Panchito's

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hambre Hombre Enterprises, Inc., d/b/a Panchito's and Bartenders and Culinary Workers Union, Local 595, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Cases 20-CA-9844 and 20-RC-12524 February 10, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 8, 1975, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, the Acting General Counsel, hereafter referred to as General Counsel, filed exceptions and a brief, and Respondent filed an answering brief. 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,' and conclusions2 of the Administrative Law Judge to the extent consistent herewith. 1. The General Counsel excepted to the Adminis- trative Law Judge's finding that "a preponderance of the evidence does not support the allegation that [employee Michael] Hull has been discharged for unlawful considerations." We agree with the General Counsel, and find that Hull was unlawfully dis- charged in violation of Section 8(a)(3) of the Act. On January 4, 1975, Hull, a bartender, was present at a union meeting of Respondent's employees where he initiated and raised the loudest objections to Supervisor Patricia O'Neil's presence at that meeting. On January 6, Hull was told by O'Neil "to refrain from talking about the Union in any way or manner." Hull replied that he had been telling another bartend- er about the January 4 meeting, and that he had a right to talk about the meeting under the Federal labor act. This occurred within the hour before the end of Hull's shift, and in the presence of two customers and the other bartender . Hull was dis- charged later that day after O'Neil told Respondent's i The General Counsel 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 credibili- ty 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 The General Counsel excepts to the Administrative Law Judge's findings that employee Robert W. Haws was not unlawfully discharged. Although we acknowledge that that conclusion is not wholly free from doubt, we agree with the Administrative Law Judge, for the reasons stated by 228 NLRB No. 18 part owner and vice president, Arthur G. Lopez, about her confrontation with Hull. At the representa- tion case hearing, in Case 20-RC-1 2524, on January 13, Lopez admitted that it was partly because of O'Neil's run-in with Hull over his union activities that Hull was terminated.3 The circumstances of Hull's discharge leave us no choice but to conclude that it was for unlawful reasons. Most telling is its timing, 2 days after the Union's organizational meeting at which Hull object- ed to the presence of Supervisor O'Neil and the same day that he was reprimanded by O'Neil for talking about the Union. In any event, Lopez' admission that Hull's discharge was partially motivated by this discussion with O'Neil is sufficient in and of itself to find a violation.4 In this connection, we find no basis for the Administrative Law Judge's apparent conclu- sion that Hull's activity of talking about the Union during working time on Respondent's premises and in the presence of customers was not protected, citing N. L. R. B. v. May Department Stores Company, 154 F.2d 533,537 (C.A. 8, 1946). The Administrative Law Judge's reliance on this case is misplaced, as there is no evidence that Respondent had a no-solicitation rule in effect. The existence of such a rule was the foundation on which the decisions of the Board and court in May Department Stores turned. Consequent- ly, we find that Michael Hull II was discharged in violation of Section 8(a)(3) of the Act. Accordingly, to remedy that violation we shall order that Respon- dent offer him immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent one, and make him whole for any loss of earnings that he may have suffered by reason of the discrimination practiced against him by payment to him, less interim earnings, of backpay from the date of his discharge until the date of offer of reinstatement to him, with interest at 6 percent per annum. 2. The Administrative Law Judge concluded that the Respondent's unlawful surveillance was sufficient to set the election aside but not "serious and substantial" enough to warrant the issuance of a bargaining order. Our additional finding that Re- spondent violated Section 8(a)(3) of the Act by its discharge of employee Hull compels a different conclusion, however. him, that the General Counsel failed to establish by a preponderance of the evidence that Haws was discnminatonly terminated from Respondent's employment. 3 The fact that the above-stated evidence is taken from the transcript of the representation case hearing makes it no less a part of the record in this consolidated proceeding, especially since that transcript was admitted as an exhibit herein. 4 "[A ]n employer violates the Act if he discharges an employee because of the employee's union membership or activities, even if another contempora- neous reason for discharge exists." Colonial Lincoln Mercury Sales, Inc., 197 NLRB 54,58 (1972). PANCHITO'S 137 In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court stated the general princi- ple applicable to the issuance of bargaining orders. The Court affirmed the Board's authority to issue a bargaining order if the employer's unfair labor practices are of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be held. The Court specifical- ly approved the appropriateness of a bargaining order even "in less extraordinary cases marked by less pervasive practices which nonetheless still have a tendency to undermine majority strength and impede the election processes." 5 We find that the latter test has been met in this case. Hull's discharge came close on the heels of the union meeting of January 4 and almost immediately after O'Neil's admonition to Hull to stop his union activities-a warning which was openly made to him in front of another employee, as well as customers. The precipitous nature of Hull's discharge must have brought his termination to the attention of the other employees, even if he himself did not do so. In these circumstances, Hull's discharge had a far-reaching effect, the meaning of which could not have been lost on them: support the Union and lose your job. Furthermore, the coercive impact of his discharge was later reinforced and increased in the eyes of the employees by Respondent's blatant surveillance of a subsequent union meeting. That event made the employees only too aware of the fact that their employer, armed with the knowledge of their union activities gleaned from such unlawful conduct, was then in a position to accord to them the same fate as befell Hull. Consequently, we find that the gravity of Respondent's unlawful conduct, which touched most if not all the employees, cannot be dispelled by our usual remedy for such offenses so as to render likely a reliable election reflecting the free choice of Respon- dent's employees. We have, therefore, examined the record to ascertain whether the Union represented a majority of the employees in the unit sought to represent. Twenty-seven employees signed union authoriza- tion cards. All of these cards were signed between December 13 and 19, 1974, and are in evidence. Even if the one which did not include Respondent's name is excluded, the remainder represent more than a majority of the 44 employees in the unit. We conclude, in light of our findings above, that the authorization cards executed by a majority of the 5 Gissel, supra at 614. 6 Trading Port, Inc, 219 NLRB 298 (1975). 7 Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). In that case, a majority of this Board, for reasons fully explicated there, concluded that a demand for recognition is employees in the unit in favor of the Union are a more accurate measure of the free and uncoerced desire on the issue of representation than a second election would be. Accordingly, we conclude that the Respondent's bargaining obligation arose as of January 6, 1975, the date it embarked, through Hull's discharge, on its course of unlawful conduct,6 and we shall order it presently to bargain with the Union, upon request, concerning any term and condition of employment, or change thereof, as to which it would have been required to bargain had the Union become the bargaining representative on that date.? 3. We have concluded that the unfair practices found herein have rendered the holding of a fair election unlikely and in fact undermined the Union's majority. Therefore, we shall set aside the election in Case 20-RC-12524 and order that the petition therein be dismissed, and, as set forth above, we shall issue a collective-bargaining order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hambre Hombre Enterprises, Inc., d/b/a Panchito's, Walnut Creek, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance of employees' activities on behalf of any labor organization. (b) Discharging any employee because of his union activity or support or concerted activity protected by the Act. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request, recognize and bargain with the Bartenders and Culinary Workers Union, Local 595, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below, and if an under- standing is reached, upon request, embody such understanding in a signed agreement: All employees of the Employer at its Walnut Creek, California, location, excluding office cleri- cal employees, confidential employees, guards, and supervisors as defined in the Act. not a factor entering into the determination of whether a bargaining order should issue, and, further, that the absence of a finding of an 8(a)(5) violation does not preclude the issuance of such an order from the time an employer embarks on its unlawful course of conduct. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to Michael Hull II immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits he may have suffered by reason of the discrimination against him from January 6, 1975, until the date of said offer with reimbursement to be computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) 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. (d) Post at its Walnut Creek, California, place of business copies of the attached notice marked "Ap- pendix."s Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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. (e) Notify the Regional Director for Region 20, 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, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. IT IS FURTHER ORDERED that the election in Case 20-RC-12524 be, and the same hereby is, set aside, and that the petition in Case 20-RC-12524 be dismissed. MEMBER FANNING, concurring in part: I agree with the majority's decision in this case, including the finding that employee Hull was dis- charged in violation of Section 8(a)(3) and that a bargaining order is necessary in view of the Employ- er's unfair labor practices. However, in the absence of evidence that the Union demanded and the Employer refused to bargain, I cannot agree that the Respondent had a "bargaining obligation" on January 6, 1975. Nor is this my understanding of the Board's decision in Trading Port Inc., supra, upon which the majority relies. In that case, unlike the instant case, a violation of Section 8(a)(5) was found and therefore it was proper to hold that the Respondent had unlawfully refused to bargain at a prior date. My views with respect to N. L. N.L.R.B. v. Gissel Packing Co., supra, as that decision relates to the requirement that the Board find a violation of Section 8(a)(5) in an appropriate case are set forth in the dissenting opinion in Elm Hill Meats of Owensboro, Inc., 213 NLRB 874 (1974), and will not be repeated here. Where, as here, no violation of Section 8(a)(5) or (1) has been, or can be, found with respect to Respondent's failure to accord recognition to the Union, I do not believe we are empowered to order bargaining as to past unilateral decisions and actions. See my concurring opinion in Beasley Ener- gy, Inc., d/b/a Peaker Run Coal Company, Ohio Division # 1, 228 NLRB 93 (1977). 8 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 The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a represen- tative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective-bargaining agreement which im- poses a lawful requirement that employees become union members. WE WILL NOT engage in surveillance of your activities on behalf of Bartenders and Culinary Workers Union, Local 595, affiliated with Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, or on behalf of any other labor organization. WE WILL NOT discharge any employee because he engaged in union or concerted activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees with respect to any of their rights set forth above which are guaranteed by the National Labor Relations Act. PANCHITO'S WE WILL offer to Michael Hull II immediate and full reinstatement to his former job or, if it no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and WE WILL pay him for any loss of pay he may have suffered because we discharged him. WE WILL, upon request, recognize and bargain collectively with Bartenders and Culinary Work- ers Union, Local 595, affiliated with Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive collec- tive-bargaining representative of our employees in the following appropriate unit, and if an under- standing is reached, upon request, embody such understanding in a signed agreement: All our employees at our Walnut Creek, California, location, excluding office clerical employees, confidential employees, guards, and supervisors as defined in the Act. HAMBRE HOMBRE ENTERPRISES, INC., D/B/A PANCHITO'S DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: These cases were heard by me at San Francisco, California, on July 22, 1975. The complaint and notice of hearing in Case 20-CA-9844 was issued on April 16, 1975, by the Acting Regional Director for Region 20 of the National Labor Relations Board, on the basis of an unfair labor practice charge filed on January 8, 1975, as successively amended on January 20, February 3, and April 9 and 17, 1975, and alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. The said Acting Regional Director has also consolidated for hearing with these unfair labor practice allegations the issues presented by the Union's objections to election by a Supplemental Decision; Order Consolidating Cases; and Notice of Hearing in Case 20-RC-12524, dated April 21, 1975. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross- examine witnesses, and to file briefs. Based upon the entire record, upon the briefs submitted on behalf of the General Counsel and Respondent-Employer, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION 139 Hambre Hombre Enterprises, Inc., d/b/a Panchito's, herein called Respondent, is a California corporation with a principal place of business located in Walnut Creek, California, where it has engaged in the operation of a retail bar and restaurant since October 15, 1974.i The parties stipulated that projected on a 12-month period beginning on October 15, Respondent, in the course and conduct of its business operations , will receive gross revenues in excess of $500,000 and in its answer to complaint, Respondent did not deny the allegation that projected on a 12-month period beginning October 15, Respondent, in the course and conduct of its business operations, will purchase and receive goods and materials valued in excess of $5,000 from companies which, in turn, purchased these goods and materials directly from points outside the State of Califor- nia. On the basis of these facts, the parties stipulated, and I find, that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Bartenders and Culinary Workers Union, Local 595, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Whether Patricia O'Neil is a supervisor within the meaning of Section 2(11) of the Act and, if so, whether Respondent violated Section 8(a)(1) of the Act by virtue of her attendance at an employee meeting conducted by the Union on January 4, 1975. 2. Whether Respondent, through part owner and Vice President Arthur G. Lopez and part owner and President Donald L. Yakel, engaged in surveillance of employees' activities on behalf of the Union on January 18, 1975, and, if so, thereby violated Section 8(a)(1) of the Act. 3. Whether Respondent discharged Robert W. Haws and Michael Hull II because of their membership in or activities on behalf of the Union, or because they engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, thereby violating Section 8(a)(3) and (1) of the Act. 4. Whether the above-listed conduct, if it occurred, constituted conduct sufficient to warrant setting aside the election conducted in Case 20-RC-12524 on February 26, 1975. 5. Whether the unfair labor practices committed by Respondent are so serious and substantial in character and effect as to warrant entry of a remedial order requiring Respondent to recognize and bargain with the Union. I Unless otherwise stated, all dates occurred in 1974 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. MATERIAL FACTS A. Discharge of Robert W. Haws Robert W. Haws was one of the original employees employed by Respondent when it opened for business on October 15. As a cook, Haws reported to Jesus Jimenez, who was characterized during the representation hearing in Case 20-RC-12524 as the "Number One Cook" by Arthur G. Lopez, part owner and vice president of Respondent.2 In December Haws received a wage increase from Lopez who, it is undisputed, said that he "had future plans" for Haws and was giving him the raise because Haws had been doing a better job. However, admitted Haws, Lopez also said during this conversation, "that there was a few things I could pick up on." Jimenez testified that he had been aware that Haws had received a raise and that to his knowledge none of the other cooks had received a raise at that time. It was during that same month, December, that Haws became active on behalf of the Union and in support of its campaign to organize Respondent's employees, he signed an authorization card and, between December 13 and 19, distributed and collected similar cards executed by 26 of Respondent's employees. Haws testified that, at the time that he had been engaging in this activity, all of the management people had been present at the restaurant and bar "most of the time" and he further testified that Patricia O'Neil and Mary Lopez, who were found to be supervisors in the Decision and Direction of Election issued on February 5, 1975, in Case 20-RC-12524, were "standing on the other side" of the cook's line when he passed out "a couple of cards." However, he did not testify, nor did any other witness, that O'Neil and Mary Lopez had actually observed what he was doing or even that they had been looking in his direction at the time he had distributed these cards. In fact, the only testimony concerning the circum- stances in which a particular card had been distributed was that of waitress Julie Woollett, who had signed a card on December 16 and who testified that at that time Haws had cautioned her "to keep it very quiet, not to tell Patty or Mr. Lopez, or Mr. Yakel, or Mary Lopez; or . . . he didn't trust the bartenders too well either at that time, especially Steve." 3 Beyond this, there is no evidence that any official of Respondent ever spoke to Haws or to any other employee concerning the cards or the Union's organizing drive. Haws testified that he had had a cold through the holidays and that on Sunday, December 29, Lopez had 2 Respondent did not deny the allegation in the complaint that Lopez was a supervisor within the meaning of Sec. 2(11) of the Act and an agent of Respondent within the meaning of Sec. 2(13) of the Act. 3 The "Mr. Yakel" referred to is Donald L. Yakel, whose status was alleged in the complaint to be that of part owner and president of Respondent. This was not denied nor were the further allegations that Yakel was a supervisor within the meaning of Sec. 2(11) and an agent of Respondent within the meaning of Sec. 2(13) of the Act. 4 No doctor's excuse was produced at the hearing. 5 On the evening of January 2, 1975, cocktail waitress Tracy Welch, on leave of absence following hospitalization, went to the restaurant where she agreed with Venette Feldstein and Woollett that Lopez, whom the three respected highly, should be advised of the organizing campaign prior to a meeting which the Union had scheduled for January 4, 1975, described more fully infra. Partly by telephone and partly by conversation during an early morning visit to Lopez' home, the three women described the events of the released him early from work because he had become ill. He was unable to recall if he worked the following day, Monday, December 30. He was scheduled to work on New Year's Eve, but he testified that during the morning, possibly "around noon," he telephoned Respondent and told O'Neil that he was sick and did not intend to report at 4 p.m. when his shift was scheduled to commence. O'Neil, testified Haws, said that "anybody that called in sick would be fired over the holidays" and, after Haws again asserted that he was ill, suggested that Haws call Jimenez or Lopez, neither of whom was apparently available at that moment. Haws testified that he responded to this suggestion by telling O'Neil "I was in a pay phone and I wasn't going to be running back and forth to the pay phone to call her, and that was the end of it." On the following afternoon when Haws reported for work, Lopez immediately said that Haws was fired and despite Haws' pleas that he had been ill, that he had been unaware of the rule that Respondent had intended to discharge anyone who had been ill over the holidays, and that he had a doctor's excuse, Lopez said that he did not want to discuss the matter.4 Lopez testified that he had had "no knowledge of any union activity in the restaurant" at the time of the events of December 31 and that it had not been until the morning of January 3, 1975, that he had learned of activity on behalf of the Union at Respondent. 5 However, on cross-examina- tion, Lopez acknowledged that in late November he and Yakel had been visited by Union President and Organizer Walter P. Holler and while Lopez did not recall Holler's precise words, he testified that it had been obvious that Holler desired to represent Respondent's employees. It is also worthy of note that the petition in Case 20-RC-12524 was filed on December 23 and that by covering letter dated December 24, the then Regional Director for Region 20 transmitted a copy of that petition to Respondent. Lopez testified that he could not recall when he had received this letter and interruption by his counsel precluded a meaning- ful answer to questioning on cross-examination as to whether it was not probable that an item mailed from San Francisco on December 24 to Walnut Creek, approximate- ly 30 miles away, would not have been received on some date prior to January 3, 1975. Lopez testified that there had been a multitude of reasons for his decision to terminate Haws, but that the absence of New Year's Eve had constituted "the last straw."s With regard to the latter, he testified that O'Neil had reported to him that Haws had telephoned at 4 p.m. on December 31, had said that he did not intend to report because he had a campaign to Lopez, including the prominent role which Haws had been playing. Woollett described Lopez' reaction to what he was being told as one of disbelief and surprise and she testified that during the course of the conversation, Lopez had asked such questions as how the campaign had gotten started, how many people were involved and "if it was really a big thing," and whether Woollett was going to the Union's meeting and how she felt about it - to the latter, Woollett testified that she had replied that she was going to the meeting because she wanted to know what was going on. She also testified that Lopez did not try to discourage her from going nor did he ask her to report back to him on what had taken place. Welch testified that Lopez had said that he was very surprised, that he had not heard any rumors about the Union's campaign and that this had been the first time that it had been brought to his attention. 6 In a preheanng affidavit, Lopez stated: "Haws' discharge was based primarily on his failure to report to work on New Year's Eve. Haws was the only employee who called in sick on New Year's Eve." PANCHITO'S 141 hangover from drinking the previous night, and had rejected her suggestion that he discuss the matter with Jimenez. O'Neil testified that when Haws called Haws had said that he was hung over due to the amount of drinking that he had done at a party on the previous night, and that, when she had pointed out that she would have to report this to Lopez and suggested that Haws speak with Jimenez,? Haws had retorted that he did not want "to talk to anybody about it" and had hung up. During this conversation, testified O'Neil, Haws had not said where he was calling from. Haws denied specifically having told O'Neil that he had gotten drunk the night before or that he was hung over and sick from being drunk and could not report. He did not, however, deny having told Woollett on the night of December 30 that he did not intend to report for work as scheduled on New Year's Eve because "I want to party like everyone else." As stated above, Lopez mentioned a number of addition- al reasons for arriving at the decision to terminate Haws. Thus, he testified that Haws had reported late for work on three occasions in December because of incidents involving drinking; that Haws had been drinking on the job and had traded steaks from the kitchen for shots of tequila from the bar; that Haws' work had begun to disintegrate in Decem- ber leading to complaints from both Jimenez and other cooks; that Haws had reported for work with alcohol on his breath and that it had been on his breath while working; and that Haws had expressed the opinion that he was seriously considering getting fired so that he could collect unemployment compensation which would be as remunera- tive as working for Respondent. Turning first to the contention regarding Haws' three tardinesses in December, Lopez testified that on one of these occasions, December 9, he personally inquired of Haws about the matter and it is undenied that at that time Haws said that he had been late because he had encoun- tered difficulty getting bail money from his father-in-law. Lopez testified that of the other two tardinesses one was reported to him by O'Neil and the other by Jimenez. Both, testified Lopez, involved situations where he had been told that Haws had been tardy because he had been in jail for "drunk driving or fighting or something like that" and had experienced trouble getting bailed out on time for work. However, Lopez did not testify concerning the time that he had received these reports and while both O'Neil and Jimenez testified concerning incidents similar to those described by Lopez, there was no testimony that they had reported these matters to Lopez prior to the time that Haws was discharged. Moreover, while O'Neil testified that she had reported by telephone to Jimenez that Haws had not 7 While O'Neil testified that, consistent with normal practice, Lopez had posted a notice instructing employees that they would be terminated if they failed to report on New Year's Eve, this was not corroborated by Lopez, who testified only that he had told O'Neil that any employee who did not report as scheduled would be fired . Beyond this, Lopez testified that employees knew that they were supposed to meet their schedule commitments and that he did not know if "an additional message " had been delivered to that effect prior to New Year's Eve. O'Neil also testified that signs had been put up regarding the scheduling commitments for other holidays, but no such signs were produced at the hearing and when she was pressed concerning the content of the sign allegedly posted before Christmas, she became somewhat evasive, testifying that she did not know when the sign had been posted or what it said. In come to work on an early December Sunday when, according to O'Neil, Haws finally arrived with the excuse that he had been unable to obtain bail money earlier from his father-in-law, Jimenez testified that on both occasions in December, prior to New Year's Eve, when Haws had been late, the latter had followed the standard procedure and had contacted Jimenez to report that he would be late.8 Jimenez also testified that on one of these occasions, which he believed to be different from the one to which O'Neil made reference, Haws called from jail to say that he would be late as he was waiting for bail. Haws testified that there had been one or two occasions in December, prior to New Year's Eve, when he had been absent at the beginning of his shift, but he unequivocally denied both being absent because he had been drunk and being absent because he had been in jail for being drunk. He also flatly denied being in jail in December for being drunk. Yet, when he was asked if on December 9 he had reported to Respondent that he had been arrested for being drunk and was waiting for his father-in-law to bail him out, Haws answered: "No, not that I recall; I don't. No." Similarly, when asked if, to excuse his tardiness on one occasion, he had reported to Jimenez that he had been late because of having to obtain bail to get out of jail, Haws replied: "Not that I remember, no." Lopez admitted that he had not personally observed Haws drinking while on duty and so far as the record discloses, Lopez did not observe Haws trading steaks for shots of tequila. Further, while he testified that he had been aware of this activity at the time that he had discharged Haws, Lopez did not testify how, when, or from whom he had gained this knowledge. Only two witnesses testified concerning the subject. Woollett testified that she had heard that bartenders had been sending drinks to Haws and that she thought that she had seen it going on at one time. However, she did not explain what she meant by the latter comment and she admitted that at no point had she ever delivered drinks to Haws. Beyond this, she did not testify to having discussed this subject with Lopez prior to Haws' discharge. Linda Bresciani did testify that on some of the Monday nights when she had been serving as a cocktail waitress, one of the bartenders had given her shots of tequila for Haws in return for receiving something to eat from Haws. Yet, Bresciani testified to only one occasion when Haws actually requested that a drink be brought to him, she made no mention of Haws' offering to provide anyone with a steak in return for that drink, and she made no mention of discussing these incidents with Lopez or any addition, her recollection of where the sign had been purportedly posted was not altogether clear: "I believe it was on the bulletin board. " 8 Lopez testified that, during a meeting with employees when the restaurant first opened, he had instructed them to contact their department head in the event that they would be absent. Jimenez testified that he had instructed the cooks to contact him personally in such situations. By contrast, Haws testified that he had never been aware of such a rule and that, when they were unable to report as scheduled, employees simply called Respondent and spoke with whomever happened to answer the phone. However, Haws also testified : "Sometimes we talked to Jess. Whoever answered the phone they would put us on. Sometimes he was in the kitchen and he was busy so we talked to anybody else. I don 't know what other people did." 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other representative of Respondent prior to Haws' termina- tion. Similarly, while Jimenez testified that there had been several occasions when Haws had reported to work with alcohol on his breath and that he had twice brought the matter to Haws' attention, Jimenez did not testify that he had ever discussed this matter with Lopez or with any other official of Respondent prior to Haws' termination. In a like vein, while there was uncontroverted testimony by both O'Neil and Jimenez regarding comments by Haws to the effect that he had made or could make more money on "unemployment" than at Respondent, neither O'Neil nor Jimenez testified that Haws had ever spoken of a plan to engineer his own discharge so that he could receive such funds. Nor did either of them testify to reporting Haws' comments to Lopez prior to the termination of Haws. A somewhat different situation is presented with respect to the assertion that Haws' performance declined in December, leading Jimenez and cooks to complain about Haws. While it is true that Respondent did not identify the cooks who purportedly had complained about Haws and did not produce any cooks to corroborate Lopez' testimony in this regard, it is also true that Haws did not deny the statement in Lopez' prehearing affidavit, brought out on cross-examination of Lopez, that in December Lopez had reprimanded Haws for "smoking on the job while he [sic ] supposed to be working and his failure to pull his weight at work." In fact, Jimenez did testify that in late November or early December he had complained to Lopez that other cooks had threatened to quit because Haws was not doing his share of the work and "stepped out more often than anyone else, to take a smoke break or drink a cup of coffee." In addition, though not known to Lopez prior to the discharge so far as the record discloses, Jimenez had been disturbed because Haws was not performing assign- ments and was not following the recipes properly. Two independent events were raised by the General Counsel in connection with Haws' termination. First, when Haws filed for unemployment benefits with the California Department of Employment, he had been told that his application for benefits was being contested by Respon- dent. He explained that he had been ill and later he received the benefits, being told by an agent of the State that as he had had a legitimate excuse, he could not be fired. The second matter involved Guy A. Grivet who, like Haws, did not work on December 31, although scheduled to do so. Grivet testified that he had gone to Tahoe for the Christmas to pre-New Year's Eve period, but at his mother's urging had telephoned his grandmother at 10 a.m. on December 31, requesting that she telephone Lopez to say that he would not be back as scheduled for New Year's Eve, because the weather appeared inclement. Later, Grivet was told by his grandmother that she had called Lopez and told him that she did not think that Grivet would return in time for his shift, since the weather was bad and Grivet's mother did not want him driving back to Walnut Creek that day. Lopez testified that he had received the call from Grivet's grandmother on the morning of December 31, but that this had not been the first call that he had received from her, for 2 days earlier she had called and said that she did not believe that Grivet "was going to be able to return because of being snowed in or snowbound, some type of problem in Lake Tahoe ...." She also stated during the conversation, according to Lopez, that she wanted Lopez to be aware of the situation so that he could have an alternate to take Grivet's place should he be unable to return and she promised to call later to advise Lopez of her grandson's status. Thus, when she again called on December 31 to say that Grivet would, in fact, not be able to return, Lopez testified, Respondent did not experience a problem as it had arranged for Grivet's shift to be covered. Grivet was then called as a witness on rebuttal and he testified that he had not directed his grandmother to make a call prior to December 31 concerning his inability to return from Tahoe, that December 31 was the only time that he had ever asked his grandmother to make such a call, that he had no reason to believe that she had called at any other time, and that she had never told him that she had made such a call prior to December 31. Then, for the first time, Grivet testified that his grandmother had told him that when she had telephoned Lopez on December 31 Lopez had said that he knew some people who had just returned from Tahoe and that the roads were "clear and open." Grivet's grandmother was never called as a witness and the failure to do so went unexplained. It is , however, manifest that the road from Tahoe was "clear and open" for Grivet testified that, notwithstanding the representation that he induced his grandmother to make to Lopez, he did return to Walnut Creek on December 31, arriving approximately 1 hour before his shift was scheduled to commence. Yet, he did not report for work and on the following day, when he arrived at work and O'Neil asked if he had had "a nice time being snowed in in Tahoe," he replied that he did and said nothing about the fact that he had actually returned to Walnut Creek the prior afternoon. B. The January 4, 1975, Imperial Room Meeting On January 4, 1975, the Union conducted a meeting of Respondent's employees at the Imperial Room , a restau- rant on California Boulevard in Walnut Creek. The meeting was attended by hostess Patricia O'Neil, who was found to be a supervisor in the Decision and Direction of Election issued in Case 20-RC-12524, on February 5, 1975. The basis for this conclusion was that the record in the representation proceeding disclosed that O'Neil was one of the individuals who employees were informed would be in charge in the absence of the manager, that O'Neil received $1 an hour more than most of the other hostesses, and that O'Neil was one of the individuals whom employees could notify if they were sick or had to leave work when the manager was not present at the restaurant. There is no dispute concerning the events which trans- pired during the course of the meeting, which was conducted primarily by Union Organizer and President Holler, who reviewed the benefits provided by the Union and answered employees' questions as they arose during the course of his presentation. Eventually there came a point when some of the employees, particularly bartender Mi- chael Hull, questioned the fact that O'Neil was in atten- dance. Hull and O'Neil fell to arguing with the former asserting that her presence had the effect of intimidating employees who were present because she was a representa- PANCHITO'S 143 tive of management and with O'Neil responding that she was at the meeting of her own volition so that she could fmd out about the Union for her own personal reasons. Ultimately, Holler became involved in the dispute and he testified: I pointed out that it has been our philosophy in the past that unless they are an owner or a member of the family that owns the establishment if they actively engage in the industry, we would bring them into the bargaining unit. I then pointed out that it was a little too late at that time to even exclude Ms. O'Neil from the meeting for the simple reason that she had sat there for a period of time to be able to observe and hear the questions; and if any damage had already been done it was over with, and that by ordering her to leave the meeting it wouldn't accomplish any more purpose. Holler promised the employees that representatives of management would not attend future meetings and permit- ted O'Neil to remain until the conclusion of the meeting. O'Neil denied that she had been instructed to attend the meeting by Respondent and she denied discussing what had taken place at the meeting with Lopez, Mary Lopez, Yakel, or Jimenez. She testified that she had learned of the meeting on the preceding day when another hostess, she was not asked to name which hostess, mentioned the December 31 letter that the Union had sent to those employees who had signed authorization cards inviting them to attend the meeting. When O'Neil said that she had not received a letter, the other hostess suggested that this may have been the result of the fact that O'Neil worked lunches and the organizing had been done in the evenings when O'Neil was not at the restaurant. Then, testified O'Neil, the other waitress asked her to attend9 and on the following afternoon she went to the Imperial Room where she encountered Linda Bresciani and waitress Kathy Dale and the three of them then went to the meeting. C. Discharge of Michael Hull II Hull did not appear as a witness at the hearing.10 As noted above, the record in this matter does show that he had challenged O'Neil's attendance at the Imperial Room on January 4, 1975. The record in the preelection hearing in Case 20-RC-12524 discloses that Hull, a bartender, was terminated 2 days after the Imperial Room meeting and Lopez, when he appeared as a witness in that matter, agreed that the termination was partly related to a "discussion" 9 Holler testified that he had been informed , although not asked by whom, that O'Neil had been asked by "somebody" to attend the meeting. 10 At the commencement of the hearing, counsel for the Union moved for a partial continuance or a severance with respect to Hull on the ground that he would not return from Europe until "sometime in September " Certain of the comments made in connection with the motion also indicated that it was not altogether clear that Hull even intended to return at all. Counsel for the General Counsel, whose responsibility it was to prosecute this matter, stated that he did not join in the motion and counsel for Respondent opposed it on the grounds that such a motion had not been made earlier, Respondent had prepared its case, and witnesses had already taken time off to appear with the result that, if the motion were granted , they would again have to take time off that Hull had had with O'Neil and which the latter had reported to Lopez. Hull also appeared as a witness at the representation case hearing in which he testified that he had commenced working as a bartender at Respondent on October 15 and that on January 6, 1975, at the bar, O'Neil had directed him "to refrain from talking about the Union in any way or manner," to which he had replied that he had been telling the other bartender what had occurred at the Imperial Room meeting and that he had a right to talk about the Union. Hull also testified that during this confrontation with O'Neil, Steve, the other bartender, and two customers had been present. D. The January 18, 1975, Imperial Room Meeting By letter dated January 14, 1975, the Union notified the employees who had signed authorization cards that there would be another meeting at noon of the following Saturday at the Imperial Room. It is undisputed that on that Saturday Lopez and Yakel parked across the street from the Imperial Room in Lopez' Jaguar at the time that the meeting was scheduled to be conducted.1' Curvet, arriving for the meeting, observed them and reported their presence to Holler, who walked from the Imperial Room to the Jaguar and admonished Yakel and Lopez for conduct that might be unlawful and constitute an unfair labor practice. Neither Lopez nor Yakel denied Holler's testimo- ny that "Lopez stated that we weren't getting too good of a turnout." Holler testified that he then returned to the Imperial Room and commenced the meeting, but, as the attendance was not as great as he expected, he again went to the entrance of the Imperial Room where he observed that Lopez and Yakel were still parked across the street. Lopez testified that his reason for being parked across the street from the Imperial Room that Saturday was that he had heard, he could not recall the source, that a meeting was to be held and while he assumed that it was the Union that was going to conduct the meeting, he was unsure as to who could attend. In this regard, Lopez testified at one point "I was the day-to-day management and not only an owner but an employee management part of the restau- rant," and at another point "if it was going to be a meeting discussing Panchito's and I was running the restaurant and I was involved with it . . . that maybe I should be there and discuss the thing with the union representatives and the employees." Thus, Lopez contacted Yakel, who drove to Respondent and, following a brief discussion of the matter, the two of them drove to the Imperial Room. Both Lopez and Yakel testified that they then sat in the Jaguar discussing whether Lopez should attend the meeting until to appear after Hull testified. Counsel for the Union conceded that he had not earlier made such a motion, in effect, pursuant to Board's Rules and Regulations, Series 8, as amended, Secs. 102.16 and 102.24 In these circumstances, I denied the motion "the administration ofjustice requires an end to litigation at some point." Franks Flower Express, 219 NLRB 149, 150 (1975). 11 In an effort to demonstrate the restricted visibility of the Imperial Room entrance from where Lopez and Yakel were parked, Respondent introduced three photographs . While it would appear to be difficult to discern images between the two points at issue, it should be borne in mind that the photographs are reduced in scale 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holler approached them. They testified that they saw no employees enter or leave the Imperial Room and that they were there for between 15 and 30 minutes. Lopez testified that after Holler had spoken with them that they had "left a short time afterward." Both Lopez and Yakel testified that after leaving the Imperial Room they had returned to Respondent. Both denied that they returned thereafter that day to the Imperial Room. However, Holler testified that approxi- mately 15 minutes after he had observed the Jaguar for the second time, he again went to the door of the Imperial Room and this time he observed a silver Lincoln Continen- tal parked "down the street." After ascertaining from the employees that Yakel owned such a vehicle, Holler walked down the street far enough to identify Lopez and Yakel sitting in the Continental and then returned to the meeting. Yakel admitted owning a silver Mark IV, but both he and Lopez testified that Yakel had driven his 1974 Pontiac station wagon that day. V. ANALYSIS A. Issue I O'Neil was found to be a supervisor within the meaning of Section 2(11) of the Act in the Decision and Direction of Election in Case 20-RC-12524, from which review was not requested. As Case 20-RC-12524 is one of the cases involved in this matter, I find that the issue has already been litigated and that the only party seeking to continue contesting the matter is Respondent, who had that opportu- nity during the preelection hearing. Accordingly, and as it appears from an independent review of the record that O'Neil is a supervisor, albeit one of not a very high level, I find that O'Neil is a supervisor within the meaning of Section 2(11) of the Act. Pittsburgh Plate Glass Company v. N.LR.B., 313 U.S. 146 (1941). Contrary, however, to the implication in the brief filed on behalf of the General Counsel, the matter is not ended by finding that O'Neil is a supervisor. The Board recently stated in Fraley & Schilling, Inc., 211 NLRB 422 (1974), that there had been no violation of the Act by virtue of a supervisor's presence and participation in a union organiza- tional meeting where that supervisor "attended the meeting solely on his own initiative and with the knowledge and consent of Respondent's other employees." (Id. at 402, fn. 2.) Similarly, in the instant matter , there was seemingly no challenge to O'Neil's testimony that she had been invited to attend the meeting by another hostess . Indeed, Holler acknowledged that O'Neil had been invited to the meeting by "somebody," and Bresciani corroborated O'Neil's testimony that the two of them, accompanied by Kathy Dale, had entered the Imperial Room together. Not until the passage of a substantial time during the meeting did Hull raise the issue of whether or not O'Neil should attend. And, notwithstanding the opposition to her continued attendance by some of the employees once the matter was raised, Holler did permit her to remain. Thus, as was the situation in Fraley & Schilling, supra, O'Neil had attended the meeting "with the knowledge and consent of Respon- dent's other employees." Also as was true in Fraley & Schilling supra, O'Neil, so far as the record discloses, attended the meeting "solely on [her] own initiative:' I have considered the possible argument that an inference might be drawn from the presence of Lopez and Yakel at the Union's next meeting that O'Neil had been dispatched in the same manner and for the same purpose on January 4, 1975. However, O'Neil denied speaking with Lopez, Yakel, or any other represen- tative of Respondent either prior to or after the union meeting which she attended. Rather, she had been invited to attend by another employee and she testified that she had attended because of her own personal interest. In these circumstances, I do not feel that the presence of Lopez and Yakel at the next meeting, of itself, supports the inference that O'Neil had been attending the January 4, 1975, meeting as a spy for Respondent. Rather, I find that the evidence is not sufficient to controvert O'Neil's assertion that she had attended the meeting, as was true in Fraley & Schilling, to satisfy her own interest. A final point should be made regarding this matter. At the time that O'Neil attended this meeting, her status as a supervisor had not been established - in fact the preelec- tion hearing did not take place until 9 days after the meeting which O'Neil had attended. Although a supervisor, she was not particularly one of high level and her classifica- tion, like that of other employees invited to the Union's meetings, was that of hostess. It is, accordingly, not extraordinary for one in her position to believe that she could attend such a meeting. Indeed, Holler admitted that it was the Union's practice to seek representation of supervisors, save those who are owners or related to owners. Consequently, from the Union's point of view O'Neil was a prospective member. In Western Sample Book and Printing Co ., Inc., 209 NLRB 384 (1974), the Board stated at 385, fn. 1: "... an employer is not responsible for the antiunion conduct of supervisors who are included in the bargaining unit by stipulation of the parties in the absence of evidence that the employer encouraged, authorized, or certified the supervisors' activities ...." I do not view the distinction between actual and prospective membership as being particularly meaningful in this context and, accordingly, Respondent would not be responsible for the attendance of a prospective supervisor-member of the Union, absent evidence, not present here, of specific direction or ratifica- tion of O'Neil's attendance. The fact that employees may have felt inhibited in their questioning due to O'Neil's attendance would not affect this result, for the test to be applied is an objective one. See Munro Enterprises, Inc., 210 NLRB 403 (1974). In any event, Haws admitted that questions had been asked by "[a] lot of people. Almost everybody." Consequently, I do not credit the generalized testimony that O'Neil's presence inhibited the participation of employees at that meeting. Therefore, I find that Respondent did not violate Section 8(a)(1) of the Act by virtue of Patricia O'Neil's attendance at the employee meeting conducted by the Union on January 4,1975. B. Issue 2 Contrasting the perfectly reasonable explanation for O'Neil's presence at the first Imperial Room meeting was PANCHITO'S 145 the patently absurd explanation advanced by Lopez and Yakel to explain their presence at the Imperial Room during the Union's midmonth meeting. Neither Lopez nor Yakel appeared so naive as to truly wonder whether a labor organization would desire the presence of owners at an employee organizing meeting. In reciting his explanation for his presence, Lopez displayed a tongue-in-check man- ner which demonstrated even his own disbelief of what he was saying. Indeed, so pressed to establish a reasonable basis for his asserted quandary was Lopez that he based it upon two different reasons - testifying at one point that he was "an employee management part of the restaurant" and at another point that as the restaurant which he ran was being discussed, possibly his participation would be desir- able. If he had truly believed either version, why did he not also appear when the January 4, 1975, meeting had been conducted? Certainly he was aware that it was to take place; the early morning visit of Welch, Woollett, and Feldstein had served to supply him with that information.12 Surely had he harbored doubt regarding the need for him to attend such a meeting, it would have arisen at that point - not later. Moreover, if the two owners were concerned about the desirability of their attendance, why did they not simply telephone the Union or go into the Imperial Room to ask if their presence was desired? Why sit discussing the matter for between 15 and 30 minutes when the answer lay but a few lanes and a traffic island away? Why, also, did they not explain their purported problem when reproached by Holler for their presence? The answer to these questions is that neither Lopez nor Yakel had any doubts regarding their status as participants at the meeting. They were there to ascertain how many employees were attending - a point which, it is undenied, Lopez raised when Holler came across the street to talk to them. This observation also refutes any contention that distance and traffic island vegetation obscured their pres- ence. Moreover, Grivet certainly had no problem discern- ing their presence. Even considering the reduced scale in the photographs, it is possible to discern Lopez' vehicle from the picture taken from the Imperial Room entryway. Holler impressed me as a forthright individual whose honesty was demonstrated by his testimony in connection with O'Neil's attendance at the earlier meeting. The fact that some of that testimony did not advance the Union's interests must have been obvious to him. Yet, he told the truth. Conversely, neither Lopez nor Yakel, when testifying about their presence near the Imperial Room, impressed me as being candid and their explanation is simply not believable. Thus, I credit Holler's testimony that Lopez and Yakel first parked across the street in Lopez' Jaguar and then returned in Yakel's Mark IV to continue their 12 Having listened to two witnesses testify concerning the early morning visit to Lopez and having even objected to and questioned the purpose of this testimony, leading to a degree of curtailment of the testimony concerning what had taken place that morning, counsel for the General Counsel then followed his motion to conform the pleadings to the proofwith a motion to amend the complaint to allege Lopez' questions that morning as violations of Sec. 8(a)(1) of the Act I denied the motion. In Retail Store Employees Union Local No. 400, Retail Clerks International Association, AFL-CIO [C W.F. Corporation] v. N L.R.B., 458 F.2d 792, 793 (C.A.D.C., 1972), the court cautioned that all parties should be notified as soon as possible where the General Counsel intended to amend a complaint. Here, this admonition could have been heeded at a number of earlier stages observation of the Imperial Room entrance. They both admitted being aware that a union meeting with Respon- dent's employees was to take place there and Lopez' comment to Holler concerning the sparsity of employee attendance disclosed their true objective in being present. This, coupled with the absence of a valid purpose for their presence, established that they were present to determine the number and identities of the employees who were attending the meeting. Therefore, I find that Respondent, through Lopez and Yakel, did engage in surveillance of employees' activities on behalf of the Union on January 18, 1975, and that Respondent thereby violated Section 8(a)(1) of the Act. C. Issue 3 If one matter became quickly evident as the testimony unfolded in this proceeding, it was that feelings appear to have become intense respecting the discharge of Haws. Thus, every witness who testified concerning the matter - Grivet, Lopez, Jimenez, O'Neil, and Haws, himself - appeared to be embellishing his or her testimony in an effort to preserve and improve upon the position which the individual witness supported. Nonetheless, several points do emerge as a guide to resolution of the matter. It is clear that Haws was the leading proponent in the Union's campaign, that his discharge occurred within a short time after he had solicited a substantial number of employees' signatures on authorization cards, that his discharge occurred within a month of having received a wage increase which Lopez had coupled with a compliment and an implied promise of a promotion, and that, like Haws, Grivet had been absent on New Year's Eve, but that, unlike Haws, Grivet had not been terminated for being absent. These factors are indicia tending to show that Haws' termination was occasioned by unlawful considera- tions. However, there are other factors establishing a contrary conclusion. At no point prior to Haws' discharge is there evidence that Respondent was aware of his activities on behalf of the Union. Yet, employer knowledge of union activities is the "threshold question" where a violation of Section 8(a)(3) is alleged, since it is a "fundamental prerequisite" to estab- lishing a discriminatory motivation. Bayliner Marine Corpo- ration, 215 NLRB 12 (1974). See also Salant Corporation, d/b/a Carrizo Manufacturing Co., Inc., 214 NLRB 171 (1974); Eastman Kodak Company, et al., 194 NLRB 220 (1971). True, Haws did testify that management personnel had been present when he had distributed the cards and, further, that Mary Lopez and O'Neil had been standing on the other side of the cook's line when he had distributed "a in this proceeding - when either of the two witnesses were testifying, when Respondent rested, during rebuttal. To wait until virtually the last possible moment in the hearing to do so had the effect of precluding full development, particularly in light of the General Counsel's opposition, of circumstances surrounding the surprised Lopez' questioning in response to the information being volunteered to him. Yet, it is clear that development of those circumstances is essential to a determination of whether Lopez' questioning of these three volunteers could be found coercive and, accordingly, a violation of Sec. 8(ax1) of the Act . See, e.g., Flint Provision Co., 219 NLRB 523 (1975). Thus, having again considered the motion , I reaffirm my ruling in this regard. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD couple of cards." However, Haws did not testify that he had been observed by any of Respondent's representatives when he had been circulating the cards nor did he testify that Mary Lopez or O'Neil had ever been looking in his direction when he had passed out the cards on the cook's line. In fact, it was not shown that it would have been possible for Haws to have been seen from the other side of the cook's line. It is most unlikely that Haws' activities were observed by any official of Respondent. Certainly, Welch's and Wool- lett's descriptions of Lopez' reaction to their early morning disclosure of the employees' activities militate against a finding that Lopez had been aware of that activity on an earlier date. Obviously, Lopez was aware, from Holler's November visit and from the representation petition transmitted by the Regional Office,13 that the Union was interested in representing Respondent's employees, but there is no evidence that he knew that this desire was reciprocated by the employees , themselves. Beyond this, only one employee testified to the specific circumstances under which Haws had solicited signatures on cards and Haws did not deny her testimony that she had been cautioned "to keep it quiet, not to tell Patty or Mr. Lopez, or Mr. Yakel, or Mary Lopez ...: ' Considering the apparently covert manner in which this conversation indicates that Haws distributed the cards, it is difficult to infer that Respondent would possess knowledge of his activities . See American Book Division, Litton Educational Publishing Inc., 214 NLRB 413 (1974). In a parallel vein, there is no evidence of any conduct by Respondent, or by any of its officials, prior to Haws' discharge that would serve as a basis for inferring that Respondent must have become aware that its employees, particularly Haws, were engaged in organizing activities. There had been no interrogation of, or threats directed toward, employees. There had not even been an appeal by Respondent for the employees to refrain from supporting the Union. In this posture, it would be difficult to conclude that Respondent must have possessed knowledge of the employees' activities, let alone those of Haws. Moreover, though Respondent displayed an overabundance of nosi- ness on January 18, 1975, regarding the Union's campaign, at no point has any evidence been produced which would support a finding that Respondent was hostile toward or would be motivated to discharge employees because they were supporters of the Union. Turning to Respondent's defense, it is clear that despite the numerous acts of misconduct attributed to Haws, there is no evidence that Lopez possessed knowledge of many of these matters prior to terminating Haws. Thus, there is no evidence that Lopez had been aware, if it happened, of Haws receiving drinks from the bar while on duty, of Haws reporting for work with alcohol on his breath, or of Haws' comments comparing Respondent's wages with the amount that he could receive as unemployment compensation. Further, there is no evidence that Haws traded steaks for shots of tequila or that Haws had threatened to engineer his 13 Due to counsel for Respondent's interference with cross -exanunahon of Lopez on this point, interference with overtones of suggesting an answer to the witness, cross-examination on the point could not be pursued as effectively as it might otherwise have been conducted. In view of this fact, and inasmuch as the distance involved is short and the Postal Service made a own termination so that he could obtain unemployment compensation, were that possible. I am, of course, aware of the doctrine that where false or unsupported reasons are advanced as a defense, an inference is warranted that there was another reason for the action taken and, as it was not set forth, that it was an unlawful reason. Shattuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466,470 (C.A. 9, 1966). However, this doctrine is not a per se rule applicable without regard to whether or not there is other evidence that supports a conclusion that a dis- charge was unlawful. See G. W. Davis Corporation, 202 NLRB 204, 205 (1973). In the instant case there is no evidence that Respondent had been aware of Haws' activities prior to his termination and there is no evidence that Respondent harbored hostility toward the Union's supporters sufficient to support the conclusion that it would be motivated to discharge employees because of that support. Beyond these matters, there is evidence supporting many elements of Respondent's defense, so that it is not utterly baseless. Considering first Respondent's "last straw" event, the New Year's Eve absence, it is evident from Haws' own testimony that he had been scheduled to work, had called O'Neil to report that he did not intend to work, and had declined to speak with Jimenez. While the General Counsel attacks the existence of the rule that employees who did not report that evening would be discharged, Haws admitted that during the telephone conversation, O'Neil had told him that "anybody that called in sick would be fired over the holidays." Thus, while I do not credit O'Neil's attempt to improve Respondent's position by testifying to a posted rule, testimony contradicted by Lopez, it is clear that Respondent did have such a rule, for I find it unlikely that O'Neil, having received an unexpected call from Haws, would have the presence of mind to quickly dream up a defense for Respondent. Indeed, had she done so, she could not be certain that it would be needed, for Haws might have become concerned by what she said and reported. Accord- ingly, I am convinced that there was a rule that employees who did not report on New Year's Eve would be dis- charged, absent a bona fide excuse. I am also convinced that there was a rule requiring an employee to speak with his immediate supervisor if he did not intend to report as scheduled. The only denial of Respondent's contention in this regard was Haws' general- ized testimony that employees spoke with whomever answered the phone when they called in to report that they would be absent. However, as noted in footnote 8, supra, when pressed for specific details, Haws admitted that he had no knowledge of what other employees did when they made such calls and that when he had called, whoever had answered the phone had put Jimenez on unless the latter was busy, in which event someone else would take the message. Accordingly, I am satisfied that this rule existed and was understood by Haws. As he admitted refusing to speak with Jimenez when this course was suggested by number of pronouncements regarding the currency of deliveries during the past holiday season, I feel an inference is warranted that Respondent had received the copy of the petition transmitted by the Regional Office on December 24, prior to December 31 PANCHITO'S O'Neil, I find that Haws also violated this rule on New Year's Eve. True, Grivet did not report that night, but Lopez' testimony regarding the two calls by Grivet's grandmother stands not effectively rebutted . Particularly unimpressive was Gnvet's convenient testimony on rebuttal, after having had the benefit of Lopez' testimony on the point, that his grandmother had reported to him the substance of her conversation with Lopez and that the latter had questioned Grivet's inability to return from Tahoe on the basis of some friends' report. Actually, the condition of the roads was never the basis for Grivet's excuse - it was the sentiments of Grivet's mother that had ostensibly led to the call , for she did not want Grivet driving, assertedly, in view of the weather. More important, at no point was the failure to call Grivet's grandmother as a witness explained. This was a crucial matter and warrants the drawing of an adverse inference in light of its significance . Finally, it is also worth noting that Grivet, while he then did return to Walnut Creek in time to report for his shift, concealed his return on December 31 and, when questioned by O'Neil, led her to believe that he had remained in Tahoe, consistent with the story which he had persuaded his grandmother to relate to Lopez. I do not credit Grivet and I find that his grandmoth- er did make two telephone calls to Lopez as the latter recited when testifying. Accordingly, Grivet's absence on New Year's Eve is not comparable to that of Haws. I also find that O'Neil testified truthfully when she said that during the telephone conversation, Haws had said that he was too hung over to report for work. Haws did not deny telling Woollett on December 30 that he did not intend to report the following night so that he could "party like everyone else." While there is no evidence that Woollett had relayed these remarks to Respondent prior to Haws' termination, the event is consistent with O'Neil 's testimony that Haws had said that his absence was connected with drinking. Of course, O'Neil's testimony was that Haws had said that he had been to a party already, whereas Haws had told Woollett that he intended to go to a party. However, this is not a substantial difference. Haws may have started earlier than he had anticipated when he spoke with Woollett. He may also have been using his condition as an excuse even though he may not have been to a party at the time that he telephoned O'Neil . An examination of Haws' record during December appears to support the latter conclusion for Lopez, O'Neil, and Jimenez each testified to incidents where Haws had excused his tardiness by claim- ing that he had been in jail, unable to obtain bail in time to arrive for work as scheduled. Though Haws flatly and unequivocally denied ever being arrested in December for being drunk, or ever being absent because of drunkenness, or because of being in jail for being drunk , he vacillated when asked about reports which he had made to Respon- dent to excuse his tardinesses in December. At the time, I felt that he might well have made the reports ultimately attributed to him by O'Neil, Jimenez , and Lopez. If so, such a report to O'Neil on New Year's Eve would be consistent with his past excuses. This conclusion is only further supported by the defen- sive attitude displayed by Haws when cross-examined about the identity of the doctor whom he had allegedly 147 seen. It appeared that Haws was concerned that Respon- dent might make an effort to contact that doctor and his concern is yet a further indication that he was not actually ill on New Year's Eve. Indeed, while the General Counsel makes much of the fact that Lopez did not appear willing to accept a doctor's excuse at the time of the discharge, neither Dr. Huey nor an excuse from Dr. Huey was provided at the hearing to support Haws' defense of illness . In this regard, it is axiomatic that the determination of a state agency is not binding on the Board and, even if it were, the record is too vague concerning the California Department of Employ- ment determination of the reason for Haws' termination to support a finding adverse to Respondent. Finally, it is also clear that at least some of the elements of past misconduct attributed to Haws were known to Lopez at the time he had made the decision to terminate him. Thus, Haws did not deny Lopez' testimony that, on December 9, Lopez had inquired regarding a particular tardiness, nor did he deny the evidence that Lopez had admonished him for failing to "pull his weight," and for smoking when he should be working - both matters which Jimenez testified were of concern to kitchen personnel. Although Haws did receive a raise in December, which Respondent did not explain, it has not been shown that the raise was conferred after these two conversations with Lopez. Significant also is Haws' admission that when he had received the raise he had been told that he was doing a better job, thus indicating some prior dissatisfaction with his work and some effort to provide an incentive for improvement, and "that there was a few things I could pick up on." In these circumstances, and in view of the other December events culminating in the New Year's Eve absence, the raise is not entitled to great weight. Consequently, I find that Haws was terminated for misconduct by failing to report for work on New Year's Eve as scheduled, for not speaking with his immediate supervi- sor, and for reporting that his absence was occasioned by a hangover. I find, in addition, that Respondent did not possess knowledge of Haws' support for, and activities on behalf of, the Union at the time of his termination and that the evidence does not support a conclusion that Respon- dent harbored hostility against union supporters sufficient to establish an unlawful motivation. A similar result obtains with regard to Hull. While a discriminatee need not appear to prevail on an allegation of unlawful discharge, the General Counsel does bear the burden of showing that the discharge was unlawful. Here, the only evidence is that Hull attended the Imperial Room meeting on January 4, 1975, that he was the principal opponent of O'Neil's continued presence, and that he had been discharged 2 days later , partly as a result of a dispute with O'Neil. Even taking into consideration Hull's testimo- ny in the representation proceeding , the most that can be shown is that Hull and O'Neil argued concerning the former's continued discussion of the Union while on worktime in Respondent's bar and in the presence of customers. Such activity might well not be protected. See N.L.R.B. v. May Department Stores Company, 154 F.2d 533, 537 (C.A. 8, 1946). Of course, I did deny the Union's motion to, in effect, continue the hearing to see if Hull would return from Europe. Yet, the General Counsel did 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not loin in the motion and other avenues could have been explored to obtain the information needed to appraise whether a prima facie case existed - the other bartender, who had apparently been present during the dispute between O'Neil and Hull, could have been called as a witness and, presumably, O'Neil and Lopez could have been called and interrogated concerning the matter. This was not done and, in the circumstances, I find that a preponderance of the evidence does not support the allegation that Hull had been discharged for unlawful considerations. Therefore, I find that it has not been established that Respondent discharged Robert W. Haws and Michael Hull II because of their membership in or activities on behalf of the Union, or because they engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. D. Issues 4 and 5 Having found that Respondent violated Section 8(a)(1) of the Act by the surveillance conducted by Lopez and Yakel at the January 18, 1975, meeting, I find that there is evidence of conduct of sufficient seriousness to disturb the laboratory conditions under which the February 26, 1975, election was conducted. Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962). That Lopez and Yakel may not have been maliciously motivated in going to the Imperial Room and may merely have been attempting to satisfy their own curiosity hardly absolves them of their conduct in light of the effect which it must have had on the employees who had been present at that meeting and on those who had not been present, but later learned what had taken place. Particularly significant is the fact that they not only remained after being admonished by Holler, but then procured another vehicle and parked elsewhere in an effort to conceal their continued surveillance. However, I do not feel that this violation of Section 8(a)(1) is of sufficient magnitude to have destroyed the Union's support and to preclude the possibility of conduct- ing a fair rerun election. An election is the superior method for "ascertaining whether a union has majority support." Linden Lumber Division, Summer & Co. v. N.L.R.B., 419 U.S. 301, 304 (1974). The unfair labor practice committed on January 18, 1975, was not repeated nor was any other unfair labor practice committed during the period prior to the election. Thus, the incident of surveillance appears to have been only a "one time" proposition. See WCAR, Inc., 203 NLRB 1235 (1973). It does not appear to be likely to be repeated and I find that the normal Board remedy is sufficient to correct the effects of that unfair labor practice without depriving the employees of their right to make their decision concerning representation through the election procedure. Therefore, I find that Respondent's conduct was of sufficient magnitude to warrant setting aside the election conducted in Case 20-RC-12524, but I do not find that the single violation of Section 8(a)(1) of the Act committed by Respondent is so serious and substantial in character as to warrant entry of a remedial order requiring Respondent to recognize and bargain with the Union. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the Respondent's operations described in section II, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in surveillance of employees' activities on behalf of the Union, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. The objections filed by Petitioner are sustained only to the extent that they are the same as the unfair labor practice found above and, therefore, warrant setting aside the election in Case 20-RC-12524. 6. Respondent did not violate the Act in any other manner and the objections filed by Petitioner in Case 20- RC-12524 are overruled to the extent that they allege conduct other than that found objectionable above to constitute grounds for setting aside the election conducted in Case 20-RC-12524. 7. A bargaining order is not warranted as a remedy for the unfair labor practices committed by Respondent. REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirma- tive action set forth below to effectuate the policies of the Act. [Recommended Order omitted from publication.]