Pickle Bill's, Inc.

PICKLE BILL'S, INC 413 Pickle Bill's, Inc and Hotel, Motel, Restaurant Em- ployees and Bartenders Union Local No 10, AFL- CIO Case 8-CA-9453 June 7, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On January 28, 1976, Administrative Law Judge Joel A Harmatz issued the attached Decision in this proceeding Thereafter, General Counsel filed excep- tions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order 2 made between violations of Section 8(a)(4) and other sections of the Act Children's Baptist Home of South- ern California, 215 NLRB 303 (1974) It is questionable whether we remedy the 8(a)(4) violation here or merely provide a remedy for the manner in which that section was violated The Re- spondent is required to reinstate employees it dis- charged in violation of Section 8(a)(4), but those dis- charges were only incidental to its unlawful objective-to prevent employees from invoking the Board's processes That objective, unaffected by the Remedy and Order, is secured for the Respondent by the decision to exercise only partial jurisdiction The Respondent, once having exceeded the limits of our discretionary tolerance, should not be allowed refuge behind standards which are justifiable only as a means of better effectuating the purpose of the Act in protecting the rights of employees I would find that the Respondent violated Section 8(a)(1) and (3) as well as Section 8(a)(4) Similarly, I would assert jurisdiction in the representation case now pending DECISION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Pickle Bill's, Inc, Cleve- land, Ohio, its officers, agents, successors, and as- signs, shall take the action set forth in the Adminis- trative Law Judge's recommended Order MEMBER FANNING, concurring and dissenting in part I agree that the Respondent has violated Section 8(a)(4) of the Act and that the majority properly as- serts jurisdiction to that extent despite our discretion- ary jurisdictional standards However, as I indicated in my dissenting opinion in Robert Scrivener d/b/a A A Electric Co, 177 NLRB 504 (1969), once we have reached beyond our discretionary standards, we should assert our jurisdiction to the fullest Nor am I alone in questioning the validity of the distinction The General Counsel incorrectly states that the Boards decision in Children 's Baptist Home of Southern California 215 NLRB 303 ( 1974), over- ruled Robert Scrivener d/b/a A A Electric Co 177 NLRB 504 (1969) which involved the protection of Board processes as does the present case As the Administrative Law Judge correctly stated , Children's Baptist did not involve the question of protecting Board processes , but stands for the prop- osition that the Board will assert jurisdiction with respect to unfair labor practices committed by an employer while covered by our jurisdictional standards, even though those standards are subsequently modified in other cases which, if applied to this Employer, would remove him from our stan- dards Thus, in Children 's Baptist we carefully limited any reversal of Scri vener to the facts presented in Children s Baptist 2 No exceptions were filed by the Respondent STATEMENT OF THE CASE JOEL A HARMATZ, Administrative Law Judge This case was heard in Cleveland, Ohio, on December 16, 1975, upon a charge filed on September 15, 1975, and a complaint issued on October 30, 1975, alleging that Respondent inde- pendently violated Section 8(a)(1) of the Act by threaten- ing to withdraw employment privileges if employees desig- nated a union as their representative, by requesting employees to publicly express their preferences on union representation, and by coercively interrogating employees, and further violated Section 8(a)(1), (3), and (4) of the Act by discharging employees Irene Minko and Linda Clingan because of their union activities and/or because they gave testimony under the Act In its duly filed answer, Respon- dent denied that any unfair labor practices were commit- ted After close of the hearing, briefs were filed by the General Counsel and the Respondent Upon the entire record in this case, including my obser- vation of the witnesses while testifying and their demeanor, and upon consideration of the posthearing briefs, I hereby make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with a place of busi- ness located in Cleveland, Ohio, from which it is engaged in the operation of a restaurant During the calendar year 1974, a representative period, Respondent derived gross revenues from said retail operation in an amount exceeding $224,000, and received seafood products directly from points outside the State of Ohio, in excess of $500, while 224 NLRB No 53 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchasing liquor valued in excess of $9,000 from the State of Ohio, of which in excess of $4,500 was received by the State of Ohio directly from distilleries located outside the State of Ohio Also in connection with said operation, dur- ing 1974, Respondent contracted for and received the serv- ices of various nationally known entertainers, for which they were paid in excess of $4,000, which entertainers are domiciled in States other than the State of Ohio Respondent contends that the instant complaint should be dismissed on jurisdictional grounds, inasmuch as the foregoing commerce facts fail to meet the Board's self-im- posed jurisdictional standard for retail enterprises There is no dispute, and I find, that Respondent does not meet the Board's discretionary standard relevant to the business op- erations involved here l On the other hand, the volume of annual purchases of goods and services by Respondent, having an interstate origin, is of greater than de mmimis amount, and suffices to evidence an impact upon and an effect on interstate commerce to bring Respondent's opera- tions within the authority conferred by Congress upon the Board under this Act Thus, while the Respondent is within reach of the Act insofar as the Board's statutory authority is concerned, the Board has exercised its discretion pur- suant to Section 10(c) of the Act so as to, in effect, place Respondent within that class of employers over which the Board will not normally assert jurisdiction Nonetheless, the General Counsel argues that since legal jurisdiction is established in this case "Public policy re- quires the Board to assert jurisdiction for the purpose of remedying the Respondent's unlawful interference with the statutory right of all employees freely to resort to and par- ticipate in the Board's processes " Robert Scrivener, d/b/a A A Electric Co, 177 NLRB 504 (1969) 2 On authority of Scrivener, supra, I find in agreement with the General Counsel, that the .,licies of the Act would be effectuated by an assertion of jurisdiction, at least with respect to the allegations that Irene Minko and Linda Clin- gan were discharged for reasons proscribed by Section 8(a)(4) However, an entirely different issue is raised by the claim that jurisdiction ought be asserted with respect to the remaining allegations of independent 8(a)(1) and (3) viola- tions, which on their face are collateral to any impairment of Board processes on the Respondent's part In Scrivener, supra, the Board, while entertaining the 8(a)(4) allegations against an employer who did not fall within jurisdictional standards, declined to assert jurisdic- tion over the "alleged independent and unrelated viola- tions of Section 8(a)(1), (3) and (5) of the Act," electing instead to adhere to established jurisdictional standards with respect to such matters 3 Accordingly, the Board dis- missed all allegations of the complaint on jurisdictional grounds, other than that warranting consideration of whether the employer unlawfully interfered with employee access to Board processes 'See Carolina Supplies & Cement Co 122 NLRB 88 (1958) 2 Enforcement denied on other grounds at 435 F 2d 1296 (C A 8 1971) 3 Member Fanning, dissenting, would have asserted jurisdiction over these allegations as well, stating "Once the Board asserts jurisdiction pub- lic policy requires the fullest exercise thereof in order to protect employees from any conduct which is unlawful under the Act 177 NLRB 504, 505 (1969) Urging a disregard of the limited scope of the Board's holding in that case, the General Counsel cites a subse- quent decision, Children's Baptist Home of Southern Cali- fornia, 215 NLRB 303 (1974), and apparently interprets that case as modifying Scrivener's distinction between 8(a)(4) allegations and other alleged unfair labor practices unrelated to the protection of Board processes As the General Counsel correctly observes, in Children's Home, the Board did in fact refer to the distinction made in Scri- vener as of questionable validity However, in doing so, the entire thrust of the of the Board's position was linked inex- tricably to the factual situation with which it was confront- ed in that case There, unlike Scrivener and indeed the in- stant case, the employer committed the alleged unfair labor practices at a time when the Board's discretionary standard was satisfied by the employer's operations Indeed, pur- suant to an RC petition that had been filed by the employ- ees, the Regional Director had issued a direction of elec- tion, asserting jurisdiction over the employer, prior to the events which led to the filing of charges in that case How- ever, by subsequent decision, the Board overruled prior decisions, announcing that no longer would it assert juris- diction over the type of institution involved in Children's Baptist Home Thus, the question which arose on the facts presented in Children's Baptist Home was whether the Board, having assured employees that their union activities would be protected, and the employees, having acted in reliance on such assurances and engaged in union activi- ties, could properly turn its back on them when victimized by unfair labor practices "by declining to afford them the protections of the Act which the Board led them to believe they enjoyed " 215 NLRB 303 (1974) Answering this ques- tion in the negative, the Board asserted jurisdiction In doing so, it spoke to Scrivener, in the following terms While we agree that in the Scrivener case, the Board distinguished between alleged 8(a)(4) violations and violations of other sections of the Act, we question the validity of that distinction For, once the Board as- sures employees that their union or concerted activi- ties are protected by the Act, we feel it is highly ineq- uitable to the employees who rely on such assurance to their alleged detriment, thereafter to decline to pro- tect them from an employer's alleged retaliatory ac- tions Therefore, to the extent that our decision here conflicts with Scrivener, the latter is reversed [Foot- notes omitted ] Contrary to the General Counsel, Children's Baptist Home, cannot be construed as expanding the limited hold- ing in Scrivener in broad-brushed fashion The former did not involve the question of protecting Board processes, but stands for the proposition that the Board will assert its authority with respect to any and all unfair labor practices committed by an employer while covered by published ju- nsdictional standards, even though those standards are subsequently modified, so as to remove the particular em- ployer from the Board's discretionary jurisdiction Quite plainly, in Children's Baptist Home, a majority of the Board declined to endorse Member Fanning's dissenting position PICKLE BILL'S, INC 415 in Scrivener 4 Nor does the Board articulate an intention, beyond elimination of any inconsistency between the two decisions, in other factual contests, of eliminating Scrivener's distinction between allegations which must be processed to protect Board procedures from unlawful in- cursion and others bearing no relationship to employer ac- cess to its procedures From my reading of Children's Baptist Home, I am per- suaded that the holding therein was tailored to the preser- vation of employee equities, in cases where the Board itself had extended prior assurance to the employees that statu- tory protection was available Accordingly, I find that as Respondent does not fall within the appropriate jurisdictional standard that has been in effect since 1958, Scrivener remains viable prece- dent insofar as it dictates dismissal of the independent 8(a)(1) allegations and the 8 (a)(3) allegations in the instant complaint which do not relate to employee freedom of ac- cess to Board processes, which the Board guarantees as against all employers within its lawful, statutory jurisdic- tion II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer as amended at the hearing admits, and I find that Hotel, Motel, Restaurant Employees and Bartenders Union Local No 10, AFL- CIO, herein referred to as the Union, is now, and has been at all times material, a labor organization within the mean- ing of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Issue With respect to the merits, the sole issue presented in this proceeding is whether Linda Clingan and Irene Minko were discharged because they gave testimony under the Act in Case 8-RC-10045 B Background Pickle Bill's is a restaurant which in the evening is oper- ated as a supper club with live entertainment There are about 25 employees, some 15 of whom are waitresses Clin- gan and Minko, prior to their discharges, were full-time waitresses Minko was the most senior of the full-time wait- resses and Clingan was third in seniority among that group Respondent's president, Jerry Powell, described Minko and Clingan as "two of the best girls that I had " Organizational activities on behalf of the Union began among Respondent's employees in August 1975 5 Clingan made the initial contact with the Union, and she, together with Minko, signed and solicited union authorization cards from fellow employees By August 19, the Union claimed majority support, demanded recognition from Respondent as exclusive bargaining agent, and filed an RC petition in Case 8-RC-10045 4 See Member Fanning's separate concurrence in Children's Baptist Home 215 NLRB 303 (1974) 5 Unless otherwise indicated all dates refer to 1975 Thereafter, on September 6, at a meeting with the wait- resses, Jerry Powell addressed himself to the issue of union representation 6 Powell informed the employees that he had heard talk about their wanting a union, and that he didn't care one way or the other, but went on to indicate that there would be certain changes made if the Union came in which would be disadvantageous to the employees As examples, Powell indicated that employees would be required to pay taxes on the full amount of their income, including tips, that employees would no longer be able to drink on the job, 7 and that waitresses would be required to stay at their stations during the show 8 Following Powell's remarks, a few waitresses expressed their opposition to union representation Thereafter Liz Daley, Respondent's day manager and an alleged supervisor ,9 who at the time was admittedly curious and doubtful that the Union in fact represented a majority, suggested that the employees have a "show of hands" on that question When Carole Pressler, a waitress, indicated that she would have no part of such a vote, Daley suggested a secret ballot At this point, Powell left the room Clmgan then told Daley that it would be unlawful to have such an election since that now was a matter within the responsibility of the NLRB Minko add- ed that since the unit included certain employees, such as busboys and cooks, who were not present at the meeting, no such vote could be held With that, no vote was con- ducted, and the meeting ended C The Events Leading to the Discharges About 6 p in on Monday, September 8, the Union's business agent, John Kalnicki, telephoned Clingan asking that she come to the union hall at 10 o'clock the next morning Later that same evening, Becky Schneider tele- phoned Clingan asking if she would like to work a lun- cheon at Pickle Bill's the following day 10 Clingan told Schneider that she did not know if she would be able to obtain a babysitter,ll but suggested that, should she be 6It was customary for Respondent to hold regular Saturday night meet- ings at which Powell would address employees concerning various problems in the operation of Pickle Bill's There is no evidence that the question of union representation was discussed at any time prior to the September 6 meeting 7 Pursuant to the employment practices existing on September 6, upon conclusion of the first show, at or about 10 p in, the waitresses were free to obtain cock,ails for their own consumption without charge 8 Also as of September 6, waitresses , while a show was in progress, were allowed to take a break v The General Counsel contends, and Respondent denies, that Elizabeth Daley and Becky Schneider are supervisors Schneider did not testify, and Daley, a basically untrustworthy witness, whose testimony was shifting, contradictory, and lacking in candor is discredited insofar as her testimony conflicts with that of Minko and Clingan Based on the credited testimony of the latter I find that Schneider and Daley, Respondent's manager and assistant manager, respectively, were supervisors within the meaning of the Act Employees were informed by Powell that both had the power to hire and fire and that their directions were to be taken as coming from Powell They assigned work paid for deliveries, adjusted customer complaints and considering Powell s frequent absences from the restaurant presumably were often called upon to exercise independent judgment in running the operation 10 Both Clingan and Minko worked regular shifts at Pickle Bill's com- mencing at 5 p in Clingan s regular shift was on Wednesday , Friday Satur- day, and Sunday Minko's normal shifts were on Thursday, Friday, Satur day, and Sunday ii Clingan is a widow, with five small children 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed, Schneider should call her before 9 30 a in on the following day and she would attempt to make arrange- ments so that she could work Schneider did not call the following morning 12 Also on the evening of September 8, Minko received a telephone call from Schneider, asking her to work the lun- cheon In declining to work, Minko advised Schneider that her stepsister was visiting from out-of-town and that she didn't want to work the luncheon Schneider then said okay, just disregard the call 13 That same evening, Clingan telephoned Mmko, concern- ing her conversation with Kalmcki, and asked Minko to accompany her to the union hall the next morning Minko agreed to do so Upon their arrival at the union hall on September 9, Minko and Clingan were informed that there would be a hearing at the NLRB that morning on the pending election petition After both expressed concern as to their attending the heating, they were taken to the office of the Union's lawyer, who offered assurances that no reprisals could be taken against them They then went to the NLRB Regional Office Respondent apparently received no notice that a hearing had been scheduled for September 9 Thus, no manage- ment representative was present After unsuccessful efforts to contact Powell, the hearing was opened, and Minko and Clingan, the only two employees present, were called to testify Their testimony apparently was required by Powell's absence and was limited to matters concerning the propriety of the Board's asserting jurisdiction over Respondent's operations After the hearing, Clingan worked her regularly sched- uled shifts on September 10, 12, and 13 Minko worked her regularly scheduled shifts on September 11, 12, and 13 On Saturday, September 13, in the latter part of their shift, while Chngan and Minko were apparently on a break, both were summoned to meet with Powell at the bar Powell at that time told the girls that, as he had previ- ously indicated, he didn't care whether a union organized Pickle Bill's or not Powell went on to state that he also didn't care that the girls had not worked the luncheon, but that he resented, in his words, according to credited testi- mony, "the fact that you lied about why you couldn't work the luncheon and testified at the labor Board " 14 Powell then told the two girls that they should consider this to be their last night working at Pickle Bill's Accordingly, Clin- gan and Minko obtained their checks, cleaned their sta- tions, and left the premises D Concluding Analysis Respondent does not dispute that Section 8(a)(4), under established Board policy, is sufficiently comprehensive to 12 Schneider, Respondent's manager, did not testify, and the above is based on the entirely believable, uncontradicted testimony of Chngan 13 The foregoing is based on the credited, uncontradicted testimony of Minko 14 The foregoing is based on the credited uncontradicted testimony of Minko and Clingan Indeed their testimony in this respect is confirmed by the prehearing affidavit of Liz Daley assure protection against reprisals to employees who testify on behalf of a union in a representation proceeding f5 Nonetheless, Respondent, relying on the uncorroborated testimony of Jerry Powell, defends on grounds that the dis- charges were not, in the least, motivated by Minko and Clingan's having testified in the representation hearing, but resulted solely from Powell's belief that they had lied in explaining their unwillingness to work the luncheon Thus, the defense is linked critically to the credulity of Powell's explanation of the reason for his actin i against Minko and Clingan, as summed up in the following portion of his testi- mony on direct examination MR LEVEY What action did you take if any with regard to the firing of Irene Minko and Linda Clingan on September 13, 19759 MR POWELL I terminated their employment at Pickle Bill's because I believed that they lied and I had sufficient evidence, in my opinion, that they had lied to me, and I will not put up with lying or cheating, period From observation of his demeanor, and consiaeration of his testimony against the probabilities arising from undis- puted portions of the record, I regarded Powell as an un- trustworthy witness whose uncorroborated explanation for the discharge is discredited 16 Instead, the entire record points not only to the unlikelihood that Powell was im- pelled by a professed intolerance of prevarication, but sup- ports a strong inference that it was the testimony at the preelection hearing which furnished the controlling impe- tus for the discharges in issue here Thus, it is conceded that waitresses were not required to work luncheons of the type that Minko and Clingan de- clined to work on September 9 17 All who testified as to the nature of the obligation of waitresses to work such lun- cheons described it as "voluntary " 18 Indeed, there is no evidence that waitresses were ever informed by any man- agement representative that they were expected to work these luncheons, or required to furnish an excuse for refus- ing to do so From all that appears, Clingan and Minko, and any other similarly situated employee, were privileged to decline to work such luncheons for whatever reason they chose Furthermore, Respondent maintained no policy where- 15 See, e g, Petrolane Alaska Gas Service Inc, 205 NLRB 68, 75 (1973) (Dolan) 16 Powell at no time communicated with Minko or Chngan to examine their respective reasons for not working the September 9 luncheon His sources of information in this respect were limited to Schneider and Daley However, Daley testified that Minko had not lied to her and Schneider was not called as a witness The failure of Daley to substantiate Powell and Respondent s failure to call Schneider hardly enhance Powell's credibility 1 Minko without contradiction, testified that she had previously declined to work about six of such lunches in the past 18 Powell, while agreeing that working the lunches is not mandatory, on examination by his own counsel subsequently clarified his prior testimony by relating "it's expected that if they are needed that they will work there, unless they have a good reason why not Considered against other testimo- ny in the record, this definition seemed argumentative and self-serving, en- tirely too restrictive, and an interpretation not expressive of the ordinary meaning given the term voluntary It is more aptly descriptive of mandatory work condition This aspect of Powell s generally unbelievable testimony impressed me as an effort on his part to lend an exaggerated flavor of seriousness to the falsehoods which he imputes to the dischargees PICKLE BILL'S, INC 417 by employees were on notice that a false explanation for missing work could result in discharge Nor does it appear that any employee had ever been discharged for this reason in the past In any event, there is no evidence that Clingan or Minko falsely explained their refusal to work the luncheon in question here 19 In this connection, Respondent's counsel correctly observes that the absence of such evidence is not necessarily fatal to the defense, that is, were I to find that Powell acted on a belief that they had However, other than Powell's subjective testimony, there is no independent support for such a finding either in logic or the testimony As indicated, the probabilities are to the contrary Were one to accept Powell's own testimony as to the basis for his conclusion that the dischargees had lied, his action in ef- fecting the discharge on that alleged ground is fraught with suspicion Thus, it is entirely possible, from the facts known to Powell, that both Mmko and Clingan could have given honest explanations for their refusal to work For, the notice of hearing in Case 8-RC-10045, dated Septem- ber 2, scheduled the preelection hearing for II a in on September 9, the luncheon was to run from 11 a in to 3 p in From all that Powell knew, it was entirely possible that Clingan's babysitter problem, though not interfering with a brief appearance at the hearing, might well have precluded her from working until 3 p in that day At the same time, Minko could well have considered working the luncheon as a greater inconvenience to her sharing the day with her sister, both in terms of the time and physical ener- gy consumed, than a possibly brief appearance at an NLRB hearing Nevertheless, Powell, who professed to consider a falsehood as a matter of grave concern, 0 and who presumably would regard such an accusation as equal- ly serious, made no effort to explore the possibility that Minko and Clingan may not have lied He at no time sought them out in the interest of obtaining their explana- tion for any apparent inconsistency in their whereabouts 19 Based on the uncontradicted testimony of Minko and Clmgan hereto- fore set forth in the text, it is apparent that neither gave a false explanation for not working the luncheon Contrary to the arguments made in Respondent's brief, no inference to the contrary is to be drawn from the General Counsel's failure to call additional corroborating witnesses where his own testimony not only was uncontradicted but confirmed by the only witness offered by Respondent I also find no merit in the argument that questionable aspects of Kalnickis testimony warrants a conclusion that Minko and Clingan had lied with respect to the luncheon Furthermore, the failure of Minko and Clingan to defend themselves against Powell s charge at the termination interview, that they had lied is not regarded as tanta- mount to an admission on their part that his accusation was true 20 Of interest here is the testimony adduced by the Respondent from Joanne Olsen, a former part-time waitress and the sister of Linda Clingan Apparently while Olsen was employed by Respondent she had developed a pattern of absences from her assigned shift, which she attempted to excuse in each instance on the basis of sickness Powell suspected that Olsen had been lying, and confronted her with his suspicions According to Powell s testimony, after receiving assurances from Olsen that she in fact had been sick on each occasion, he simply warned her that if he ever caught her lying to him she would be discharged This is the only evidence that any employee had been warned as to the possibility of discharge in the event they gave a false explanation to justify an absence More significant, however, and weighing in support of a pretext finding, is the fact that in contrast with Clingan and Minko, Powell did not, on the basis of his suspicions hastily discharge part-time employee Olsen but provided the latter an opportunity to defend herself on September 9 21 Yet, Powell would have me believe that he acted on his suspicion, derived entirely from secondary sources, and in good faith terminated two of his most se- nior and best waitresses, all because he sensed that they had lied to cover a refusal to work a luncheon, which they could decline to work for any reason they wished Based on my general disbelief of Powell, I am persuaded that his assertion that he terminated Clingan and Minko because he believed that they lied is incredible and was seized upon as pretext to cover his resentment that Clingan and Minko had given testimony before the NLRB,22 the true cause of their discharges By terminating Clingan and Minko on such grounds, Respondent violated Section 8(a)(4) and (1) of the Act CONCLUSIONS OF LAW 1 Pickle Bill's, Inc, is, and at all times material has been, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act 2 Hotel, Motel, Restaurant Employees and Bartenders Union Local No 10, AFL-CIO, is, and at all times materi- al has been, a labor organization within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(4) and (1) of the Act by discharging Linda Clmgan and Irene Minko be- cause they gave testimony in a NLRB representation hear- ing 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act To remedy the unlawful discharges of Irene Minko and Linda Clingan, I shall recommend that Respondent be or- dered to offer them immediate reinstatement to their for- mer positions or, if such jobs no longer exist, to substantial- ly equivalent positions, without loss of seniority or other rights and privileges, discharging if necessary any replace- ments, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment of a sum of money equal to the amount that they normally would have earned from the date of discrimination to the date of a bona fide offer of reinstate- ment in accordance with the Board's formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon at the rate of 6 percent per annum, as set 21 In evaluating Powell's credibility, I have not overlooked Minko s un- contradicted testimony that when she first obtained employment at Pickle Bill s Powell, in connection with Minko's effort to purchase a car falsely reported to a loan company that Mmko had been employed for 1 year 2It is noted that after September 9, but before the discharges, Powell admits to a conversation with a representative of the NLRB in which he was informed that, based on the testimony of Clingan and Minko, his restaurant would probably be considered as within the Board s jurisdiction Powell claims that, though he regarded any such testimony as erroneous he was not upset with that but was upset solely with the fact that a hearing had been held without his presence 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I issue the following recommend- ed ORDER23 Respondent Pickle Bill's, Inc, Cleveland, Ohio, its offi- cers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging employees from giving testimony un- der the Act by discharging or in any other manner discrim- inating against them because they have given testimony in a hearing conducted by the National Labor Relations Board (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act 2 Take the following affirmative action which is found necessary to effectuate the purposes and policies of the Act (a) Offer to Linda Chngan and Irene Minko immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges, dismissing if necessary any replacements, and make them whole for any loss of earnings resulting from the discrimi- nation against them, by payment of a sum determined in accordance with the formula set forth in the section of this Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order (c) Post at its place of business in Cleveland, Ohio, cop- ies of the attached notice marked "Appendix " 24 Copies of 23 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 24 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order said notice on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted Re- spondent shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 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 discourage our employees from giving testimony under the National Labor Relations Act by discharging or in any other manner discriminating against them because they have given testimony in a proceeding before the National Labor Relations Board WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist Hotel, Motel, Restaurant Employees and Bartenders Union Local No 10, AFL-CIO, or any other labor organization, to bargain collectively through represen- tatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargain- ing or other mutual aid or protection and to refrain from any and all such activities- WE WILL offer Linda Clingan and Irene Minko im- mediate reinstatement to their former jobs and we will make them whole for any wages lost as a result of our discrimination against them, plus interest at 6 percent per annum PICKLE BILL'S