Mr. F'S Beef and Bourbon

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard T. Furtney and Naomi P . Furtney, a Co-part- nership d/b/a Mr. F'S Beef and Bourbon and De- troit Local Joint Executive Board , Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 7-CA-10562 DECISION STATEMENT OF THE CASE FINDINGS OF FACT July 16, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS AND KENNEDY On March 15, 1974, Administrative Law Judge Walter H. Maloney, Jr, issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Richard T. Furtney and Naomi P. Furtney, a Co-partnership d/b/a Mr. F's Beef and Bourbon, Sterling Heights, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 'In its exceptions , Respondent contends that the Administrative Law Judge discriminatorily refused to accept Respondent's brief and thereby Respondent was denied due process of law, We note that Respondent had requested and had been granted two extensions of time for filing its brief by the Chief Administrative Law Judge Nevertheless , according to Respondent. its brief was not mailed until February 11, 1973. which was the date that it was due to be received by the Administrative Law Judge See Sec 102 114(b) of the Board's Rules and Regulations Because Respondent 's brief was not received by the Administrative Law Judge until February 19, 1974, he ruled that it was not timely filed, in addition , the Administrative Law Judge rejected Respondent 's brief because Respondent failed to serve the other parties 'o this proceeding with a copy of Respondent 's brief as required by Sec 102 42 of the Board's Rules and Regulations We find that the Adminis- trative Law Judge correctly rejected Respondent's brief since the brief was not timely filed and since copies of the brief were not served upon the other parties as required by the Board 's Rules and Regulations WALTER H. MALONEY, JR. Administrative Law Judge This case came on for hearing before me upon an unfair labor practice complaint issued by the Regional Director of the Board's Region 7, and amended at the hearing, alleging that the Respondent Richard T. Furtney and Naomi Furtney, Co-partners d/b/a Mr. F's Beef and Bourbon (herein called Respondent or Mr F's), violated Section 8(a)(1), (3), and (5) of the Act.' The complaint specifically alleges that the Re- spondent 2 unlawfully withdrew recognition from a recog- nized bargaining agent at the end of a contract term and unlawfully refuses to negotiate a new contract; that it threatened employees with more ornerous working condi- tions and made promises of employee benefits if they would forsake their support of the bargaining agent; that it unlaw- fully supported efforts to obtain an employee showing of interest which was filed to accompany the decertification petition filed in Case 7-RD-1114, that it discriminatorily transferred employee Evelyn Erbert to a less desirable posi- tion and disparately applied to her a company rule regard- ing the furnishing of medical releases to return from sick status in reprisal for her union activity, and that Respondent's attorney, Michael C. Kovaleski, unlawfully interrogated employees concerning their prospective testi- mony at a forthcoming Board hearing and interfered with the Section 7 rights of employees by telling them that they did not have to appear at a Board hearing in response to Board subpenas. As to the refusal to continue to recognize the Joint Board and to negotiate a new contract, Respon- dent asserts that it has entertained a reasonably based good- faith doubt of the Union's continued majority status. Re- spondent maintains that its activities in interrogating prospective employee witnesses and to discussing their obli- gations respecting Board subpenas were within the bounds of the law. It denies the sponsorship of a decertification petition and the other unlawful acts ascribed to it by the complaint Upon these contentions the issues herein were joined. 1 The principal docket entries in this case are as follows Charge filed on August 24, 1973. by Detroit Local Joint Executive Board, Hotel and Restau- rant Employees and Bartenders International Union , AFL-CIO (herein called the Union or Joint Board), and amended on October 9, 1973, com- plaint issued on October 30, 1973, Respondent's answer filed November 5, 1973, Hearing held in Detroit, Michigan, on December 5, 6, 7, and 14, 1973 No briefs were timely filed in this case by any party 2 1 find that , at all times material hereto , the Respondent is and has been a partnership which operates a bar and restaurant in Sterling Heights , Michi- gan. a suburb of Detroit During the calendar year 1972, a representative period , the Respondent derived gross revenues in its business in excess of $500,000 from its restaurant and bar operations and purchased in excess of $71,000 of supplies from various Michigan suppliers including the Michigan Liquor Control Commission Of the aforesaid purchases of supplies , $50,000 or more were received by the Respondent from suppliers directly from points and places outside the State of Michigan Accordingly. it is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act The Joint Board , and its constituent members , including Hotel , Motel, and Restaurant Employees Union Local 705 (herein called Local 705) are, respectively, la- bor organizations within the meaning of Section 2 (5) of the Act 212 NLRB No. 63 MR F'S BEEF AND BOURBON A The General Counsel's Positrial Motion to Strike During the course of the hearing, the following documen- tary exhibits were proffered by the Respondent and were formally admitted into evidence- Resp. Exh. 2, medical release of employee Sheila Kir- choff, dated 5/30/72; Resp Exh. 3, medical release of em- ployee Judy Rutherford, dated 8/24/72; Resp. Exh. 4, medical release of employee Steve Kiwicz, dated 12/27/72, Resp Exh 5a thru 5d, medical releases of employees Elaine Palazzola (dated 1/5/73, Sharon Bloink (dated 2/25/73), Gloria Lesniak (dated 4/20/73), and Jean Miller (dated 7/17/73); Resp. Exh 6a thru 6ag, individual slips signed by various employees in January 1973, and submitted to Mich- igan Employment Relations Commission in support of a state decertification petition; Resp Exh. 7, contract of em- ployment between employee Helen Rossi and Attorney Raymond Glime, Resp. Exh. 8a thru 8at, individual slips signed by various employees in July 1973, and submitted to NLRB, Region 7, in support of decertification petition (7- RD-I 114); and Resp. Exh 10, medical release of employee Margo Prainito, dated 3/24/73. At the conclusion of the hearing, the General Counsel noted for the record that the Respondent had not yet complied with Section 102.38 because it had not submitted the prof- fered documents for the record in duplicate. After the hear- ing adjourned, Respondent's counsel borrowed the original exhibits which had been admitted for the purpose of prepar- ing a duplicate set. Leave was not granted to withdraw the original exhibits permanently As yet, the original set of exhibits which were borrowed have not been returned. The folder of original exhibits supplied by the reporter to me does not contain these exhibits. On February 8, 1974, the General Counsel filed with me a posttrial motion to strike these exhibits from the record and to strike also from the record all testimony relating to them. Respondent's attorney submitted a response to the motion, including an affidavit from his secretary to the effect that, on January 7, 1974, she mailed to Allied Court Reporters a letter enclosing duplicates.3 In a reply response dated February 25, 1974, the General Counsel states that the reporting service did receive one set of duplicates men- tioned in the affidavit of Mr. Kovaleski's secretary but the originals of the exhibits have never been returned He re- news his motion to strike. At my request, the General Counsel furnished me a com- plete set of what was mailed to the court reporter by Mr. Kovaleski The General Counsel has not noted any dele- tions or variances between the original exhibits and the xeroxed set which was ultimately furnished by Respondent's attorney, and I am unable to find any. While the action of Respondent's counsel in regard to duplicating and returning only one set of exhibits was improper, it does not appear that such actions have prejudiced the prosecu- tion of the complaint. Accordingly, the General Counsel's motion to strike the above-designated exhibits and related 3 The letter from Attorney Michael C Kovaleski to Allied Court Reporters states Please find enclosed herewith duplicates of Respondent's Exhibits (men- tioning those above) testimony is hereby denied. 463 B. The Unfair Labor Practices Alleged Mr F's operates a large suburban bar and restaurant in the outskirts of Detroit. Since a time shortly after the restau- rant opened 10 years ago, Mr. F's has maintained a collec- tive-bargaining relationship with the Detroit Joint Board and has been party to successive contracts covering the bulk of its workers. The Joint Board is actually composed of four closely affiliated local unions which traditionally represent employees in the restaurant industry. Mr. F's employees who are chefs, cooks, stewards, and assistants belong to Local 234, Its employees who are bartenders belong to Lo- cal 562. Its hostesses, waitresses, porters, and busboys- who constitute the bulk of its employees-belong to Local 705 ° Negotiations covering all of these employees are con- ducted jointly with Mr. F's through the Joint Board. The most recent contract was concluded in 1970 and expired on November 1, 1973 It is a single document containing provi- sions common to employees who are members of all three locals The only difference among employees covered by the contract are that wage rates are separately stated for each of the classifications represented by each local union. Waitress Hellen Rossi has been one of the most active employees involved in the dispute which has taken shape at Mr. F's in 1971 she mentioned to Thomas Furtney, son of the owners and manager of the establishment, that she wanted to eliminate union representation at the restaurant. Furtney's advice to her was to see an attorney. However, Furtney was not so disinterested a bystander as this reply might indicate. Furtney attended a meeting that took place early to January 1973, at the premises of the restaurant which was attended by both employees and by Union Rep- resentatives Eugene Yarmi and Frank Marie. The purpose of the meeting was to discuss the signing of checkoff author- izations by Respondent's employees. In the presence of 20 or 25 employees, Furtney advanced the opinion that "any who takes money from a woman is either a pimp or a pauper." He reiterated these sentiments on the stand at the hearing, indicating that he had acquired this philosophy from his father, a coowner of the establishment During this same month, Rossi and another waitress, Joyce Scalzo, cir- culated petition forms which, when signed, would support the filing of a decertification petition. The forms were indi- vidual slips of paper and were prepared for them by their Attorney Raymond G Glime They requested that an elec- tion be held to determine the representative status of the Joint Board.5 Rossi, who from time to time purported to act as the union shop steward, called a meeting of employees late in January. It took place in the backroom of the restau- rant during off-duty hours. Thomas Furtney was present during a portion of this meeting. The general subject of the Local 880. the fourth member of the Joint Board has no members em- ployed by Mr F's 5 Rossi testified that Ghme was a personal friend of hers and that she had made no fee arrangement with him She testified that he was willing to represent her without fee Glime testified that, upon the dismissal of the RD petition. he billed Rossi in due course She came to his office and paid him a fee of $500 for representing her, presenting him with a personal check in that amount drawn by some other person whose name he does not remember I credit Ghme 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting was a discussion of waitresses' complaints about inadequate wages and benefits and an exploration of the possibility of establishing a collective-bargaining arrange- ment directly between Mr F's and a committee of employ- ees, all of which would eliminate the existence of the Joint Board as a bargaining agent. Among the complaints was one voiced to Furtney by waitress Elaine Palazzola to the effect that wages were too low. Furtney's response was that he was not at liberty to discuss a possible raise. Requests for a plan of dental benefits and optometric benefits were made to Furtney. Waitress Mildred Van Hulle requested that the employer institute Blue Cross-Blue Shield benefits in place of the Union's health insurance plan. Waitress Eleanor Lo- packi also complained about the lack of Blue Cross-Blue Shield benefits and about the Union's retirement fund. To these complaints, Furtney was generally noncommittal. He did say that he could not provide employees with Blue Cross-Blue Shield benefits because the Union was still in at the restaurant. By contract, the Respondent must provide luncheon-shift waitresses with a noon meal On this occa- sion, Furtney told waitresses Sheila Kirchoff, Mildred Tall- man, and Toni Herman that, if the Union were not in at Mr. F's, they would get a better balanced meal and better hospi- talization benefits. On February 2, 1973, Attorney Glime filed a decertifica- tion petition with the Michigan Employment Relations Commission. At a conference held at the Commission on February 12, Glime told an attorney named Freeman, who represented Mr. F's at the conference, that he was submit- ting 34 cards or slips in support of the petition At that time, the entire unit, including bartenders and others, comprised approximately 55 persons. Glime told Freeman that "we represent the employees." The petition was dismissed by the State Commission because the Commission ascertained that the dollar volume of business done by the Respondent was sufficient to place it under the jurisdiction of the NLRB. Glime was further informed that the petition was not timely filed, either under Board law or under the Michigan statute. On June 6, 1973, Furtney held a meeting of all waitresses at the restaurant. The meeting took place at 2 p.m. The meeting was also attended by his father and mother, who visit the premises only occasionally, and the night maitre d'hotel, George Shrake. A number of matters were dis- cussed at this meeting. Several witnesses credibly provided a composite account of this meeting. Furtney told the as- sembled employees that he had received a number of com- plaints from customers concerning the quality of service He also noted that the restaurant was having difficulty in re- taining busboys because the waitresses were not sharing a sufficient amount of their tips with the busboys who assisted them 6 Furtney also told the assembled employees that he could not live with the union contract and that it would not be a good thing for anyone if the Union stayed. He stated that, if the Union remained the bargaining agent for 6 There existed at Mr F's a custom which arose entirely outside the terms of the collective-bargaining agreement to the effect that each waitress was expected (though not required ) to leave a specified amount each day at the desk to be used by Mr F's to supplement the stated hourly rate of busboys In addition , on busy evenings , waitresses were expected to give busboys a direct donation as part of a tip-sharing practice Respondent's employees, he would cut the number of tables assigned to each waitress and would eliminate the assistance provided for them by busboys. He also stated that wait- resses would have to stand inspection, they would not re- ceive tips for parties in excess of 10 customers, and he would change the waitresses' hours and assigned table stations within the restaurant.? He also said that the luncheon wait- resses would get nothing but hamburgers for their noon meal until this union business was settled During this dis- cussion , Furtney indicated that, if the Union ceased to be the bargaining agent, he would set up vaguely described board of arbitrators who would resolve any disputes that might arise between the employees and management. Furt- ney also suggested that, without the Union, he would pro- vide the employees with Blue Cross insurance and a cost-free program of dental insurance. At the end of the meeting, Mrs Furtney suggested to several of the waitresses that, if they didn't like the Union, they should write them a letter downtown to that effect In a personal conversation with waitress Sheila Kirchoff, Thomas Furtney made reference to the Smidt House, an- other restaurant located about 2 miles from Mr. F's. He told her that the employees at the Smidt House had broken with the Union, and asked why the employees at Mr. F's couldn't also vote the Union out. A few weeks later, at the time a second decertification petition was being circulated by Ros- si and Scalzo, Furtney engaged waitress Sharon Bloink in conversation just before the commencement of the noon shift. He asked her if she had signed a petition in support of decertifying the incumbent union. Bloink said that she had not done so, whereupon Furtney told her that the girls "had better sign the decertification or else " Later in the shift, Bloink went to Rossi, asked to see a decertification authorization slip, and, after reading it, signed it.8 Sometime in July, Rossi obtained new decertification slips from Glime and began to solicit signatures throughout the restaurant She was assisted in this effort by Scalzo. Indeed, it was Scalzo who obtained the bulk of the signa- tures, inasmuch as Rossi was on vacation during a part of this time. Between the two of them, they collected 36 decer- tification authorization cards or slips On August 9, Glime, on behalf of Rossi, filed with the Regional Office a decertifi- cation petition (Case 7-RD-1114) At this time, Mr. F's had between 60 and 65 employees 9 t In his testimony, Furtney testified that he might have said that, if the Union stayed he would eliminate tips on checks for banquets and parties of 10 or more customers He denied that his other statements relative to reduc- ing the number of tables assigned to waitresses and eliminating busboys had no connection with any union consideration Furtney was a most unimpres- sive witness, whose testimony was in part self-contradictory, and I discredit his denial 8 This conversation between Bloink and Furtney is uncontradicted in the record 9 The slips in question supported a decertification petition but did not purport to authorize any alternative bargaining agent to speak on behalf of the signer At no time did Glime ever seek to bargain on behalf of any of his clients While the introduction of these cards was contested at the hearing, at no time did the General Counsel or the Charging Party contend that any of the signers were not employees in the overall bargaining unit, or dispute the assertion that the overall unit contained 60-65 employees The bulk of the petition signers were waitresses and were thus members (or at least were represented by) Local 705 Some kitchen employees and busboys were among the signers The record is somewhat unclear as to what percentage of Mr F's employees were then waitresses and others within the jurisdiction of MR. F'S BEEF AND BOURBON In the middle of June, employee Evelyn Erbert became involved in a dispute with Furtney. Mrs. Erbert is one of the senior waitresses in point of service at the Respondent's establishment. On two occasions, Erbert phoned to inform the restaurant management that she could not arrive for work as scheduled because of stalling or breakdown of her automobile. Furtney became angry on the second occasion because Erbert refused either to come to work as soon as the car trouble could be taken care of or to accept a ride to work which he proffered As a result of this incident, she was transferred from her regular location in front of the restau- rant to a location in the backroom where her opportunity for earning tips was materially reduced She testified that the difference in tips could amount to as much as $50 or $55 per month. At this same time, Erbert was absent I day with diarrhea When she returned, Furtney refused to permit her to return to work without presenting a doctor's release She left work, went to her physician's office, and obtained a slip When she presented the slip the following day, Furtney refused to accept it, saying that it was not an actual release from the doctor in proper form. Erbert went to her doctor's office a second time, procured a release in proper form and presented it to the hostess, Delores Czarnik, who is author- ized to accept such documents on behalf of the manage- ment. Erbert complained to Local 705 about her treatment in being switched to a location in the backroom. It appears that Myra Wolfgang, secretary of Local 705, contacted Furtney about this matter. When no adjustment was forth- coming, Erbert herself spoke with Furtney. Furtney's reply to Erbert's direct complaint was that he had planned to keep her in the backroom for only a day, but that when the union agent intervened, "well, let her get your section back for you." After the filing of the charge in the instant case, Erbert was ultimately reassigned to her original location, but not until after working several weeks at a less desirable, and according to her, a financially less rewarding location On August 23, Robert G. Corrigan, business manager of the Detroit Joint Board, sent a standard letter to the Re- spondent by registered mail seeking to open negotiations leading to a new contract On October 3, 1973, Corrigan sent a second letter to this effect On October 5, Attorney Kovaleski replied in writing to Corrigan's letter, noting his appearance on behalf of the Respondent and refusing to bargain with the Union. Kovaleski stated in his letter to Corrigan that "we have a good faith doubt as to your actual- ly representing the majority of our employees As you know the National Labor Relations Board has recently decided that the pending decertification petition will he held in abeyance pending notice posting at Mr. F's. When the post- ing period expires, the R.D will accordingly be proceeded and the election will be held If you are victorious in this election, we will be more than happy to sit down and begin negotiations on a new contract " At or about this same period of time, Kovaleski had a telephone conversation with Glime in which Kovaleski told Glime that the Respondent found itself in a dilemma as to whether it should await the results of a decertification election During this conversa- Local 705 Estimates ranged from 25 to 35 Furtney testified that there are currently about 45 employees in the overall unit 465 tion Glime told Kovaleski that the petition was supported by more than 50 percent of the employees in the bargaining unit The Union's response in this situation was to file the amended charge herein on October 9. On Octover 30, the Regional Director dismissed the pending RD petition, stat- ing that it appeared that, because of the issuance of the instant complaint, no question concerning representation existed. On November 2. 1973, Respondent held a morning meet- ing of its employees which was attended on behalf of man- agement by Thomas Furtney and Kovaleski. During the course of the meeting, Kovaleski addressed the assembled employees for a period of 15 or 20 minutes Kovaleski in- formed the group that there would be a hearing before the NLRB and that many of the employees would be subpe- naed to testify. He further stated that they did not have to honor the subpenas, and that it was up to them whether or not they went to the hearing. Kovaleski read to them an excerpt from a Michigan statute (which was later posted on the bulletin board) to the effect that, while employees were entitled to strike and to picket, they could not legally picket in such a manner as to block the driveways leading to the restaurant parking lot. Kovaleski further stated that he had been in contact with the Sterling Heights Township police chief and informed the employees that any one who might picket in contravention to the state statute would be prose- cuted. He also stated that, while employees might lawfully picket, their placards could not bear legends which were libelous toward Mr F's. The Board hearing in this case commenced on Wednes- day, December 5. On the preceding Friday, Furtney told the hostess, Delores Czarnik, to call a meeting of employees for the following Monday afternoon. Czarnik posted a no- tice on the employee bulletin board which read- "All girls. Union meeting. Monday 2:00, Dec. 3." The meeting was held in the backroom of the restaurant. On Monday, Furt- ney individually asked some employees to be present at the meeting. Kovaleski was present at the meeting place, sitting at a table. No formal business or discussion was conducted. The meeting was rather an assembling of employees in one place to permit Kovaleski to interview them. Kovaleski pro- ceeded to interview employees individually. He sat at a location within the room which would normally not permit other employees to listen to the discussion, although there is evidence that some employees heard snatches of conver- sations between Kovaleski and other employees. Those not being interviewed sat and waited their turn. Furtney was personally present in the room during the interviews. The interviews were brief. As Kovaleski did not take the stand, evidence concerning the substance of the interviews comes exclusively from the waitresses who testified. Kovale- ski asked each waitress who testified whether she had been subpenaed to testify at the hearing on the following Wed- nesday. Some replied in the affirmative and some replied in the negative. Kovaleski told some of the waitresses that the purpose of asking whether employees had been subpenaed was to permit the restaurant management to prepare a working schedule of waitresses on Wednesday. To others, he made no such statement.10 There is no evidence that 10 One waitress, Mildred Tallman. had, previous to the meeting, told Fort- 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kovaleski told any employee that there would be no reprisal taken against her for answering his questions, nor is there any evidence that Kovaleski told any employee that she was free to answer his questions or not as she might choose Kovaleski asked Mildred Tallman whether she received a subpena and whether she was going to go to the hearing. He also asked her if she had signed a decertification petition. Kovaleski asked employees, Phyllis Wlyrwicz, Sandra Kir- chen, Toni Herman, and Mary Feil i whether they had signed a decertification petition. He also asked Toni Her- man if she was going to attend the hearing in response to the subpena she had received from the Board. C. Analysis and Discussion 1. The violations of Section 8(a)(1) of the Act a The acts of attorney misconduct As Congress had never invested the Board or its examin- ers with contempt powers, a notion occasionally arises in the minds of some that subpenas issued by this Agency to compel the attendance of witnesses at formal hearings do not impose upon the recipient an obligation to comply, unless and until the subpena is enforced by an order issued by a United States district fudge. The Board long ago laid this notion to rest in Winn-Dixie Stores, Inc, 128 NLRB 574, when it issued an admonition not to confuse the legal obligation to honor a Board subpena with the procedure spelled out by Congress for enforcing that obligation. Hence, when an employer informs an employee that he does not have to comply with a Board subpoena, or when it tells him that he is free to suit himself in deciding whether to go or not to go to a Board hearing in response to the commands of a subpoena, such statements constitute unlawful interfer- ence with Section 7 rights and are a violation of Section 8(a)(l) of the Act, Amalgamated Clothing Workers, AFL- CIO v. N.L R.B [Block-Southland Sportswear, Inc.,] 420 F.2d 1296 (C.A.D.C., 1969). When an attorney who practic- es before the Board makes such a statement to employees in the presence of and on behalf of an employer, such con- duct constitutes a violation of Section 8(a)(l) and is also unprofessional conduct. In this case, Kovaleski appeared at a meeting of the Respondent's employees on November 2, was introduced to them by Respondent's manager, and spoke to the assembled group on the Respondent's behalf. Every witness who testified on this point, including witness- es called by the Respondent, recited that Kovaleski told them that they would (or might) receive subpenas from the Board and that it was up to them whether or not they attended the hearing in response to the subpenas. By this statement on the part of Kovaleski, Respondent violated Section 8(a)(I) of the Act. In Johnnie's Poultry Co., 146 NLRB 770, the Board dis- cussed at some length the competing requirements of the observance by attorneys of the rights of employees guaran- teed by Section 7 of the Act, and the necessities imposed by ne' that she was going to attend the Board hearing t Mary Feil normally works the evening shift Most of the waitresses named above regularly work a luncheon shift litigation of adequately preparing a client's case for trial. The Board concluded that an employer's attorney might properly interview his client's employees in preparation for trial if the interviews were conducted in an atmospheie free of union animus, if the interviewed employees were in- formed of the purpose of the interview and were given assur- ances that they would be free of reprisal for answering questions put to them; if they were informed that they did not have to answer any questions at all; and if the substance of the questions did not probe into the private views and sentiments of the employees respecting unionization. When Kovaleski interviewed Mr. F's waitresses on December 3, his actions fell short of the Board's requirements in almost every particular Prior to this occasion, Kovaleski had, as noted above, already violated Section 8(a)(I) of the Act in plain view of the entire bargaining unit by suggesting to employees that they did not have to honor Board subpenas. The question he posed to employees during the December 3 interrogation did not relate to events and transactions drawn into scrutiny by the outstanding complaint, and about which the employees might be expected to give evi- dence. His questions related in large part to whether or not the employees had received subpenas. The pretext stated by Kovaleski to some, though not all, of the waitresses with whom he spoke was that the employer wanted to find out who had been subpenaed in order to be able to cover their duty stations on the first day of the hearing While absence of employees to attend a Board hearing is a legitimate con- cern of any employer, it is hardly a concern which need be advanced through a general meeting and a series of inter- views conducted by its attorney, who has no responsibility for the scheduling of waitresses. Kovaleski's responsibility was to prepare for trial, not to prepare for Wednesday lun- cheon customers. It is plain from this consideration, as well as from the nature of his questions and his earlier statement of November 2, that what Kovaleski was really probing into was how many employees were going to take him up on his previous invitation not to honor Board subpenas, as well as using this occasion to remind employees obliquely of his earlier suggestion. To ascertain Mildred Tallman's pros- pective whereabouts on the following Wednesday, it was not necessary for Kovaleski to ask her if she had been subpenaed. She had already told Furtney that she was going to the hearing. Mary Feil normally worked evenings, so her appearance at the hearing during the day could hardly dis- rupt the employer's work scheduling. Kovaleski not only asked Dorothy Hostedler and Mildred Tallman if they were subpenaed but also asked them whether they were going to the hearing. In the course of his relatively brief interviews, Kovaleski failed to tell any of the employees who testified that they were free not to answer his questions He also asked some employees whether or not they had signed one or more decertification petitions, the answers to which would openly reflect their prounion or antiunion sentiments. In light of these acts and omissions, it is clear that the interviews of prospective witnesses which Kovaleski conducted on De- cember 3 violated Section 8(a)(l) of the Act. I so find and conclude. Tamper, Inc, 207 NLRB No. 142. MR F'S BEEF AND BOURBON 467 b Furtney's statements to employees that she had no union activities . Accordingly, it cannot be As noted before, there is credited evidence that, at an employee meeting on June 6, Restaurant Manager Thomas Furtney told employees that, if the Union remained as the bargaining agent for restaurant employees, he would cut the number of tables assigned to each waitress (thereby reduc- ing their opportunities for earning tips), and would elimi- nate the assistance provided to them by busboys (thereby making their chores more onerous) He threatened that waitresses would have to stand inspection, that he would eliminate the existing practice of permitting them to have tips when serving banquets and parties of 10 or more cus- tomers, and that their hours and work stations would be shifted. He also said he would strictly limit the selection of free noon meals made available to luncheon-shift waitresses pursuant to the contract On the other hand, Furtney prom- ised to institute Blue Cross and a cost-free program of den- tal insurance if the employees removed the Union as the bargaining agent. These threats and promises of benefits constitute violations of Section 8(a)(1) of the Act, and I so find and conclude. It is undenied on the record that, in June or July 1973, Furtney told waitress Sharon Bloink that she had better sign a decertification petition then being circulat- ed "or else " I find that this statement constitutes a violation of Section 8(a)(1) of the Act 2. The violations alleged respecting Evelyn Erbert For a long time, the Respondent has sought to prevent the abuse of sick excuses by waitresses whose lightly taken or last-minute decisions to be absent for illness would sudden- ly leave him short-handed. It had been a standing policy that any waitress who is ill must, upon returning to work, present either to Furtney or one of his designees a release from a doctor, indicating not only why the employee was absent but also that she is now physically fit to return to work. It is equally clear from the record that the enforce- ment of this rule has been sporadic and haphazard Some employees have presented sick excuses or releases upon returning from an illness and some have not; the employer has requested such documentation from waitresses on some occasions and sometimes it has not. The complaint alleges the enforcement of this rule against Evelyn Erbert on Au- gust 20 on a disparate and discriminatory basis. In my esti- mation, the evidence on this point is confused and unclear, and falls short of making out a violation. After Evelyn Erbert failed to report to work on two occa- sions in 2 successive months because of car breakdowns, Furtney transferred her from a more desirable station where she had been working for a number of years to the back- room of the restaurant She places the time of the transfer on a Friday sometime in mid-July, immediately following her second absence for car trouble. From Erbert's own testi- mony, it appears that the initial relocation was occasioned by her second absence and her refusal, on the occasion of the second breakdown, to accept Furtney's suggestion that he send someone to pick her up and bring her to work. There is no evidence that, before this time, Erbert had ex- hibited any prounion sentiments or had engaged in any noticeable union activity. Indeed, she stated on the stand said that the initial transfer of duty stations was discrimina- torily motivated or was an attempt on the part of the Re- spondent to take reprisal against Erbert for engaging in union activities . Rather, it appears from her own testimony that the Respondent's initial action was prompted by Furtney's irritation at her repeated failure to show up for work From Erbert's stream -of-consciousness recitation of events, it appears that, while she was working as a waitress in this less desirable duty station , she also missed a Saturday evening assignment because she was suffering with diar- rhea. When she returned to work the following Monday, Furtney required her to present a doctor's excuse. She left work , went to the doctor's office, obtained an excuse, and presented it on Tuesday when she reported to work. The excuse said that she had stomach flu . Furtney said that the excuse was inadequate because it was not an actual medical release to return to work. Erbert became angry, but, at the suggestion of another employee, returned to the doctor's office and obtained a release in proper form which she presented to the Respondent Her second effort at obtaining a release apparently satisfied his requirements , and she re- sumed working. Again, there is no evidence that the strict application to Erbert of the sick release requirement on this occasion was prompted by union considerations . The tim- ing of this situation suggests rather that Furtney was again displeased by Erbert's repeated, though perhaps excusable, absenteeism , and that he was taking a disciplinary measure aimed at encouraging more regular attendance on her part. Moreover, Furtney can hardly be faulted for requiring that a food handler who was absent from work because of stom- ach flu obtain actual clearance from a physician before permitting her to resume her duties. At some point in time shortly after being transferred to the backroom , Erbert lodged a grievance with the Union. Erbert's recollection is that she did not go to the Union until after being required to go home to get a sick excuse. In response to her complaint, Myra Wolfgang, a union officer, went to Mr. F's to speak with Furtney for the purpose of pressing the grievance . About 10 days after Erbert's initial transfer-at a point in time when she was contemplating a second complaint to the Union-Erbert spoke directly with Furtney. It was then that Furtney told her that he had planned to keep her in the backroom for only a day, but, in effect, he had changed his mind and decided to keep her longer at this station after she had sought the intervention of the Union His reported statement to this effect is unde- nied. Erbert was eventually restored to her original duty station after the filing of the first charge in this case . Howev- er, this adjustment did not result in a settlement agreement which was formally approved by the Regional Director. Accordingly, this aspect of the complaint is governed by the rule that the discontinuance of an unfair labor practice is no defense to the prosecution of a complaint or the issuance of a remedial order Southern Tours, Inc, 167 NLRB 364 (1967); Interstate Equipment Co. Inc , d/b/a Allen Motors, 172 NLRB 1320, 179 NLRB 622 (1969); N L.R.B v. Clinton E Hobbs Company, 132 F.2d 249 (C.A. 1, 1942), N.L R B. v Draper Corporation, 159 F.2d 294 (C.A 1, 1947). In light of the foregoing evidence, I conclude that the 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not violate Section 8(a)(1) of the Act, as alleged in the complaint, by disparately and discriminatori- ly applying to Evelyn Erbert a company rule or policy re- garding the production of medical releases, so I will recommend that this portion of the complaint be dismissed. While the Respondent did not initially transfer Erbert to a less desirable and less remunerative location for union-re- lated considerations , it is clear from Furtney's admission that he extended the period of Erbert's relocation from her regular and more desirable station in reprisal for her action in seeking union assistance to redress her initial grievance. Accordingly, I find and conclude that the extension of her transfer violated Section 8(a)(1) and (3) of the Act. 3. Employer's refusal to bargain at the end of the con- tract term Since its decision in Celanese Corporation of America, 95 NLRB 644, the Board has held in a consistent line of cases that a long-standing contractual relationship between an employer and a collective -bargaining agent gives rise to a presumption of continued majority status on the part of the Union, even after the end of the certification year or the expiration of the term of a collective -bargaining agreement. Laystrom Manufacturing Co, 151 NLRB 1482 (1965); Ter- rell Machine Company, 173 NLRB 1480 (1960) enf. 427 F 2d 1088 (C.A. 4, 1970) cert. denied 398 U.S. 929 (1970), Davis & Hemphill, Inc, 177 NLRB 282 (1969); Barrington Plaza and Tragniew, 185 NLRB 962 (1970); Emerson Manufactur- ing Company, Inc., 200 NLRB 148 (1972). To avoid an obli- gation to bargain in such a circumstance , an employer must be able to establish that he had a good-faith doubt of the Union's continued support status. This doubt must be rea- sonably based and factually supported, and may not be asserted in the context of employer unfair labor practices aimed at causing employee disaffection from the Union King Radio Corporation, 208 NLRB 578 (1974); Harpeth Steel, Inc., 208 NLRB 545 (1974). The filing by employees of a decertification petition does not, in and of itself, pro- vide an employer with a sufficient factual basis for avoiding a bargaining obligation based upon the assertion of a good- faith doubt. Southwest Chevrolet Corp, 194 NLRB 975 (1972); Dayton Town and Country Furniture Shop, Inc., 172 NLRB 955 (1968); Universal Gear Service Corporation, 157 NLRB 1169, enfd. 394 F.2d 396 (C.A. 6, 1968); Allied Indus- trial Workers, Local 289 v. N L. R. B, 476 F.2d 868 (C.A.D. C., 1973). In some circumstances, the filing of a decertifica- tion petition , coupled with evidence that the petition is supported by over 50 percent of the employees in the bar- gaining unit, has been held to provide an employer with a reasonable basis upon which to predicate a good-faith doubt of an incumbent union's continued majority status. GAF Corporation, 195 NLRB 169 (1972); Newhouse Broad- casting Corporation, d/b/a WA PI-TV, 197 NLRB 885 (1972). However, as with any other factual circumstance, such a contention will not be honored even in the face of a decertification petition supported by a majority of em- ployees in the bargaining unit, if at the same time 'the em- ployer is attempting unlawfully to use its influence to cause employees to repudiate the union. Boren Clay'Products Company, 174 NLRB 895 (1969), enfd. 419 F 2d 387 (C.A. 4, 1970), Fremont Newspapers, Inc, 179 NLRB 390 (1969); Firestone Synthetic Rubber and Latex Company, 173 NLRB 1179 (1969), Texas Electric Coop., Inc, 197 NLRB 10 (1972); The Rogers Manufacturing Company, 197 NLRB 1264 (1972). Since no briefs or oral arguments were presented in this case, we are left to speculate as to the basis for, the Respondent's assertion of a good-faith doubt of the Union's continued majority status in October 1973, and thereafter. Also left to conjecture is the meaning and effect which should be attached to record evidence which might fairly detract from the Respondent's assertion of good faith. The slips signed by 36 employees in July and filed with the Board on August 9 in support of the decertification petition state, as to each signatory, that he or she asserts "that the Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, the certified or currently recog- nized bargaining representative for the waitresses , cooks, bartenders, busboys, and restaurant employees of Mr. F's Beef and Bourbon , Warren , Michigan , is no longer the rep- resentative designated or selected for the purpose of collec- tive bargaining by the majority of the employees in said bargaining unit." The assertion of fact as to the feeling of the majority of the employees makes no mention of the signer's own personal feeling in the matter . It is undenied that most of the waitresses were still dues-paying members in good standing of Local 705 until the conclusion of the contract term on November 1. The record is silent as to the dues-paying status of employees within the jurisdiction of two locals who comprise the balance of the bargaining unit. There is no evidence that waitresses or any other employees sought to withdraw their membership during the contract. To the contrary, there is evidence that the Local 705 sought to enforce the union-security provisions of the outstanding contract, and that it made known its intentions in this re- gard to the entire membership who where employed at Mr. F's Regardless of these considerations, it is clear from the precedents cited above that the signing of authorization slips for decertification in mid-July and their presentation to the Board in August in support of a decertification peti-, tion are wholly insufficient to form the basis of a good-faith ' doubt on the part of this Respondent of the Union's contin- ued majority status. The circulation of these slips was ac- complished in the context of .egregious unfair labor practices on the part of this employer aimed specifically at eliminating from its establishment an organization which it publicly proclaimed to. be, made up of "pimps or paupers " While the Respondent may not have initiated or sponsored the decertification effort in a technical sense, Furtney lent- the full weight of his influence to the efforts of two employ- ees who were circulating the authorization slips. In his state- ments at the June 6 meeting , recounted above, Furtney promised numerous benefits to employees to reward them for getting rid of the Union , and threatened various kinds of punishment and unpleasantries if they did not . His state- ment to Bloink that she had better sign the petition "or else" lent further impetus to the decertification movement. As there is no other basis in this record upon which the Respon- dent, as of October 5 and thereafter could have predicated a good-faith doubt of the Union's majority status, I con- . MR F'S BEEF AND BOURBON dude that it had none . I further conclude that the Union's presumed majority status as an incumbent bargaining agent, functioning with the support of a union -shop con- tract, constitutes a sufficient basis upon which to establish a continued bargaining obligation Accordingly, when, on October 5, Kovaleski informed Corrigan that the Respon- dent would not bargain with him respecting a new contract, the Respondent violated Section 8(a)(5) of the Act. The violation continues to date. On the basis of the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent Richard R. Furtney and Naomi Furtney, co-partners d/b/a Mr. F's Beef and Bourbon, is an employ- er engaged in commerce and in operations affecting com- merce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Detroit Local Joint Executive Board, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All restaurant employees, including waitresses, cooks, bartenders, and busboys , who are employed by the Respon- dent at its Sterling Heights, Michigan , restaurant, and ex- cluding supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein , the Detroit Local Joint Executive Board, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, has been the exclusive representative of all employees in the unit found appropriate in Conclusion of Law 3, for purposes of collec- tive bargaining, within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and to bargain collectively in good faith with the Detroit Local Joint Executive Board, Hotel and Restaurant Employees and Bartenders Interna- tional Union , AFL-CIO, as the duly designated collective- bargaining representative of its employees in the bargaining unit found appropriate in Conclusion of Law 3 herein, the Respondent violated Section 8(a)(5) of the Act. 6. By discriminatorily extending a disciplinary transfer of employee Evelyn Erbert to a less desirable and less re- munerative station because she had requested the Union herein to represent her in pressing a grievance, the Respon- dent violated Section 8(a)(3) of the Act. 7. By the aforementioned acts and conduct ; by telling employees that they did not have to appear at a Board hearing in response to a Board subpena ; by interrogating employees as to whether they received Board subpenas and whether they had signed decertification authorizations; by threatening employees with restricted meal selection, change of work location and duty hours, loss of tips for serving banquets and large parties, reduction of the number of tables served causing a loss of prospective tips, and elimi- nation of the assistance of busboys , by promising to insti- tute programs of medical and dental insurance benefits; and by telling an employee to sign a decertification petition 469 "or else," in order to induce or persuade employees to take action to remove the Union as the collective-bargaining representative in the unit found appropriate in Conclusion of Law No. 3, the Respondent herein violated Section 8(a)(1) of the Act. 8. The aforementioned unfair labor practices have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Sections 2(6) and (7) of the Act REMEDY Having found that the Respondent herein has engaged in unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. The interference with the Section 7 rights of em- ployees by the Respondent was repeated over a long period of time and struck deeply at the root of the whole collective- bargaining relationship. It also seriously interfered with the administration of the Act. Accordingly, I will recommend that the Board issue a broad order prohibiting all conduct in violation of Section 8(a)(1) of the Act. I will recommend that discriminatee Evelyn Erbert be made whole for the loss of tips and any other remuneration during the period in which her transfer was extended for discriminatory reasons, together with interest thereon computed at 6 percent per annum. I will further recommend that the Respondent be required to recognize and bargain with the Detroit Joint Board as the collective-bargaining representative of its em- ployees in the unit found appropriate herein. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: 12 ORDER Respondent Richard T. Furtney and Naomi Furtney, co- partners doing business as Mr. F's Beef and Bourbon, and its attorneys,, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening employees with reprisals in order to in- duce them to abandon their support for a union. (b) Promising benefits to employees in order to induce them to abandon their support for a union. (c) Telling employees that they do not have to honor Board subpenas. (d) Interrogating employees as to whether they have re- ceived Board subpenas and whether they have signed decer- tification authorizations. (e) Discouraging membership in the Detroit Local Joint Executive Board , Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, any labor orga- 12 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nization affiliated with the said Detroit Local Joint Execu- tive Board , or any other labor organization , by discrimina- tion in the hire or tenure of employment or any term or condition of employment of any employee , except as such may be lawfully affected by an agreement containing a union security clause as a condition of employment as au- thorized in Section 8(a)(3) of the Act. (f) Refusing to recognize and to bargain , upon request, with the Detroit Local Joint Executive Board , Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the collective-bargaining representa- tive of its restaurant employees , including waitresses, bar- tenders, cooks, and busboys, employed by the Respondent at its Sterling Heights, Michigan , restaurant , excluding su- pervisors as defined in the Act. (g) By any means or in any manner interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Make whole Evelyn Erbert, in the manner set forth in the section hereof entitled "Remedy," for any loss of earn- ings suffered by reason of the discriminatory extension of her transfer from her regular duty station to another duty station. (b) Recognize and, upon request, bargain collectively with Detroit Local Joint Executive Board , Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO, as the collective-bargaining representative of its restaurant employees , including waitresses , bartenders, cooks, and busboys, employed by the Respondent at its Sterling Heights , Michigan , restaurant, excluding supervi- sors as defined in the Act. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all records necessary to analyze and compute the amount of reimburse- ment to employees , if any, which may be due under the terms of this Order (d) Post at its Sterling Heights, Michigan , restaurant, copies of the attached notice marked "Appendix" 13 Copies of said notice , on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's authorized representative , shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of the Decision what steps it has taken to comply herewith Insofar as the complaint alleges matters not specifically found herein , the complaint is hereby dismissed. 13 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We are posting this notice to comply with the recommended order issued by an Administrative Law Judge. The recom- mended Order was issued after a hearing in which we were found to have violated certain provisions of the National Labor Relations Act. WE WILL NOT threaten employees or promise benefits to employees to induce them to abandon their support for Detroit Local Joint Board, Hotel and Restaurant and Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT advise employees that they are free to disregard subpenas issued by the National Labor Re- lations Board. WE WILL NOT interrogate employees concerning whether they have received subpenas from the Nation- al Labor Relations Board or whether they have signed authorization cards for a decertification election. WE WILL NOT by any means or in any manner inter- fere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the Na- tional Labor Relations Act. WE WILL pay to Evelyn Erbert any money she may have lost by virtue of a discriminatory extension of a transfer to a less desirable station, with interest there- on at 6 percent per annum. WE WILL, upon request, bargain collectively with De- troit Local Joint Board, Hotel and Restaurant and Bartenders International Union, AFL-CIO, as the collective-bargaining representative of all of our res- taurant employees, including waitresses , cooks, bar- tenders, and busboys, and excluding supervisors as de- fined in the National Labor Relations Act. MR F's BEEF AND BOURBON (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 compliance with its provisions may be direct- ed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.