Jai Lai Cafe, Inc.

JAI LAI CAFE, INC 781 Jai Lai Cafe, Inc. and Local Union No. 505, Hotel, Motel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 9-CA-6605 August 8, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 3, 1972, Trial Examiner John F. Funke issued the attached .Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting 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, as expanded herein, the Trial Examiner's rulings, findings,' and conclu- sions. AMENDED CONCLUSIONS OF LAW Paragraph I of the Trial Examiner's Conclusions of Law is modified to read as follows: 1. By furnishing employees with union withdraw- al forms for their signatures; by inducing employees to withdraw from the Union and by inducing employees to refrain from further strike activity, Respondent violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Jai Lai Cafe, Inc., Columbus, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Providing its employees with union withdrawal forms for their signatures. (b) Inducing its employees to withdraw from the Union. (c) Inducing its employees to refrain from further strike activity. (d) Engaging in any like or related conduct interfering with, restraining, or coercing its employ- ees in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its restaurant at Columbus, Ohio, copies of the notice attached hereto and marked "Appen- dix." 2 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representatives, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance 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 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT provide our employees with union withdrawal forms for their signatures. WE WILL NOT induce our employees to with- draw from the Union. WE WILL NOT induce our employees to refrain from further strike activity. WE WILL cease and desist from engaging in any like or related conduct interfering with, restrain- ing or coercing our employees in the exercise of their rights guaranteed by the Act. JAI LAI CAFE, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building Room 2407, 198 NLRB No. 108 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 550 Main Street, Cincinnati, Ohio 45202, Telephone NOTICE 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This case was brought before the National Labor Relations Board upon: 1. A charge filed by Hotel, Motel and Restaurant Employees and Bartenders International Union , AFL-CI- O, Local Union No. 505, herein Local 505, against Jai Lai Cafe, Inc., herein Jai Lai, alleging Jai Lai violated Section 8(a)(1) and (3) of the Act. The charge was filed November 19, 1971. 2. A complaint by the General Counsel against Jai Lai alleging Jai Lai violated Section 8(a)(1) of the Act which issued January 5, 1972. 3. An answer of Jai Lai denying the commission of any unfair labor practices, dated January 11, 1972. 4. A hearing before me at Columbus, Ohio, on February 23, 1972. 5. Beefs received from the General Counsel and Respondent March 27, 1972. Upon the entire record in this case and from my observation of the witnesses while testifying I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF JAI LAI The complaint alleges and the answer admits that Jai Lai is engaged in the restaurant business at Columbus, Ohio, and that during the past 12 months (preceding issuance of complaint) it purchased goods and materials valued in excess of $50,000 from suppliers located in the State of Ohio over whom the Board would assert jurisdiction based on the Board's direct inflow and outflow standards for nonretail enterprises . It is also alleged and admitted that Jai Lai, during the same representative period, had a gross volume of sales in excess of $500,000. I find Jai Lai is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 505 is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The issue presented is whether Jai Lai, by distributing to and furnishing employees with forms indicating the employee wished to withdraw from Local 505, violated Section 8(a)(1) of the Act. The form in question, General Counsel's Exhibit 2 (signature omitted), reads: LOCAL 505 HOTEL, MOTEL AND RESTAURANT EMPLOY- EES AND BARTENDERS INTERNATIONAL UN- ION 140 East Spring Street Columbus, Ohio 43215 If you want to work during the strike , the Union may try to fine you for crossing the picket line. They cannot legally fine you if you withdraw from membership in the Union. You can withdraw from the Union by signing the attached form and sending it to the address on the attached form. Keep a copy of this and send it by certified mail to the address on the form . When the strike is over, it will only cost your regular initiation fee to get back in the Union . The Union must legally offer you this membership if you want it. If they refuse, you are one of the lucky ones who does not have to pay to work here. Isn't it worth working for all that money and working for a cost of $7.50 to $15.00 initiation fee. I hereby withdraw my membership in Local 505. HOTEL, MOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION 140 EAST SPRING STREET COLUMBUS, OHIO 43215 Dated this . . . day of ..., 1971. The origin of this form was not disclosed at the hearing. B. The Evidence Eddie Warner, president and business manager of Local 505, testified that Local 505 operated under a collective- bargaining contract covering the employees of Jai Lai which expired on September 26, 1971.1 Upon the expira- tion of the contract the employees voted to strike and struck at noon on October 2. Mary DeStazio was employed as a banquet waitress by Jai Lai. Peter Halter was banquet manager and John Staker was assistant banquet manager . It is admitted that both were supervisors within the meaning of the Act. DeStazio testified that she first learned of the strike on Sunday, October 3, having been out of town on October 2. She received a call at her home from Staker on the 3rd asking if she would work on Monday, the 4th, and was then told there was a strike . She informed Staker she would not cross a picket line . On the 4th she took part in the picketing. Thursday, October 7, was payday and she went to the restaurant, saw Staker outside the building, asked him if she could get her paycheck, and was told she could. She received her check from the cashier and on her way I Unless otherwise noted all dates hereafter refer to 1971 JAI LAI CAFE, INC out stopped to talk to Kenny Taylor who described himself as an expediter in the kitchen;4 and was then approached by Peter Halter who asked her if she wanted to come back to work. She said she did and Halter, after talking to David Girvas, general manager of the restaurant, took her down to the banquet room together with Taylor. According to DeStazio, Halter searched his desk and then told Taylor he did not have any of "those papers" and Taylor told him he would get some. Taylor then left the room and came back and handed some papers to Halter. Halter gave her one of the forms (G.C. Exh. 2, supra) to read and Taylor told her she would have to sign because it was for the "company's protection so they don't have to pay your fine to the union." Halter and Taylor then left the room. Halter returned to the room as she was signing and she gave him back the signed form. He then gave her a copy to show to her husband whom she described as a strong union man. She agreed to return to work at 3:30 p.m. on Monday, October 11. She then return home where she showed the form to her husband who said he would leave it (her return to work) up to her. DeStazio, however, did not report to work on October 11. Early in her testimony she stated she had not worked at Jai Lai since October 2. With respect to this incident, which he fixed as occurring on Friday, October 8, Halter testified that he saw DeStazio on the dock and that she told him she had come to get her check. He got her check and tip money and DeStazio then started crying and told him she did not want to cross the picket line but at the same time asked for her job back, Halter then took her down to his office to check his schedule and to tell her when work was available. Halter stated Kenny Taylor came into the room while they were talking and that DeStazio asked Taylor for a form for withdrawal from the union. Taylor left the room and returned with one form which he gave to DeStazio. DeStazio asked Halter if she should sign it and Halter told her that she did not have to sign anything. He told her to talk it over with her husband and to report to work on Monday. She did not report and did not call in. Kenneth Taylor testified on direct that he was employed as a broiler man and recalled that on October 11 Mary feStazio came to the back door and asked him where she could find Halter. Halter came up and then went to get her check and DeStazio then asked Taylor if she could get her job back. When Halter came back the three of them went down to his office and at this time DeStazio was crying. She asked Taylor for a withdrawal form and Taylor went to the chef's office and got two. He returned and gave them to her. When she asked him what it meant Taylor interpreted it (he was not more specific) but told her she did not have to sign it. He also told her to take it home and have her husband sign it as he did not know whether it was 2 The testimony does not establish that Taylor was a supervisor within the meaning of the Act _ 3_ Taylor stated that when he first saw the forms he asked Girvas if they were legal and was told by Girvas that he had nothing to do with them a On cross-examination Williams made the unusual admission that he picketed Jai Lai during the hours he was not working, an ambivalence in loyalty not usually tolerated by either an employer or a union 5 I do not find it necessary to hold that Taylor was a supervisor within 783 legal. Taylor stated that he knew her husband was a member of a railroad union and would be better able to advise her.3 On cross-examination Taylor testified that he was given forms on October 2 by another employee and asked to distribute them. He refused to distribute them but put them in the chef's office for reasons never explained. John Staker testified that he was leaving the restaurant on October II and met DeStazio at the back door. When she asked for her check he told her Halter would get it for her. Staker testified that about this time she started crying because she could not face the other girls if she returned to work. Halter came up and asked him for her check and discussed returning to work and at this point Staker left. On Monday morning she called Staker and told him that because of her husband's feelings she could not return to work. Joseph Williams testified that he had been an employee of Jai Lai since April and was a member of Local 505. He went out on strike on Saturday, October 2, and stayed out on Sunday. On Tuesday he called Girvas and asked if he could come back to work and was told to report Friday. When he reported he was called to the office by Girvas and asked to sign a "piece of paper, to withdraw my membership from Local 505." Girvas told him that if he worked without signing the Union would fine him $1,000. Williams did not sign but left the paper with Girvas and went to work. On the following Wednesday Girvas asked him if he was ready to sign and Williams then signed to pieces of paper in Girvas' office, one of which he kept and one of which Girvas kept. The paper he signed and kept (G.C. Exh. 13) was identical in form and content with General Counsel's Exhibit 2.4 Girvas testified unequivocally that he had no conversa- tion with Williams on either Tuesday or on October 8 or at any other time concerning withdrawal from the Union. He never told Williams he would be fined if he did not sign nor did he give him any withdrawal form. He denied ever having threatened any employee with discharge for refusing to sign a withdrawal form and corroborated Taylor's testimony that when Taylor asked him about the forms he told Taylor he had nothing to do with them. On this sharp conflict in testimony the matter rests. C. Conclusions I find that Jai Lai violated the Act by furnishing employees DeStazio and Williams with union withdrawal forms. I credit the testimony of DeStazio that when she told Halter she did not want to cross the picket line but wanted to get her job back, Halter took her to his office where he had Taylors get the withdrawal forms and gave her two, one for her signature and one to take home. She signed one form in his presence and gave it to him. This form was received by Local 505.6 The extent of Jai Lai's participation was sufficient to constitute coercion and the meaning of the Act. If he acted as no more than a messenger-for Halter in providing the forms it was still Halter who gave the forms to DeStazio In these circumstances I find Halter responsible for the entire transaction 6 Very specifically I do not credit the testimony of Halter and Taylor that DeStazio asked for the forms There is nothing in the record to indicate that DeStazio knew of the existence of the forms or that she was sufficiently sophisticated to realize that a withdrawal was necessary to protect her against possible fines A reading of her testimony is in itself sufficient to establish that she was not knowledgeable in labor relations 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restraint within the meaning of the Act. It involved not only assistance to an employee in withdrawing from Local 505 but also inducement to refrain from further strike activity. The statute expressly forbids such interference. The case of Joseph Williams rests solely on the resolution of credibility between Williams and Girvas. I resolve this in favor of Williams only partly because his demeanor gave the impression of truthfulness. I also find it hard to believe that an employee who worked during the strike (albeit he also served as a picket) would concoct such an interview with his employer unless it took place. For the same reasons stated with regard to DeStazio, I find coercion and restraint in furnishing Williams with with- drawal form. The case cited by Jai Lai, Kay Electronics, Inc., 167 NLRB 1104, is not to the contrary as counsel contends. In that case Trial Examiner Reel found Respondent violated the Act by offering to prepare and preparing letters of withdrawal from the Union. He did not find a violation where the employee initiated the request. This case, on the facts as I have found them, falls within the finding of violation of the Trial Examiner in Kay. With respect to the issue of whether a remedial order is warranted by the findings of violation herein, I would defer to the decision of the court in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UA W), [Omni Spectra, Inc ], v. N. L. R. B., 427 F.2d 1330 (C.A. 6), and recommend an order. I would also state that the impact of the violation upon the rights of the two employees involved is sufficient , because of its nature, to warrant an order regardless of the size of the unit. Upon the foregoing findings and upon the entire record I make the following: CONCLUSIONS OF LAW 1. By furnishing employees with union withdrawal forms for their signatures Jai Lai violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Jai Lai engaged in unfair labor practices as set forth above it shall be recommended that it cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.]