Vincent's Steak House, Inc.

VINCENT'S STEAK HOUSE, INC. 647 Vincent's Steak House, Inc. and Chicopee-Holyoke- Westfield Bartenders, Hotel, Motel, Cafeteria, and Restaurant Employees International Union, Local 116, AFL-CIO Vincent's Steak House, Inc. and Hotel Service Employees and Bartenders Union, Local 116, AFL-CIO, Petitioner. Cases 1-CA-9432, 1-CA-9516, and 1-RC-13046 February 21, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO On July 30, 1974, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings l and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The Administrative Law Judge found that Respondent violated Section 8(a)(1) of the Act by discriminatorily enforcing work rules in prohibiting employees known to be engaged in activity protected by the Act from using its bulletin board without permission.2 Respondent contends, however , that its action was not unlawful because its policy forbade posting anything on its bulletin boards without its permission, as was clearly enunciated in rule 26 of its 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 This finding, with which we agree, was predicated on Respondent's removing from its bulletin board a copy of a newspaper article posted by dining room waitresses Kathy Olschajski and Carol Meyers, describing the discharge of a waitress at a nearby restaurant for displaying an "unhappy" attitude and how her fellow employees thereafter picketed the restaurant in protest over her dismissal . Like the Administrative Law Judge , we find that Olschajski and Meyers were engaged in protected concerted activity when they posted that article. Thus, the facts establish that the article was circulated among Respondent's employees before being posted ; that the contents of the article dealt with enforcement by another restaurant of a working condition which was similar to Respondent's policy of requiring its waitresses to maintain a happy appearance; that this policy was a matter of common concern to Respondent's employees as was later made evident to Vincent Lanzarotto, Respondent's owner, by Meyers during his questioning of her on August 8 216 NLRB No. 100 book of rules and regulations, a copy of which rule, it claims, was posted on the restaurant's kitchen bulletin board. Rule 26 provides: Distributing or posting literature, pamphlets, or other printed matter or photographs, soliciting or collecting funds for any purpose on the premises without permission is forbidden.3 We disagree. The credited testimony of employees Meyers, Holly Baggs, and Pamela Clark established that they had never been informed that Respondent's permission was required before posting on the bulletin board and, further, that Respondent had never objected to the posting by employees of personal notices and other items such as cards, thank you notes, articles, and cartoons. Furthermore, Lanzarotto himself testified that he told Meyers on August 8, during his inquisition of her concerning her responsibility for the posting of the news item, that the article ". . . did not do anything for the best interest . . . [of ] the staff . . . ." In these circum- stances, we reject Respondent's contention that its action in removing the offending newspaper article was taken merely in furtherance of its application of rule 26. In our view, Lanzarotto's entire course of conduct with respect to that article and its posting made crystal clear to Respondent's employees that such a method of communicating information to fellow workers concerning matters relating to their "mutual aid or protection" would not be permitted in the future. Although we do not hold that Respondent could not uniformly enforce a rule prohibiting the use of its bulletin boards by employees for all purposes,4 we here find that Respondent, by imple- menting the rule to prohibit the posting of material relating to and in the course of concerted activity of its employees, while having previously allowed the posting of other miscellaneous matters by the employees, disparately denied employees access to its as to why she had posted the article; and that Respondent cited as justification for the subsequent discharge of Meyers that she had exhibited unhappiness in her job over a period of several months. We conclude, therefore, that the posting of an article of this nature, in an atmosphere of mounting employee discontent with working conditions, with the purpose of educating fellow workers as to how employees of another employer had dealt with comparable employment problems, is protected under Sec. 7 of the Act. Challenge Cook Brothers of Ohio, Inc, 153 NLRB 92 (1965), enfd 374 147 (C.A 6, 1967). 3 We adopt the Administrative Law Judge's finding that while this broad no-distribution, no-solicitation rule does not discriminate against union or other protected concerted activities, it violates the Act in that it prohibits such activities in nonworking areas during nonworking time No exception was filed to the Administrative Law Judge's failure to find that the no- solicitation portion of the rule was too broad in that it restricted soliciting to nonworking areas. Absent exceptions we adopt , pro forma, the Administrative Law Judge's finding that Respondent's no-solicitation rule had no substantial impact on Respondent's employees and therefore did not prevent or interfere with the holding of a free and fair election. 4 Cf. Nugent Services, Inc, 207 NLRB 158 (1973). 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bulletin boards for their concerted activities in violation of Section 8(a)(1) of the Act. 2. We also agree with the Administrative Law Judge; for the reasons stated by him, that Respon- dent discharged Carol Meyers in violation of Section 8(a)(1) of the Act. Respondent contends , however, that, whether Meyers was discharged or whether she quit, her employment was severed at a time when the Union had not entered the scene, and thus Respon- dent could not have been motivated by a discrimina- tory purpose in violation of the Act . We disagree. As more fully described by the Administrative Law Judge in his Decision, Meyers had become increas- ingly critical of working conditions, vocalizing her complaints to other employees as well as manage- ment. This activity culminated with Meyers' bringing in the newspaper article which, to the distress of Respondent, was subsequently posted on the kitchen bulletin board as described above . The evidence shows that Respondent had taken unlawful action calculated to prevent further such postings, that Lanzarotto believed that Meyers had posted the newspaper article and had intensively interrogated her on August 8 about its posting, and that, in the process of such interrogation , he had threatened to terminate her if she remained "unhappy." We interpret Respondent's use of the word "unhappy" in this context as its way of referring adversely to Meyers' past course of conduct in complaining on behalf of Respondent's employees about their work- ing conditions and in engaging in other protected concerted activity. In view of the above circumstances, we conclude that Meyers was discharged because of her exercise of protected activity, and that such discharge violated Section 8(a)(1) of the Act, notwithstanding Respondent's further contention that Meyers was not discharged but quit voluntarily because she was not happy with her job. We agree with the Administra- tive Law Judge who found that, even if Meyer's conduct constituted a quit, she was pressured into doing so by Lanzarotto's insistent questioning as to why she was not happy and his statement that if she was unhappy he would see that she did not stay there. Consequently, it was only logical for Meyers to assume that her fate would not differ from that of the overly critical waitress discussed in the article to which Lanzarotto so strenuously objected-in other words that she was going to be terminated anyway. Since Meyers' only alternative was to give up her right to engage in protected activity or lose her job, we conclude, as did the Administrative Law Judge, that Meyers' statement that she would give her notice did not constitute a voluntary quit, but that if she had been allowed to follow her announced course of action to completion her termination would have constituted a constructive discharge. In addition to his constructive discharge finding, the Administrative Law Judge also held that Meyers' termination was an actual discharge because her separation date was accelerated by Respondent, who told her not to work out her notice because she had been taken off the schedule, i.e., discharged. The testimony shows that Meyers shouted to Supervisor Fessia, shortly after the August 8 interview with Lanzarotto, that she was giving her 2 weeks' notice. However, Fessia replied that Meyers was "not to worry, that it would all blow over" and not to talk to anyone about it, but finish her work. There is no indication in the record that Meyers made a reply. In any event, at this point there is no indication that Respondent regarded Meyers as having quit her job. Rather, from Fessia's statement that Meyers should in effect forget about the notice to quit, it is apparent that she did not accept Meyers' statement as a resignation. Nevertheless, as found by the Adminis- trative Law Judge, the next day after the confronta- tion between Lanzarotto and Meyers , Fessia called Meyers' husband and left word that Meyers was not to finish out her 2 weeks' notice, but that she was taken off the schedule . We agree, therefore, with the Administrative Law Judge that such conduct consti- tuted an actual discharge, and that in any event there is no merit to Respondent's above contention that Meyers quit her employment voluntarily. Accordingly, we find that Meyers was discharged not for the reasons asserted by Respondent , but for being engaged in protected concerted activities, and that Respondent thus violated Section 8(a)(1) of the Act. 3. We adopt the Administrative Law Judge's finding that on or about October 31, 1973, Respon- dent's manager of the restaurant, Clark Bertera, interrogated certain of Respondent 's employees at the Diplomat restaurant in violation of Section 8(a)(1). According to the credited testimony of Pamela Clark, when Bertera came to the Diplomat on October 31, 1973, he sat between her and another waitress. After listening a bit to a rather excited discussion between the employees about the Union, Bertera asked Clark and three other employees around the table if they had signed cards. Respondent argues that Bertera's questioning was in the nature of casual inquiry rather than coercive interrogation particularly in view of the relaxed and social atmosphere at the Diplomat. However, we note that Bertera not only questioned each employee sharply as to whether he had signed a card, but when an employee in turn asked if Bertera had signed a card, Bertera indicated his sharp disapproval of such VINCENT'S STEAK HOUSE, INC. 649 activity, shouting "Are you kidding?" Furthermore, upon completing his questioning, Bertera abruptly departed without further comments. Thus, we do not agree with Respondent that Bertera's questions were stripped of their otherwise plainly coercive effect because delivered in a seemingly casual and relaxed atmosphere. Furthermore, we find that the question- ing of employees as to whether they had signed union cards by a supervisor of such high standing as Bertera itself carried an intimidating and coercive effect, particularly since the questions were initiated by him. We also note that Bertera engaged in other unlawful conduct as is set forth below. The Administrative Law Judge found that on November 3, 1973, Supervisor Bertera again violated Section 8(a)(1) by threatening that if the Union got in (1) the employees would lose insurance benefits, (2) there would not be any kind of a pay increase, (3) employees would be requested to declare their tips to the penny, and (4) Respondent would cut down the number of working hours. Respondent contends that Bertera's comments were not coercive because they were in response to an employee's question, "[W ]hy shouldn't we have a union?" However, we do not regard Bertera's comments as in the nature of a discussion of the pros and cons of unionization; rather, his comments carried the clear message that if the Union should be successful the employees would lose wage increases and benefits . The only inference to be drawn from such unexplained predictions of loss in the event of unionization is that Respondent would be instrumental in some way in bringing about such losses. Accordingly, we find that Respondent threatened to take coercive measures in the event that the employees became organized and that by such threats it violated Section 8(a)(l) of the Act. 4. The Administrative Law Judge found that at a meeting of all employees called by Respondent on November 24, 1973, Supervisor Fessia unlawfully stated that if the Union got in (1) employees under 18 would be out of a job, (2) work would be limited to an 8-hour day, and (3) waitresses would no longer be allowed to adjust their work schedules among themselves . The Administrative Law Judge discredit- ed Respondent's evidence not consonant with this finding. Respondent's exceptions point out that while S We do not agree with the General Counsel's contention that the Administrative Law Judge erred in not finding that Respondent engaged in unlawful surveillance of its employees when Bertera visited the Diplomat bar, commonly frequented by them after hours, and overheard them discussing the Union. We find that the Administrative Law Judge properly found no violation regarding Bertera's involvement in incidents of this nature, but we do not adopt his rationale that "even if Betters went to the bar to overhear the talk of employees , he did so as a customer rightfully there, and, consequently, his conduct does not amount to unlawful surveillance." Rather, we find no evidence that Bertera went to the Diplomat for such purpose in light of the undisputed evidence that Bertera had been going regularly to that establishment since late 1970 or 1971; that the credited witnesses support the Administrative Law Judge's finding that the above statements were made at the November 24 meeting, some of them testified that these remarks were made by employees, rather than by Fessia. We find it unnecessary to reach the General Counsel's contention in response that the statements are attributable to Respondent in any event, since made in the presence of supervisors without refutation, thereby amounting to an endorse- ment or ratification of such remarks. Rather, we note that the record establishes that Supervisor Fessia did state that if the Union got in, employees under 18 would be out of a job and waitresses would no longer be allowed to adjust their work schedules. For example, Bradley Fitzgerald testified that Fessia stated at the November 24 meeting: "If the union comes in, you will not be able to schedule your own hours." Sharon DeLuca testified that Fessia stated "if the union gets in, then these kids [referring to kitchen help and busboys under 18 ] will not have any jobs . . . they will not be able to work after certain hours, not being eighteen." Waitress Kowar- sky testified to the same effect. We regard the Administrative Law Judge as having credited the above testimony. Such remarks by supervisors predicting the inevitability of loss of jobs and benefits if the Union is successful do not lose their coercive character simply because the employer seeks, without foundation, to lay the blame at the feet of the union. Like the Administrative Law Judge, therefore, we find these remarks to have violated Section 8(a)(1) of the Act. Upon careful examination, however, we are unable to discover any evidence in the record that Fessia stated that work would be limited to 8 hours per day. However, we have found that Respondent, through Supervisor Bertera, threatened that Respondent would, in the event of unionization, cut down the number of working hours. Accordingly, we find no need to modify the order in this regard. 5. The General Counsel has excepted to the failure of the Administrative Law Judge to find certain other conduct of Respondent to have violated Section 8(a)(1) of the Act .5 Specifically, General Counsel contends that Respondent threatened an employee with discharge, and more strictly enforced he regularly met his friend and Respondent's employee, Rene Sincowicz, there, and that the two drove home together from that bar on the evenings that they both worked; and that he frequently had socialized with the employees at the Diplomat before the advent of the Union on the scene. In such circumstances, we decline to infer, as requested by the General Counsel, that Bertera went to that bar to observe the employees engaging in union activity, since the evidence establishes that he acted no differently than he had in the past in sitting near or with the employees after the union campaign commenced. Since his behavior in attending the Diplomat was not shown to have deviated from normal , we find that General Counsel has failed to sustain this allegation of the complaint. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain of its rules against fraternization among its employees in reprisal for their union activities. We find merit to these contentions for the reasons given below. According to the credited testimony of Pamela Clark, immediately following Bertera's above-dis- cussed statements of November 3 an employee asked him "What he thought Vincent [Lanzarotto] would do if the union got in there?" Bertera replied, "Well, I think Vincent would sell because I don't think he could handle the changes."6 In response Clark stated "maybe this would be the best thing for Vincent because Vincent's crazy . . . He's always making up silly rules and it makes it very difficult to work there." Bertera retorted to Clark, "Why don't you just quit. Nobody asked you to work here." The Administrative Law Judge found that Bertera's remark was not a violation of the Act. We disagree. As Clark testified, without contradiction, this was not the usual reaction she or other employees had received from Bertera in the past when they had aired their complaints about the "deplorable" situa- tion at Respondent's restaurant. Bertera had always been "a shoulder to cry on" and would say "Yes, I understand" rather than getting upset by such complaints . Now after a series of statements which clearly exhibited Bertera's opposition to the Union, he responded to Clark's criticism of Lanzarotto's rules, unlike his previously comforting manner under similar circumstances, by stating that Clark should "quit." Bertera's response clearly conveyed the message that Clark's criticism of working conditions on behalf of herself and other employees was no longer welcome and her alignment with the Union was not compatible with continued employment.? Accordingly, we find, contrary to the Administrative Law Judge, that Bertera's statement to Clark was designed to coerce her in the exercise of protected activity and was therefore violative of Section 8(a)(1) of the Act. The Administrative Law Judge found that Respon- dent had a rule prohibiting employees from talking and fraternizing on the job, that prior to the coming of the Union violations thereof were overlooked or tolerated by Respondent, but that after the Union entered the scene these rules were enforced. How- ever, he concluded that such stricter enforcement of the rules was not violative of the Act, particularly since, as he found, the rules were applied uniformly to all employees. We disagree. To the contrary, we find not only that existing rules were more strictly enforced after the appearance of the Union, but that additional restrictions were imposed, and that such rules were applied more strictly against known union organizers. According to the uncontradicted testimony of employees Powers, Clark, Fitzgerald, and Holly Baggs, prior to the Union's campaign, Respondent's no-fraternization rule prohibiting waitresses from talking with bartenders was widely disregarded by the employees, and its enforcement by Supervisors Fessia and Bertera largely was ignored. However, after the union effort got under way, and after Respondent had become aware of such union activity, the rule was rigidly enforced by all supervi- sors to the extent that waiters, as well as bartenders, were not permitted to eat with waitresses. Indeed, Sharon DeLuca, a leading union adherent, testified that she was informed by Bertera that waitresses were to eat their meals upstairs in the tackroom rather than downstairs in the cocktail lounge where they had previously been permitted to dine. And Marie Lewia testified that on one occasion after she had been observed by Bertera at the Diplomat in late October or early November arguing in favor of the Union's organizing Respondent's facility and after Supervisor Reiman had sent word through DeLuca that Lewia was being watched, Bertera had ordered her to go downstairs and to wait for the other employees to finish eating. Lewia went back down- stairs to eat with Bob Powers, a bartender and another union sympathizer, but Bertera intervened, applying the no-fraternization rule. She went upstairs again, and sat with two women and a man, whereupon Bertera instructed her to go sit by herself. Lewia then sat with someone else, but Bertera again told her to sit alone and not to talk to anybody. Thus it appears that with respect to known union adherents, such as Lewia and DeLuca, Respondent applied its no-fraternization rule far more strictly than its original intended scope of prohibiting fraternization between waitresses and bartenders. It is evident that Respondent was far more watchful with respect to these employees than it had been with others, that it for the first time regulated the places where they could eat, and went so far as to insist that Lewia dine by herself. Consequently, we find that in Respondent's tightening of its rule as well as the discriminatory application of such rule to regulate DeLuca's and Lewia's contacts with other employees during the union campaign, Respondent did so for the purpose of restricting the efforts of these employees to organize its employees, in violation of Section 8(a)(1) of the Act. 6. We agree with the Administrative Law Judge's finding that Respondent discharged employees Ma- s In the absence of exceptions to the Administrative Law Judge's finding we adopt such finding proforma. that Respondent did not violate the Act when Bertera made this statement , 7 Padre Dodge, 205 NLRB 252 (1973). VINCENT'S STEAK HOUSE, INC. 651 rie Lewia and Robert Powers in violation of Section 8(a)(3) and (1) of the Act.8 We also agree with his ultimate conclusion that Pamela Clark was discrimi- natorily terminated. However, in doing so, we do not adopt his finding that she had properly been terminated for cause on November 4, 1973, but that Respondent condoned her behavior when it rehired her and offered her another chance on the condition that she "never do it again," and further, that Clark was then discharged on November 6, 1973, for her union activity, not having worked the 2 intervening days. Instead, we find merit to General Counsel's contentions that the record evidence does not support the finding that Clark was terminated on November 4, but that there is ample record evidence Clark was discharged for her union activities. It is true, as contended by Respondent, that Pamela Clark was not the possessor of an unblem- ished record nor was she an exemplary employee during her employment with Respondent from January 1973 until her discharge on November 6. As testified without contradiction by Supervisor Fessia, Clark had been absent several times without authori- zation, the last incident of which occurred in May. When Fessia learned that Clark had not been ill as claimed during the May absence, but had been out of town, she suspended Clark for the remainder of the week, and told her that she could return to her job if she promised "not to do it again." There is no evidence that Clark ever was absent again without authorization. Another incident occurred in Septem- ber when Clark refused to set up tables in her assigned station because two other girls scheduled to work with her had not arrived. Fessia told her to either set up or punch out. Clark reluctantly performed her assigned tasks and that was the end of the matter. No disciplinary action was taken and none was threatened. Thus, we find that Clark's past absence and her initial refusal to perform assigned work in September had been resolved to manage- ment's satisfaction and that such incidents did not form any basis for Clark's discharge on November 6. This brings us to the incident of November 4, which purportedly precipitated Clark's discharge on November 6. Fessia testified that she came into work on her day off and noticed Pamela Clark standing at the buffet table "like a soldier." Fessia testified in effect that she had been fed up with Clark's general lack of cooperation, and complaints by other employees, for example, that she would not bring in the glasses and silverware, and that as a result she told Clark on November 4 that she was on probation, and that she should behave herself that night. Clark responded, according to Fessia, that she would behave herself, and there is no evidence that she misconducted herself or failed to perform satisfacto- rily on November 4. Nevertheless, Fessia notified Clark the following Tuesday, November 6, that she was taking her off the schedule because she was "uncooperative." Such notice, of course, was tanta- mount to discharge, and we so find. We take note that Pamela Clark had attended the union organization meeting at the Diplomat on November 3, the evening prior to her "probation," a fact well known to Respondent, since Supervisor Bertera was present at the same meeting .9 Bertera knew she had signed a union card , because Clark told him so in response to an unlawful interrogation. Furthermore, Bertera told her "why don't you just quit" in response to Clark's comments about Lanza- rotto's rules, making it, as she said, difficult to work there. Accordingly, we agree with the Administrative Law Judge that Respondent discharged Clark to get rid of a known anion adherent , rather than because of her alleged uncooperative attitude . The timing of the discharge was close upon the heels of demonstra- ted union sympathies of Pamela Clark . The circum- stances of Clark's probation do not ring true considering that she had not refused to perform assigned tasks, or misconducted herself, but was, merely standing by the buffet table, and performed her work satisfactorily on November 4. Lastly, the switch from probation to discharge was not satisfac- torily explained by Respondent, particularly since no shortcomings by Clark occurred after her probation to warrant the conversion of her status to the ultimate penalty of discharge. In these circum- stances, we find that the reasons asserted by Respondent in support of its action in terminating the employment of Pamela Clark were used as a pretext to cloak its true motive, namely her union activities. Therefore, for the reasons given here and by the Administrative Law Judge in reaching the same conclusion, we find that Respondent dis- charged Clark in violation of Section 8(a)(3) and (1) of the Act. 7. The Administrative Law Judge found that Respondent violated Section 8(aXl) and (3) of the Act by discharging Sharon DeLuca on December 12 for having signed a union card and engaging in union activities. Respondent contends that DeLuca was fired because she "obviously could not handle the 6 Besides the reasons given by the Administrative Law Judge to establish Clark and former employee Janice Kowarsky testified that Fessia was Respondent's knowledge of Lewia's union activity , we find that Supervisor present in November at a meeting of employees of Respondent's restaurant Reiman was aware of such activity on Lewia's part prior to her discharge . whereat the Union was discussed. This evidence was not directly 9 There is also evidence that Fessia , contrary to her testimony, was aware contradicted. Accordingly, we find that Fessia had knowledge of the of the presence of the Union on the scene prior to Clark's discharge. Both Union's campaign as of that time. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job" and for her refusal to make good on customer checks of those whom she served who left without paying such checks. The Administrative Law Judge disagreed, finding that on the record Respondent's reasons were proven to have been pretextual to disguise Respondent's desire to get rid of a known union adherent, notwithstanding the fact that Res- pondent had a policy of requiring waitresses to pay for such unpaid checks in the absence of a satisfacto- ry explanation. To support this finding, the Adminis- trative Law Judge noted that other waitresses, albeit not all those in Respondent's employ, had refused to pay walkout checks without being discharged for such refusal. Thus, he concluded that Sharon DeLuca was treated differently from the others, and that one reason for such disparate treatment was her union activity. We do not adopt the Administrative Law Judge's finding of a violation with respect to Sharon DeLuca's discharge because , unlike him, we find that the General Counsel has failed to establish by a preponderance of the evidence that DeLuca was disparately treated. According to DeLuca herself, Supervisor Nomakeo told her at the end of Novem- ber that she had a number of walkouts, that she could pay them with her tips every night or all at once, and that the other waitresses paid their walkouts. However, DeLuca told Nomakeo that she was not going to pay, as a matter of principle. Nomakeo told DeLuca, "You have to pay them, or you will be fired," but DeLuca remained fast on principle. Subsequently, Gladys Cole, the accounts receivable clerk, called her to the office, produced copies of the missing checks, and told DeLuca much the same as had Nomakeo , that she was responsible for the missing checks . Gladys Cole asked if DeLuca could tell "something of what happened to them," but no evidence of any explanation was brought forth. DeLuca again stood on principle, and Gladys Cole told her to take the matter up with Vincent Lanzarotto, which she never did. Furthermore, DeLuca testified that the cashier, a girl named Marie, subsequently spoke to her about walkouts and told DeLuca to check with her every night to make sure she did not have any. This was all prior to the fourth incident involving DeLuca in which someone served by her walked out without paying the bill. This last walkout occurred on December 4 and led to DeLuca's eventual discharge. Thus , we do not agree with the Administrative Law Judge that "no warning was given to Sharon that her performance exposed her to the risk of discharge ." It is clear from DeLuca's own testimony that she knew Respondent was insistent on such walkout checks being paid and that being fired for not doing so was a distinct possibility. Gladys Cole, the accounts receivable clerk, testi- fied, supported by the submission of documentary evidence by Respondent, that DeLuca had missing checks on November 17, November 24, December 1, and December 4. Her practice when checks turned up missing was to make a check of the area near the counter to see if the missing check had been left in the rack, or in or about the cash register. She would go through the duplicates to see if the check had been used, then would check out the carbon to see if a shortage had turned up attributable to the missing check. After DeLuca's third missing check, Cole regarded the matter as becoming serious, and spoke to DeLuca. DeLuca was unaware of having a third missing check, and offered no explanation . Further- more, she had failed to check out with the cashier at the end of the day on December 1, a procedure which would have revealed the missing check and well might have called to her mind any reasonable explanation if there was one. Gladys Cole reminded DeLuca of her responsibility for the checks and the requirement of checking with the cashier. Gladys Cole discovered DeLuca's fourth missing check on December 5 in the morning while going through the checks for the previous day. She unsuccessfully tried to reach DeLuca by telephone, after which she reported the matter to her supervisor, Stephen Cijka, the office manager in charge of finance. Cijka testified that he learned from Gladys Cole about DeLuca's first three missing checks on December 3, and about the fourth missing check on December 5. Subsequently, he took the matter up with Bertera and Vincent Lanzarotto on December 7, which was a Friday. On Monday, December 10, Cijka decided to terminate DeLuca, according to his uncontradicted testimony. Lanzarotto testified to a "seat of judgment" meeting on December 11, when Cijka's decision was adopted by Respondent. On December 12, DeLuca was informed of her discharge at a meeting attended by Bertera, Cijka, and Cole. At this meeting Cijka said that as the individual responsible for finances, he was aware of the four missing checks, that Respondent could not tolerate this any longer, and that they would have to let her go. DeLuca said only that she was not going to pay for the checks. DeLuca was given her final check at this interview. In spite of these facts, the Administrative Law Judge found that because Respondent discharged DeLuca without extending to her an opportunity to defend herself and to explain her position with regard to the fourth missing check, he was justified in drawing the adverse inference that a discriminatory motive generated the discharge . We disagree. There was no question that the four checks were missing. The question of what to do about DeLuca was not VINCENT'S STEAK HOUSE, INC. 653 conceived hastily, but only upon reflection by Cijka, and after consideration by Lanzarotto and Bertera at the "seat of judgment" meeting. The impetus for such determination clearly was supplied by Cijka, who represented the financial end of the business. Clearly, as the one responsible for finances, Cijka was concerned about the repeated loss of checks by DeLuca, without explanation, and without reim- bursement in accordance with Respondent's policy. Taking into account DeLuca's known attitude that she was not responsible for the lost checks, along with her careless and indifferent attitude as illustra- ted by her disinclination to check out at the end of the day as instructed-indeed there is no evidence that she checked out on the night of December 4-it was not surprising that Respondent should have decided to terminate DeLuca without giving her an opportunity to offer an explanation or affording her another chance to remain as an employee. In any event we note that DeLuca offered no explanation at the termination interview beyond saying that she must have been busy at the time the customers walked out. Thus, unlike the Administrative Law Judge, we find and conclude that Respondent's reasons for terminating DeLuca have not been proven by a preponderance of the evidence to have been pretex- tual, and that, therefore, the General Counsel has failed to sustain his burden in support of the allegation in the complaint that DeLuca was dis- charged in violation of the Act. 8. We adopt the Administrative Law Judge's disposition of the representation case, which was consolidatgd with the unfair labor practice matter. However, in doing so, we do not adopt his determi- nation to set aside the election based on the Union's Objection 1(f) in light of our determination herein that the discharge of Sharon DeLuca, which oc- .curred on December 12, during the critical period of the election, did not constitute a violation of Section 8(aXl) and (3) of the Act. Furthermore, since we have not adopted the Administrative Law Judge's finding that Fessia stated to employees on November 24 that employees would work no more than 8 hours per day, we do not adopt the Administrative Law Judge's determination to set aside the election in part on the basis of such finding. However, since we have found, as he did, that Fessia stated to employees on November 24, during the critical preelection period, that if the Union gets in employees under 18 would be out of a job and waitresses would no longer be able to adjust their work schedules among them- selves, we shall adopt his recommendation to set aside the election and direct a new election based on the Union's Objection 3 contending that such threats of reprisal interfered with the holding of a free and fair election. AMENDED CONCLUSIONS OF LAW We hereby adopt Conclusions of Law 1, 2, 5, and 6 of the Administrative Law Judge and substitute the following for his Conclusions of Law 3 and 4: "3. By engaging in the following acts Respondent committed unfair labor practices proscribed by Section 8(a)(1) of the Act: (a) discriminatorily enforcing working rules; (b) threatening to take the following reprisals if the Union got in: (1) laying off employees under 18 years of age, (2) reducing the number of work hours, (3) waitresses would no longer be able to adjust their work schedules among themselves, (4) employees would lose insurance benefits, (5) there would be no pay increase, and (6) employees would be required to declare their tips; (c) interrogating employees as whether they signed a union card; (d) maintaining an unlawful no-solicita- tion, no-distribution rule; and (e) discharging Carol Meyers for engaging in protected concerted activi- ties. "4. By discriminating in regard to the tenure of employment of Marie Lewia, Pamela Clark, and Robert Powers, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(aX3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Vincent's Steak House, Inc., West Springfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist: (a) Discharging or otherwise punishing employees because they have engaged in concerted activities for their mutual aid or protection, or discouraging membership in Chicopee-Holyoke-Westfield Barten- ders, Hotel, Motel, Cafeteria, and Restaurant Em- ployees International Union, Local 116, AFL-CIO, hereinafter the Union, or any other labor organiza- tion, by discharging employees or otherwise discrimi- nating in any manner in respect to their tenure of employment or any term or condition of employ- ment. (b) Discriminatorily enforcing working rules during a union organizational drive of its employees or enforcing such rules more strictly in reprisal for its employees' union activities. (c) Threatening to take the following reprisals if a union represented its employees: (1) lay off employ- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees under 18; (2) reduce the number of working hours; (3) deny to waitresses their privilege to adjust among themselves their work schedules ; (4) cause employees to lose their insurance benefits; (5) deny a pay raise to employees; (6) require employees to declare their tips. (d) Interrogating employees as whether they signed a union card. (e) Maintaining any rule which prohibits any employee from soliciting or distributing literature on behalf of a labor organization in nonworking areas during their nonworking time. (f) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following action designed to effectu- ate the policies of the Act: (a) Offer Carol Meyers, Marie Lewia, Pamela Clark, and Robert Powers immediate and full reinstatement each to his or her former position, or, if such no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges previously enjoyed by each, and make each whole for any loss of pay he or she may have suffered by reason of Respondent's discrimina- tion against him or her, with interest at the rate of 6 percent. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises at West Springfield, Massachusetts, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. [Direction of Second Election and Excelsior foot- note omitted from publication.] 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise punish our employees because they have engaged in concerted activities for their mutual aid or protection. WE WILL NOT discourage membership in Chicopee-Holyoke-Westfield Bartenders , Hotel, Motel, Cafeteria, and Restaurant Employees International Union, Local 116, AFL-CIO, or any other labor organization, by discharging any of our employees, or otherwise discriminating in any manner in respect to their tenure of employ- ment or any terms or conditions of employment. WE WILL NOT discriminatorily enforce working rules during a union organizational drive of our employees or enforce such rules more strictly in reprisal for our employees' union activities. WE WILL NOT threaten to take the following reprisals if said Local 116 or any other union represents our employees: (1) Lay off employees under 18 years of age; (2) Reduce the number of work hours; (3) Cause employees to lose their insur- ance benefits; (4) Deny employees a pay raise; (5) Require employees to declare their tips; (6) Deny to waitresses their privilege to adjust among themselves their work sched- ules. WE WILL NOT ask employees if they have signed a card for any union. WE WILL NOT maintain any rule which prohib- its any employee from distributing literature or soliciting on behalf of a labor organization in nonworking areas during nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Carol Meyers, Marie Lewia, Pamela Clark, and Robert Powers each immedi- ate and full reinstatement to his or her former position or, if such position no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges VINCENT'S STEAK HOUSE, INC. 655 enjoyed by each, and make each whole for any loss of pay he or she may have suffered by reason of his or her discharge, with interest thereon at the rate of 6 percent per annum. All our employees are free to become, remain, or refuse to become or remain , members of said Local 116 or any other labor organization. VINCENT'S STEAK HOUSE, INC. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This consolidated case, consisting of an unfair labor practice case and a representation case, has been instituted under the National Labor Relations Act, herein called the Act. 29 U.S.C. 150, et. seq. The unfair labor practice proceeding comprehends Cases l-CA-9432 and 1-CA-9516. In Case I-CA-9432 a charge was filed by the Charging Union against Vincent's Steak House, Inc., herein called Respon- dent or the Employer, on November 15, and was amended on November 29, 1973. Upon such charge and amended charge the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director for Region I (Boston, Massachusetts), issued a complaint on December 28, 1973. Respondent timely answered said complaint . In Case l-CA--9516 a charge was filed by the Charging Union against said Respondent on January 2, 1974. In the representation proceeding , Case 1-RC-13046, the petitioning Union on November 16, 1973, filed a petition to be certified as the bargaining representative of the Employer's employees in a specified unit. Following the election held on January 9, 1974, the Union on January 16, 1974, seasonably filed objections to conduct affecting the results of the election. On February 26, 1974, the Regional Director directed a hearing on the issues raised by four of said objections before an Administrative Law Judge and a decision thereon by said Judge . On February' 28 the Regional Director issued an amended complaint and ordered that the hearing on said amended complaint be consolidated with the hearing on said objections. Pursuant to due notice this consolidated case came on to be heard, and was tried before me, at Springfield, Massachusetts, on April 16-19 and 22, 1974. All parties were represented at and participated in the trial, and had full opportunity to adduce evidence, examine and cross- examine witnesses, file briefs, and present oral argument. Briefs have been received from Respondent and the General Counsel. In the unfair labor practice case the issues are: 1. Whether Respondent engaged in various acts which violated Section 8(axl) of the Act. 2. Whether Respondent discriminatorily discharged certain employees because they engaged in union, concert- ed, or other activities protected by the Act. 3. Whether Respondent discriminatorily enforced working rules against union adherents. 4. Whether Respondent threatened reprisals against its employees if the Union got in. 5. Whether Respondent discharged an employee for giving testimony under the Act. 6. Whether Respondent had an unlawfully broad no- distribution and no-solicitation rule. In the representation case the issues are: 1. Whether Sharon DeLuca was discriminated against on or about December 12, 1973, for activities on behalf of the Union. 2. Whether Respondent, through its agent, Bernice Fessia, threatened reprisals against employees if the Union got in and also stated the Union, pursuant to a union rule, would cause employees under 18 to lose their jobs if it got in. 3. Whether supervisor James Varney asked an employ- ee how the latter intended to vote in the then forthcoming election. 4. Whether Respondent has maintained and enforced an unlawfully broad no-distribution and no-solicitation rule during the critical period; i.e., from the day of filing the petition (November 16, 1973) to the date of the election (January 9, 1974). The Regional Director's Report on Objections alleges that "Although [this objection is] not specifically alleged by the Petitioner in its Objections, the investigation disclosed evidence that the Employer has maintained an unlawfully broad no-distribution and no- solicitation rule during the critical period . . . . The Regional Director is not limited in his post-election investigation to those matters specifically alleged by the Petitioner in its Objections." While I have grave doubts whether an employer or a union can be found to have engaged in offensive conduct of which prior to a trial it had not been apprised by the opponent in writing pursuant to the Board's Rules and Regulations, I am constrained to pass on this Objection on the ground that Board Decisions, which are binding on me, require me to do so. Thomas Products Co., 169 NLRB 706 (1968); Hobart Mfg. Co., 92 NLRB 203, 205 (1950); J. I. Case Co., 86 NLRB 12, fn. 2 (1949). Upon the entire record in this case , and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Massachusetts corporation, has its princi- pal office and place of business at West Springfield, Massachusetts, where it is engaged in selling and distribut- ing food and related products at retail . Annually its gross income exceeds $500,000, and its purchases of food, restaurant supplies, and related products from other States exceed $2,500. Respondent admits, and I find, that it has been and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that Respondent is an employer within the meaning of Section 2(2) of the Act. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED from October 9 to November 6, 1973. She was discharged as a result of a decision by Lanzarotto and Assistant Manager Bertera. Employee Sharon DeLuca was dis- charged when Bertera and Office Manager Stephen Cijka decided on this action. Supervisor Don Reimann and Bertera made the decision to discharge employee Robert Powers. And employee Pamela Clark was discharged by Supervisor Bernice Fessia. Finally, Lanzarotto said he was not aware that a union was attempting to organize Respondent's employees until former employees Lewia and Powers brought this to his attention several days after they were discharged in early November 1973. Clark Bertera, Respondent's manager, was called as a witness for the General Counsel. A conspectus of his testimony follows. He fired Marie Lewia, a cocktail waitress at the Steak House, on November 6, 1973. Although he has told waitresses to smile while serving, "it is not a requirement for a waitress to smile" or "to have a happy face." A couple of days before said November 6 Bertera determined to discharge Lewia because "she could not do the job." An "incident" in Respondent's Oyster Bar, plus "a whole lot of incidents," caused him to dismiss Lewia. These "incidents" included not being "properly dressed" by not wearing her "cocktail hat" three or four times; refusing to work "in a station downstairs" farther away from the bar; and complaints from other waitresses that Lewia "was not a good cocktail waitress" or was "not holding her own . . . section" or station, so that her tips, which she pooled with them, were low. Bertera did speak to Lewia about said defects. He testified that by not holding her own Lewia "was not taking care of as many customers as the other waitresses." Bertera admitted that he had never before fired a waitress for not wearing a cocktail hat (see rule 43 of G.C. Exh. 3 as to proper dress), that Respondent gave such waitresses 30 days "to learn the job," and that other waitresses failed to wear such hat, although not as many times as Lewia. He also claimed that Lewia once "gave a [front desk ] girl a hard time" about signing in when reporting to work by insisting the rule requiring her to sign in was a silly one because she had to punch in anyway. Although Bertera described this last failing by Lewia as "trivial," he said it was one of the reasons, but a "very small reason," leading to her being fired. Bertera also contended that another reason for dischar- ging Lewia was her "swearing" during an argument with Don Reimann, supervisor of bartenders, in which she failed to carry out his order. Bertera learned of this incident from one of the cashiers, and not from Reimann. But Bertera did ask Reimann for the facts, So Bertera later that night, after work was over, called a meeting of all the cocktail waitresses, the cashier, and one of the bartenders, and told them that he did not want any "swearing, argument, fighting . . . like that." Later, when Lewia privately talked to him and he admitted he was referring to her, she explained what had happened. Bertera also told Reimann and Lewia that he "did not want this to happen again." Another demerit of Lewia's, taken in consideration in The answer admits, and I find , that the Union herein, Chicopee-Holyoke-Westfield Bartenders, Hotel, Motel, Cafeteria, and Restaurant Employees International Union, Local 116, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence Vincent A. Lanzarotto, Respondent's president and general manager, was called as a witness by the General Counsel. A summary of his testimony ensues. Respondent operates a restaurant in two separate buildings about 100 yards apart located at 1508 Riverdale Road in West Springfield, Massachusetts. One building has a seating capacity of about 500 while the other can accommodate about 200 people. The major building, called the Steak House, has four dining rooms. During the summer of 1973 Respondent employed between 50 and 60 persons. At all times material Clark Bertera was Respondent's manager, Bernice Fessia was assistant manager over dining room personnel, James Varney was director of food and kitchen personnel, Stephen Cijka was its office manager, Don Reimann was bar manager (until December 31, 1973, when he was succeeded by Vincent Mooney), and Mary Nomakeo was its head cashier and assistant manager. It is admitted that these are all supervisors and agents within the meaning of the Act. According to Lanzarotto, employee Carol Meyers was hired in 1972 and left Respondent's employ on August 8, 1973. He spoke to her about her "discontentment" during roll calls at the Steak House 2 or 3 days before she left. This discontentment was evidenced "by not being attentive to what was taking place at the" roll calls. He first observed this about 6 months before she left. He also noticed that Carol's work habits were bad and spoke to Mrs. Fessia, Carol's supervisor, about it in May 1973, and on two other occasions thereafter. He told Mrs. Fessia each time "to bring it to [Carol's) attention [and] bring out more corrective measures." Yet he did not perceive any improvement in Carol's performance notwithstanding that Mrs. Fessia spoke to Carol on this subject. On August 8, 1973, Lanzarotto told Carol that he "had noticed some unhappiness and discontentment about her work." Carol "expressed very much unhappiness" and decided to quit Respondent's employ. Shortly before this Carol had posted a newspaper clipping "on the board," without permission, about a waitress in another restaurant who was discharged because she was "unhappy and doesn't smile" (see G.C. Exh. 2), and told Lanzarotto about it. Since she had no permission to post it he had this removed but he did not scold her about it. Rule 26 of Respondent's "Employees' Rules and Regulations" for- bade all posting unless authorized. (See G.C. Exh. 3.) Lanzarotto also considered Carol to be unhappy because not long before she quit the "Women's Lib" engaged in a "protest march . . . on the sidewalk of Vincent's Steak House." Another employee, Marie Lewia, worked for Respondent VINCENT'S STEAK HOUSE, INC. 657 discharging her, according to Bertera , is that the cashiers complained about her in that she once or twice failed to check out and often tried "to cut ahead of the other girls ... on checking out at nighttime ... and also when she is paying checks." However, he conceded that other waitress- es did this as well as Lewia. See General Counsel's Exhibit 4 for Lewia's "employment record." Bertera testified that he was not aware that Lewia was helping the Union organize the Steak House, but admitted he "knew they were trying to get a union . . . for some time before" Lewia's discharge. He also knew that Lanzarotto "was opposed to a union." In fact, he also informed Lanzarotto that the employees "were seeking to organize a union." Continuing his testimony Bertera said that Sharon DeLuca was hired on October 10 and fired on December 12, 1973, by Office Manager Stephen Cijka. Although Cijka discussed DeLuca with him, and Bertera approved her dismissal, the decision to terminate DeLuca was made solely by Cijka. Such firing could not be made without consulting Bertera and obtaining his sanction. According to Bertera, DeLuca was fired "because she had missing checks . . . she was assigned checks and they were missing. No money [for such checks] was accounted for, and no [missing ] checks were accounted for." He explained that each waitress receives a specific number of checks, each one numbered, to give to customers, and that they must be accounted for at the end of the day. A "missing check is one where the customer has not paid his bill . . . and that [is] the waitress's responsibility . . . to see that he pays his bill." Although "many other" waitresses had missing checks DeLuca "had quite a few." See General Counsel's Exhibit 5 for DeLuca's "employ- ment record." However, Bertera testified during the year and a half he served as manager no waitresses other than DeLuca were fired for "missing checks" although other waitresses than DeLuca also had checks missing. DeLuca had two more missing checks around December 8 or 9, 1973. DeLuca also had "errors on checks" indicating wrong prices which, along with missing checks, contributed to her being fired. However, such errors were not mentioned to him by the office until mid-November 1973, "about the time [he) learned that . . . employees were seeking to organize a union." Bertera said that waitresses are supposed to pay for any errors or missing checks if such are their fault. But DeLuca was not asked to pay for hers because "she did not want to pay" since "she felt it was unfair , that she was not responsible for it." But no investigation was made by Respondent to ascertain whether DeLuca's assertion that she was not responsible was justifiable. Finally, Bertera admitted visiting the Diplomat Bar often and overhearing employees discussing having a union at the Steak House. But he explained that he waited there to meet a friend working in the Steak House kitchen to give such friend a ride home after work, and that such waiting commenced "late '70, 7 1." While so waiting he sometimes talked to Marie Lewia and Sharon DeLuca whom he saw there, but such conversations had nothing to do with a union. Nevertheless both Lewia and DeLuca on such occasions were in a group of Respondent's employees discussing a union at the Steak House, and Bertera knew this on such occasions. It was developed during Bertera's testimony "that, as to missing or lost checks , the employer relies on the voluntary action of the waitress whether to pay or not"; that "Miss DeLuca, on her own, voluntarily decided not to pay"; that such refusal to pay "was permitted" as being in Respon- dent's "practice and rule" ; that there is no written rule that anyone will be discharged for not paying lost checks (see G.C. Exh. 3 for the written rules and regulations for employees); and that during Bertera's term as manager only DeLuca was fired for lost or missing checks although other waitresses also experienced lost or missing checks. Donald Reimann, Respondent's beverage manager from October 9 to December 31, 1973, in substance testified as follows as a witness for the General Counsel . He was the supervisor of the bartenders and had "quasi-authority over a few cocktail waitresses." Robert Powers was hired on October 4, 1973, as a bartender. The decision to terminate Robert Powers, made by Reimann and Bertera in early November 1973, was brought about by "a combination of many factors." These include a 40 percent "drop-off in business" caused by the "energy crisis , coupled with the closing of gas stations on Sunday." As a result Reimann in early November cut the number of hours Powers was working. Since Powers protested this Reimann suggested that Powers find another job. On November 7 Powers was "let go." However, bartender Kelley, who was hired on October 18, 1973, was not laid off but voluntarily quit on November 18; and bartender Pace, who was hired on October 23, 1973, also was not laid off but quit on November 6. Pace's employment record, however, discloses that his workman- ship was declared to be inferior and indicates he may have been discharged therefor. (See G.C. Exh. 6.) Powers' employment record also shows he performed inferior workmanship and may have been discharged therefor. (See G.C. Exh. 7.) Another reason why Powers was laid off is that he lacked seniority at a time when the work force had to be cut down. Yet Kelley, over whom Powers had seniority, was retained instead of Powers. As noted above Kelley quit after Powers was laid off. Still another reason for terminating Powers was that his work was "inferior ," i.e., he was slow; but the quality of his work was not only good, but he taught Reimann how to tend bar. Although Pace was uncooperative, Reimann selected Powers , rather than Pace, to be laid off. Sometime in November 1973, but before Powers was terminated, Reimann became aware of union activity at the Steak House by hearing employees talk about it at the Diplomat Bar across the street. Also, about November 3, 1973, Powers "approached me [Reimann ] about a union [and] asked me to sign a card," and Reimann did sign one. However, Reimann was "not in favor of the Union." A dining room waitress, Carol Meyers, gave evidence for the General Counsel. It may be adequately condensed as follows. By taking a course at the University of Massachu- setts in the spring of 1973, she "became more outspoken" to management "when we saw something we did not agree 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with." One of her complaints related to "having to pay for [customers'] checks" when such customers left without paying them. Another concerned additional work imposed on waitresses when Respondent "decided to let the bus boys leave early." Still another involved unjustified disciplinary action taken against waitresses. Once, in protesting the failure of customers to pay checks, Carol mentioned to head cashier Mary Nomakeo, admittedly a supervisor and agent under the Act, that a union in the Steak House might prevent it. This upset Mary, who replied, "Don't say that word union. People have been fired a couple of years ago for trying to start a union here." On Sunday, August 5, 1973, Carol assisted another employee in posting on the bulletin board a newspaper article about the discharge of a waitress in an Amhert, Massachusetts, restaurant, for being unhappy and not smiling. (See G.C. Exh. 2.) About 20 minutes later President Lanzarotto removed said article. Soon employee Peggy told Carol that Lanzarotto wanted to know why Carol had affixed this placard on the board. A couple of days later he asked Carol why she did this. When she replied that it would be of interest to Respondent's waitresses, he wanted to know if she wanted to start trouble and was unhappy with her job. She then enumerat- ed some of her complaints about her job. Then he said that if Carol was unhappy and stayed there "he would see that [she] would not stay there." He also asserted he did not think she had the right attitude to be a waitress." When he again remarked that she was unhappy with her job, she replied that she would give her notice to Bernice Fessia, the supervisor of waitresses. Carol further testified that Lanzarotto told her she had no permission to post anything on the bulletin board. But she further testified that she and others had posted written or printed matter on the bulletin board in the past. The next day Carol's husband received a call informing him that Carol was not to "finish her notice." So Carol called Fessia about this. Fessia said that "seeing [Carol ] was unhappy with [the] job, [Fessia] had taken [Carol] off the schedule." The following Saturday the Women's Lib protested Fessia's said action by picketing Respondent's Steak House. (It was stipulated this occurred on August 18, 1973.) While the picketing continued a waitress threw a note to the pickets alleging that Lanzarotto told the waitresses to punch out and go home if they looked out the window. Carol stated that her supervisor, Bernice Fessia, once spoke to her about the refusal of a customer to pay a bill because of a mistake Carol made "on an order" while serving a "large party." Bernice told her "not to let it happen again." This occurred in late 1972 or early 1973. Bernice also "kept an eye" on all the waitresses, including Carol, and if they "slacked off" Bernice "mentioned it to you," including Carol. Also in September or October 1972, a customer complained about Carol by writing to Respon- dent; but the subject matter of the letter was not disclosed at the trial. Another witness for the General Counsel is Maria Lewia. An adequate summary of her testimony is here set forth. She was employed as a cocktail waitress by Respondent in its Oyster Bar for about a month before she was terminated on about November 6, 1973. She and Robert Powers talked about organizing Respondent's employees. As a result they consulted Neil Daboul, a business agent for Local 67, on October 27, 1973, as to "how to go about organizing." Then she spoke to seven or eight kitchen people and bus boys "about signing cards and organizing." After work on the evening of October 30, 1973, Marie met with Daboul at the Diplomat Bar, where she signed a union card for Local 116. (See G.C. Exh. 8.) Later that evening Bob Powers, Sharon DeLuca, and Kathy Bergeron came in and also signed a card for Local 116. Then Daboul gave them pamphlets and blank cards to get employees of Respondent to sign. Still later that evening manager Clark Bertera entered and sat at a table about 2 feet away from said employees at a time when they were discussing organizing a union and "looking over pamphlets and stuff." Such "stuff" included union authorization cards. On "many evenings afterwards" Marie, Powers, and Daboul talked union and distributed literature to Respon- dent's employees who came to said Diplomat Bar and solicited them to sign union authorization cards. On some of these occasions, supervisors Bertera and Mary Nomakeo were present in the Diplomat Bar, and Marie and Powers placed union cards and leaflets on the table where Bertera and Nomakeo sat. Once, when Marie was at the Diplomat Bar arguing with some employees opposed to unionism, Bertera was seated at a nearby table. About a week before Marie was fired Sharon DeLuca told Marie that supervisor Reimann had informed Sharon that Marie "was being watched." Then on the Sunday before being discharged, while Marie was eating dinner with Bob Powers, Manager Bertera told them that they were not permitted to sit together as "fraternization" was not allowed by Respondent. When Marie sat at another table with other employees who were eating dinner Bertera instructed her "to go and sit by herself ... and not to talk to anybody." In the past not only had she often eaten with Powers and other employees, but other employees had eaten together. On November 6, 1973, Marie was discharged by Clark Bertera who told her he did so because she was uncoopera- tive and she had argued with the bartender. But when she insisted that she was being "fired for my union activity," Bertera did not say anything. Marie testified she had an argument with Reimann, the supervisor of bartenders, about 2 weeks preceding her discharge, when he gave her another job to do at a time when she was very busy waiting on customers. Her refusal caused him to "yell, scream, and jump up and down" so much that she "swore at him." But she did carry out his order. Later that evening manager Bertera, at a meeting of employees called by him, stated there would be no swearing and that there should be a little more teamwork and cooperation. Sharon DeLuca replied that the bartenders swore behind the bar. After the meeting Marie discussed the Reimann incident with Clark Bertera, but Clark gave her no warning or reprimand. Marie also testified that she could not wear her waitress cap one night because she had misplaced it. But she obtained another one the next day from Respondent. She wore this for 2 days and, having found her own hat, VINCENT'S STEAK HOUSE, INC. 659 resumed wearing her said hat. Furthermore, Marie testified that she observed another employee not wearing a hat for 4 days. Continuing, Marie contended she never refused to work at, or complained about, a station to which she had been assigned, or that any supervisor complained to her about where she had been assigned, or that any supervisor told her that waitresses were complaining about her work, or that any waitress or cashier complained to her about her work or her attitude, or that she gave the girl at the front desk a hard time about signing in. But she has heard employees swearing at work at the Steak House. And she insisted that she never received any warning or threat of discipline about • her work, and that no supervisor ever accused her of being uncooperative. On cross, Marie testified that prior to her being discharged neither Bertera, nor Lanzarotto, nor Fessia ever mentioned anything about a union to her. One of Respondent's bartenders, Robert Powers, gave testimony for the General Counsel the essential import of which follows . He worked for about a month, starting at $2.25 an hour and receiving a raise to $2.40 an hour on his "second paycheck." He and Marie Lewia, after discussing the subject, decided to try to get a union into the Steak House. Then he and Marie met with Neil Daboul, an official in the Hotel and Restaurant Workers Union, and discussed with him how to organize the Steak House. The following week Powers and Marie met with Daboul at the Diplomat Bar. Powers signed a union authorization card on this occasion ; i.e., on October 30, 1973. (See G.C. Exh. 9.) Powers also received some union cards to give to employees to sign. During the week he passed out such cards both at the Steak House and at the Diplomat Bar. At the latter place Supervisors Nomakeo, Reimann, and Bertera were present some of the time when Powers handed out such cards to employees ; Powers even asked Nomakeo to sign one and succeeded in inducing Reimann to affix his signature to one . Powers also distributed union literature to employees. On one occasion at the Diplomat Bar, Manager Bertera was present when Powers and Marie Lewia had a loud discussion with two employees as to whether a union would be beneficial. On November 7, 1973, Powers was told by Reimann and Bertera that Respondent's Oyster Bar was being closed that evening because a shortage of fuel oil made it impossible to heat it. He was told "this was a temporary situation . . . it would be operi by the weekend." Consequently they assigned him to work in Respondent's wine cellar that night. The next 2 days Reimann tele- phoned him each day not to come to work because the Oyster Bar was still closed. Then on the third day Reimann telephoned Powers that Reimann could only offer him 1 or 2 days of work a week, and this would amount to 10 to 15 hours for each week, probably until Thanksgiving or Christmas. So Powers told Reimann that Powers "guessed" he was laid off because he needed a full-time job. Reimann replied that Powers was thus laid off and was eligible for unemployment benefits. Powers mentioned that Respondent had a rule that its men and women employees could not sit or eat together. Nevertheless he "many times" ate with female employees and, although supervisors observed this , they never stopped it. In fact Supervisor Don Reimann ate with cocktail waitresses. Nevertheless, after he started union activity, supervisors instructed him not to sit with Marie Lewia unless he wanted to lose his job. Also, bartenders often talked to the waitresses when they ordered drinks for customers. But after union activity started Supervisor Bernice Fessia instructed the waitresses not to talk to the cashier or the bartenders. A day or two before his termination management started "harping" to him to wipe the glasses so that they shine and to dust off bottles. But he had not been required previously to perform this task "as a general practice." Powers had never been reprimanded for his work, or told that waitresses complained about his work , or warned that his performance was unsatisfactory. He also testified that he read postcards, other cards, and thank you notes, affixed to the bulletin board. Finally, he averred that he was never told not to post anything on the bulletin board; and that he heard employees swearing at the Steak House. On cross Powers admitted that, contrary to' instructions from Bertera and Lanzarotto, he did not always keep the glasses filled with ice; but he explained his conduct by asserting that the ice often melted, so that the glasses became overloaded with water. A cocktail waitress who worked at the Steak House from October 10 to December 12, 1973, Sharon DeLuca, testified substantially as follows as a witness for the General Counsel. About 2 weeks after Sharon commenced working there Bertera commended her for doing a good job and advised her that she was "going to be made Head Smartee"; i.e., head cocktail waitress. At or about the same time Lanzarotto also praised her work and said that he wanted to make her head cocktail waitress with "a substantial pay increase." And for a while she executed some of the duties of a "head smartee." On October 30, 1973, supervisor Don Reimann told her to convey to Marie Lewia the information that Lewia "is being watched." On the same day she signed a union authorization card (see G.C. Exh. 10) at the Diplomat Bar lounge. She also distributed such cards and succeeded in inducing employee Bradley Fitzgerald to sign one. And she told supervisor Reimann that she favored the Union. Reimann also observed her talking union at the Diplomat Bar. Once Bertera was in said Diplomat Bar while Sharon was talking union to fellow employees. Sharon also testified that "at first" she became aware of a rule at the Steak House that women employees could not eat with male employees. However, "after the union activities got started, they became stricter about enforcing that rule" so that even "hostesses couldn't eat with the waitresses." Also, waitresses at first were allowed to bring their dinners downstairs to the cocktail lounge, but sometime in November 1973, they were required to eat upstairs in the tack room or "somewhere." Further, although a rule proscribed cocktail waitresses from talking to bartenders on the job, it was not strictly enforced until "after the union activities got started." In addition Sharon often observed waitresses "not in full uniform while working there," but they were not reprimanded therefor. On Tuesday, November 6, 1973, Sharon called in that 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she was too ill to work . The next day Bertera telephoned her not to bother coming in as Roxanne was taking her place. Although Sharon protested she was not sick, Bertera adhered to his decision. Then on Thursday Bertera called her and told her that, due to mechanical difficulty causing oil on the floor, she was not to work. And she was told not to work the next day, Friday, November 9. When on November 10 she called as to whether she should report to work Lanzarotto informed her that she was no longer an employee there "because you're sick." Notwithstanding that she denied she was sick he told her to bring in a doctor's certificate and "then we'll see about you working again." A few hours later she presented him with a doctor's certificate but he refused to let her work on account of a "problem . . . of some kind" which he refused to identify . So he told her to go home "and we'll call you" when to return. The following Thursday, November 15, she returned to work , but management "demonstrated" its attitude was "very cool" towards her. On November 24, 1973 , Sharon attended a meeting for employees addressed by Supervisor Bernice Fessia . Bernice asked them to volunteer opinions as to the Union. One waitress then spoke against the Union ; another said if a union got in they would lose their "free insurance." Bernice said "If the Union gets in these [under 18 ] kids will not have any jobs" because they are not allowed by the Union to work "after certain hours." Sharon said it was neither the time nor place to discuss the Union. About a week before December 12, 1973, Supervisor Don Reimann told Sharon , "They made me [Don] say things about Bob [Powers ] that weren't true ... that [Bob ] was a bad bartender and couldn't handle his job." At some time in late October 1973, Bertera addressed the cocktail waitresses saying he "had enough" and command- ed them not to swear . So Sharon replied that "the bartenders swear behind the bar." In fact, she testified that "just about everybody swore ," and sometimes in the presence of supervisors , but they were never reproved for this. Further, Sharon denies that she or any other waitress ever complained to Bertera about Marie Lewia's perform- ance. And Sharon asserted she was not told to refrain from using the bulletin board. Board agents John Beal and Joseph Kane interviewed Sharon during their investigation of this case, Beal on December 3, 1973. On December 12 Bertera discharged Sharon because she "obviously could not handle the job." He also alluded to her refusal to make good on checks of her customers who walked out without paying them. Sharon admits that such nonpayment by her customers occurred three times ; but she testified that other waitresses suffered the same experience without being asked to make good on such checks. Previously in late November 1973, Mary Nomakeo had asked Sharon to make good on some checks not paid by Sharon's customers or be fired, but Sharon refused. Gladys, the payroll clerk, "told [Sharon] the same thing," but Sharon still refused to reimburse Respondent for such checks . Finally, Sharon denied she made any errors on checks. On cross Sharon testified that she reported to work on December 12 but Bertera would not allow her to punch in. As a result she did not work that day, but soon was discharged. She also repeated the conversation she had at the time she was discharged, but it need not be repeated here. Bernice Fessia, supervisor of the dining room waitresses, was called as a witness for the General Counsel. Her testimony may be abridged as follows . She made the decision to discharge Pamela Clark on the first Monday in November 1973. Pamela was fired because "she would not take responsibility, her coworkers were complaining continuously [that she would not do her share of work], she would not bring in her glasses . . . and her silver . . . if she did not like where . . . her station was she used to complain ... she'd stand behind [Bernice] like a puppet, and say, 'Bernice, Bernice.' She was very dramatic .. . continuously not doing her job well .... And she would not set [her] station up . . . it was up to her to set her station up." Bernice often spoke to her about these shortcomings and, although Pamela did correct them, Pamela more than once "started right back again" repeating said derelictions. On Sunday, November 4, 1973, Bernice placed Pamela on probation and told Pamela it was her last warning. The next day, Monday, Bernice said to herself, "Why should I have to put up with any more of this?" So Bernice discharged her because Bernice "figured I had to end it." Yet Bernice did not work Sunday night, November 4, and nothing occurred that night which would cause disciplinary action against Pamela. Bernice also testified that Pamela had some unexcused absences for which Pamela could be discharged, but because Bernice had "a good heart," Pamela was not fired for these. Bernice first learned of the Union's organizing efforts at the Steak House when a girl about November 24 mentioned that the latter's husband had read of it in the newspaper. Bernice also testified that she never visited the Diplomat Bar at any time. Another witness for the General Counsel, Holly Bagg, a cocktail waitress employed by Respondent in its Oyster Bar from August 2 to early October 1973, testified substantially as follows . When she first started she was told not to speak to the bartenders. Sometime in September 1973, Respondent remodeled its Oyster Bar. When the Steak House was picketed another waitress told her that a supervisor directed employees not to watch said picketing while at work. Also, she observed "articles or items on the bulletin board that appeared to have been posted by employees." At no time was she warned by supervisors not to use said bulletin board . Holly was discharged because she "wasn't a good waitress" and "was always trying to change the rules" ; but no contention has been advanced that she was unlawfully terminated. Further, Holly testified she was informed by Respondent that the waitresses would have to "split among themselves ... loses" flowing from missing checks and from customers who walked out without paying their bills. This "splitting" did occur . Also, she testified that girl employees were not supposed to "eat with boys"; yet she not only ate with boys, but supervisors who observed this said nothing to her about it. However, no one told her not to eat with the waitresses . She also talked to bartenders but was never VINCENT'S STEAK HOUSE, INC. 661 reprimanded for doing so by supervisors who observed her so conversing. An alleged discriminatorily discharged dining room waitress is Pamela Clark , whose supervisor was Bernice Fessia. Her testimony may be condensed as follows. She started in mid-January and left on November 6, 1973. On October 31, 1973, she signed a union authorization card at the Diplomat Bar's lounge. (See G.C. Exh. 13.) Later that evening Supervisor Bertera came to said Diplomat Bar and sat next to her at a time when she and other employees were "discussing the Union rather excitedly." When Bertera asked her if she signed a card she replied in the affirmative. Bertera also asked other employees of Respon- dent present in said lounge whether they signed such cards. A few days after signing a union card Pamela was "singled out" by Bernice Fessia who "was just yelling at me [Pamela ] for something." In addition Bernice was unusually rough in directing Pamela to perform some duties which neither Pamela nor any other waitress had previously performed. Also, on other occasions Bernice overworked Pamela. The foregoing incidents so upset Pamela that she took them up with Head Cashier Mary Nomakeo. The latter replied "it didn't sound like Bernice at all." On Saturday, November 3, 1973, Pamela visited the Diplomat Bar, where some of Respondent's employees were having a spirited argument for and against the Union. Supervisor Bertera was there at this time. When someone asked Bertera, "Why shouldn't we have a union," he replied, "Well, you'll lose your insurance . You won't get any kind of a pay increase. You'll have to declare your tips to the penny. Your number of hours will be cut down" to conform to union standards. When some of them asked Bertera how Vincent Lanzarotto would react to a union in the Steak House, the former declared, "Well, I think Vincent would sell because I don't think he could handle the changes." At this point Pamela accused Lanzarotto of "making silly little rules." This caused Bertera to tell her, "Why don't you just quit. Nobody asked you to work here." Then Pamela left the Diplomat Bar's lounge. On November 6, 1973, Fessia telephoned Pamela's sister to say that Fessia was laying off Pamela. When Pamela soon returned the call Fessia said that Pamela was terminated "because you're unco-operative." Pamela de- nies that on November 4, the previous Sunday, Bernice placed her on probation. Previous to her discharge Pamela attended a meeting at the Steak House when management discussed the Union. The discussion at said meeting has been recited above and need not be related here again. Pamela testified that no supervisor told her that other waitresses complained about her . She admitted she took time off, but it was caused by her father's extreme illness from which he did not recover. In fact she asked for such leave from Fessia who granted it. But one leave was not granted. This was to act as a bridesmaid for a friend who called her at the last moment. When Pamela returned Fessia rehired her on condition Pamela "promised not to ever do it again." So Pamela promised. Pamela admits she refused to set up her station but testified it was too great a task for her to perform alone and she so notified Supervisor Fessia . But Fessia told her to set it up or punch out. Soon a hostess brought two girls to help and, with the help of these two, Pamela set up her station. Pamela never received any warnings other than this concerning her performance. When picketing occurred at the Steak House, as described elsewhere herein, Lanzarotto told the waitresses, including Pamela, that Carol Meyers, on whose behalf such picketing was conducted, had "left because she was unhappy." He also instructed them that anyone looking out the window would be immediately dismissed. Pamela further testified that she observed articles or items posted by employees on the bulletin board, and that she had never been warned or told that this was forbidden by Respondent. She also stated that employees had customers walk out without paying checks, and that the waitresses were supposed to "pay the whole thing," but only one waitress ever did so pay. Bradley Fitzgerald, a bartender employed by Respon- dent from August 29 to December 20, 1973, gave testimony substantially as follows for the General Counsel. His supervisor was Don Reimann. Frequently Bradley in- formed Don that the former and "some of the other people" had signed a pledge card for the Union and asked Don to sign one. Eventually Don did so sign. Bradley mentioned in such talks with Don that employees Bob Powers, Sharon DeLuca, and Marie Lewia had signed and "had talked [Bradley J into signing." Continuing, Bradley said that in November 1973, there was an inch of water on the floor in the ice room downstairs and the boiler room, but "there was often water on the floor there." However, there was not, according to him, then or any other time, any water on the floor of the Oyster Bar which adjoined the ice room. He also overheard Bertera tell the waitresses at a meeting not to swear and to be "decorous." And President Vincent instructed him not to talk to the waitresses. Yet Bradley did talk to them frequently in the presence of the supervisor of bartenders, Reimann. Bradley also attended a meeting of employees on November 24, 1973, "conducted by Bernice Fessia." He reiterated Fessia's remarks as set forth elsewhere herein by other witnesses. He also testified that at this meeting a waitress remarked that if the Union got in the kitchen boys under 18 would no longer be able to work because of a "Union allowance" forbidding them to work "after a certain time." Another waitress, Effie Johnson, said at this meeting that the Union forbade overtime so that waitresses would be earning less. One evening in December 1973, Bradley told Bertera that "there was too much work for me to do alone on a Friday night . . . . Let's have another bartender." But Bertera replied, "If you can't take it, go home." So Bradley "took it," but Bertera did give him "some assistance himself." B. Respondent's Defense Bernice Fessia, who had previously been called as a witness by the General Counsel, also testified for Respon- dent in substance as follows. (Admittedly she is supervisor of waitresses for Respondent and a supervisor and agent of Respondent within the purview of the Act.) She denies that 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her name is spelled correctly on General Counsel's Exhibit 12 or that she received a copy of General Counsel's Exhibit 11, the former being a registered mail receipt dated 11/13/73. The latter is a notice to Respondent from the Union, dated November 8, 1973, to the effect that said Union has filed a "petition with the N.L.R.B., Boston, Mass. on behalf of the employees of Vincent's Steak House, Inc." (Said notice, according to the General Counsel, was sent to Bernice by registered mail evidenced by G.C. Exh. 11.) She holds meetings with the waitresses once a week or oftener. At the meeting of November 24, 1973, she informed the waitresses that she had to reduce their working hours because they were complaining they were "not making any money." This is because "a lot of the girls" asserted that they "wanted to take time off because they weren't making any money" and because business had declined. She also told them at this meeting that she was going to be as fair as she could be by treating them equally in granting such time off and that "each one would get their fair share of work." After completing her remarks at the foregoing meeting Fessia asked for questions from the waitresses. One Effie Johnson then stated that her husband had apprised her that he had read in the paper that a union was "trying to come into Vincent's." Fessia replied that she had not read it and "hadn't heard anything about it" but would talk to Bertera as to whether this subject could be discussed at said meeting. Since Bertera granted such permission, other employees, including bartenders and busboys were invited to come to the meeting in order to participate in such discussion. "Almost the entire staff" came to such discussion. Effie then repeated her above statement about the Union and then briefly expressed opposition to the Union because some nonwaitresses "would be out of a job." Fessia then commented "that would be too bad" if some lost their jobs. Some at said meeting spoke in favor of a union while others argued against it. But Fessia denies she said that if the Union got in all employees would work no more than 8 hours a day, or utter any other antiunion remarks. About October 1973, Fessia had told her waitresses at one of said meetings that she "may have to" cut down their working hours because "business started to go down." After the incident of September 8, 1973, with Pamela Clark, Bernice Fessia "kept getting complaints from the kitchen, the checker, and the chefs, and the bartenders, because [Pamela ] pushed her way through . . . always in a rush." Although Bernice talked to Pamela about this two or three times a week it did no good. Consequently, Pamela was discharged on November 6 or 7. On November 3, 1973, the checker in the kitchen was "mad at Fessia because Pamela still was not following directions." So Fessia thereupon had a long talk with Pamela in which Pamela was told to "obey the checker and she [Pamela] agreed to it." Then on November 5 Fessia told Pamela "to be careful, that she [Pamela] was on probation." Pamela replied, "All right." Pamela was not due to work the next 2 days. Nevertheless, notwithstanding that no complaint was thereafter submitted to Fessia about Pamela, Fessia took Pamela `off the schedule"; i.e., discharged Pamela, on November 6. When Pamela inquired why this occurred , Fessia replied "because [you ] did not obey all the rules and regulations ." Fessia denies that she ever told Pamela, "you are itching to lose your job.,, Gladys Cole, an accounts receivable clerk in Respon- dent's office, testified for it substantially as follows. Included among her duties are "the guest checks that .. . are used in the dining room . I am [also ] in charge of making out a daily receipt, reconcile the daily cash . . . I am to be sure [the cashiers ] are on duty. I record the guest checks when they go back into the office , count them and record them, chase down errors . . . [I] track down any missing checks . . . [and] record the mistakes" on any guest check. Among other things Gladys Cole checked the guest checks issued by Sharon DeLuca. In performing this function Cole discovered that DeLuca on about November 17, 1973, had a missing check . Cole was unable to reach Sharon on the phone to account for such check. The following week Cole ascertained that another customer check of Sharon's was missing. Cole again was unsuccess- ful in trying to reach Sharon by phone. Notice of said missing checks was posted in the kitchen bulletin board as a matter of policy. On December 1 Sharon had still another , i.e., a third, missing check. Cole reported this to the office manager. After ascertaining that said check "had been used and not paid" Cole spoke to DeLuca about it and the other two missing checks of DeLuca, but the latter "was unaware that she had had a missing check or any missing checks." Cole also told her that DeLuca had failed to check out with the cashier and that it was DeLuca's "responsibility to at least account for some reason that the checks were missing," but DeLuca "couldn't do it." That evening DeLuca had another missing check , her fourth. Cole reported this to Respondent's office manager. (See Resp. Exhs. 1, 3, and 4 for three of the alleged missing checks.) On December 12, 1973, DeLuca was called to the office. In addition to Cole, Office Manager Cijka and Assistant Manager Bertera were present . When the office manager told DeLuca that the latter had four checks missing and "assumed no responsibility" for "missing monies," DeLuca answered that she would not pay for these checks but offered no explanation why said checks were missing. Thereupon Bertera discharged DeLuca. On cross-examination Cole conceded that "it is not unusual for the waitresses . . . to have an occasional missing check"; no other waitress has been discharged by Respondent for having missing checks ; "there have been other waitresses who have not paid for missing checks"; and Cole had never before been asked to be present "when a waitress was being discharged." Respondent's office manager, Stephen Cijka , admittedly an agent and supervisor within the meaning of the Act, gave testimony for it. An adequate summary of his evidence follows . On December 3, 1973, Gladys Cole, who works in his office, brought to his attention that on three previous occasions Sharon DeLuca had a missing custom- er's check. So he instructed Gladys "to get in touch with ... Sharon. That's standard procedure." When he learned VINCENT'S STEAK HOUSE, INC. on December 5 that Sharon had still another check unaccounted for he not only directed Cole to call Sharon again but also spoke to President Lanzarotto and Assistant Manager Clark Bertera concerning it. Then on December 10 he decided to terminate Sharon without giving Sharon an opportunity to be heard on the question. So on December 12 a meeting was held. Present were Bertera, Cijka, Cole, and DeLuca. After reminding DeLuca that she had four different missing checks and telling her that "we can't tolerate this any longer," he notified her that she was being terminated . DeLuca merely said that she was "not going to pay for the checks" without elucidating why such checks were missing. On cross-examination Cijka disclosed that he did not carry out any independent investigation as to the circum- stances surrounding DeLuca's missing checks, but relied on Cole's statements to him about this situation; DeLuca was not contacted about the missing checks , although Cole had unsuccessfully attempted to reach her by telephone; he had not exercised authority over or disciplined any other waitress; he discharged DeLuca without "even waiting to hear an explanation" from her; and he "wasn't really interested in" whether DeLuca had an explanation to offer. Clark Bertera, who previously had been called as a witness by the General Counsel , also testified for the Respondent. An adequate abridgment of his testimony in this latter capacity follows. Respondent closed its Oyster Bar about November 7, 1973, because (a) "we couldn't get the heat up," (b) there was an energy crisis, so that customers had difficulty coming because of a gas shortage, (c) repairs were being done "on the floor downstairs," and (d) "we had a flood problem" of about 3 inches when the "sewers backed up." It has not since been reopened. Bertera denies that he told Pamela Clark on August 18, 1973, that any girls looking out the window at the picketing would be fired. In fact on that day he was on vacation in Florida. (See Resp. Exh. 7, which is his timecard on which is written in pencil the word "vacation" for the pay period ending August 19, 1973.) On October 31, 1973, Bertera went to the Diplomat Lounge at or about midnight, where he sat with Pamela Clark and three other employees of Respondent . Although he entered into a conversation with them at no time did he ask Pamela whether she had signed a union card or did she ask him if he had signed one. But when Pamela complained about being mistreated by Bernice Fessia, the supervisor of waitresses, he suggested that Pamela quit if she was unhappy at Vincent's Steak House. Finally, he insisted that he saw no union card or literature on the table while he was there. Another witness for Respondent is its Beverage Manager and supervisor of bartenders, Donald Reimann, who had previously been called by the General Counsel as a witness. (The answer admits that he is a supervisor and agent under the Act.) A summary of his testimony follows. One Saturday night, when business was "very, very busy," Marie Lewia was working in the "back section . . . which is adjacent to the Oyster Bar." Because the girls were unusually busy, Reiman took an order from a table of 12 customers in Marie's section and gave it to Marie to fill at the bar. Although Marie said she "could not take the order 663 right now," he gave it to her anyway. Thereupon Marie called him an asshole in the presence of two bartenders, three or four waitresses , a cashier, and many customers. Reiman reported this incident to Manager Bertera about 2 hours later and suggested that Bertera call a meeting to discuss it. Not long after closing hours of the same day Bertera called a meeting which was attended by Reimann, all (probably six or seven) the cocktail waitresses, one or two bartenders, and "maybe a bus boy or two." Bertera reprimanded, without mentioning Marie, both Reimann and Marie for what had occurred earlier in the evening, demanded that foul language not be used , and insisted that Reimann should not shout when giving orders to the cocktail waitresses. Reimann admitted on cross-examina- tion that he was aware that Marie was engaged in union activity before she was discharged. Respondent also called Holly Bagg, who had previously testified as a witness for the General Counsel, to give testimony for it. She testified for Respondent substantially as follows. She described the functions performed by a cocktail waitress, including keeping hors d'oeuvres warm. Such a waitress is also expected to sign in at the beginning of her shift, writing the date and time opposite her name. Then she punches her timecard. Although never told to do so, she "thought" she "was expected," from what the waitresses told her, to keep the tables clean and "cleared off," to bring glasses to the bartenders, and to throw away empty bottles. In addition, the waitresses had to keep their uniforms clean. On cross-examination Holly testified to various instances when others, including herself, who were required to wear uniforms failed to keep them clean or to be dressed in the proper manner without being reprimanded therefor by their supervisors. C. General Counsel's Rebuttal Janie Kowarsky, a dinner waitress for Respondent, gave substahtially the following testimony as a rebuttal witness for the General Counsel. Her immediate supervisor was Bernice Fessia, but Clark Bertera was over Bernice and, therefore, over Janie. Around Thanksgiving 1973, Bernice called a meeting of waitresses . At that meeting waitress Effie Johnson mentioned to the group present that the Union had previously "tried to get in" Respondent's Steak House, but that she "did not favor the union," and "came out very strongly against unionization at Vincent's." Continuing, Effie mentioned that waitresses "were entitled to a full insurance plan [which also covered their children and family] . . . after a certain period of time" at Respondent's, but "the union could not cover this"; that "certain hours, which were very flexible at Vincent's, would not be flexible with the union." A few weeks later another meeting was held by Respondent at which all its employees were present. At it the employees gave "various pro and con arguments" concerning unionization of Respondent's workers. Bernice, who also attended, commented that if the Union came in, the younger workers, such as busboys and setup girls under 18, "would not be able to work the hours that they work [as] this was against union policies , because of their age." 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sharon DeLuca also gave testimony as a rebuttal witness for the General Counsel. It is briefly set forth at this point. Adverting to the meeting of November 24, 1973, she testified that no introductions were made on this occasion; and that each person "spoke in turn," so that the "comments" were not "made all at once." She also insisted that check No. 006 (see bottom right of General Counsel's Exhibit 24), "is definitely not [in] my writing," but admitted that the other checks in General Counsel's Exhibit 23 and 24 were in her handwriting. D. Concluding Findings and Discussion 1. As to alleged 8(aXl) violations (a) As to surveillance, admittedly Bertera visited the Diplomat Bar several times where he overheard some of Respondent's employees discussing the Union . But the Diplomat Bar was open to the public , so that he was lawfully on the premises as a customer. The fact that employees also visited said premises and casually talked about the Union did not convert a public bar into a union hall which he was prohibited to enter. Accordingly, I find that, even if he went there to overhear the talk of the employees, he did so as a customer rightfully there, and, consequently, his conduct does not amount to unlawful surveillance. Cf. N.LR.B. v. Davidson Rubber Company, 305 F.2d 166, 169-170 (C.A. 1, 1%2); Salant & Salant, Inc., 92 NLRB 417,446-447. (b) As to discriminatory enforcement of working rules, Respondent forbade some employees whom it knew to be engaged in activity protected by the Act not to use its bulletin board without permission. An example is Lanza- rotto's denying such permission to Carol Meyers. But I find that other employees used said bulletin board in posting personal matters. On this issue I credit the General Counsel's evidence and do not credit Respondent's evidence inconsistent therewith. Hence I find that such denial is discriminatory and that it contravenes the Act. (c) As to stricter enforcement of rules against talking and fraternization on the job, I find that Respondent had a rule against talking and fraternization among employees on the job. But I further find that, prior to the advent of the Union, violations thereof were overlooked or tolerated by Respondent. However, I find that after the Union entered on the scene these rules were enforced. An 'example is Respondent's instructing Marie Lewia to sit by herself when eating meals and not to talk to anybody . But I find that no violation of the Act occurred by reason of said stricter enforcement . This is because an employer who loosely enforces valid working rules is not precluded from later deciding to have such rules obeyed so long as all employees are required to do so. The fact that the Union happened to be organizing such employees does not mean that the employer must disregard working rules in order to facilitate such organizing efforts. (d) On November 24, 1973, Fessia at a meeting told employees if the Union got in (1) employees under 18 would be out of a job, (2) work would be limited to 8 hours a day, and (3) waitresses would no longer be allowed to adjust their work schedules among themselves. Respon- dent's evidence not consonant with this finding is not credited. I further find that these statements constitute threats of reprisals against employees if the Union got in, and that such threats violate the Act. (e) As to interrogation, about October 31, 1973, Bertera asked waitress Pamela Clark and other of Respondent's employees at the Diplomat Bar whether Pamela and such other employees signed a union card. Ordinarily interroga- tion without more does not contravene the Act. But I find that, in view of Respondent's antiunion activities as recited elsewhere herein, such questioning is coercive and there- fore is prohibited by the Act. (f) Other alleged threats of reprisals : At the Diplomat Bar on or about November 3, 1973, Bertera engaged in a conversation with some of Respondent's employees whom he found there. During such talk he told them that if the Union got in (1) the employees would lose insurance benefits, (2) there would not be any kind of a pay increase, (3) employees would be required to declare their tips to the penny, (4) Respondent would cut down the number of working hours, and (5) Bertera thought Lanzarotto would sell the iusiness because Bertera did not think that Lanzarotto could handle the changes . Bertera's denial that he made these remarks is not credited . I find that all but the last statement, i.e., (5), are threats of reprisals interdicted by the Act. But (5) is not an unlawful utterance as it does no more than disclose an intent to sell , rather than close, the Steak House. Proprietors of a business are free to sell it at any time, even though such time coincides with the selection of a union by the employees. (g) As to harassment, I find that Fessia often got after Pamela Clark, but I find, crediting Fessia, that she treated all waitresses working under her in the same fashion. Hence I find no violation of the Act in this conduct of Fessia as it was uniformly followed as to all employees whom she supervised. (h) As to the allegedly broad no-solicitation and no- distribution rule, Respondent's "Employees' Rules and Regulations" (see G.C. Exh. 3) provides in Rule 26: Distributing or posting literature, pamphlets, or other printed matter or photographs, soliciting or collecting funds for any purpose on the premises without permission is forbidden. This is a lawful rule to the extent that it does not discriminate against union or other protected activity. But as worded it prohibits union or protected activity in nonworking areas at any time, thus including nonworking time. Pepsi Cola of Los Angeles, 211 NLRB 870 (1974). Cf. Essex International, Inc., 211 NLRB 749 (1974). But the Act preserves to employees the right to engage in union and other protected activity on the employer's nonworking areas during nonworking hours. Hence this rule in its present form violates the Act. Magnavox Company of Tennessee, 195 NLRB 265 (1972), 414 U.S. 1109 (1974); General Motors Corp., 212 NLRB 133 (1974) and 211 NLRB 986 (1974). (i) About November 3, 1973, Bertera told employee Pamela Clark, as alleged in paragraph 8(e) of the complaint, to quit if she did not like working for Respondent; but I find this is not coercive and, therefore, does not violate the Act. VINCENT'S STEAK HOUSE, INC. 665 2. As to the discharge of Carol Meyers I find that Meyers was discharged on August 5, 1973, for engaging in activities protected by Section 8(a)(1) of the Act, and that she did not quit on that day. It is true that on that day Carol gave a notice to quit, but only because Lanzarotto told her that if Carol was unhappy and remained on the job he would see that she would not stay there and that he did not think she had the right attitude to be a waitress. This is tantamount to a constructive discharge for engaging in protected activities described by her, as I credit her that she did so give a notice as a consequence of Lanzarotto's remarks. But I further find that her notice was to quit after a given length of time. But the very next day Supervisor Fessia sent word to Carol that Carol was not to finish her notice . I find this is an actual discharge for engaging in 8(a)(l) activities ' which she delineated in her testimony set forth above and need not be repeated here . I credit her on this aspect of the case. It is true that Carol testified that Fessia did complain of Carol's conduct in the past. But at no time was Carol disciplined for it. Consequently I find that such conduct was condoned or overlooked, so that Respondent's discharge of her 'long after it occurred is a pretext to disguise the fact that she was terminated , as I find, for engaging in conduct vouchsafed to her by the Act. 3. As to the discharge of Marie Lewia It is my opinion, and I find that Lewia was discharged for engaging in union activity, and that the grounds advanced for her being terminated are a pretext to mask the true reason. In arriving at this ultimate finding I have relied on the entire record and the following subsidiary facts, which I hereby find as facts. a. Lewia was very active and prominent in the movement to organize Respondent's employees. Indeed she was one of the two (Powers being the other) chief proponents of the Union. Of course I am aware of and expressly rule that this does not shield her from being terminated for cause. P.G. Berland Paint City, Inc., 199 NLRB 344 (1972). But dismissing an outstanding propo- nent of a union often tends to discourage other employees from becoming interested in a union . "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort." N.LR.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). This may be evaluated in ascertaining the actual reason motivating or inspiring a layoff, N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965); Maphis Chapman Corporation v. N.LR.B., 368 F.2d 298, 304 (C.A. 4, 1966); N.L.A.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5, 1962). b. Respondent was aware of Lewia's union activity. This is because I find that Manager Bertera more than once observed her engaged in such conduct at the Diplomat Bar. Additionally, I attribute such knowledge to Respondent because it had not too many employees. Under the small plant rule, which I find is operative in this case, it is reasonable to ascribe knowledge of union activity at its premises. Angwell Curtain Company, Inc. v. N.LRB., 192 F.2d 899, 903 (C.A. 7). In fact, Bertera discussed the Union with some employees at the Diplomat Bar on November 3, 1973: This also demonstrates that Respon- dent had knowledge of union activity by its employees. c. Respondent entertained antiunion hostility. I credit the General Counsel's evidence on this issue, and do not credit contradictory evidence, if any, of Respondent. This is illustrated by its other unfair labor practices found herein to constitute infractions of Section 8(a)(1) and (3) of the Act, and by Nomakeo's statement to Meyers that "people have been fired . . . for trying to start.a union." I credit Meyers that Nomakeo , a supervisor, said so. Patently this in itself is inadequate to prove that Lewia was discriminatorily discharged (N.L.R.B. v. Berggren, Inc., 406 F.2d 239,246 (C.A. 8, 1969), cert. denied 396 U.S. 823), but is a factor which may be appraised in determining the true reason prompting or inducing a discharge. d. It is true, and I find, that Lewia once failed to wear her waitress cap while working. Although this constitutes dereliction of duty I find that it did not contribute to her discharge for two reasons. In the first place, at least one other waitress also failed to wear her cap without being disciplined therefor, so that such failure was not considered enough to result in a discharge. And secondly, Respondent overlooked or condoned such failure by Lewia as it did not at any time inform her that she risked discharge therefor. Further, I find that Lewia did enter into an argument with Supervisor Reimann and I called Reimann an "assi- hole." , But I find that this was condoned when manager Bertera told a meeting of employees merely that there should be no swearing and a little more team work. But after the meeting Bertera, who discussed the above Reimann incident with Lewia , gave her no warning or reprimand for it. This amounts to condonation. The sudden revival of this incident several days later in discharging Lewia convinces me, which I find, that she was being discharged for her union activity. In this connection it is of some, but slight, significance that at the time Bertera discharged Lewia he remained silent when she insisted she was being fired for her union activity. In this connection it is desirable to point out as to Lewia and the other employees whom I have found to have been discriminatorily terminated that "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act." Carrie Corporation of Charleston v. N.LRB., 375 F.2d 149, 152 (C.A. 4, 1975). "Nowadays it is usually a case of more subtlety." N.L.R.B. v. Neuhoff Brothers Packers, Inc., 375 F.2d 372, 375 (C.A. 5, 1967). e. Although Bertera gave as one reason for terminating Lewia that Lewia was uncooperative, at no prior time was she reprimanded or disciplined therefor or was she warned that such alleged lack of cooperation exposed her to the risk of being discharged. Such failure on Respondent's part warrants the inference, and I draw it, that lack of cooperation did not lead to Lewia's discharge. f. Finally, it is not essential, in order to find Lewia's discharge discriminatory, that it resulted solely from her union activity. It is sufficient to find such discrimination, notwithstanding that a valid cause may have existed for her termination, if a substantial or motivating ground for her 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge was her union activity. N.LRB. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1); N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 4). And I fmd that a substantial or motivating reason resulting in her dismissal was her union activity, and the said "union activity weighed more heavily in the decision to fire [her] than did dissatisfaction with [her] performance." Whitin Machine Works case, supra, at 885. 4. As to the termination of Robert Powers Upon the entire record and the facts recited in this subsection, which I hereby find, it is my conclusion, and I find, that Powers was constructively discharged by so reducing his hours of employment that he was contrained to leave Respondent's employ; such reduction in hours was made with a discriminatory purpose, i.e., to retaliate against his union activity; and the reason assigned for such reduction in hours is a pretext to dissemble the true cause. a. With Lewia he was the prime proponent of the Union at Respondent's Steak House, and devoted much of his time to espouse it among Respondent's employees. b. Respondent had actual knowledge of his activity on behalf of the Union. In any event I find that the application of the small plant rule, which I fmd appropriate under the circumstances, ascribes such knowledge to the Respondent. In fact he induced supervisor Reimann, and solicited supervisor Nomakeo, to sign a union card. c. Respondent entertained union hostility. d. Respondent's claim that lack of fuel oil caused it to close its Oyster Bar is not credited. This is because the reason given for closing it, "impossibility of heating it," was not established by evidence which I have credited. In fact not a single employee so testified, and the supervisors who did so testify were not corroborated by any impartial testimony, such as that of the supplier of the means to heat the Oyster Bar. e. Respondent knew that Powers needed a full-time job. Hence I find that by reducing his working hours it is reasonable to infer, and I do so, that Powers would be forced to seek full-time employment elsewhere. And I further infer that such hours were cut to induce him as an active proponent , of the Union to leave Respondent's employ. f. Admittedly Powers did not always carry out instruc- tions. And Respondent contends that he was a slow, although good, bartender. But I find, crediting him, that he was never reprimanded for his work or warned that his performance was unsatisfactory. Hence I fmd that any deficiencies he may have displayed in executing his work were either overlooked or condoned. Consequently I find that such deficiencies were not the real reason for the cut in his hours of employment. And I further fmd that discriminatory reasons were the principal ground for such cut. S. Finally, even though a valid cause may have arisen to discharge Powers, I find a substantial or motivating ground for discharging him was his union activity. It is not necessary that the valid reason be the sole cause producing the discharge to fmd that such discharge was discriminato- ry. See authorities cited in subparagraph f under Lewia, supra h. Even if Respondent had economic need to reduce its work force at the time Powers had his hours cut, I find it was discriminatorily motivated in selecting him. Pearson Bros. v. N.LRB., 199 NLRB 1179, enfd. (C.A. 7), 85 LRRM 2187, cert. denied 85 LRRM 2924. This is because of the findings recited above, plus the fact, which I find, that Powers ( 1) was an experienced bartender , indeed so competent that he trained Reimann , his supervisor, how to tend bar, and (2) two bartenders with less seniority and experience were retained in preference to Powers. While seniority was not absolute, disregarding it, absent other considerations requiring it not be followed, warrants the inference (which I draw) that he was discriminated against. N.LRB. v. Cleveland Pressed Products Co., 493 F.2d 1250 (C.A. 6, 1974), in my opinion is distinguishable. And retaining less experienced bartenders also tends to indicate that Powers was discriminated against. Also significant, although not too important, is the fact that Powers received a raise in pay while employed by Respondent. Inefficient employees are not granted such raises as a rule. 5. As to the discharge of Sharon DeLuca On the entire record in this case and the subsidiary facts found below in this subsection I find that Sharon was discharged for signing a union card and engaging in some prounion activity, and that the reasons given her, i.e., "obviously could not handle the job" and refusal to make good on checks of those whom she served who left without paying such checks, are a pretext to disguise the real reason. However, I further find that her termination was in no way induced, motivated, or prompted by the fact that she was interviewed by two N.L.R.B. agents who investi- gated the charge and amended charge in this case. It is true that Sharon was not very active on behalf of the Union, but she was one of the few who openly espoused the Union among Respondent's employees when they patronized the Diplomat Bar. I credit her testimony that she was observed by Supervisor Reimann on one occasion and Manager Bertera on another when she was arguing in favor of the Union to Respondent's employees who happened to be in said Diplomat Bar. This establishes not only her efforts on behalf of the Union but also Respondent's actual knowledge thereof. As found elsewhere herein Respondent displayed anti- union animus. Of course this alone is not an unfair labor practice, and I so rule. But it is an element which I may take into consideration in determining the actual cause for dismissing her. And I also have not disregarded the well established principle that engaging in union activity will not provide an employee immunity from being disciplined for legitimate reasons. Norfolk Tallow Co., 154 NLRB 1052, 1058 (1965). Nevertheless, as indicated herein, I am convinced, and fmd, that Sharon was terminated because of her union activity. It is true, and I find, that on three occasions customers served by her departed from Respondent's restaurant without paying their checks, and that Sharon refused to reimburse Respondent for such unpaid checks . But I fmd that some, but not all, other waitresses who suffered such experiences refused to make good on the unpaid checks of those they served, but they were not discharged for such VINCENT'S STEAK HOUSE, INC. 667 refusal. This disparate treatment of Sharon warrants the inference, and I draw it, that some reason other than refusal to pay such checks lay behind Sharon's discharge, and that such reason was her union activity. Respondent's witnesses testified that they did not discuss with Sharon the question of dismissing her, but that the decision to terminate her was made without giving her a chance to defend herself or to explain her position, or to argue against discharge as the proper discipline. This failure to extend to an employee an opportunity to present a defense or an argument prior to his being discharged warrants the inference, which I draw, that a discriminatory motive generated the discharge. N.L.R.B. v. Murray-Ohio Mfg. Co., 358 F.2d 948, 950 (C.A. 6, 1966); Norfolk Tallow Co., 154 NLRB 1052, 1059 (1965). Then, again, I find that no warning was given to Sharon that her performance exposed her to the risk of discharge. In fact I credit her that prior to the advent of the Union she was praised by Bertera for the excellence of her work and for a while she executed some of the duties of a head cocktail waitress. When there is added to this lack of warning the fact that she was abruptly terminated in the middle of the week and at the height of the Union's campaign it is reasonable to conclude-and I do so-that the true reason for her discharge was her union activity and that the reason given is a pretext. N.LR.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965); N.L.R.B. v. Hawthorn Co., 404 F.2d 1205, 1210 (C.A. 8, 1969); N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1, 1966). "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.LR.B. v. Mont- gomery Ward & Co., 242 F.2d 497, 502 (C.A. 2, 1957). See also Arkansas-Louisiana Gas Co., 142 NLRB 1083, 1085-86 (1963). Notwithstanding that lawful cause existed to discharge Sharon such discharge will be found to be discriminatory if the motivating or substantial reason was her union activity. N.L.R.B. v. Murray-Ohio Mfg. Co., supra at 950. This consequence flows from the rule that such union activity need not be the sole cause for terminating her. I find that the motivating or substantial reason for dismissing Sharon was her union activity even though it may not have been the sole reason. On the other hand I find that Sharon was not released by Respondent because she had been interviewed by Board agents. Hence I find that paragraph 14 of the amended complaint has not been established. This is because no more has been shown by the evidence than that Sharon was so interviewed ; but this is not enough to prove that she was discharged on account of said interview . There is therefore lacking in the record evidence from which it may be inferred that said interview contributed to her being released . Accordingly, I shall recommend that this aspect of the complaint be dismissed. 6. As to the discharge of Pamela Clark It is my opinion, and I find, that Pamela was discharged for her union activity and that the reason assigned for terminating her is a pretext . This ultimate finding is derived from the entire record and the ensuing subsidiary findings which I hereby find as facts. a. Respondent harbored a strong dislike for unions. b. Pamela signed a union card and Respondent had knowledge thereof. I credit her that she so informed Manager Bertera when he asked her in the Diplomat Bar if she had so signed. His denying having propounded such a question is not credited . She also spoke in favor of the Union to some of Respondent's employees at the Diplomat Bar. Bertera was present at least once when she so talked to Respondent's employees. c. Admittedly, she (1) was once absent from work by giving a false reason in obtaining a leave of absence on that occasion, and (2) once refused to set up her station, although she did so some time later . Her supervisor, Fessia, also testified creditably that Pamela also was deficient in some other instances. While I find that these deficiencies constitute lawful cause for discharge and that Fessia properly terminated Pamela therefor on November 4, 1973, I find that such conduct was condoned by Fessia's rehiring Pamela when Pamela called to be given another chance. Pamela was rehired on condition that she "not to ever do it again" and her promise to fulfill said condition. She had off and did not work the next 2 days. Nevertheless, although Pamela did nothing for which she could be or was criticized during said 2 days, Fessia fired her on Pamela's second day off, November 6. It is my opinion, and I find, that since Pamela did nothing after being rehired which subjected her to any kind of discipline, the sudden discharge of her after she had been rehired was motivated by antiunion inducements. Thus the sudden revival of condoned old faults , when no new or current failings required that the old ones be reappraised in the light of the new ones , points to the conclusion, and I find, that that some other cause incited the decision to discharge. I find that said other cause is her prounion conduct, and that discharging her for such conduct contravenes the Act. d. The abruptness of Pamela's discharge, especially since it did not occur concurrently with any reproachful conduct on her part, together with the fact that it was imposed at the height of the Union's organizing campaign, further convinces me, so that I find , that her discharge was stimulated by discriminatory motives. e. And, of course, as more fully elucidated elsewhere herein, it is no defense that both lawful and unlawful considerations entered into the decision to terminate Pamela. Since I find that a substantial or motivating reason for discharging her was her union activity, such discharge may not be justified on the ground that legal cause also played a part in the judgment to dismiss her. 7. Rules of law applicable to all of the above discharges I recognize and have adhered to the rule that I may not question the severity of discipline imposed by Respondent, for the penalty to be meted out for infractions of working requirements may not be reviewed by me. Nevertheless, I have found that each discharge was discriminatory . Also, I have been guided by the principle that the burden of proof is on the General Counsel to establish the allegations of his complaint, that this burden never shifts, that discrediting Respondent's evidence does not amount to affirmative 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence contributing to the General Counsel's sustaining his burden of proof, and that no obligation rests on Respondent to disprove any of the allegations of the complaint. Charles L. Hawkins v. N.LR.B., 358 F.2d 281, 283-284 (C.A. 7, 1966). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dispute burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As Respondent has been found to have engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent unlawfully terminated Carol Meyers, Marie Lewia, Pamela Clark, Robert Powers, and Sharon DeLuca , it will be recommend- ed that Respondent be ordered to offer each immediate and full reinstatement to his or her former position, or, if such is not available, one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privileges of each . It will further be recommended that each be made whole for any loss of earnings suffered by reason of his or her termination. In making whole these five persons Respondent shall pay to each a sum of money equal to that which he or she would have earned as wages from the date he or she was terminated to the date he or she is reinstated or a proper offer of reinstatement is made, as the case may be, less his or her net earnings during such period . Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., .138 NLRB 716 (1962). It will also be recommended that Respondent preserve and , upon reason- able request, make available to the Board or its agents all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate notices. The foregoing discriminatory terminations go "to the very heart of the Act." N.L.R.B. v. Entwhistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); M. R. & R. Trucking Co., 178 NLRB 167, 174 (1969). Accordingly, the Board's Order should be comprehensive enough to prevent further infraction of the Act in any manner; and I shall so recommend. Cf. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587 (1%5). Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By engaging in the following acts Respondent committed unfair labor practices proscribed by Section 8(a)(1) of the Act: (a) discriminatorily enforcing working rules; (b) threatening to take the following reprisals if the Union got in: (1) laying off employees under 18 years of age, (2) work would be limited to 8 hours a day, (3) waitresses would no longer be able to adjust their work schedules among themselves, (4) employees would lose insurance benefits, (5) there would be no pay increase, and (6) employees would be required to declare their tips; (c) interrogating employees whether they signed a union card; and (d) maintaining an unlawful no-solicitation and no- distribution rule. 4. By discriminating in regard to the tenure of employment of Carol Meyers, Marie Lewia, Pamela Clark, Robert Powers, and Sharon DeLuca, thereby discouraging membership in the Union, a labor organization, Respon- dent has engaged in unfair labor practices condemned by Section 8(aX3) and (1) of the Act. 5. The foregoing unfair labor practices affect com- merce within the purview of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.]