strict Adher- ence Agreement" is that under the original agreement an employee did not become eligible for the hospital coverage unless he filed an information card (as heretofore de- scribed) within 30 days after he had completed his first 90 days of employment with Respondents whereas under the Strict Adherence Agreement the employee automatically becomes covered with the Blue Shield hospital insurance upon completion of his first 90 days of employment with Respondents. Under the Strict Adherence Agreement, AHA does not dispense with the requirement for the filing of the described card by the employee but the employee impression that our employees would be covered after 90 days of employment," i.e, without the requirement that the employee must file an application within 30 days after completing his first 90 days of employment with Respondent. The Trial Examiner has been unable to find any oral testimony in support of this statement. In any event, the Trial Examiner finds the statement to be self-serving. It is not credited. The record supports the conclusion here found that Respondents entered into its original Blue Shield hospital insurance agreement for the purpose of limiting the benefits thereunder to such employees as it chose to cover in order to keep the total cost of the premiums down compared with what the insurance would cost if it were given automatically to all employees upon the attainment of 90 days of employment with Respondents. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not lose coverage by the failure to file the card. Under the new plan, the Employer or insurance carrier will see to it that they get the information from the employee. Upon the substitution of the "Strict Adherence Agree- ment" with its retroactive feature, for Respondents' original Blue Cross agreement, all of the Plum's employees who had attained 90 days of service for Respondents' on or after April 1, 1970, became the automatic recipients of Blue Cross hospital insurance. It should be noted, however, that the actual insurance benefits for the employees were the same under both the original Blue Cross agreement and the Strict Adherence Agreement. Similarly the premium rates are the same in both the old and new agreements. However, the total premiums paid by Respondents under the Strict Adherence Agreement is higher than under the original contract because the new agreement automatically covered all employees with 90 days of employment whereas under the original agreement only a fraction of the employees who had attained 90 days of service with Respondents were covered because of the failure to meet the requirement for the filing of an application for the coverage within the next 30 days. As of April 1, 1970, Respondents also began to offer health (medical care) insurance to their employees who had attained 90 days of employment,. through the Health Insurance plan of Greater New York, commonly known and hereinafter referred to as HIP. As of April 1, 1970, Respondents' HIP insurance covered only 19 out of their then approximately 100 employees. The arrangement for the HIP insurance was very largely oral. The only documentary evidence of the contract is a data sheet (Resps. Exh. 14) dated March 19, 1970, as submitted by HIP to Respondents pursuant to request under letter dated January 14, 1971 (Resps. Exh. 15.) From the oral testimony of Gloria Messer, chief executive aide to owner LeRoy, it is found that the original HIP agreement, like that of Associated Hospital Service, had an absolute requirement that employee-applicants had to file an information card (calling for dates of birth of employee and dependents, beginning date of employment, etc.), with Respondents for transmittal to HIP within 30 days after the completion of the first 90 days of employment with Respondent as a condition precedent for coverage.45 On or about the same time in November 1970, when Respondents changed over to AHS's "Strict Adherence Agreement" plan, retroactive to April 1, 1970, Respon- dents also reached an agreement with HIP to similarly grant automatic HIP coverage, retroactive to April 1, 1970, for all employees who attained 90 days of employment. Under the new plan, all of Respondents' employees who had from or after April 1, 1970, 90 days of employment with Respondents became automatically entitled to HIP health insurance. It is again noted that the Respondents granted life insurance, including accidental death and dismemberment coverage, to all of their employees as of November 1, 1970, under which each employee received coverage in the amount of $7,500. This insurance also required 90 days of employment with Respondents before an employee be- came eligible for the life insurance coverage. All of the above types of insurance, hospital, health, and life, are furnished free by Respondents to all employees who have worked the restaurant for 90 days. Discussion and Conclusions The above findings of fact as well as the findings in earlier sections of this Decision leave no room for doubt that Respondents had knowledge of the union activities of many of their kitchen employees at the time Respondents promised and granted them the above-described wage increases and free hospital, health, and life insurance benefits. As shown above, Respondents had some knowl- edge or strong suspicion of the union activities of their kitchen employees as early as September 22, 1970, as the result of discriminatee Ferreira's hardly concealed solicita- tions of union cards at the restaurant from many of Respondents' kitchen employees. The Respondents ac- quired positive knowledge of Local 89's efforts to organize their kitchen unit on October 21, 1970, by reason of the Local 89's demand as of that date for recognition based on the possession of union cards from a majority of the employees in the unit. The above-described wage increases and fringe insurance benefits were granted by Respondents to their kitchen employees after Local 89's union's demand of October 21, 1970, for recognition. The timing of these benefits and Respondents' open hostility to having the Plum organized by any union leaves no doubt that the benefits were granted in an effort to nullify and block Local 89's organizational drive. The Trial Examiner finds and concludes that the Respondents promised and granted the various benefits alleged in paragraph 14(a) and (b) and in paragraph 15 of the complaint in Case 2-CA-12207 for the purpose of inducing their kitchen employees to refrain from giving support to Local 89 and to induce them to abandon their membership and activity on its behalf in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in connection with the operation of Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondents are engaged in commerce and the two Unions here involved are labor organizations, all within the meaning of the Act. 2. All kitchen employees of Respondents, employed at their restaurant known as Maxwell's Plum, exclusive of 45 The evidence on this is not as clear cut as in the case of Respondents ' Messer but also from two representatives of AHS . In the case of the HIP original Blue Cross hospital insurance coverage with AHS for their insurance, there is only the testimony of Miss Messer. employees With respect to the latter there was testimony not only of Miss MAXWELL'S PLUM 37 waiters, bartenders, stewards, guards, watchmen, profes- sional employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times from and after October 21, 1970, Local 89 has been the exclusive representative, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all of the employees in the aforesaid appropriate unit. 4. By failing and refusing to bargain in good faith with Local 89 as the exclusive bargaining representative of their employees in the aforesaid appropriate unit, the Respon- dents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By discharging Carlos Miranda and Richard Esposi- to on September 23, 1970, and Michael Wolf on September 25, 1970, because of their support of Local 1, the Respondents engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 7. Similarly, by discharging Marcel LeBloas on Octo- ber 5, and Jose Ferreira on October 6, 1970, because of their support of Local 89, the Respondents engaged in further unfair labor practices within the meaning of the same sections of the Act. 8. The Respondents are not in violation of the Act by reason of the conduct alleged in paragraph 16 of the complaint in Case 2-CA-12207 and such other allegations in both cases as have not been expressly found to have been established by the findings herein. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondents engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Respondents cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as the findings herein show that Respondents have used virtually every resource at their command to frustrate, avert, and prevent Local 89 from representing the employees in the kitchen unit described above by discrimi- natory discharges, by unlawful interrogations, by threats, and by promises and grants of benefits to blunt union interest in Local 89, the Trial Examiner is of the opinion that a bargaining order is necessary to effectuate the purposes and policies of the Act in this case. N.LR.B. v. 46 N L R 11 v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4) 41 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec Gissel Packing Company, 395 U.S. 575. Practically all of what the Board found and stated in its Supplemental Decision in U-Tote M of Oklahoma, Inc., 179 NLRB 829, in justification for ordering a bargaining order in that case is also applicable to the present case. Accordingly, based on the finding that the Respondents have from and after October 21, 1970, refused to bargain with Local 89 in Case 2-CA-12207 as the duly designated representative of the employees in an appropriate unit, in violation of Section 8(5) of the Act, it will be recommended that the Respondents, upon request, bargain collectively with Local 89 as the exclusive representative of said employees and, if an agreement is reached, embody such understanding in a signed agreement. It having been found that Respondents discriminatonly discharged five employees in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that Respon- dents be ordered to offer them full reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from date of discharge to date reinstate- ment is offered. Because of the character and scope of the unfair labor practices herein found, it will be recommended that, in order to effectuate the policies of the Act, Respondent shall cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act 46 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 47 Respondents, MPC Restaurant Corp., and Hardwicke's Plum Ltd., doing business as Maxwell's Plum, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Local I or Local 89, affiliates of Hotel & Restaurant Employees and Bartenders Interna- tional Union of America, AFL-CIO, or any other union. (b) Coercively interrogating any employee about union support or union activities. (c) Threatening employees with discharge for union activities. (d) Promising and granting pay raises and hospital, health, and life insurance benefits as inducements to keep employees from giving their support to unions. (e) Refusing upon request to recognize and bargain in good faith with Local 89 as the exclusive collective- bargaining representative of Respondents' employees in the appropriate unit described above with respect to rates of pay, wages, hours of work, and other conditions of employment. (f) In any like or related manner interfering with, 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. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer the following named employees immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy": Michael Wolf, Marcel LeBloas, Carlos Miranda, Jose Ferreira, and Richard-Esposito. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Upon request, bargain collectively with Local 89, as the exclusive representative of the employees in the unit described above, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employ- ment and, if an understanding is reached, embody it in a signed agreement. (d) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at their restaurant known as Maxwell's Plum in New York City, New York, copies of the attached notice marked "Appendix." 48 Copies of the notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized representative of the Respondents, shall be posted by the Respondents immedi- ately upon receipt thereof, and be maintained 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 the Respon- dents to insure that the notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Order , what steps Respondents have taken to comply herewith.49 IT IS ALSO ORDERED that the complaints herein be dismissed insofar as they allege violations of the Act not specifically found. 48 In the event that the Board 's Order is enforced by a Judgment of a after exceptions have been filed, this provision shall be modified to read United States Court of Appeals, the words in the notice reading "Posted "Notify the Regional Director for Region 2, in wasting, within 20 days from Pursuant to a Judgment of the United States Court of Appeals Enforcing an the date of this Order, what steps the Respondents have taken to comply Order of the National Labor Relations Board." herewith." 49 In the event that this recommended Order is adopted by the Board