Poor Richard's Pub

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Poor Richard's Pub - a California Corporation and Culinary Alliance and Bartenders Union Local 498 and Culinary and Bartenders of Santa Barbara and Ventura County, Local 498, affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, Petitioner. Cases 31-CA-4371 and 31-RC-2736 March 26, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 14, 1974, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding.; Thereafter, General Counsel and Respon, dent filed exceptions and supporting briefs and the Charging Party filed cross-exceptions and a supporting brief, Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision' in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge ordered the com- plaint dismissed finding that the Board will not assert jurisdiction in a case where, as here, an employer does not meet the Board's discretionary jurisdictional stan- dards at the time the alleged unfair labor practices oc- curred even though by the time the charge was filed the employer's business had expanded sufficiently to meet that standard. General Counsel and Charging Party except. We conclude that it would effectuate the poli- cies of the Act to assert jurisdiction herein. Accord- ingly, we shall remand the proceeding to the Adminis- trative Law Judge for a decision on the merits. The unfair labor practices are alleged to have oc- curred in January 1974. While Respondent at that time was within the Board's legal jurisdiction, it did not have a sufficient volume of business to meet the Board's discretionary jurisdictional standards. However, the Respondent on February 28, 1974, opened a second restaurant. The charge was filed on April 1, 1974. Re- spondent and Charging Party entered into a Stipulation Agreement for a Consent Election in Case 31-RC-2736 approved by the Regional Director on April 16, 1974, stipulating, inter alia, that the com- The Administrative Law Judge ordered Case 31-RC-2736 severed and referred back to the Regional Director for Region 31. On November 14, 1974, the Board ordered Case 3 1 -RC-2736 transferred to the Board along with Case 31-CA-4371 bined gross volume of business of the two restaurants exceeded the' Board's discretionary jurisdictional standard of $500,000 gross business. The Board, on August 12, 1974,2 found that Respondent is engaged in commerce within the meaning of the Act and that it would effectuate the purposes of the Act to assert jurisdiction. The Administrative Law Judge notes that in Siemons Mailing Services, 122 NLRB 81 (1958), the Board, in revising its jurisdictional standards, stated that it was applying those standards to all future and pending cases. The Administrative Law Judge indicated that based on this guideline language he would have as- serted jurisdiction over the alleged unfair labor prac- tices if it had not been for the Board's decision in Furusato Hawaii Ltd., 192 NLRB 105 (1971). In Furusato the Board issued an advisory opinion stating that it would not assert jurisdiction under the following circumstances: An unfair labor practice charge had been filed against the employer in March 1971 with the Hawaii Employment Relations Board. During the preceding year the employer had enjoyed gross sales of approximately $480,000, insufficient to meet the Board's discretionary jurisdictional standard for retail enterprises. However, the employer asserted that in August 1971 it would open a second and larger restaurant which it expected to produce gross addi- tional revenues of approximately $60,000 per month. The Board, noting that the employer alleged the addi- tional commerce figures in general terms, stated that it would not assert jurisdiction since at both the time the unfair labor practices were alleged to have been com- mitted and the time the charges were filed with the Hawaii Employment Relations Board the operations of the employer did not meet the Board's standard for the assertion of jurisdiction over a retail enterprise. In Furusato, the Board had to decide whether it would preempt the jurisdiction of a state board on the basis of an employer's general assertion that it expected to open a second restaurant several months hence with sufficient volume of business to meet the Board's dis- cretionary jurisdictional standards. Obviously, in that case there was no certainty that the employer would meet the Board's discretionary jurisdictional standards at the indicated time. Expectations frequently go un- realized for a variety of reasons. The situation here is quite different. Within a few weeks of the occurrence of the alleged unfair labor practices Respondent's busi- ness expanded sufficiently to meet the Board's discre- tionary jurisdictional standards. Thus by the time the charge was filed Respondent met the Board's discre- 2 Case 31-RC-2736 (unpublished decision) 1 217 NLRB No. 24 POOR RICHARD'S PUB 103 tionary standards . In these circumstances we have con- cluided that it is appropriate to assert jurisdictiona3 The Administrative Law Judge, because of his deci- sion to dismiss the complaint herein on jurisdictional grounds, did not fully deal with the unfair labor prac- tices alleged . As to some he indicated what his findings would be without fully discussing the reasons for those findings . As to others he was silent . Accordingly we shall- remand this proceeding to the Administrative Law Judge for a full decision on the merits.' Since a number of the findings with respect to Case 31--RC-2736 are related to the findings in Case 31--CA-4371 we shall also remand the representation proceeding to the Administrative Law Judge. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge James T. Rasbury for such further action as is required in light of our decision to assert jurisdiction in the complaint proceeding including the issuance of a deci- sion on the merits of the complaint. - DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge : These con- solidated cases were heard by me in Santa Barbara, Cali- fornia, on September 3, 4, and 5, 1974. The charge was filed by the Union in Case 31-CA-4371 on April 1 , 1974, and served on Respondent on the same date. A complaint based on said charge alleging violations of Section - 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereinafter Act), was dated May 17, 1974, and thereafter served on Re- spondent. An amended complaint dated May 24, 1974, was thereafter served on Respondent.' A stipulation for certification upon consent election, Case 31-RC-2736, was executed by the parties and approved by the Regional Director for Region 31 of the National Labor Relations Board (hereinafter Board) on April 16, 1974. Un- der the direction and supervision of said Regional Director, an election by secret ballot was conducted in the said RC case on May 2, 1974. Upon the conclusion of the election, the tally of ballots furnished all parties in accordance with the Board's Rules and Regulations showed that there were approximately 18 eligible voters and that 35 ballots had been cast, all of which were challenged. On May 9, 1974, the Employer filed timely objections to conduct affecting the results of the elec- tion. The Regional Director caused an investigation of the challenged ballots and the objections, and on June 6, 1974, issued and served on the parties his Report on Objections and Challenges, in which he recommended that the Employer's objections be overruled in their entirety and because the chal- lenged ballots raised substantial and material issues related to the allegations contained in Case 31-CA-4371, he recom- mended that a hearing be held with respect to the voting eligibility of the 35 challenged voters. The Employer filed timely exceptions to the Regional Director 's report and the Board rendered its decision on August 12, 1974. The Board sustained the Regional Director's decision and authorized him to consolidate Case 31-RC-2736 with Case 31-CA-4371 in his discretion. On August 14, 1974, the Re- gional Director issued his Order Consolidating Cases and Notice of Hearing on Challenges. The parties were given ample opportunity at the trial to introduce relevant evidence , examine and cross-examine wit- nesses, and, at the conclusion of the trial, to argue orally if they so desired. Oral argument was waived, but helpful briefs were received from the General Counsel, the Charging Party, and the Respondent. Upon the entire record and from my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 3 N.LR.B. v Guernsey Muskingum Electric Cooperative, Inc., 285 F.2d 8,11 (1960), where the Sixth Circuit stated A given act described in the statute as an unfair labor practice is no less a violation of the statute simply because the Board has announced that it is unable to assert jurisdiction over it at the time. A prohibitory law does not become effective only when there is a danger of a violator being caught. No new unfair labor practice was created here and given retroactive effect against the respondent ' If the act charged against the company was an unfair labor practice at the time of the Board 's hearing it was equally so at the time it was committed. The policy of the Board not to assert jurisdiction over a given situation at a given time does not license a company that comes within the purview of the Act to commit unfair labor practices at will. 4 General Counsel has filed motions seeking to amend the complaint based on an amended charge in Case 31 -CA-4371 and seeking a reopening of the record and a remand for further hearing. Alternatively the General Counsel has filed a motion to reopen the record , consolidate Case 31-CA-4980, and remand for further hearing. Both the proposed amend- ment to the complaint herein and the complaint in Case 31-CA-4980 allege that Respondent has unlawfully refused to reinstate the striking employees following their application for reinstatement on or about October 24, 1974 Respondent opposes the motions except that it does not object to consolida- tion and a hearing limited to the complaint in Case 31-CA-4980 Since we are remanding the proceeding to the Admmistralive Law Judge we shall, and hereby do, remand these motions to him for disposition I THE ISSUES These consolidated cases raise two issues that must be re- solved. First: Will the Board assert jurisdiction over an un- fair labor practice occurring at a time when the Respondent does not meet the Board's announced jurisdictional stan- dards, but under circumstances wherein the Respondent's dollar business volume sufficiently changes to bring it within the Board's announced jurisdictional standards before the expiration of the 10(b) period?2 1 Further minor amendments to the complaint were permitted at the hearing and are reflected in the transcript at pp. 7 through 10 2 The relevant portion of Sec. 10 (b) of the Act reads as follows: Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such persona complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint Provided, That no complaint shall issue based upon any unfair labor Continued 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Second: The second problem involves a resolution -of the voting rights of each of the 35 challenged voters, but this can only be done after a-resolution of the first issue. 11 JURISDICTION OVER THE UNFAIR LABOR PRACTICE COMPLAINT A brief recital of the essential facts, particularly to establish the chronology of events , is necessary before the jurisdictional issue can be resolved.' The Respondent, a California corporation , is engaged in the business of operating a restaurant known as Squire Ri- chard's Pub in Santa Barbara, California . The Respondent corporation is principally owned by Richard Headley and Loretta Headley, husband and wife, although there are a number of other small-interest owners.' Richard Headley actively participated in the management of the Respondent's Santa Barbara restaurant from the day it first opened until the early summer of 1973. Beginning in May of 1973 , Richard Headley spent most of his time supervising the construction of a similar restaurant located in the Woodland Hills area near Los Angeles, California. During Richard Headley's ab- sence from the Santa Barbara restaurant , the only location involved in this dispute, the profit and loss statement took a definite downturn and in October registered a substantial loss. At that time, Loretta Headley assumed an active role in the management of the Santa Barbara restaurant. Shelagh Hill' was employed in May of 1971 and was serving as head waitress in the fall of 1973. Part of Shelagh Hill's duties as head waitress had been the preparation of the weekly work schedules for the waitresses.' However, in the summer of 1973, that system was changed to a straight rota- tion of schedules. Under the rotating system, Shelagh Hill's only responsibility with the scheduling was to make sure it was posted so that all employees could refer to it and in the event a banquet was scheduled , she would make certain that at least one waitress was available to take care of the banquet. In the latter part of December 1973 the manner of scheduling was again changed and Mrs. Headley's daughter , Lori, was given more of the night and weekend shifts (the most lucra- tive from the standpoint of tips). Two of the waitresses, Lizabeth Kaska and Mary K. Giles, received fewer evening practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereofupon the person against -whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge .. . 3 While the facts set forth are only for the purpose of properly focusing on the jurisdictional issue, nevertheless the conclusions reached are related only after a full consideration of all of the testimony and would not have been different had I found it necessary to more fully relate the merits of the unfair labor practice charges. 4 Some of the information set forth has been taken from the March 7, 1974, Decision and Order in Case 31-RC-2678 issued by the Regional Director. There is no indication that a request for review of the Regional Director's decision was ever filed with the Board as provided for in Sec. 102.67 of the Board's Rules and Regulations. 5 Her nickname was Poppet and there are frequent references in the transcript to Poppet Hill. 6 Respondent asserts that Shelagh Hill was a supervisor under the Act If it were necessary to resolve this question, I would not find her to be a supervisor. At most she was only a "leadwoman," paid a few cents higher wage because of her experience and a few extra duties she performed in "leading" the other girls. assignments than had been the custom. On December 20, Shelagh Hill questioned Mrs. Headley regarding the schedule to be worked the week of December 24, because the hours were not evenly distributed among the girls. At that time, Mrs. Headley indicated she was not going to change the schedule. The matter of the schedule was raised again on December 22 with Mrs. Headley, and again she refused to change the schedule . Later that same evening, Shelagh Hill accompanied by Gael Menze and Jan Crampton asked Mr. Headley if he would discuss the matter with them. On this occasion, according to the testimony of Shelagh Hill whom I fully credit, Shelagh pointed out the, inequities of the schedule and how it could be easily changed to provide for an even distribution of the work. Mr. Headley was agreeable to the changes and felt that they would be desirable; however, Mrs. Headley entered the office and abruptly vetoed any changes in the schedule which she had prepared. The meeting came to a quick termination. A meeting of several employees was held at Shelagh Hill's house on the morning of December 24, to discuss their com- plaints with the management . This meeting concluded with a petition being drafted and signed by all employees present (see G.C. Exh. 3) which was to be presented to Mr. Headley. The petition asked to have the schedule changed, an oppor- tunity for the employees to air their grievances with manage- ment and a request that there be no retribution taken against those employees who had participated in the signing of the grievance petition. The petition was presented and according to the credited testimony, there appeared to have been some sympathy for the employees expressed by Mr. Headley, but Mrs. Headley prevented anything from' being changed and prevented Mr. Headley from signing any agreement to refrain from adverse action against the petitioners. On that same day, Shelagh Hill contacted an attorney from the Legal Collective named Warren Adler. Adler suggested that it might be a good idea if all of the employees got together to ascertain if they were interested in forming a collective-bargaining unit. There followed three or four meetings which were held at the homes of Liz Kaska and Shelagh Hill. These employee meetings resulted in the preparation of a petition by the attor- ney, Warren Adler, which requested that the Respondent recognize and bargain with the employees through the Santa Barbara Workers' Union. (See G.C. Exh. 4.) Warren Adler testified that he presented the petition to Mr. and Mrs. Head- ley on the evening of January 6, at which time Mr. Headley indicated that he would have to consult with his attorney. The parties stipualted that an election petition was filed with the Region 31 in Case 31-RC-2660 on the morning of January 8, 1974.' On January 7, Shelagh Hill received a written reprimand for "clocking in before scheduled to work on the following dates: Friday, December 28; Thursday, January 3; and Fri- day, January 4." (See G.C. Exh. 5.) Proof that there had ever been instructions either oral or in writing against clocking in early was lacking. Miss Hill testified that she had never re- ceived a written warning for any reason before and she had I The record is not complete as to the exact disposition of this case, but presumably it was withdrawn at the time the petition in Case 31-RC-2678 was filed. In any event its disposition is not a relevant factor in reaching a decision in this case. POOR RICHARD'S PUB never known of any other employee to receive a written warn- ing. Miss Hill was not scheduled to work on January 8, but when she reported for work on January 9, she was unable to find her timecard and upon checking with Mrs. Headley she was advised that she was being discharged for "failure to do your duties as head waitress." The payroll record stub (G.C. E)h. 6) which Shelagh Hill received at the time of her actual termination on January 9 was dated January 8. This would tend to indicate that the decision had been made to terminate Miss Hill on January 8. On January 7, Gael Menze who had been employed at the restaurant since February of 1972, received a written warning advising that her work habits and general attitude had been found unsatisfactory. Gael Menze had participated in all of the employee meetings and had signed the two petitions (G.C. Exhs. 3 and 4) presented to management. She had also been one of the girls who spoke to Mr. Headley concerning the unfair distributuion of work as scheduled by Mrs. Headley. On January 8, 1974, after Gael Menze had completed her regular luncheon shift at 2:30, she was told by Mrs. Headley that they were going to have to let her go. When she asked why, she was told it was because of her attitude. Gael Menze testified that because of the warning note which she had received the day before that she had been particularly careful with her customers that day. Liz Kaska was also discharged on January 8, 1974, al- legedly because of her refusal to turn over to the management a sum of money which had been found at one of her stations. Liz Kaska testified that after the money had been found by one of the busboys, she informed the busboy that she had served those people and knew the name of the party who had probably lost it. Shelagh Hill and Liz Kaska then attempted to reach a Mr. Atkinson on the telephone but were unsuccess- ful The following day when Mr. Atkinson telephoned the restaurant to inquire about his loss and identified the wait- ress, Mrs. Headley questioned Liz Kaska who readily ac- knowledged that she had the money and that she had tried to reach Mr. Atkinson in order to return it. Thereafter Liz Kaska refused to give the money to Mrs. Headley, but she went home immediately after her shift and returned to the restaurant with the money awaiting Mr. Atkinson so that she might return it personally. Meantime, Mrs. Headley asked Liz Kaska on two or three different occasions to give her the money and became "miffed" when Kaska would not return the money to her. Mrs. Headley finally advised Kaska that she was being discharged for violating a company rule. The posted rules (see G.C. Exh. 8) did not specifically indicate what should be done with articles that were found in the restaurant. I am convinced that while Liz Kaska's action may not have been that of an exemplary employee, nonetheless she had no intentions of misappropriating the money and at all times was making a sincere effort to return it to its rightful owner. In any event, while her conduct may have warranted some criticism, it was not in violation of any specific house rule regarding what should be done with money found in the restaurant. On or about January 9, Shelagh Hill, Gael Menze, and Liz Kaska started picketing the Respondent' s Santa Bar- bara restaurant in what has been referred to as an informa- tional picket line. Gayle Nagy was employed from October 1973 as a waitress by Respondent until she was discharged on January 17, 1974. 105 Miss Nagy had been active in attending the employee meet- ings and had signed both petitions presented to the manage- ment. (See G.C. Exhs. 3 and 4.) On January 17, Miss Nagy received a call from John Gamier, the manager, advising her that she was being discharged because they had received complaints from customers about her attitude and that she had told customers not to cross the picket line. Miss Nagy denied ever having told anyone not to cross the picket line and further indicated that she had not discussed the Union with any customers after the publication of Respondent's no-solicitation rule. (See G.C. Exh. 10.) Judith Weldon was first employed in June of 1972 and worked until January 19, 1974, at which time she received a 2-week suspension. Thereafter, she joined the picket line on the 22nd of January andon either the 24th or 25th of Janu- ary, at a time when she was participating in the picketing, she was handed a paycheck which was marked "Termination." General Counsel argues that she was unlawfully fired. At the hearing, counsel for the Respondent stated that it was their position that Judith Weldon had never been fired. On January 22, a general strike was called and most of the employees who were employed on January 8 at the time Gael Menze, Liz Kaska, and Shelagh Hill were discharged have picketed at one time or another. As has been alluded to earlier, on March 7, 1974, the Regional Director for Region 31, in what appears to be a well-reasoned and thoroughly analyzed decision, from which no appeal to the Board was taken, found that the Respon- dent's gross volume of business was approximately $318,000 annually and thus dismissed the election petition that had been filed in Case 31-RC-3678 by the Charging Party herein-the Culinary Alliance and Bartenders of Santa Bar- bara and Ventura County, Local No. 498. However, the Respondent's second restaurant in Wood- land Hills was opened for business on February 28, 1974, and the Charging Party and Respondent entered into a stipulation for certification upon consent election, executed and ap- proved on April 16, 1974. The election flowing therefrom provides the challenged ballots issue herein. A. Legal Position of the Parties The General Counsel argues that the issues of the represen- tation case and the complaint case are inextricably intert- wined and cannot be separated. He asserts, "It would be nonsense to assert jurisdiction and decide these issues in the representation case, but then decline to decide the same issues in a companion unfair labor practice case." The General Counsel cites Glen Koennecke, d/b/a Sunset Lumber Pro- ducts, 113 NLRB 1172 (1955), and Cadillac Marine & Boat Company, 115 NLRB 107 (1956), in arguing that the Board has asserted its jurisdiction in cases where the employee's volume of business has increased to meet the Board's jurisdic- tional standards after the unfair labor practices occurred. I find neither of these cases sufficiently analogous to the situa- tion we have here to be controlling. The Respondent contends that the decision rendered on March 7, 1974, in Case 31-RC-2678 wherein the Regional Director determined that this Respondent "is not engaged in commerce within the meaning of the Act" is res adjudicate as to the alleged unfair labor practices occurring before that 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision. In support thereof, Respondent cites the case of N.L.R.B. v. Guy F Atkinson Co., et al., 195 F.2d 141 (C.A. 9, 1952). In that case the court refused to enforce a Board order where a violation had been found under circumstances where the Respondent company was guilty of maintaining an illegal closed-shop contract, executed at a time when the closed-shop contract was not unlawful. While I am of the opinion that the Atkinson case is not sufficiently analogous to be controlling, nevertheless it does provide a measure of some legal reasoning. B. Analysis and Conclusions There is substantial legal guidance provided in the Board's decision in the Siemons Mailing Service case, 122 NLRB 81 (1958). There the Board stated that it "will apply the revised jurisdictional standards to all future and pending cases," be- cause to do otherwise "would benefit the party whose actions transgressed the provisions of the Act at the expense of the victim of such actions and of public policy." Based on this guideline language, were it not for a more recent advisory opinion rendered by the Board on facts which I feel stand on all fours with the facts of the instant situation, I would have asserted jurisdiction and would have found the Respondent to have violated Section 8(a)(3) and (1) of the Act in discharg- ing Menze, Kaska, Hill, and Nagy. In an advisory opinion rendered July 15, 1971 ,$ an em- ployer whose gross sales approximated $480,000 annually, with purchases in excess of $50 ,000 directly and indirectly from places outside the State of Hawaii , sought the protection of the National Labor Relations Act when it was charged with unfair labor practices in and under the State of Hawaii labor laws. The employer, a Japanese restaurant in a Honolulu hotel, planned, to open a second restaurant which, on the basis of its projected income, would cause the total gross sales to substantially exceed the $500,000 required gross sales for retail establishments .' In setting forth the facts in the advisory opinion, the Board stated that the unfair labor practice proceeding before the State of Hawaii Employment Relations Board had been filed on March 22, 1971, and that the employers' second restaurant would have been opened in - August 1971 . Thus the Respondent would have attained the required gross dollar volume jurisdictional standard of the Board within the 10(b) period. The advisory opinion stated: On the basis of the above, the Board is of the opinion that: 1. The Employer is engaged in the operation of a Japanese style restaurant in Honolulu, Hawaii. 2. The Board's current standard for the-assertion of 'jurisdiction over retail enterprises within its statutory jurisdiction is an annual gross volume of business of at least $500,000. Carolina Supplies and Cement Co., 122 NLRB 88, 89. The Employer alleges that its current annual gross volume of business is less than $500,000, which does not meet the standard established by the 8 Furusato Hawaii, Ltd, 192 NLRB 105 (1971). 9 See Siemons Mailing Service, supra, for a complete discussion by the Board of its current jurisdictional standards. Board for the assertion of jurisdiction over retail enter- prises. The Employer additionally alleges in general terms that it contemplates the opening of an additional restaurant in August 1971 , which it expects to gross additional revenues of $60 ,000 per month. Accordingly, on the basis of the Employer's allega- tions, the parties are advised that the Board would not assert jurisdiction herein because at the time the unfair labor practices are alleged to have been committed and the charges were filed with the Hawaii Employment Rela- tions Board, the operations of the Employer did not meet the Board's standardfor the assertion of jurisdiction over retail enterprises [Emphasis supplied.] Turning now to the matter before me, at the time the discharges of several employees occurred and on January 22, 1974, when the remaining employees went on strike in sup- port of the unlawful discharges, the Respondent's gross dollar volume of sale was substantially less than the required $500,000 annually for retail establishments . -Under the language of the Furasato Hawaii, Ltd. opinion , it is clear the Board will not take jurisdiction in Case 31 -CA-4371. I shall recommend dismissal of the complaint in that case and its severance from Case 31-RC-2736. III. THE CHALLENGED BALLOTS A resolution of the voting rights of the various challenged ballots in Case 31-RC-2736 would seem to be controlled by the legal principle set forth by the Board in Times Square Stores Corporation, 79 NLRB 361. 10 In the Times Square Stores case, the Board was confronted with the problem of resolving the respective rights of various voters where there was a question of whether or not the strike was an unfair labor practice strike or an economic strike. The Board stated, "Strikes must be presumed to be `economic' (as distinguished from unfair labor practice strikes ) unless they are found by the Board to have been caused by unfair labor practices of the employer in question." The Board went on to say , "The issue then arises: May the Board make its own determination, from the facts presented in a representation case record, as to whether a strike was an unfair labor practice strike, not for the purpose of administering Sections 8 or 10 of the Act, but in order to dispose of the challenges as part of its responsibil- ity under Section 9(c)?"11 The Board then answered 'its question: "In the light of the foregoing, we conclude that an initial finding that a strike was caused by unfair labor prac- tices may be made only in unfair labor practice proceedings. No such proceedings are now before us . . . nor have findings of unfair labor practice on the facts here involved been made in any other proceeding. We therefore have no choice but to find, without further examination of the facts, that the strike was an economic strike, and that the strikers who par- 10 Cited with approval by the Board in two recent cases See Service Employees ' International Union, Local No. 227, AFL-CIO (Children's Rehabilitation Center, Inc), 211 NLRB 982 (1974), and Lane Aviation Corporation, 211 NLRB 824'(1974). 11 Sec 8 of the Act sets forth the various unfair labor practices and Sec. 10 provides for the Board's authority to prevent unfair labor practices Sec 9(c) of the Act relates to the Board's authority and responsibility in handling election petitions. POOR RICHARD'S PUB ticipated therein are economic strikers." While in the Times Square Stores case, the issue had arisen because the General Counsel refused to issue complaint in the unfair labor prac- tice case, it is even more compelling to reach the same result if and when, as in the instant case, the Board is not asserting jurisdiction over the unfair labor practice case. It seems clear 'that a resolution of the voting rights of the various challenged voters in Case 31-RC-2736 must be made on the basis that the strike which began on January 22, 1974, and has continued since that date is, and at all times has been, an economic strike. In interpreting Section 9(c)(3) of the Act,12 the Board has made it clear that both economic strikers and their perma- nent replacements are entitled to vote.l3 The parties stipulated and the Board found in its decision dated August 12, 1974, directing the instant hearing and resolution of challenges, that the following constituted an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All kitchen and diming room employees, including the doorman employed at Squire Richard's Pub No. 1, Santa Barbara, California, ex- cluding office clerical employees, guards and supervisors as defined in the Act. On the basis of the legal principles hereinbefore set forth, I find that the following named employees were employed in the appropriate bargaining unit at the time the strike com- menced on January 22, 1974, and continued to be economic strikers on the day of the election, May 2, 1974: David An- glin, Chris Brady, Tim Brady, Janice Crampton, Mary C. Giles, Susan Globisch, Bill McDonough, Jacob Michel, Su- san Maratti, Sydney Moseley, Kevin Quirk, and Craig Toms. The challenges to their ballots shall be overruled-the ballots opened and counted. As indicated heretofore, the Respondent's counsel stated in open court that it was Respondent's position that Judith Weldon had never been fired. I hold, therefore, that Judith Weldon was an employee in the appropriate bargaining unit and was an economic striker on May 2, and thus entitled to vote in the election.14 The challenge to her ballot shall be overruled and her ballot opened and counted. It appears from the record that employees Sydney Berg, Lorraine Phillips, Karen Longford, and Patricia MacAfee were all employed before the strike began in jobs included within the bargaining unit and were working employees on the date of the election. The challenges to their ballots should be overruled, the ballots opened and counted. It appears from the evidence presented at the hearing that the following named employees were hired as permanent re- placements and were working on May 2, 1974, in jobs in- cluded within the bargaining unit and thus the challenges to their ballots should be overruled, and their ballots opened 12 The relevant portion of Sec. 9(c)(3) of the Act reads as follows: "Em- ployee s engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in any election conducted within 12 months after the commencement of the strike " 13 Site W. Wilton Wood, Inc, 127 NLRB 1675 (1960) 14 Strikers are presumed to have retained their interest in the struck job and the burden is on the party challenging their eligibility to rebut that presumption, with evidence of abandonment. Pacific Tile and Porcelain Company, 137 NLRB 1358 (1962). There was no showing of job abandon- ment on the part of any of the economic strikers. 107 and counted: Carl Perilli-Mietti, Wayne Grooms, Shawn Headley, Juan Sanchez, Debbie Shamal, Christine Smith, Miguel Alcantar Chaidez, Ton Hennessey, James Torgensen, Emmanuel Tsompanos, and Eric Peterson III. - Lori Headley Stefanos is the daughter of the principal owners, Richard and Loretta Headley, and is currently resid- ing in the guest home of her mother and father. Although she is working as a waitress and would normally be within'the bargaining unit, in a small corporate business where the par- ents are the principal stockholders such as is involved here, it is well established that sons and/or daughters are not enti- tled to vote. The challenge to her ballot should be sustained." Voters Gael Menze, Lizabeth Kaska, Shelagh Hill, and Gayle Nagy were discharged by Respondent before the "eco- nomic" strike began on January 22, 1974, and therefore can not be considered economic strikers as of May 2, the date of the election. The challenges to their ballots should be sus- tained. On the basis of the evidence presented, the challenge to the ballot of Russell Castillo should be sustained. Castillo's own testimony indicated that he voluntarily quit his job as a dish- washer on, January 7, 1974. However, according to his tes- timony, on January 17 he talked to Richard Headley and after apoligizing and asking for his job back he was told that it would probably be all right but that he would have to come back to talk to John Gamier. Castillo testified that he talked to Gamier who told him that he might have his job back and to report to work on Saturday, January the 19th. However, later he received a telephone call from Gamier and was told not to come back to work because business was real slow. While there is some doubt concerning the precise status of Castillo, by his own testimony he quit before the strike and never actually returned to work again. It is my recommenda- tion that the challenge to his ballot be sustained and the ballot not be counted. Of the 35 challenged ballots, there remains for resolution only the ballot of Mary Nolan. In my opinion the record is inadequate at this time to make a determination on Mary Nolan and I would recommend that her challenged ballot not be opened, but laid aside and only considered if it becomes determinative of the final election results. The record reflects that Mary Nolan performed some general housekeeping du- ties in the restaurant on a part-time basis, but in my opinion there is insufficient evidence to adequately determine whether or not she has a community of interest with the other em- ployees in the bargaining unit as stipulated to by the parties. In the event that her ballot should become determinative, I would recommend that a more complete investigation be conducted by the Regional Office to determine the exact number of hours worked, amount and method of being paid, her complete duties, the relationship that her housekeeping duties might have to the waitresses and the kitchen em- ployees, and any other relevant factors necessary to resolve the status of her ballot. 15 See Sec. 2(3) of the Act, also Foam Rubber City #2 of Florida, Inc, d/b/a Scandia, 167 NLRB 623 (1967) 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. 'At the time the alleged unfair labor practices are alleged to have occurred the Respondent did not do a sufficient annual dollar volume of business to meet the Board's stan- dards for assertion of jurisdiction. 2. Lack of jurisdiction in Case 31-CA-4371 precludes a resolution of the issues raised therein. 3. Case 31-RC-2736 shall be and is severed from the unfair labor practice case. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ,ORDER 16 1. The complaint in Case 31 -CA-4371 is hereby dismissed in its entirety. 2. Case 31-RC-2736 is severed from Case 31-CA-4371 and referred back to the Regional Director of Region 31 for disposition of-the challenged ballots in the manner set forth herein, unless exceptions hereto are filed with the Board in accordance with Section 102.69 of the Board's Rules and Regulations, Series S, as amended. 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objection thereto shall be deemed waived for all purposes