Old Angus, Inc., of Maryland

OLD, ANGUS, INC., OF MARYLAND 539 Old Angus, Inc., of Maryland and Hotel and Restau- rant Employees and Bartenders International Union, -AFL-CIO. Cases 5-CA-5623 and 5-CA-5760 July 24, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 31, 1973, Administrative Law Judge Eu- gene George Goslee issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief,' and the General Counsel filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. In accordance with our position as stated in Steel- Fab, Inc., 212 NLRB No. 25 (1974), we do not predi- cate our issuance of a bargaining order on a violation of Section 8(a)(5). Rather, a bargaining order is clear- ly warranted here because Respondent's numerous and substantial violations of Section 8(a)(1) and (3) have created an atmosphere in which a free and fair election could not take place. Respondent engaged in serious unlawful activity in order to dissipate the Union's majority and dissuade employees from con- certed activity. To remedy this substantial miscon- duct by the Respondent, we shall issue a bargaining order. Since the bargaining order we have herein issued establishes for the first time Respondent's duty to bargain, it follows that Respondent's individual bar- gaining and unilateral instituting of new employment rules-referred to in the final paragraph of section III- of the Administrative Law Judge's Decision-did not violate Section 8(a)(5). However, Respondent's discussions with employ- ees about the terms and conditions of employment were clearly undertaken in order to restrain employ- ees from engaging in union activity. Further, Respondent's new work rules were promulgated in response to the Union's organizational campaign and were aimed at curtailing any further union activity. I Inasmuch as the record and briefs adequately present the issues and positions of the parties, the Respondent's request for oral argument is hereby denied. Accordingly, we find that Respondent's aforemen- tioned conduct violated Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 5 and 6 from the Ad- ministrative Law Judge's Decision and insert Conclu- sions of Law 5 and 6, as follows: "5. The Union is the sole and exclusive bargaining representative of the Respondent's employees in the following described unit: "All of the Respondent's employees at its restau- rant and cocktail lounge, excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. "6. By discussing terms and conditions of employ- ment with its employees and by instituting and pro- mulgating new written work rules for its employees, the Respondent has 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Old Angus, Inc., of Maryland, College Park, Maryland, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following as paragraph 1(c) of the Administrative Law Judge's recommended Order: "(c) Discussing with employees wages, hours, and terms and conditions of employment and instituting and promulgating new written work rules in order to restrain employees from engaging in union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER FANNING, dissenting in part: As stated in my dissent in Steel-Fab, Inc., 212 NLRB No. 25, I would continue, in accordance with the Supreme Court's decision in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), to base the issuance of bargaining orders on findings of violations of Section 8(a)(5). In this case I would find that Re- spondent has violated Section 8(a)(5) and that a bar- gaining order, dating from May 16, 1972, the date of the Union's initial demand for recognition, should issue. Furthermore, as I would find that Respondent's 212 NLRB No. 93 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duty to bargain arose as of the demand date, I would affirm the Administrative Law Judge's finding that Respondent, subsequent to the date of demand, bar- gained individually with employees and instituted and promulgated new written work rules in violation of Section 8(a)(5) and (1) of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with dis- charge or other reprisals because of their union membership, activities, or desires; threaten that we will "blackball" our employees, interrogate our employees concerning their union member- ship, activities, or desires, promise our employees economic or other benefits to persuade them to abandon their allegiance to the Union; coerce our employees to sign no-union pledges; or pro- mulgate an unlawful no-solicitation and no-dis- tribution rule. WE WILL NOT discharge or lay off our employ- ees because of their union and protected concert- ed activities. WE WILL NOT discuss with employees wages, hours, and terms and conditions of employment or institute and promulgate new written work rules in order to restrain employees from engag- ing in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Sec- tion 7 of the Act, or to refrain from any and all such activities. WE WILL, to the extent we have not already done so, offer immediate and full reinstatement to the employees named below to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges pre- viously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered by reason of our discrimination, together with interest thereon at 6 percent per annum. Beverly Peter's Arthur Prince Shirley Collins Michael Krebs Hilda Weaver Phyllis Threlkeld Nora Karpen Lorraine Lauer Camille Privitera Jensen Robert Peters WE WILL, upon request, bargain with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the sole and exclusive bargain- ing representative of our employees in the following described unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, WE WILL embody such agreement in written form. The appropriate unit for bargaining is: All employees of Old Angus, Inc., of Mary- land, employed in its restaurant and cocktail lounge, excluding office clerical employees, professional employees, guards, and supervi- sors as defined in the Act. WE WILL rescind and cease giving effect to the work rules for our employees issued on or about July 1, 1972, until we have given notice to the Union, and have afforded the Union, if it so requests, with the opportunity to bargain. OLD ANGUS, INC, OF MARYLAND (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 Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301- 962-2822. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These cases came on to be heard before me at Washington, D.C., on October 16 and 17, and November 27 and 28, 1972, upon a consolidated complaint' issued by the General 1 The original complaint in Case 5-CA-5623 was issued on August 24, OLD ANGUS, INC., OF MARYLAND 541 Counsel of the National Labor Relations Board and an answer filed by Old Angus, Inc., of Maryland, hereinafter called the Respondent. The issues raised by the pleading in this proceeding relate to whether or not the Respondent has violated, and is violating, Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by acts and conduct hereinafter specified. At the conclusion of the hear- ing the parties waived oral argument, but briefs have been received from the General Counsel and the Respondent, and the briefs have been duly considered. Upon the entire record2 in this proceeding and from my observation of the testimony and demeanor of the witness- es, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent is a Maryland corporation and operates the Old Angus Restaurant and the Red Fox Lounge, which are located in the Holiday Inn Motel at 9137 Baltimore Boulevard, College Park, Maryland. The consolidated com- plaint alleges, and the answer admits, that during the calen- dar year 1971, the Respondent had gross revenues of $452,000, and purchased goods and materials used in its business operations from sources situated outside the State of Maryland in an amount valued in excess of $10,000. It is clear that the Respondent' s revenues from its opera- tion of the Old Angus are, standing alone, insufficient to satisfy the Board's current standard for the assertion of jurisdiction over retail enterprises. The General Counsel asserts, nevertheless, that the assertion of jurisdiction is ap- propriate here because the business operated by the Re- spondent is held out to the public as integrated with a separately owned establishment within which it is located, and the combined revenues of the two establishments ex- ceed the Board's retail standard. In support of this assertion the General Counsel adduced evidence that Ross J. Russo is the sole owner of the Respon- dent and operates a restaurant and cocktail lounge in a Holiday Inn Motel complex. The Respondent operates these facilities pursuant to a lease agreement with Universi- ty Host Hotel, Incorporated, the corporate owner and oper- ator of the Holiday Inn Motel. The Respondent's facilities occupy a portion of the Holiday Inn premises, and access may be gained to the restaurant and cocktail lounge through the main entrance to the motel. Both enterprises use a com- mon parking lot, restrooms, and other customer facilities. Guests at the motel are privileged and encouraged to use the 1972, and predicated on a charge filed on May 18 , 1972- as amended on May 23 and 30, and June 5 and 9, 1972, and copies of the charge and amendments were duly served on the Respondent by registered mail. On September 22, 1972, upon a charge filed on September 1, 1972, in Case 5-CA-5760, a copy of which was duly served on the Respondent by registered mail, the Regional Director issued and caused to be served on the parties an order consolidating cases, complaint, and notice of hearing, thereby consolidating and noticing said cases for hearing. 2 Pursuant to a stipulation of the parties the entire transcript of testimony and certain designated exhibits from a related proceeding arising under Sec. 10(j) of the Act, and heard before the, Honorable Edward S . Northrop, Chief United States District Judge for the District of Maryland , have been received in evidence and made part of the record in these cases. restaurant and cocktail facilities, and guests may and do charge meal and beverage costs on their lodging bills. In advertisements, billboard notices and announcements to guests, University Host holds out the restaurant and cock- tail lounge as a part of the Holiday Inn facilities available to its customers. In addition, the record reflects that Russo, together with the owners of University Host, Reubin Pom- erantz and Murray Schott, are officers of Host Lounge, Inc., the corporation which holds the liquor license for the Respondent's cocktail lounge. On the basis of these facts, which are largely uncontro- verted, I find that the Respondent's restaurant and cocktail facilities and the Holiday Inn Motel are held out to the public as a single integrated enterprise. I also find that the combined revenues of the Respondent and University Host Hotel, Incorporated, substantially exceed $500,000 per an- num, and that the impact exerted on commerce by a labor dispute at the Respondent's facilities, warrants the exercise of jurisdiction.3 I find and conclude, accordingly, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The consolidated complaints alleges, the answer admits, and I find that Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED The consolidated complaint alleges, and the answer de- nies, that on various occasions between May 12 and July 13, 1972,4 the Respondent violated Section 8(a)(1) of the Act by (1) threatening its employees with discharge or other repri- sals; (2) threatening to "blackball" its employees; (3) inter- rogating its employees; (4) engaging in surveillance of a union meeting place; (5) promising its employees economic and other benefits; (6) requesting its employees to sign a no-union pledge; and (7) promulgating an unlawful no- solicitation and no-distribution rule. The complaint also alleges, and the answer similarly denies, that between the dates of May 16 and July 28, the Respondent discriminato- rily discharged 11 of its employees, and discriminatorily laid off 2 others. As to the 8(a)(5) allegations, the complaint alleges that, since on or about May 16, the Respondent has failed and refused to bargain in good faith with the Union as the majority bargaining representative of its employees in an appropriate unit, and has engaged in a course of conduct designed to undermine the Union and destroy its majority status. As a further part of the 8(a)(5) allegations, the com- plaint alleges that in July the Respondent engaged in con- duct in contravention of its bargaining 'obligation by unilaterally instituting a new set of work rules. By its answer the Respondent generally denies the Union's majority sta- tus, and denies all allegation that it has refused to bargain in violation of Section 8(a)(5) of the Act. 3 Mtlco Importers, Inc, d/b/a Denny's Restaurant #3, 177 NLRB 702, 703 (1969), and Sands Motor Hotel, 162 NLRB 863 (1967). 4 All dates hereinafter are in 1972, unless specified to the contrary. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Appropriate Bargaining Unit and the Union's Majority Status By its answer the Respondent agrees that if the Board has jurisdiction over Old Angus, Inc., of Maryland, the unit alleged in the consolidated complaint is a unit appropriate for bargaining for the purposes of this proceeding only. I have found that the Board has jurisdiction over the Respon- dent, and I further find and conclude that the unit described below is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees at the Respondent's restaurant and cocktail lounge, excluding office clerical employees, professional employees , guards, and supervisors as de- fined in the Act. In late April the Respondent's employees instituted an organizing campaign. One of the employees, Mrs. Beverly Peters, made an initial contact with the Union's business agent, Ronald Richardson, and was subsequently furnished with a supply of authorization cards which were distributed to other employees. On May 16, coincidental with a work stoppage by the employees, the Union made an oral de- mand on the Respondent for recognition, and this was fol- lowed on May 17 by a telegraphic demand of similar nature. At the time the oral demand was made on May 16, the Union had in its possession 29 cards signed by employees in the unit. Two additional cards were signed by employees at a later time on May 16, and a third additional card was obtained on May 20. The authorization contained on the cards executed by the Respondent's employees is as follows: AUTHORIZATION FOR REPRESENTATION BY AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS I desire to be represented by a union which is part of the AFL-CIO and I hereby designate the AFL-CIO and/or its appropriate affiliates as my Bargaining Agent in matters of wages, hours and other conditions of unemployment. During the course of the hearing in this proceeding the parties entered into a stipulation whereby they have agreed that the signatures on 20 of the total of 33 cards are genuine. Inasmuch as the authorization cards, on their face, are valid designations for collective-bargaining representation, the signatures are conceded to be those of the employees who signed; and in the absence of any evidence of fraud or misrepresentation, I find that the 20 employees authorized the Union to act as their bargaining representative. As to the remaining 13 cards, the Respondent has assert- ed various contentions to contest their authenticity or valid- ity in determining the Union's majority status. The 5 N L R.B. v Economy Food Center, Inc., 333 F 2d 468, 471 (C A 7, 1964 ) 6 N.L R.B v. Cumberland Shoe Corp, 351 F.2d 917 (C.A. 6, 1965). Respondent contends that the card of employee Anna Hart- man should not be counted because Hartman withdrew her authorization before the demand was made for recognition. The card of Charles Ladmer is contested on grounds that he was told by the soliciter on the card that its purpose was to obtain an election. The Respondent contests the validity of the cards of employees Deborah Green , Vigdis Michel- son and Donald St. Armand on the grounds that at the time they signed the cards, or shortly thereafter, they intended to terminate their employment with the Respondent. As to employee Robert Peters, who is the son of Beverly Peters, the Respondent argues that Robert is a minor, and under Maryland law is incompetent to execute a contract author- izing the Union to represent him for purposes of collective bargaining . In addition to the foregoing contentions and arguments, the Respondent contests the authenticity of some of the 13 cards in issue on grounds that the signatories did not testify, and the cards were introduced in evidence through other witnesses. In the case of Anna Hartman, she testified that she signed a card upon the solicitation of, Beverly Peters, and the card is dated April 30. Mrs. Hartman also testified that prior to May 16 she called Mrs . Peters and told her to destroy the card because she wanted nothing to do with "it." Mrs. Hartman's testimony was not rebutted, and I find, accord- ingly, that she withdrew her authorization prior to the date the Union demanded recognition from the Respondent. With respect to the remaining 12 cards in contest, I find no merit in the Respondent's contentions, assertions, and arguments . Each of the cards was established in evidence through the testimony of the signatory, or through the testi- mony of a witness who was present at the time the card was filled out and executed . I find that the cards were properly authenticated by witnesses competent to testify to the at- tending circumstances.' As to Charles Ladnier, he testified that he signed the card for Beverly Peters on April 29, and that he read the card before he signed it. According to Ladnier, Mrs. Peters ex- plained what the card said and that the Union was going to represent the employees . On cross-examination Ladnier also said that Mrs. Peters said' there was going to be an election, and that his signature on the card indicated his support for an election. On redirect examination, however, Ladnier testified that he did not know exactly what Mrs. Peters said to him, but his recollection was that she said that the Union was going to represent the employees . Ladnier read the card before he signed it, the card is an authentic authorization for bargaining representation, and the evi- dence relied on by the Respondent is insufficient to estab- lish that Ladnier signed the authorization on the pronouncement of the solicitor that it would be used only to seek a Board election.6 I find that Charles Ladnier's card is a valid authorization. The record reflects that Deborah Green , Vigdis Michel- son, and Donald St. Armand signed valid authorization cards, which they executed prior to the time of the Union's oral request for recognition on May 16. The record also reflects that the three employees subsequently terminated their employment with the Respondent . They were, howev- er, in the Respondent's employ on May 16 at the time the demand for recognition was made, and they are included on OLD ANGUS, INC., OF MARYLAND 543 the list of employees to which the Respondent has stipulated as employed in the bargaining unit on the date of the de- mand. The Respondent asserts, nevertheless, that the evi- dence that the three employees subsequently terminated their employment warrants the inference that they intended prior to the time of the execution of their authorizations to discontinue their employment relationship. The record does not support any such inference, and I could as easily infer that they terminated their employment relationship because of the Respondent's unfair labor practices. Green, Michel- son, and St. Armand were employed on May 16, they execu- ted valid authorizations, and their names are included in both the computation of the unit and the determination of the Union's majority status. Finally, I find no merit in the contention that the card executed by Robert Peters should be rejected because he is age 17, and under the law of the State of Maryland any contract executed by him is revocable at will. Whatever Maryland law, under the doctrine of preemption the Na- tional Labor Relations Act is the governing regulatory legis- lation applicable to this proceeding, and there is nothing in the statute or precedent law which requires voiding a valid authorization for union representation by a minor. Robert Peters' authorization card will be included in determining the Union's majority. I find and conclude, accordingly, that at the time of the Union's initial demand for recognition on May 16,28 of the Respondent's employees had executed valid authorizations for the Union to represent them as their collective-bargain- ing representative. The Union's demand, moreover, was a continuing demand, and I find that it is appropriate to include in the Union's majority count the three employees who executed cards after the time of the initial oral demand for recognition. As a part of a further stipulation arrived at during the course of this proceeding, the Respondent agreed that as of May 16 at least 49 employees were employed by the Re- spondent in the bargaining unit. On December 29, after the close of the hearing, the parties submitted a joint motion requesting that one additional employee be added to the stipulated list of employees in the unit on May 16. I accept the stipulation and joint motion as establishing a prima facie case that there was a total of 50 employees in the unit as of the time the Union made its demand on May 16, and in the absence of any countervailing evidence I find that this is the scope of the unit for the purposes of determining whether or not the Union had majority status. On the basis of the foregoing findings, 28 of 50 employees had designated the Union as their collective-bargaining representative at the time of the Union's initial demand on May 16, and that majority was increased by 3, employees through May 20. I find and conclude, therefore, that at all times since May 16, the Union has been the duly designated bargaining repre- sentative of the Respondent's employees in the unit found appropriate above. B. The 8(a)(1) and (3) Allegations After she obtained blank authorization cards from Busi- ness Agent Richardson, Beverly Peters, assisted to some extent by employee Arthur Prince, distributed the cards among the employees and solicited, signatures. On May 13 a union meeting was held at Mrs. Peters' home, which was attended by about 16 employees and Richardson. By this date approximately 29 employees had executed authoriza- tion cards, and Richardson explained to the employees the means by which-the Union could seek recognition and bar- gaining with the Respondent. The employees voted to au- thorize Richardson to demand recognition from the Respondent, using the authorization cards as proof of ma- jority status. It is this meeting of May 13 at Beverly Peters' home that gave rise to the General Counsel's allegation that the Respondent violated Section 8(a)(1) of the Act by enr gaging in surveillance. Mrs. Stephanie Ladnier, wife of employee Charles Lad- nier, testified that on May 13 she was driving on Rhode Island Avenue adjacent to the location where the union meeting was in progress at Mrs. Peters' home. According to Mrs. Ladnier, she observed a 1967 turquoise-blue Cadillac driven by a person of short stature. According to Mrs. Lad- der, Ross Russo owns a turquoise Cadillac, which might be a 1967. Russo agreed in his testimony that he owns a blue- green 1967 Cadillac. The foregoing is the sole extent of the evidence intro- duced in the record to substantiate the allegation of surveil- lance. In spite of other evidence in the record to reflect that Russo knew of his employees' union activities, and probably knew of the meeting held at Beverly Peters' home on May 13, evidence that a 1967 turquoise Cadillace, driven by an unidentified person, was seen in the vicinity of a union meeting, does not support the least inference of surveillance. Accordingly, I grant the Respondent' s motion to dismiss this allegation of the complaint. Mrs. Shirley Collins was employed by the Respondent as a cocktail waitress and attended the union meeting at Mrs. Peters' home on May 13. After she returned home from the meeting, Mrs. Collins received a telephone call from Ross Russo, who stated that he was trying to find out what Mrs. Collins knew about Mrs. Peters trying to form a union. Mrs. Collins replied that she did not know what Russo was talk- ing about. Russo insisted that he knew Mrs. Peters was trying to form a union and asked if Peters had approached Mrs. Collins. Mrs. Collins denied that she had been ap- proached. Russo responded that he happened to know that Peters was trying to form a union, and if the employees wanted to go union, they were crazy and Russo would make it so rough the employees would not be able to stand it. According to Collins' testimony, Russo also threatened that if the employees thought they were then eating slop they should wait until' the Union came in, and further threatened that the employees would not be able to sit down on the job at all. Mrs. Collins was scheduled to report to work at the usual hour of 6 p.m., on May 16. About 4 p.m., however, she received a telephone call from Russo and instructions not to report to work. Mrs. Collins asked the reason and Russo replied that it was because her name was on a' union con- tract. Mrs. Collins insisted that she had not signed any con- tract, but Russo responded that he had the contract in front of him, and it contained her signature. Russo asked if Mrs. Collins wanted her job.,In response to her affirmative reply Russo stated that if Mrs. Collins wanted her job he was 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asking her to resign "until this blows over," and agreed that he would call Mrs. Collins at a later time. Mrs. Collins called Mrs. Peters to relate what had hap- pened, and then called Russo back to inform him that she wouldn't resign because she would be unable to collect un- employment compensation. Russo replied that he already had someone to cover for that evening and Mrs. Collins asked if she could report for work on the following evening. Russo replied, "No." On' May 17, Mrs. Collins tried on two occasions to con- tact Russo with respect to returning to work. Russo was unavailable, but Mrs. Collins was told that if she wanted her job back she should attend the meeting that Russo had scheduled for several of the employees for Saturday, May 20. Mrs. Collins, together with other employees, attended the meeting on May 20, which was conducted by Russo and Anthony Quinn, the Respondent's manager. Russo handed Mrs. Collins a paper which he asked her to sign to verify that she "would never go union" if she came back to work for the Respondent. Russo also stated that the paper was intended to verify Mrs. Collins' gratitude for Russo's agree- ment to take her back to work. With further reference to the paper, which contained the names of other employees, Rus- so explained that he intended that each of his employees would sign the paper, without regard to whether or not they had signed for the Union. As an example, Russo stated that one of the cooks, identified in the record as Tuna, had come to him that morning and explained that he signed for the Union only because he wanted a raise. As Russo informed Mrs. Collins, he gave Tuna a $10 raise, which he intended to give him in any event, and Tuna signed the paper. In response to the solicitations of Russo and Quinn, Mrs. Collins replied that she did not want to sign the paper until she was reinstated, but agreed to sign it the day she was called back to work. Quinn informed her that this would be too late, and the paper would not be available on the follow- ing Tuesday. Russo shoved the paper in front of Mrs. Col- lins, and she added her signature to the list of employees. Mrs. Collins was scheduled to work on the following Tuesday, May 23, but became ill and was under a doctor's care fora week. Through her husband, the Respondent was notified of Mrs. Collins' illness. On Monday, May 29, Mrs. Collins called Russo and informed him that she had re- covered and would be available for work on the following evening. Russo replied that he was putting Mrs. Collins to work in the "hole" and explained that this was a location in the dining area adjacent to the lounge. Mrs. Collins pro- tested that she was a cocktail waitress , and not a diningroom waitress. However, when she reported to work on the fol- lowing evening, Mrs. Collins was assigned as a diningroom waitress. At the end of the shift she asked if she was to return the next day and Quinn replied, "Well, Shirley, we're going to be using you from time to time as a spare, we'll call you the next time we need you. Mrs. Collins was not thereafter recalled to work. On May 15, the Monday following the date on which the union meeting was held at her home , Beverly Peters contact- ed the Respondent to advise that she had a swollen lip from an automobile accident, and would be unable to report to work that evening. Later on the same day Mrs. Peters was informed that an advertisement had appeared in the Wash- ington Post seeking a'replacement for her as the barmaid at the Respondent's establishment. About 4 p.m., on May 15, Mrs. Peters called Russo and asked why there was an ad for her job in the newspaper. Russo countered with the inquiry as to whether Peters was looking for a job. Peters replied that she was not and Russo volunteered that he had heard that she was organizing a union. Peters denied the accusa- tion, and asked to confront the persons who were responsi- ble for circulating this information. Russo responded that this could not be done, and instructed Peters to contact him on the following day. About 11 a.m., on May 16, Mrs. Peters called Russo, who instructed her to report to work, but because it was on election day in Maryland, advised her not to report until 8 p.m. About 6 p.m., Russo called Mrs. Peters and told her not to report to work because she had been discharged. Russo stated that the discharge was for union activity, and after a pause added that Peters was also discharged for insubordination. At a later time, May 20, Mrs. Peters was informed of the meeting Russo was conducting for the Respondent's employees. Mrs. Peters presented herself at the meeting, but was asked to'leave because she no longer had employment status. Late in the afternoon of May 16, Business Agent Richard- son received information that Beverly Peters had been dis- charged and that other of the Respondent's employees wanted to strike in protest of the discharge. Richardson contacted Mrs. Peters, obtained the facts, and asked her to contact the employees and tell them not to strike until Rich- ardson could meet with them. Richardson met with Beverly Peters and other employees later in the evening, at which time he determined that Shirley Collins had also been dis- charged. Richardson then walked across the street to the Respondent's establishment, where he engaged in a series of unsuccessful attempts to talk to Russo. Russo was present in the restaurant, but refused to leave his office, in spite of Richardson's warning that the Respondent's employees would probably strike in protest of the discharges. ' ' Unable to talk to Russo, Richardson proceeded to the kitchen where he engaged in a conversation with employees Art Prince, Michael Krebs, Charles Ladnier, and others. According to his testimony, which I credit, Richardson counseled the employees not to walk out until further pro- ceedings could be initiated. Manager Quinn intervened at this juncture, however, and told Richardson to leave the kitchen. Richardson complied, made one more unsuccessful attempt to talk to Russo, and was blocked by Quinn when he attempted to reenter the kitchen. Richardson departed from the restaurant, but left a message for the employees that he would be in the Respondent's parking lot. Within a few minutes most of the employees on duty walked off the job. In the interim, Russo had called the Prince George's County Police, and a police car arrived about the same time Richardson entered the parking lot. Russo confronted Rich- ardson and threatened Richardson that he had "had it." When Richardson inquired what this meant, Russo an- swered that he had contacted the Association in Prince Georges' County, that the Association was aware of Richardson's identity, and that Richardson had "had it." OLD ANGUS, INC., OF MARYLAND 545 Russo continued by stating that Richardson had no busi- ness in his restaurant. Richardson replied that he did have business at the Respondent's establishment, that the Union represented Russo's employees, that Russo had discharged two employees, and Richardson wanted to talk to him about reinstatement and recognition of the Union. Russo coun- tered with the comment, "You don't represent anyone" Richardson reached in his pocket, extracted 29 cards, and offered them to Russo with the comment, "If you will exam- ine these, you will see exactly who we represent." Manager Quinn, who was also present, started to reach for the cards, but Russo intervened with the warning, "Don't touch those cards." On the following day, May 17, Richardson sent a tele- gram to the Respondent, in which he repeated the Union's ,claim of majority status, and demanded that the Respon- dent recognize the Union as the collective-bargaining agent of all its employees except supervisory and clerical person- nel. According to Richardson's testimony, about May 19 he received a reply telegram from one Harold J. Rogers, advis- ing that Rogers represented Russo 7 The contents of the telegram denied any prior conversation between Russo and Richardson relating to union activities, accused Richardson of unlawful conduct, and denied the Union's claim of ma- jority on grounds that the representation cards were ob- tained through fraud and misrepresentation. This ended the correspondence between the parties. The Union subse- quently filed, but later withdrew a representation petition for a Board election to be conducted in the unit found appropriate above. Arthur W. Prince was employed by the Respondent as a cook for a period of 10 months prior to his discharge. Prince signed an authorization card and solicited cards from three other employees. Prince also participated in the work stop- page on the evening of May 16. When Prince reported to work at 2 p.m., on May 17, he was met by Russo with the remark "I don't need you any- more." In response to Prince's inquiry as to what the com- ment meant, Russo muttered something about what was going on with a union. According to his testimony, which I credit, Prince tried on about eight subsequent occasions to return to work for the Respondent, but in each instance he was stalled off by Russo with the suggestion that he call back later. William Dennis, a former manager for the Respondent, testified that on May 23 he visited the Respondent's place of business to talk with Russo about returning to work. Russo informed Dennis that he had encountered difficulty with a union, that the union representative had entered the establishment and ordered his employees off the job, and had used foul and profane language to the employees and the clientele. Russo also told Dennis that he had fired Bev- erly Peters, Shirley Collins, and Arthur Prince, whom he described as troublemakers in his organization. Lorraine Lauer was first employed by the Respondent in i The Respondent contests the authenticity of the telegram on grounds of the absence of evidence that Rogers was authorized to represent Russo and the corporation. No evidence was proffered in support of the contest, and I reject the contention A contrary finding, moreover, would require the con- clusion that the Respondent simply ignored the Union 's demand October 1970 as a waitress, and was later promoted to the position of -weekend hostess. Mrs. Lauer signed an authori- zation card, but was not at work on the evening of May 16, and did not participate in the work stoppage. Mrs. Lauer testified that on May 13, in the presence of employee Betty Knapp, Russo asked her about the Union. Lauer replied that she knew nothing about the Union. Rus- so volunteered that he thought he had gotten rid of one of the troublemakers with the departure of his former manag- er, Grey, and that he suspected that Beverly Peters was also organizing a union. Russo threatened that if he found out for sure Peters was involved that he would get rid of her too, as well as anyone else concerned with the Union. Russo also threatened that if the employees wanted a union they could have one, but they would be forced to stand at their station, would not be allowed to smoke cigarettes, or have so much as a glass of water, and they would eat slop for their dinner. Mrs. Lauer also attended the meeting for employees con- ducted by Russo and Quinn on May 20. According to Lauer, Russo allowed Quinn to do most of the talking, and Quinn told the employees that the meeting was called so the employees could air their grievances, and if the employees wanted collective bargaining they could accomplish this without the outside interference of a union. On July 28, Mrs. Lauer was informed that Quinn was trying to contact her to tell her she was fired. Lauer called Quinn and asked what hours she was to work on her next scheduled day to work. Quinn told her to report at 6 a.m. the next morning. Lauer protested that it had been agreed at the time of her hire that she would work only at night, that she had a small child and no babysitter. Quinn re- sponded that he would have to make a more permanent arrangement, that he would work the morning shift himself, in which event Lauer would not be needed for the evening shift. Quinn added words to the effect that it might be a good idea if Lauer left in view of all the trouble the Respon- dent had been having. Camille Privitera Jensen was employed by the Respon- dent as a waitress from January through May 1972. Mrs. Jensen signed an authorization card, but was unaware of the work stoppage on May 16 and did not participate. On the following day, however, Jensen heard Russo report over the telephone that Beverly Peters and Shirley Collins had been fired. Later on the same day Jensen overheard Russo talking to three unidentified men in the Respondent's estab- lishment. Russo explained what had happened during the work stoppage on May 16, and threatened that he would fix every waitress and every employee because he had enough friends and would have all the employees fired even if they were rehired back to work. Mrs. Jensen heard about the work stoppage and called the Respondent's place of business early on May 17. During the course of the conversation she talked with Russo, who instructed her to report to work. I cannot determine from the record, however, whether Jensen did work on May 17, since another portion of her testimony indicates that she and other employees were told by Russo later on that date that things would work out and they would be back at work. In any event, Mrs. Jensen attended the meeting conducted by Russo and Quinn on May 20. In a separate conversation with Jensen, Russo explained that he would talk individu- 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ally with each employee, that the conversations would be confidential, and that the employees could negotiate with Russo without any outside interference. Mrs. Jensen told Russo that she was single, needed her Job and asked when she could return to work. Russo told her that she would receive a letter from his attorney, and that Jensen was not to worry and he would put her back to work. Mrs. Jensen called several times to inquire when she could return to work, but Russo replied only that he did not know. Later in May, Mrs. Jensen stopped by the restaurant to pick up her check, and informed Russo that she had been out of work long enough and wanted to know when she could return. Russo replied that he was going to tell her something, and continued that he did not intend to hurt her, but for Beverly Peters and everyone else that participated in the walkout, especially Mrs. Peters and Mrs. Collins, he would blackball them, but would not hurt Mrs. Jensen. Mrs. Jensen replied that she did not believe Russo, and that he had lied to her before. Russo offered to shake hands, but threatened that if Mrs. Jensen repeated his remarks,- he would deny them. As of the date of her testimony in this proceeding, Mrs. Jensen had not been recalled to work. Mrs. Phylis Threlkeld was employed by the Respondent as a Sunday night bartender over a period of about 2 years. Mrs. Threlkeld signed an authorization card for the Union, but insofar as the record reflects she did not participate in the work stoppage of May 16. On May 21, Mrs. Threlkeld talked to Manager David Segar about a shortage in her paycheck, and Segar adjusted the matter to Threlkeld's satisfaction. On May 28, Mrs. Threlkeld received a call from Quinn, who informed her that her services were no longer needed. In response to her request for the reason, Quinn replied that Mrs. Threlkeld had raised hell about the shortage in her pay, and this was no way to go about getting her paycheck. Quinn agreed that he would call Mrs. Threlkeld in the future, if the Respon- dent had need for her services. On June 6, Mrs. Threlkeld visited the restaurant to pick up her paycheck, and asked Russo why she had been dis- charged. Russo replied that it was because Threlkeld had permitted Bill Dennis, a former employee, to go behind the bar to mix his own drinks. Mrs. Hilda Weaver was employed by the Respondent as a hostess and cashier over the period from March to May 1972. Mrs. Weaver signed a card authorizing the Union to represent her for the purposes of collective bargaining. On Friday, May 12, Mrs. Weaver arrived at work about 3 p.m., and overheard Camille Privitera Jensen tell Russo that she suspected that Rita Ryan, Nora Karpen, and Mrs. Weaver were responsible for instigating the Union. Shortly after Russo told Mrs. Weaver that if what he was hearing was true, he would fire every employee and replace them with new employees. Mrs. Weaver was scheduled to work on May 17, but was called by the Respondent and told not to report for work. In the same conversation, Weaver was told that she would be contacted, and she was invited to a meeting conducted by Russo on May 20. Russo told Mrs. Weaver and the other employees that he had a paper for them to sign, that it was a pledge against the Union, and if the employees wanted to work at the Old Angus they would have to sign the paper. Mrs. Weaver signed the paper and,was told by Russo to report to work on the following Friday. Later, however, Mrs. Weaver was called and told not to report to work, and that this instruction came from Russo. Approximately I week later, Mrs. Weaver called Quinn and asked why she had not been called to work since she did not participate in the work stoppage. Quinn asked who had instructed her not to report for work, and Weaver re- plied that Madeline Carrick had called her and told her that kusso did not want her to report for work. Quinn agreed to talk to Russo, and would contact Mrs. Weaver. No contact was received, but about 2 weeks later Mrs. Weaver, accompanied by employee Rita Ryan, visited the' Old Angus to pick up a paycheck. Quinn said that he had tried to contact Weaver on several occasions, but could not reach her. Mrs. Weaver stated that she had been at home, and asked if Quinn wanted her to report for work on Friday. Quinn made no reply and Mrs., Weaver noticed two po- licemen coming in the door. Quinn explained that he should not be talking to the girls, and on instructions of Russo's attorney he was not to discuss anything with them. Quinn added that he wanted to talk loud enough and have a wit- ness as to what he was saying. Mrs. Weaver was never contacted to return to work. Mrs. Nora Karpen was employed by the Respondent as a waitress and worked a 5-day schedule over the period from March through May 1972. Mrs. Karpen signed an authorization card and participated in the work stoppage on May 16. Earlier on May 16, Mrs. Karpen overheard a conversa- tion between Russo and the evening hostess, Madeline Car- rick. Russo told Carrick that he knew of the union activities, did not care, and by the following day would have all of the employees replaced. Mrs. Karpen was scheduled to report for work at 4 p.m., on May 17, but called Russo for instructions and was told not to report: Russo invited Mrs. Karpen to come in and have a meeting with him. At the meeting which was also attended by other employees, Russo said that he was disap- pointed in the employees' conduct on the previous evening, that the Union would only cause trouble for the employees and take money out of their pockets, as well as his pocket, and Russo would never have a union in his establishment. Mrs. Karpen told Russo that she had signed a card for the Union. Russo showed Mrs. Weaver a paper he had, and explained that its purpose was to enable the employees of the Old Angus to pledge their allegience to Russo, and only to him, and not to any other organization entering the res- taurant. Russo also explained that he wanted the employees to read the paper and sign it, although they were not com- pelled to do so, and that he wanted to know where he stood with his employees. As to Karpen, Russo instructed her not to report to work, that she was temporarily laid off, and he could not return her to work until he knew where he stood and the union situation was over. Mrs. Karpen was never recalled to work. Robert J. Peters, the son of Beverly Peters, was employed by the Respondent for approximately 1-1/2 years as a bus- boy and dishwasher, and Peters worked a regular schedule of Tuesday, Friday, and Saturday of each week. As related above, Peters signed an authorization card for the Union, OLD ANGUS, INC., OF MARYLAND and he also participated in the May 16 work stoppage. Robert Peters reported to work at his regularly scheduled worktime on May 19, but was told by Quinn that the Re- spondent was amply covered and Peters did not have to work. Peters returned to the Respondent's establishment on May 23, was allowed to work, and insofar as the record reflects was not further prohibited from continuing his em- ployment. Robert Peters also testified that on an undisclosed date, after he returned to work, he attended a meeting for em- ployees which Quinn conducted in the downstairs of the Respondent's facilities. Quinn distributed a new personnel policy to the employees, read the document over, and told the employees to follow the rules. According to Robert Peters' testimony, which is uncontroverted, the Respondent did not before this date have, any established and written employment rules. The work rules referred to by Robert Peters in his testi- mony are entitled "The Old Angus Personnel Policies," and are dated July 1, 1972. The policies set forth certain rules governing the terms and conditions of employment, em- ployee conduct, and the discipline to be imposed for infrac- tions thereof. At the end of the policy statement is the admonition: NOTE WELL NO SOLICITATION OR DISTRIBUTION OF PRINTED MATERIALS ARE PERMITTED DURING WORKING HOURS OR ON THE COMPANY PREMISES VIOLATION OF THIS RULE WILL RESULT IN DISCIPLINE. INCLUDING DISMISSAL. Michael Krebs was employed by the Respondent as a busboy and dishwasher for a period of approximately 2 years, and worked a regular schedule of Monday through Thursday of each week. Krebs signed a card for union representation and also participated in the work stoppage of May 16. On May 17, Krebs called Quinn to ask if he was still employed. Quinn asked "Did you walk out?" Krebs answered in the affirmative, and Quinn responded, "Then you know." Krebs' father intervened, however, and after further conversations with Russo, Krebs returned to work on May 18. Krebs also attended the employees' meeting conducted by Russo and Quinn on May 20. Krebs worked on the evening of May 20, and during the course of the evening he directed some crude language to a waitress who walked over a freshly mopped floor. At the end of the evening Russo and Quinn terminated Krebs. Quinn handed Krebs a piece of paper, and Krebs asked why he was fired. Russo replied, "You know why you're fired." Krebs threw the paper in the trash can, and walked out. After Krebs departed Russo and Quinn talked with Some of the other employees, including Robert Peters and Donald St. Armand. According to the testimony of these employees, Russo told them that the Union would not do the employees any good, that it would not be good for them because they were too young. According to the further testimony of Pe- ters and St. Armand, Russo stated that Krebs had been brainwashed and after things cooled off in 2 or 3 weeks Russo would rehire him. 547 C. The Respondent's Defenses Ross Russo was the only witness called by the Respon- dent to refute the substantive allegations that it had violated Section 8(a)(1), (3), and (5) of the Act. In no instance did Russo directly contradict the testimony of the General Counsel's witness with respect to conversations between Respondent's representative and employees, and the events leading up to the work stoppage and the several termina- tions of its employees. Russo's testimony was a composite of an adulterated hearsay, self-serving declarations, and contradictions. Russo admitted that he was aware of the employees' union activities as early as May 12, and from his testimony as a whole it is clear that he was vehemently opposed to any and all activities which might eventuate in an obligation to recognize and bargain with the Union. As to these admissions, I credit Russo's,testimony, but I reject the remainder in all other respects, save where the evidence adduced through this witness is corroborated by other evi- dence. I find and conclude, accordingly, that the General Coun sel has proved by a preponderance of the evidence that the Respondent violated Section 8(a)(1) of the Act by (1) threat- ening its employees with discharge and various other repn- sals; (2) threatening to "blackball" its employees; (3) interrogating its employees concerning their union activi- ties, sentiments and desires; (4) promising its employees economic and other benefits; (5) coercing its employees to sign a pledge to abandon their allegiance to the Union; and (6) promulgating an unlawful no-solicitation and no-distri- bution rule. The issues with respect to the alleged surveil- lance has been considered above, and I will recommend that this allegation of the complaint be dismissed. I also find and conclude that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging or laying off Beverly Peters, Shirley Collins, Hilda Weaver, Nora Kar- pen, Camille Jensen, Arthur Prince, Michael Krebs, Phyllis Threlkeld, Lorraine Lauer, and Robert Peters. It is clear that the Respondent had knowledge of its employees, union activities, and from the conversations between Russo and Shirley Collins and other employees, I find a sufficient basis to conclude that Russo was fully apprised, of these employ- ees who executed authorization cards. The Respondent's animus toward the protected rights of its employees is too apparent to necessitate any full blown discussion. As to the Respondent's assertions of discharges or terminations for cause, I reject them. Except in the case of Michael Krebs, the Respondent came forthwith no evidence for the termi- nations. As to Krebs, his crude remark to a waitress may have been good grounds for discharge, but on the basis of Russo's comments to employees Robert Peters and St. Ar- mand immediately after the termination, I am obliged to find that the.motivating cause was union activities, sympa- thies, and interests. In addition to the above-named employees, the complaint also alleges that employees Rita Ryan and Sandra Kidwell were discharged for reasons proscribed by the Act. Neither the record made before the United States district court, nor the record made before me, contains the slightest bit of direct or indirect evidence relating to the time, reasons or factors relating to the termination of these two employees. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only evidence is that both Ryan and Kidwell signed authorization cards, but this evidence is clearly insufficient to warrant a finding of unlawful discrimination. I will grant the Respondent's motion and recommend that the portion of the complaint relating to Ryan and Kidwell be dismissed. I further find and conclude that the Respondent has vio- lated and is violating Section 8(a)(5) and (1) of the Act. The Respondent's unfair labor practices are both pervasive and outrageous and cannot be rectified by traditional remedies. In addition, it is clear that the Respondent's whole course of conduct was initiated and implemented to undermine the Union, destroy its majority status, and to impede the con- duct of any free election. I find that the Respondent violat- ed Section 8(a)(5) of the Act by its refusal to grant the Union's request for recognition and bargaining. Both postu- lates of the Gissel doctrine 8 are met, and a bargaining order is clearly appropriate. In conjunction with the above finding and conclusion, I also find and conclude that the Respondent further violated Section 8(a)(5) and (1) by bargaining individually with its employees over terms and conditions of employment and by unilaterally instituting new employment rules, both in contravention of the rights of the Union as the employees' duly designated collective-bargaining representative. annum as established in Isis Plumbing & Heating Co., 138 NLRB 716 (1963). In order to determine the rights of reinstatement and the backpay due under the foregoing recommendations, I shall also recommend that the Respondent be ordered to preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, person- nel records and reports, seniority records, and all other records necessary and useful to effectuate the recommenda- tions made above. - As the Respondent has also violated Section 8(a)(5) of 'the Act, I shall recommend that it be ordered, upon request, to recognize and bargain with the Union as the sole and exclu- sive representative of its employees with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, reduce that agreement to writing. As I have also found that the Respondent violated Section 8(a)(5) by unilaterally pro- mulgating new work rules for its employees, I shall recom- mend that the Respondent be ordered to desist and withhold any further enforcement of such rules until it has offered the Union notice and, if the Union so desires, the opportunity to bargain. The unit appropriate for bargaining is: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth 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, and have led to, labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies and purposes of the Act. As I have found that the Respondent violated Section 8(a)(3) of the Act by discharging or laying off certain of its employees named above, I shall recommend that it be or- dered, to the extent it has not already done so, to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, with seniority and all other rights and privileges previ- ously enjoyed, and to make them whole for any loss of earnings suffered by reason of the discrimination , by pay- ment to each of them a sum equal to what they would have earned in the absence of the discrimination , less net earn- ings during such period, with backpay computed on a quar- terly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and the backpay to each employee' shall carry interest at the rate of 6 percent per All employees of the Respondent's restaurant and cocktail lounge, excluding office clerical employees, professional employees, guards, and supervisors as de- fined in the Act. Inasmuch as the unfair labor practices committed by the Respondent are of such nature and character as to strike at the basic rights of employees safeguarded by the Act, I shall further recommend that the Respondent be ordered to cease and desist from infringing in any other manner upon the rights of its employees guaranteed by Section 7 of the Act.' CONCLUSIONS OF LAw 1. The Respondent, Old Angus, Inc., of Maryland, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union, Hotef and Restaurant Employees and Bar- tenders International Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening its employees with discharge and other reprisals; threatening to "blackball" its employees; interro- gating its employees concerning the union membership, ac- tivities, and desires; promising its employees economic and other benefits ; coercing its employees to sign a no-union pledge; and by promulgating an unlawful no-solicitation and no-distribution rule, the Respondent has violated Sec- tion 8(a)(1) of the Act. 4. By discharging or laying off its employees Beverly Pe- ters, Shirley Collins, Hilda Weaver, Nora Karpen, Camille Privitera Jensen, Arthur Prince, Michael Krebs, Phyllis Threlkeld, and Robert Peters, the Respondent has violated Section 8(a)(3) and (1) of the Act. 8 N L.R B. v. Gissel Packing Co., Inc, 395 U S. 575 (1969). 9 N L.R B v Entwistle Mfg Co., 120 F 2d 532, 536 (C A. 4, 1941). OLD ANGUS, INC., OF MARYLAND 549 5. The Union is, and has been at all times material of these proceedings, the sole and exclusive bargaining repre- sentative of the Respondent's employees in the following described unit: All of the Respondent's employees at its restaurant and cocktail lounge, excluding office clerical employees, professional employees, guards and supervisors as de- fined in the Act. 6. By failing and refusing to recognize and bargain with the Union, by bargaining individually with its employees, and by unilaterally instituting and promulgating new writ- ten work rules for its employees, the Respondent has violat- ed Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 10 The Respondent, Old Angus, Inc., of Maryland, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or other repri- sals because of their union or protected concerted activities; threatening to "blackball" employees; interrogating em- ployees concerning their union membership, activities, and desires; promising its employees economic and other bene- fits to dissuade them from their allegiance to the Union; coercing employees to sign a no-union pledge; and promul- gating an unlawful no-solicitation and no-distribution rule. (b) Discharging or laying off employees because of their union or protected concerted activities. (c) Refusing to recognize and bargain with the Union as the sole and exclusive bargaining representative in a unit composed of all its restaurant and cocktail lounge employ- ees, excluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act; bargaining individually with its employees concerning wag- es, hours and terms and conditions of employment; and unilaterally instituting and promulgating new written work rules for its employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective-bargaining or other mutual aid or protec- 10 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 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. tion as guaranteed by Section'7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative actions designed to ef- fectuate the policies and purposes of the Act: (a) To the extent it has not already done so, offer Beverly Peters, Shirley Collins, Hilda Weaver, Nora Karpen, Ca- mille Privitera Jensen, Arthur Prince, Michael Krebs, Phyl- lis Threlkeld, Lorraine Lauer, and Robert Peters immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with all seniority and other rights and privileges previously en- joyed, and make them whole for loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examina- tion and copying, all payroll records, social security records, timecards, personnel records and reports, seniority records, and all other records necessary and relevant to determine the reinstatement rights and the amounts of backpay due under the terms of this recommended Order. (c) Upon request, recognize and bargain with the Union as the sole and exclusive bargaining representative of all its employees in a unit of all restaurant and cocktail lounge employees, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and if an agreement is reached embody such agreement in written form. (d) Cease giving effect to or enforcing the written work rules promulgated for its employees on or about July 1, 1972, until the Union has been afforded notice, and, if,the Union desires, until the Union has had the opportunity to bargain. (e) Post at its College Park, Maryland, establishment, copies of the attached notice marked "Appendix." I I Copies of said notice on forms provided for by the Regional Direc- tor for Region 5, after being duly signed by the Respondent's representative, shall be posted by the Respon- dent immediately upon receipt thereof, maintained by it for 60 consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 5, in writing, within 20 days from the date of the Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that insofar as the consolidat- ed complaint in this proceeding alleges unlawful surveil- lance and the unlawful discharge of Rita Ryan and Sandra Kidwell the complaint be dismissed. 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."