Alexander's Restaurant and Lounge

ALEXANDER'S RESTAURANT AND LOUNGE Alexander Dawson, Inc. d/b/a Alexander's Restaurant and Lounge and Local Joint Executive Board of Las Vegas Culinary Workers Union Local 226 & Bartenders Union Local 165, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO. Case 31-CA-5501 February 10, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 23, 1976, Administrative Law Judge William J. Pannier III, issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Counsel for the General Counsel and the Charging Party filed briefs in opposition to Respondent's exceptions. 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 1 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.3 Louis Clery and his brother worked as busboys at Respondent's restaurant. Louis Clery testified that he and his brother were active in the Union's drive and had solicited cards on the Union's behalf. Clery claimed that these activities came to the attention of Mejlaender, one of Respondent's supervisors, who began to watch the Clery brothers and made deroga- tory remarks about them. Clery's testimony about the surveillance over him- self and his brother was corroborated by Mejlaender. According to Mejlaender, he and Respondent's general manager, Norman Martin, drew up a list of employees thought to be antiunion. The Clery brothers were left off the list and thereafter Martin I Respondent filed a motion to correct the transcript The General Counsel and the Charging Party opposed the motion . The disputed section of the transcript indicates that Respondent introduced as its exhibit certain employment applications In its exceptions to the Administrative Law Judge's Decision, Respondent asserted that these employment applications were allowed into evidence improperly because they were not authenticated. In its motion to correct, Respondent maintains that at the hearing it moved for the introduction only of certain writings which appeared on the face of the application forms but that it opposed the General Counsel's motion to introduce the application forms themselves into evidence. We find it unnecessary to dispose of the Respondent 's motion because its determination would in no way affect the result reached in this case . In this regard, we note our agreement with the Administrative Law Judge's conclusion, contained in fn. 6 of his Decision, that the applications were sufficiently authenticated and admissible under Rule 901 (a) of the Federal Rules of Evidence. 2 The Respondent has excepted to certain credibility findings made by 228 NLRB No. 24 165 directed him to keep a close watch on the brothers because of their suspected union activities. Martin did not deny Mejlaender's testimony about the employee list. Nor did he deny telling Mejlaender to watch the Clery brothers. However, he claimed that his decision to watch the brothers was prompted by concern about acts of "sabotage" at the restaurant such as the filling of sugar containers with salt. The Administrative Law Judge credited Clery and Mejlaender. In discrediting Martin, the Administra- tive Law Judge noted that Martin was not a convinc- ing witness and that his proffered explanation for directing Mejlaender to watch the Clery brothers was unsupported by any evidence that the brothers were in any way connected with the so-called sabotage. Accordingly, the Administrative Law Judge specifi- cally found that Respondent directed Mejlaender to engage in surveillance of the Clery brothers because of their union activity. Despite this finding, the Administrative Law Judge considered Respondent's surveillance only as back- ground in determining Respondent's overall motiva- tion. In so doing, the Administrative Law Judge noted the absence of a specific allegation in the complaint that the surveillance violated Section 8(a)(1) of the Act. He also noted the failure of the General Counsel to amend the complaint to allege such a violation. We agree with the Administrative Law Judge that the record clearly establishes that Martin directed the surveillance of these employees because of their union activities. Moreover, in our opinion, this incident is sufficiently related to the subject matter of the complaint to justify a specific finding of a violation of Section 8(a)(1) of the Act. In this regard, we note that Respondent's surveillance over its employees' union activities is part and parcel of its persistent antiunion campaign which included the unlawful interrogation of prospective employees, the grant of wage benefits to undercut union support, and the outright refusal to hire individuals whose back- ground indicated potential union adherence. We also note that Respondent's conduct in surveilling these 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. 3 Chairman Murphy would adopt the Administrative Law Judge's Decision and recommended Order without modification. She would not find an additional violation predicated on Respondent's surveillance of employee union activities since no exceptions were filed to the failure of the Administrative Law Judge to find such a violation, the complaint contains no allegation with respect to this activity, and, in her view, it is unrelated to other allegations of the complaint , and General Counsel did not urge that such a violation be found, but merely presented the activity as background for the other violations alleged. See Administrative Law Judge's Decision, sec. IV,G. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees was fully litigated at the hearing and that Respondent had ample opportunity to offer, and in fact did offer, evidence on this point. Accordingly, we shall find this violation of the Act and provide an appropriate remedy. See Crown Zellerbach Corpora- tion, 225 NLRB 911 (1976), and cases cited therein at footnote 6. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent Alexander Dawson, Inc. d/b/a Alexander's Restau- rant and Lounge, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following paragraph as paragraph 1(d) and reletter the subsequent paragraph accord- ingly: "(d) Engaging in surveillance of employees because of the employees' union and protected activities." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 activities except to the extent that the employees' bargaining representative and the employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT interrogate you concerning your union membership and sympathies. WE WILL NOT grant tip subsidies or other benefits to you to dissuade you from supporting any labor organization and WE WILL NOT other- wise discriminate against you in regard to hire or tenure of employment or any term or condition of employment because of your support for a labor organization. WE WILL NOT refuse to hire employees who indicate that they are members or supporters of the Union or because they have been employed at establishments in which the Union has served as the bargaining representative of employees. WE WILL NOT engage in surveillance of employ- ees because of their union or other protected activities. WE WILL NOT in any other manner interfere with your rights set forth above which are guaran- teed by the National Labor Relations Act. WE WILL pay Dorothea R. Murdock, Don H. Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary A. Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B. Frisk, and Joseph A. Russo any money they lost as a result of our failure to consider them for employment on a nondiscrimi- natory basis, following filing of their employment applications, with interest at 6 percent, and WE WILL offer them any job which they would have received had their applications been properly considered. ALEXANDER DAWSON, INC. D/B/A ALEXANDER'S RESTAURANT AND LOUNGE DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Las Vegas, Nevada, on February 3 through 6, 1976. On October 31, 1975,1 the Acting Regional Director for Region 31 issued a complaint and notice of hearing, based on an unfair labor practice charge filed on July 28, alleging 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. 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 filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: ' Unless otherwise stated, all dates occurred in 1975. ALEXANDER'S RESTAURANT AND LOUNGE 167 FINDINGS OF FACT 1. JURISDICTION At all times material, Alexander Dawson, Inc. d/b/a Alexander's Restaurant and Lounge, herein called Respon- dent, has been a corporation duly organized under and existing by virtue of the laws of the State of Nevada, with an office and principal place of business located in Las Vegas, Nevada, where it has been engaged in the operation of a restaurant and bar. In the course and conduct of its business operations, Respondent annually derives gross revenues in excess of $500,000 and annually purchases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of Nevada. Therefore, I find, as admitted in the answer to complaint, that Respondent, at all times material herein, has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Local Joint Executive Board of Las Vegas Culinary Workers Union Local 226 & Bartenders Union Local 165, Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES As framed by the complaint and amendment thereto the following issues are presented in this matter: 2 1. Whether, beginning in February and continuing thereafter, Respondent interrogated applicants for employ- ment concerning their union activities and sympathies, in violation of Section 8(a)(1) of the Act. 2. Whether, in July and August, Respondent granted tip subsidies to employees in an effort to dissuade them from supporting the Union, in violation of Section 8(a)(3) and (1) of the Act. 3. Whether, in February, Respondent commenced a practice of refusing to hire applicants for employment because of its suspicions that those applicants were favor- ably disposed toward the Union, thereby violating Section 8(a)(3) and (1) of the Act, and whether in the course of such a practice Respondent denied employment, inter alia, to Dorothea R. Murdock, Dorothy Jean Gosnell, Don H. Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary A. Mighell, Joseph A. Russo, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Gordon Scott and Helen Schmuck; and whether Respondent discharged Richard Ogden. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent is a separate division of Alexander Dawson, Inc., which also operates a number of other enterprises. In 1974, Chairman of the Board and Chief Executive Officer G. B. Henderson conceived the idea of constructing a restaurant to serve tenants of two buildings in Las Vegas owned by Alexander Dawson, Inc. Construction of this restaurant commenced in 1974. According to General Manager Norman D. Martin, the cocktail lounge portion of the facility opened on March 24 and, in the middle of the following month, the restaurant portion was opened. The principal issue in this proceeding revolves around the procedures followed to staff the cocktail lounge and restaurant. The General Counsel presented five former supervisors - Fariborz (Fred) Sadri, George Petrunjo, Hugh Buck, Jean-Pierre Mejlaender, and Michael Whit- comb 3 - each of whom testified that Respondent's management officials had instructed them not to hire applicants who would be favorably disposed to the Union or who had backgrounds disclosing prior affiliation with the Union. Respondent presented four management offi- cials - Henderson, President Farrow J. Smith, General Manager Norman D. Martin, and former Corporate Secretary Gary Abraham - each of whom denied having issued such instructions and each of whom denied that there had ever been any policy of precluding applicants from consideration for employment because of their sympathies toward the Union. Additionally, Respondent asserts that a conspiracy exists to subject it, wrongfully, to liability for the commission of unfair labor practices. In connection with this assertion Respondent charges that each of the five former supervisors had motives for joining such a conspiracy and, further, that the substance of their testimonies discloses that they were, in fact, acting pursuant to such a conspiracy. B. The Supervisors There is merit to Respondent's assertion that a basis exists for the five supervisors to harbor animosity toward Respondent. Four of them had been terminated and one, Sadri, had quit in August after having been demoted, in June, from food-and-beverage manager to maitre d'. It was clear when they testified that each of them felt that Respondent had been unfair in its treatment of them. For example, Buck testified that he had never been warned that Respondent had a policy which prohibited its personnel from engaging in "outside interests" and, further, that he did not regard his partnership in a fast foods enterprise as being a "sufficient reason" for terminating his employment at Respondent's gourmet restaurant. Similarly, Whitcomb testified that he believed that his termination had, in reality, resulted from the fact that on the day before his discharge his union book had been left on a desk in plain view of Martin. In fact, Whitcomb filed an unfair labor practice 2 In his brief, counsel for the General Counsel also alleges that Respon- dent engaged in surveillance of activities of employees whom Respondent believed to be union supporters. However , the General Counsel has not moved to amend the complaint to allege such conduct as a violation of Sec. 8(ax 1) of the Act. 3 Whitcomb's name also appears in the record under the spelling Witcome. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge concerning his termination, but his status as a supervisor precluded further processing of that charge.4 Mejlaender denied that he had solicited tips , the reason advanced for his termination. Yet, when they testified, these three former supervisors did not appear to be attempting to tailor their testimony to cast Respondent in an unfavorable light. Nor did they appear so hostile toward Respondent that they would make the effort to do so. A wholly different situation was presented by Sadri and Petrunjo. Both appeared to harbor considerable hostility toward Respondent and, in Sadri's case, this hostility manifested itself in total contempt. Thus, he testified: Sometimes you just feel like the company is just wasting your time, because I couldn't increase my knowledge working under Mr. Martin and Mr. Smith, because I consider those people unqualified people. They didn't have any knowledge of management, they didn't have any college education. So I was just kind of wasting my time, causing matters with my wife and too many people. In a like vein, in an effort to obtain reemployment with Respondent, Petrunjo authored a letter on November 12 in which he wanted, inter alia: Now, gentlemen it is not blackmail, what I am going to tell you. I just wish I had my job back, which I carried out very well. If I do not receive an answer to my letter from you in a few days, I am going to make the first step to dishonour the reputation of your company.5 That Petrunjo was prone to tailor his testimony adversely to Respondent was illustrated most graphically by his generalized claim that applicants had been discriminated against by his superiors, but by his inability to list any specific examples to support that generalization, other than Susan Hamon. Examination of Hamori's application, submitted by the General Counsel, discloses on the second page that her age was listed as 54 years old and on the last page, printed in Sadri's handwriting, is the phrase: "Mr. 4 Although the Charging Party contends that neither Whitcomb nor Petrunjo was a supervisor, both the General Counsel and Respondent contend that they were supervisors . Whitcomb admittedly supervised waiters and busboys in the dining room , scheduling their hours, scheduling overtime when necessary, and assigning waiters to stations at which they were to work. As executive or head chef, Petrunjo scheduled the working hours for kitchen personnel and, while he did not schedule overtime for employees, he apparently had the authority to authorize overtime work whenever neces- sary. Moreover, Petrunjo was the only person to interview applicants for kitchen positions and, in view of the inexperience of Respondent 's manage- ment officials in restaurant work , Petrunjo's recommendations regarding the qualifications of applicants appear to have been followed. On two of the three occasions that Whitcomb recommended applicants be hired for employment, his recommendations were followed . Similarly, on one occa- sion when Whitcomb recommended that an employee be reprimanded for reporting late for work, Martin followed that recommendation . As demon- strated by Ogden's termination, discussed infra, Petrunjo's recommendations respecting termination appear to have been followed Therefore, I find that both Whitcomb and Petrunjo were supervisors within the meaning of Sec. 2(11) of the Act. 5 In an effort to rehabilitate Petrunjo's testimony, the General Counsel introduced a prehearing affidavit, predating the November letter and corresponding with Petrunjo's testimony. However, this affidavit, bearing the date August 27, was prepared after Petrunjo's termination and at a time when he had admittedly commenced active support for the contention that Martin said the man [sic] is too old." Quite clearly, the fact that Hamori did not obtain employment with Respondent was not related to any possible union sympathy on her part, but rather, as acknowledged by Sadri's notation, was based solely upon the fact that Respondent believed Hamori to have been too old to handle employment with Respondent. Furthermore, on cross-examination Petrunjo continually evaded answering questions put to him. I am convinced that this evasion was not the product of language difficul- ties, but was undertaken in an effort to obtain time to formulate answers consistent with the portrait that he was trying to portray of Respondent and, further, to avoid diminishing his own position. With respect to the latter point, it is worth noting that while Petrunjo denied that anything had been said to him at the time of his termination regarding the substitution of pork for veal, in his letter of November 12 he admits having been told, when terminated, that he was being terminated because he had substituted pork for veal. In these circumstances, I credit Petrunjo only insofar as his testimony is corroborated either by other credible testimony or by objective considerations. The central figure in Respondent's argument concerning an asserted conspiracy is Sadri. As noted above, Sadri appeared to harbor considerable hostility toward Respon- dent. Moreover, it was manifest that he had been in contact with the Union well before the time that he had ceased working for Respondent. Thus, he acknowledged having been a member of the Union prior to commencing work for Respondent and, shortly before Petrunjo's termination, Sadri had suggested that Petrunjo contact the Union to ascertain if it would protect his job. The central item of concern regarding Sadri's testimony involved a series of completed four-page application for employment forms, introduced by the General Counsel to support the allegation concerning Respondent's hiring practices .6 Red X's appeared on the front pages on these forms and, on the third page, where the applicants listed prior employment, red circles had been drawn around items which ostensibly disclosed a prior relationship to the Union, i.e., employment in establishments where the Union was the bargaining representative. On the final page of a Respondent had engaged in unfair labor practices. Moreover, the sentiments expressed in the letter concerning his discharge , which Petrunjo attributed to inadvertent interference in a personal relationship between supervision and a cocktail waitress, undoubtedly existed from the time that he had been terminated. That his feelings did not ripen into articulation until November hardly negates their existence prior to the taking of the affidavit. Thus, I do not believe that the affidavit serves to effectively rehabilitate Petrunjo's testimony merely because it predated his November letter. 6 In its brief Respondent challenges the authenticity of several of these applications (particularly those of Kirk, Kublin, Russo, and Lewman) where the applicant did not appear as a witness and where no other witness had specific recall of the application or of the circumstances under which it had been filed. However, these applications were similar in nature to those filed by a number of other applicants who did appear and who did testify concerning the authenticity of their own applications . Though, as discussed above, there was controversy regarding the authorship of certain markings appearing on the applications, Respondent presented no evidence showing that the applications themselves had been the product of forgery or had been completed by any interested party other than the applicant. Under Rule 901(a) of the Federal Rules of Evidence, documents are admissible so long as there is evidence sufficient to support a finding that the matter in question is what its proponent claims . In view of the similarity of these applications to those which were authenticated by the applicants, and absent evidence showing that they were prepared by any witness in this proceeding, I find the applications have been sufficiently authenticated to be admissible. ALEXANDER'S RESTAURANT AND LOUNGE few of the applications Sadri had written comments which, in substance, stated that the refusal to employ the individu- al was the result of prior union affiliation. Though the General Counsel contends that these markings demonstrate the existence of a discriminatory hiring policy, Respondent contends that the markings were inserted by Sadri in an effort to perfect a case against Respondent and should not be given any weight. From the record and from my observation of Sadri, it would appear that Respondent has the better of this argument. In the first place there is the issue of the circumstances under which these documents were removed from Respon- dent's premises. Sadri testified on direct examination that they had been included among his personal papers and, thus, had been inadvertently removed from the office when he had collected those personal papers on his final day of employment with Respondent: "The day I left, when I cleaned my office, it was around 20 or 25 applications." Yet, Sadri did not leave Respondent's employment until mid to late August and Dennis M. Sabbath, one of the Union's attorneys, filed the charge on July 28, using the applications submitted by Sadri as the principal evidence to support the charge. It is, consequently, apparent that the application forms could not have been removed from Respondent's premises in the innocent fashion which Sadri initially attempted to portray. Indeed, apparently alerted to the possibility of a problem by the tenor of cross-examina- tion, Sadri ultimately reversed his field and testified that he had removed the forms prior to his last day of employment with Respondent. Yet, at no point was he able to recall the date on which he had assertedly done so. In view of the fact that Sabbath came into possession of the forms almost I month prior to Sadri's departure from Respondent, I find it most unlikely that the forms could have been removed at that time for any reason other than to use them as a basis for assisting the Union's cause against Respondent and in retaliation for Sadri's demotion to maitre d'. This conclu- sion is, of course, consistent with the attitude which Sadri displayed during the course of the hearing toward Respon- dent. Moreover, Sadri's conduct in removing these applica- tions parallels what took place when Petrunjo left, for he also acknowledged removing rejected applications from Respondent's premises, although, like Sadri, he testified that the removal had been inadvertent. Nonetheless, these applications were turned over to the Union, apparently as a result of conversations between Petrunjo and Sadri. Second, when Sadn testified about the red X's and circles he admitted only that some of them had been written by him. It was clear that he was attempting to convey the impression that Respondent's management officials had made the others - a conclusion confirmed by Sabbath's testimony that Sadri had told him (Sabbath) that he (Sadri) had not made the red markings on the forms and that it had been Martin who had made the markings.? Notwithstand- ing the fact that Sadri should have known that all of the circles had been drawn by him and that all of the X's had been written on the forms by him, he claimed at the hearing r I sustained a post-answer objection to this testimony on the grounds that it was hearsay However, no motion to strike the testimony was made, nor was one granted Accordingly, while I am not considering Sabbath's testimony concerning what Sadn had said to him for the truth of the matter 169 that he was not aware if some of such markings had been made by him and he asserted further that other individuals in Respondent's management had also made these mark- ings. Yet, Examiner of Questioned Documents Bowman testified, based upon his study of the exhibits, that all of the red X's and circles at issue in this matter had been the product of Sadri's authorship - a fact which the General Counsel appears to concede to be true in his brief and a conclusion which appears quite reasonable in light of the unique manner in which the circles were drawn and the similarity of the manner of drawing the circles and of making the X's. In these circumstances, I find that these red markings on the applications for employment introduced by the General Counsel were made by Sadri. Moreover, in view of inconsistencies in Sadri's testimony, viewed in light of the other evidence in this matter, concerning the manner in which the applications were removed from Respondent's premises and his obviously false statements concerning the authorship of the ostensibly incriminating markings on those forms, I find that these red markings, as well as Sadri's comments on the fourth page of a few of the forms, are not entitled to any weight. It simply has not been shown by a preponderance of the evidence that they were generated by Sadri for reasons other than venting his hostility toward Respondent by attempting to construct a stronger case for finding the Respondent committed unfair labor practices. Accordingly, like Petrunjo, I credit Sadri only to the extent that his testimony is corroborated by objective considerations or by other credible testimony. Respondent further argues that a credibility resolution adverse to Sadri and Petrunjo demonstrates that a conspir- acy was in progress and that this conspiracy was designed to ensure that Respondent would be unjustifiably held responsible for engaging in an unlawfully motivated practice of selecting employees for employment with Respondent. Yet, even were it assumed that all five former supervisors called as witnesses by the General Counsel had testified untruthfully, the record in this matter, consisting of Respondent's own admissions and of other testimony and evidence, amply justifies the conclusion that Respondent had, in fact, been engaging in a discriminatory hiring practice. C. Respondent's Nonunion Policy Respondent admits that it was intent upon operating on a nonunion basis. Henderson conceded that this had been his policy. Moreover, it was a policy that was clearly communi- cated to lower management as is shown by the fact that Smith, Martin, and Abraham had been cognizant of Henderson's objective. It is also clear that Henderson's nonunion policy was communicated to the supervisors. Thus, Henderson acknowledged having explained to Sadri, when the latter had been hired, that "management intended Alexander's Restaurant to be nonunion." Smith, also, conceded that he may have mentioned this policy to Sadri, and Martin admitted that, at various times, he had asserted, consistent with the ruling that I made, I am considering that testimony for all other purposes, including the fact that it shows that Satin at one time denied having made any of the red markings on the applications. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commented to Sadn that Respondent hoped to maintain a nonunion house. Finally, asked if it had been common knowledge among the supervisors that Alexander's Restau- rant was a nonunion house, Abraham responded, "Yes. I would say yes." These circumstances provide ample corro- boration for those portions of the supervisors' testimonies attributing to Respondent's officials statements concerning Respondent's policy of operating on a nonunion basis. D. Action to Implement Respondent's Policy It is also clear that Respondent did more than merely hope passively that it could remain nonunion. In addition to advising its supervisors of the nonunion policy, Smith admitted that in the fall of 1974 Martin and Buck had accompanied him to a Las Vegas law firm's office because "we wanted to try to maintain a nonunion house, a restaurant, and we were getting information at that time." 8 In March, Abraham was dispatched to Los Angeles to attend a program on preserving nonunion status. Upon returning, he distributed a confidential memorandum to the supervisors incorporating the material which he had re- ceived at the Los Angeles program, thereby reinforcing Respondent's oft-stated policy of maintaining a nonunion operation. Though Henderson testified that the purpose for Abraham's attendance at the program had been "to get as sophisticated in what the law required on how to conduct ourselves properly in a business that we had never been in before," examination of the memorandum distributed by Abraham does not disclose any matters unique to restau- rant operations. It does, however, contain a thorough discussion of steps to follow should a union demand recognition as the bargaining representative of an employ- er's employees. E. The Tip Subsidies It is also clear that Respondent, in an effort to preserve its nonunion status, pursued an additional course of action which led it to transgress the line dividing unlawful from lawful conduct. On April 30 (through inadvertence one employee did not receive a bonus until early May), on May 28, in mid-July following receipt of the Union's letter demanding recognition, and in August, tip subsidies were granted to Respondent's waiters, cocktail waitresses, bar- tenders, and busboys.9 Smith and Martin testified that the purpose for the subsidies was to retain personnel, a substantial portion of whose income was derived from customer gratuities, during a period when, as a new 8 In its brief Respondent assails Buck's credibility, in part, on the ground that the restaurant had been under construction during his tenure as food- and-beverage manager Thus, argues Respondent, there would have been no purpose for Respondent to have advised Buck of any antiumon hiring policy since employees were not then being hired Yet, Respondent did not dispute Buck's assertion that during his 8- or 9-month tenure, ending on January 8, Respondent had set several target dates for opening in 1974 but that postponements had been encountered due, apparently, to construction delays The above-described trip to the Las Vegas attorney's office would appear to corroborate Buck that hiring had been considered in 1974 and that Respondent had begun taking steps to implement its nonunion hiring policy. Consequently, it is not inconceivable that Respondent would have advised Buck of its nonunion policy during 1974. 9 While busboy Louis Clery claimed that kitchen personnel had also received tip subsidies , this was not supported by Respondent's records and enterprise, Respondent did not anticipate the volume of patronage that ultimately would be achieved once its reputation became established. Thus, to prevent loss of personnel through dissatisfaction with a low volume of tips, Respondent formulated the policy of providing subsidies as a supplement to the tips which these employees would receive. Although the complaint alleged only that the July tip subsidies were unlawful, in his brief counsel for the General Counsel argues "it is likely that all the bonuses were given to dissuade the employees from forming a union." Contrary to this argument, the evidence does not support the General Counsel's contention that the April and May subsidies had been conferred for unlawful motives. Respondent's expla- nation for instituting the program is reasonable. That business may ultimately have exceeded expectations or that patronage may have increased more quickly than antici- pated does not serve to render the subsidy program unlawful, for it was based upon a forecast that patronage during Respondent's initial phase of operation would be significantly less than would be the case once Respondent became established. Moreover, there is no evidence that the Union or any other labor organization had been campaign- ing among Respondent's employees when the tip subsidy concept was conceived. Nor is there any evidence that a campaign was in progress during April and May when the first two subsidies were granted. In these circumstances, the formulation of the tip subsidy program and its implementa- tion in April and May appear to have been motivated solely by business considerations. Accordingly, I find that the formulation of the program and the April and May tip subsidies did not violate Section 8(a)(1) of the Act. A quite different situation is presented by the subsidies granted in July and August. The sequence of granting tip subsidies had been broken in June, when no subsidies were conferred. No evidence was presented to show that business had so declined in July, when compared with that in June, that resumption of subsidies was warranted. Indeed, Smith conceded that it may well have been in July that the luncheon business had so increased in volume that it became necessary to utilize the cocktail lounge to serve luncheon meals. Moreover, there was a significant and unexplained increase in the dollar amount of the subsidies conferred in July and August when compared with those paid in the spring. Thus, in April and May, the amounts of the subsidies had ranged between $10 and $20, except for one waiter who had received a $30 subsidy in April and two cocktail waitresses who had received $25 subsidies in May. By contrast, no subsidy conferred in July was less than $25, no witnesses were called to corroborate Clery's assertion that cook Dennis Berry, dishwasher Jerry, and preparer Tom had each reported to him (Clery) that they had received bonuses. No explanation was advanced for the failure to call such witnesses and no employees in other classifications testified that they had received bonuses. Moreover, Clery asserted that he had received only two bonuses during his employment with Respondent, one in July and one in April. In fact, Respondent's records disclose that Clery also had received a bonus in May. It appeared to me that, by this testimony, Clery was attempting to create a sufficient gulf between the bonuses which he had received to warrant the conclusion that, as alleged in the complaint, his July bonus had been the product of Respondent's desire to undermine employee support for the Union. Accordingly, I do not credit Clery's testimony that employees other than waiters, waitresses, bartenders, and busboys received tip subsidies, since it, likewise, appears motivated by a desire to perfect a violation by Respondent. ALEXANDER'S RESTAURANT AND LOUNGE an amount paid to three busboys . Two bartenders and three waiters received subsidies of $40 and two cocktail waitress- es received $50 subsidies . One month later, in August, cocktail waitresses again received $50 and bartenders again received $40 subsidies. The timing of the summer subsidies is also significant, for by the time that the July subsidies had been conferred, Respondent admittedly had received the Union's letter demanding recognition . Indeed, accompanying the pay- checks, which included the July bonus , was a form letter in which Respondent asserted its opposition to unionization of its employees, thereby drawing a direct equation between the benefits conferred in the paychecks and the union's ongoing campaign . Significantly, Martin admitted that while Respondent's wage scales had initially been equiva- lent to those paid under the union's contracts in the area, a July increase provided by the union's agreement had resulted in a disparity which had left Respondent's rates less than those paid at union establishments. In Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975), the Board stated: An employer's granting a wage increase during a union campaign "raises a strong presumption" of illegality. In the absence of evidence demonstrating that the timing of the announcement of changes in benefits was governed by factors other than the pendency of the election, the Board will regard interference with em- ployee freedom of choice as the motivating factor. In the instant case there can be no other conclusion than that the July and August subsidies were granted for the objective of dissuading employees from continuing to support the Union. No subsidies had been granted in June and there was no showing that business in July had declined to the point where resumption of the subsidy program was warranted. The summer subsidies were not granted until after Respondent had learned of the Union's organizing campaign and, as shown by the letter which accompanied the July paychecks , Respondent was attempt- ing to equate its conferral of benefits with its appeal to abandon further campaigning and organizational efforts on behalf of the Union, in circumstances where its own wage rates were now less than those being paid under union contracts in the area. Moreover, no explanation was advanced for the vastly increased amounts of subsidies conferred during the summer, compared with those granted in April and May. In these circumstances , the only conclusion that can be reached is that Respondent was using the tip subsidies program to dissuade its employees from supporting the Union , thereby effectuating its basic policy of operating on a nonunion basis. Accordingly, I find that by conferring tip subsidies in the months of July and August for the purpose of discouraging support for the Union, Respondent violated Section 8(a)(3) and ( 1) of the Act. F. The Discharge of Richard Ogden The General Counsel alleges that Respondent terminated cook Richard Ogden because of its belief that Ogden, who had worked for approximately a month and a half following 171 the restaurant's opening, was a supporter of the Union. The sole evidence in support of this allegation was the testimony of Petrunjo, who asserted that cook Dennis Berry had reported that Ogden was a member of the Union. Petrunjo testified that he had related Berry's comments to Sadri, who, in turn, had directed Petrunjo to terminate Ogden. As found above, Petrunjo was not a credible witness, and his testimony in connection with Ogden's termination appears to be another manifestation of his effort to "dishonour the reputation of' Respondent. Thus, Sadri, who certainly carried no brief for Respondent, did not corroborate Petrunjo's testimony respecting the asserted report of Ogden's possible membership in the Union. Cook Berry was never called as a witness to corroborate Petrunjo, and no explanation was proffered for failing to call him as a witness. Ogden had never been employed in the Las Vegas area, a factor which Respondent considered indicative of union support as discussed, infra. Moreover, Ogden ac- knowledged that he had not generally expressed favorable views toward the Union while employed by Respondent. In fact, Ogden was unable to recall even having discussed the Union with any employee during the time that he had worked for Respondent, although he speculated that he may have discussed the Union's organizational campaign in the Lake Tahoe area. Finally, it is undisputed that Ogden had been told that his termination was occasioned by the fact that there simply was not enough work for the number of cooks that Petrunjo had in the kitchen . Asked about his own report that Ogden's work was not as satisfactory as that of the other cooks, Petrunjo vacillated. He first denied ever having said that Ogden was not a qualified cook and was incompetent. He then conceded that Ogden possibly was "a little bit worse or something." Finally he pleaded that he simply did not remember and did not think that he had ever told this to Sadri or Martin, although he did concede that he had never said that Ogden was a good cook. In light of Petrunjo's unreliability, the absence of corroboration for his testimony regarding the asserted sequence of events which led to Ogden's termination, his vacillation concerning his own reports to his superiors about Ogden's work, and the absence of any evidence which would support a conclusion that Ogden had, in fact, been a member or supporter of the Union or had, in fact, been discussing the Union favorably (thereby casting further doubt on Petrunjo's assertion that Berry would make such a report), I find that it has not been shown by a preponderance of the evidence that Respondent was motivated by unlawful considerations at the time that it made the decision to terminate Richard Ogden. G. The Surveillance of the Clery Brothers There is no allegation in the complaint that Respondent engaged in surveillance in violation of Section 8(a)(1) of the Act. Nor has any motion been made to amend the complaint to allege such a violation by Respondent. However, in his brief, counsel for the General Counsel argues, in essence, that the evidence of Respondent's surveillance should be considered as background in ap- praising Respondent's overall motivation with respect to the hiring of employees. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louis Clery testified that following Petrunjo's termina- tion, he and his brother, both busboys, had commenced soliciting authorization cards on behalf of the Union. This activity, testified Clery, had led Mejlaender to begin watching them closely and, also, to begin making derogato- ry comments about them because of their protected activity. As a result, according to Clery, both he and his brother quit to avoid further harassment. I did not credit Louis Clery's testimony regarding the tip subsidies. However, his testimony concerning the surveil- lance is corroborated by Mejlaender , who testified that the Clery brothers had been excluded from a list, apparently prepared in connection with the representation petition which Respondent filed in response to the union's demand letter, of employees who could be counted on to vote against the Union. This list, testified Mejlaender, had been prepared by himself and Martin and, following its prepara- tion, Martin had directed Mejlaender to watch the Clery brothers, both because of Mejlaender's prior complaints concerning their failure to properly perform their duties and because they were sympathetic to the Union. Martin denied ever having told Mejlaender to watch the Clery brothers because they were involved in the union's campaign and further denied ever being aware that the Clery brothers had been engaged in activity on behalf of the Union. However, Martin did not deny Mejlaender's testi- mony concerning the preparation of the list of potential nonunion employees . Further, Martin admitted that he had directed Mejlaender to "watch out" for the Clery brothers because ... we felt at one point during their employment, we were having some problems in the restaurant , salt in the sugar, this type of thing , and we had reason to believe that they probably might be involved , although, we had no evidence. The problem with this assertion is apparent from the last phrase - the absence of evidence of responsibility by the Clery brothers. At no point did Martin explain why he had chosen to single them out as employees whom Mejlaender should observe for asserted misconduct. Mejlaender did acknowledge that acts of "sabotage" had been occurring, that he had been instructed to watch for such misconduct and that the Clery brothers were among those who had the ability to engage in such misconduct. However, at no point did Mejlaender testify that he had reported that the Clery brothers had possibly engaged in such misconduct and he testified only that he had previously made reports of their "horsing around" instead of performing their duties. There is, consequently, no link between the acts of misconduct which had been occurring and the Clery brothers. Martin himself was not a convincing witness. His testimony regarding the misconduct appeared to have been advanced more as an excuse for his direction to Mejlaender than as a substantive reason for that direction. The vagueness of Respondent's evidence concerning the inci- dents indicates the lack of significance with which it veiwed them. The only specific illustration advanced was that of salt being placed in sugar containers - conduct which could have been engaged in by a number of classifications of employees as well as by prank-prone customers. In these circumstances, I fmd Respondent's defense to Martin's admitted surveillance instruction to Mejlaender is singular- ly unconvincing and, in view of this fact and inasmuch as Martin did not deny Mejlaender's testimony concerning the issuance of the direction to watch the Clery brothers following the preparation of the list of employees who were not sympathetic to the Union, a list from which the Clerys were excluded, I fmd that Respondent did direct Mejlaen- der to engage in surveillance of the Clery brothers because of their activity on behalf of the Union. H. Interrogation of Applicants In an area somewhat more directly related to Respon- dent's hiring practice, a series of applicants testified that questions were asked of them regarding their feelings toward and prior affiliation with the Union. Thus, food- waitress or busgirl applicant Dorothea Murdock testified that she had been asked if she was a union member, and why she had listed the pay scale in the manner which she had on her application . To the latter question, she respond- ed that it represented union pay and that she expected something close to union pay, were she to be hired . Marcel M. Fardoux, applying for the position of executive chef, testified that he had been asked if he was a union member. Cook applicant Larry B. Frisk testified that when he had volunteered that he expected union wages the interviewer had asked if he was currently a member of the Union, and whether his membership was still in good standing . Barbara Evans, an applicant for the position of cocktail waitress, testified that she had been asked if she was currently in the Union. Chef applicant Elmer Lee Wood testified that he had been asked if it would bother him to work in a nonunion house, and hostess-cashier applicant Laurel L. Green testified that she had been asked if she was currently a union member. Respondent appears to argue that the testimony of these applicants should be viewed with suspicion in view of its overall defense that a conspiracy existed to establish wrongfully that Respondent had engaged in unfair labor practices and, further, that it had the right to inquire of the union sympathies of applicants for supervisory positions such as that of executive chef. Quite clearly, however, the latter defense would not be applicable to most of the employees who testified concerning the interrogations. All but Fardoux were applying for positions which were not supervisory. Moreover, a number of factors support the supervisors' assertion that interrogations of applicants were undertaken pursuant to instructions from Respondent's management officials, and, concomitantly, to refute the management officials' denials that they had tendered such instructions. First, Respondent acknowledges that its policy regarding nonunion operation was repetitively mentioned by its management officials to the supervisors . For example, at the time that he initially hired Sadri , Henderson admitted that he had specifically expressed his desire that Respon- dent remain a nonunion operation. Smith, who seemingly would have no purpose for doing so in light of his lack of relationship to the staffing process, conceded that he "may have told" Sadri that it was desired that Respondent would remain nonunion. Pressed on cross-examination for a ALEXANDER'S RESTAURANT AND LOUNGE further description of the incident in which he made this statement, Smith was unable to recall when it occurred, if anyone else had been present, and specifically what he had said to Sadri during the conversation. The only thing that he was able to recall is that he had advised Sadri that Respondent wanted to remain nonunion. He proffered no explanation as to why he had taken the time to make such a statement to Sadri. Martin also acknowledged having discussed Respondent's nonunion policy with Sadri "at various points throughout our relationship while he was in charge of the restaurant." At no point did Respondent explain why it had been necessary for such an array of management officials to state, restate, and dwell upon the policy of nonunion operation. The only fair inference is that the policy was continually emphasized as a means of directing the supervi- sors to act consistently with that policy in selecting applicants for employment. Consequently, it is most likely that the supervisors would inquire of applicants regarding their sympathy toward the Union. Furthermore, these admissions tend to support the supervisors' testimony regarding the constant repetition of Respondent's desire to operate without the Union and the instructions to weed out applicants who appeared sympathetic toward the Union. These conclusions are further reinforced by Abraham's admission that he had instructed Sadri to tell applicants who appeared to be sympathetic to the Union that Respondent was not a union restaurant: If [Sadri ] received, and I don't note [sic] the specificate [sic] language I told him, but some people are very union conscious if they, you know, wanted to work only for a Union shop and you get this feeling, make sure you advise them that we are not Union and if it bothers them you should tell them about it. In giving this testimony, Abraham appeared most uncom- fortable, and, while he attempted to make it appear that his direction to Sadri was intended as a favor to applicants who were sympathetic to the Union, it was clear that his comment was intended as a deterrent to dissuade appli- cants from further pursuing employment with Respondent, thereby eliminating potential threats to Respondent's nonunion policy. Second, the supervisors were not the only interviewers to raise the issue of the Union with applicants, for Martin admitted that he personally had spoken to applicants about Respondent's nonunion policy "because occasionally it would come to my attention , during the interview with the employee, through some statement of his own, that he was a union member." Finally, it was clear that Respondent's policy of seeking out and deterring union sympathizers and members from applying for employment was sufficiently reiterated and publicized that persons other than management officials and supervisors were cognizant of its existence . Thus, H. Lee Marshak, an applicant for a position in the kitchen, testified that the secretary to whom he had given his completed application had asked him if he was registered with the Union. Though Marshak was unable to identify the secretary by name, he did provide a general description of her and of the location at which she had worked. Yet 173 Respondent neither presented evidence that such an individual, as described by Marshak, had never been employed by Respondent, nor did it produce either a secretary to deny Marshak's statements or evidence that it was unable to produce that individual. These factors - the reiteration of Respondent's nonun- ion policy, Abraham's instructions to advise Union-orient- ed applicants of that policy, Martin's admission of personal discussions of that policy with applicants, and Marshak's unrefuted account of the secretary's interrogation - support the supervisors' testimony that they had been instructed to interrogate applicants to facilitate eliminating the Union's supporters as employees. For, these factors show that Respondent was concerned that its nonunion policy be kept in focus during the interviewing process and that the interviewing be conducted in a manner consistent with deterring applications by the Union's members and supporters. In these circumstances, it would be highly unlikely that Respondent's interviewers would question applicants concerning their sympathies toward and affilia- tion with the Union. Therefore, I find that applicants were interrogated regarding their membership in and sympathies toward the Union, and, further, that these interrogations were undertaken pursuant to the instructions of Respon- dent's management officials. 1. Respondent's Policy Respecting Prior Employment in Las Vegas The Union is the bargaining representative of employees in a great number of Las Vegas establishments. In fact, so extensive is the Union's representation in the Las Vegas area that Respondent was able to name but one specific Las Vegas establishment - Alpine Village - as having successfully been able to operate in Las Vegas on a nonunion basis. This of course would mean that , in Smith's words, "it would be a difficult thing" to operate a nonunion establishment in the city of Las Vegas. It would also mean that, had Respondent staffed its facility solely with employ- ees from the Las Vegas area, it would be virtually certain that a substantial, if not a preponderant, number of those employees would be union members by virtue of their prior employment. As Abraham acknowledged: "How can you staff a restaurant with only non-union people, with as many people as there are in Las Vegas? It would be impossible not to have a lot of union people working in a restaurant." It is this equation between union membership and prior Las Vegas employment that leads the General Counsel to argue that Respondent treated the latter as a synonym for the former, with the result that applicants whose employment history disclosed previous employment in Las Vegas establishments were deliberately precluded by Respondent from employment so that Respondent's nonunion status could be preserved. To support this contention the General Counsel intro- duced a series of applications filed by employees who had sought employment with Respondent and whose work history disclosed prior employment in Las Vegas establish- ments : H. Lee Marshak (Bonanza); Elmer Lee Wood (Howard Johnson and Starboard Tack); Marcel M. Far- doux (Hacienda Hotel, Sands Hotel, New Frontier Hotel); Larry B. Frisk (Gambler's Hall of Fame, Holiday Casino, 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Golden Gate Casino); Dorothea R. Murdock (MGM Grand Hotel); Laurel L. Green (Silver Slipper, Castaways Hotel, Frontier Hotel); Charles L. Stewart (Dunes Hotel, Hilton Inn International); Charlotta M. Jackson (Hilton Strip); William D. Harkson (MGM Grand Hotel, Pepper Mill Inn); John C. Chandler (Sands Hotel); Gary A. Mighell (Starboard Tack); Jimmy Walters (Aladdin Res- taurant Goldroom); Chris G. Dunkle (Steake Corral, Ceasar's Palace); Manfred R. McKinnis (Holiday Inns of America); and Sue L. Pantano Mastrogioeanni (Sahara Hotel). Moreover, in listing his previous employment at the Hilton Inn in Oakland, California, Lewman described his rate of pay as "union." In the cases of the enterprises listed above in parentheses, Martin acknowledged that he had believed that the Union was the representative of their employees. By contrast the employment histories of the 45 employees who actually were employed by Respondent and whose applications were presented at the hearing disclose that very few of them had prior employment presenting a challenge to Respondent's nonunion policy. Three of these applications (Georgia L. Diller, David E. Gerrick, and Thomas S. Combs) were not filed with Respondent until after the charge, alleging an unlawful refusal to hire employees, had been served. Accordingly, by the time that they were filed, Respondent had been put on notice of the allegations against it. Accordingly, I am excluding these three applications from consideration, as well as the application of Ric M. Crawford, which discloses that he was not interviewed for employment until August 20, though his application had been filed over 2 months earlier. Of the remaining 41 applications, 17 disclose that the applicants had never been employed previously or, alterna- tively, had never been employed previously in the Las Vegas area: Robert David Clery, Dennis W. Berry, Patricia Lucille Cantwell, Pete A. Cipriano Jr., Robert J. Cirincion, David J. Dawley, Bill Liska, Cesar A. Jaramillo, A. F. John Jandali, Richard P. McCole, Gary W. Peckham, Audrey M. Olivero, Steve Penzes, Cynthia A. Smith, Jane M. Strait, Thomas E. Yonker, and Richard Ogden.lo An additional six of the applicants showed no prior employment history in the restaurant or hotel industry prior to filing their applications with Respondent. Thus, Louis M. Clery had run a packing machine for R. Brokama Co. prior to applying for employment with Respondent. Karen M. Cross had experience only as a cashier and stock person with Sears, Roebuck and Company and as a beautician's aide with Joseph Magnin prior to filing her application. Daniel H. DeMint had been a truckdriver-aircraft loader and a supervisor in Gold Crown Billiards in Indiana prior to applying for employment with Respondent. Jerrold J. James' only prior employment had been as a receiving clerk and general maintenance man at a dress shop . Michael F. Jones had worked as a cleanup person, stockboy, mechanic, and had cut and stored meats prior to applying for employment with Respondent. Prior to filing his applica- tion, Christian E. Parry had worked packing groceries and 10 To the extent that Martin testified that he believed that establishments outside of the State of Nevada and in areas other than Las Vegas within Nevada were probably organized by some labor organization , I do not credit his testimony. He provided no basis, in reality, for these assertions and he appeared to be simply attempting to support Respondent's defense that it gathering carts at Lucky Supermarket, the Food Factory, and Skaggs Family Store. Consequently, the employment of these six employees posed no threat to Respondent's nonunion policy. Five other applicants, employed by Respondent, filed applications disclosing very short-term employment in Las Vegas establishments or short-term employment with establishments in nearby communities in Nevada, where there is some doubt as to whether the Union actually was the bargaining representative of the employees. For exam- ple, John R. Griffin had worked for about 6 months (from July to November 1974) at Eppie's. Prior to that time, his employment experience had all been in the State of Michigan. There was no showing that Eppie's employees were represented by the Union, although Martin testified that he believed that they were organized. However, no evidence was presented to support this belief and, as found above, I do not credit Martin's assertions in this regard. With the exception of the 3-month period preceding his application, Lee Haas had worked exclusively in establish- ments in States other than Nevada. During that 3-month period prior to his application , Haas had worked at Pop's Oasis in Jean, Nevada, a small community near the California state line. While Martin asserted that he believed this to be a union establishment, Respondent presented no evidence to support that assertion. Though Sharol L. Howell had worked at the Pepper Mill Inn for 6 months, this employment fell between 2 years of employment at Specialty Restaurant, located in Newport Beach, Califor- nia, and the Bureau of Reclamation in Twin Lakes, Colorado. It is, thus, unlikely that she would have contin- ued any union membership which she gained while working at the Pepper Mill Inn. In the case of Gary P. Rosa, it is difficult to ascertain whether he ever had any employment in Nevada prior to applying with Respondent since for two of the facilities, at which he lists prior employment, no address is given. For his two other prior places of employ- ment the addresses are listed as being in Visalia, California. It is thus likely that he was never employed in Nevada prior to commencing work for Respondent. In any event, there is no showing that any of the establishments which he listed were ones where the Union serves as the bargaining representative. Finally, the application of Robert Higgins discloses that he was employed at Ceasar's Palace, but that that employment had been temporary and was of, at most, 2 months' duration. Thus, of 41 employees hired by Respondent, only 13 had any substantial degree of prior employment in the Las Vegas area prior to filing their applications with Respon- dent. Even, however, with respect to these 13 employees, there were certain factors indicating a lack of prior relationship with the Union. For example, while the application of Kenneth Lee Corzine discloses prior employ- ment at King Arthur, Martin admitted that during his interview with Corzine the subject of union membership had arisen and Corzine had promised to get a withdrawal card from the Union. It can, therefore, hardly be said that had not discriminated in its hiring policies . In any event, the primary consideration in the instant case involves the extent of the Union's organization and its jurisdiction appears to be confined to the Las Vegas area ALEXANDER'S RESTAURANT AND LOUNGE his employment posed a challenge to Respondent's nonun- ion policy. Similarly, while Bruce A. Gorski had worked for almost 7 months at the King 8 Inn, his most recent employment had been at a glass company and he was hired for the position of bar manager, apparently a supervisory position. Brian Harris had worked most recently in a 7 - 11 Store. There is no showing that such stores were organized in the Las Vegas area. Moreover, from May to December 1973, Harris had worked at the Alpine Village , which, as noted above, had successfully operated in Las Vegas as a nonunion establishment-the only nonunion establishment in Las Vegas which Respondent was able to name specifi- cally. Bettie Scarcelli had worked at the Dunes Hotel. However, her employment at that facility had been during the period 1963 to 1967-68, years prior to filing her application with Respondent . Moreover, while employed at the Dunes, she had been a cigarette concessionaire. There is no showing that this is the type of classification for which the Union serves as bargaining representative. Harvey Lane had worked at a supper club and bar, apparently in the Las Vegas area, for 15 years. However, he lists his employment during that time as "self employed." It is thus unlikely that he would have been a member of the Union. Cathy M. Steele did list prior employment with the Westward Ho Motel and Casino ; however, that employment lasted but 2 days. Subsequently, she worked as a salesperson for Off the Wall Fashions and prior to her employment with Westward Ho she had worked as a supervisor and salesperson in the Lollipop Shop. It is consequently unlikely that she would have been a member of the Union. Thomas W. Nelson had worked at the Motel 6 from January 1974 until the date of his application on March 21. However, he listed the work he performed at Motel 6 as "supervised front desk on swing shift." Thus, as was true with the above-named employees, it is unlikely that he would have been a member of the Union and prior to his employment with the Motel 6, he had worked for the U.S. Treasury Department in Denver , Colorado. Two cocktail waitresses, Vickie Cudahy and Alice M. Horn , both listed prior employment in Strip establishments , the former at the Sands and the latter at the Hilton , as well as the Westward Ho. However, their employment at these establishments was, in the case of Cudahy , as a Keno runner and, in the case of Horn, as a Keno runner at the Hilton and as a change girl at the Westward Ho. These are not classifica- tions of employees the Union represents and, accordingly, their applications would not indicate that they were either members of or sympathetic to the Union. This, then, leaves 4 applications, of the 41 filed by employees hired by Respondent, disclosing any substantial prior employment history in Las Vegas restaurants , casinos, or hotels where the Union was likely to serve as the bargaining representative of employees: Scot McCartin, Michael Whitcomb (hired as a waiter), Vincent D. Parry, and Betsy J. Insabella. Yet, Whitcomb denied that he was a member of the Union when interrogated during his employment interview. With respect to Insabella, it is clear that Respondent did initially deny her employment because she had disclosed that she had paid an initiation fee to the Union prior to applying for employment with Respondent. 175 Only when Sadri made an issue of the matter, by going to Henderson and protesting loudly concerning the refusal to give him approval to hire Insabella , was approval granted to hire her. Respondent, however, contends that a special but valid criterion applied to applicants from Strip establishments and that this criterion may well have precluded applicants with prior employment at such establishments from em- ployment with Respondent. Thus, Respondent asserts that its concern with preserving the gourmet atmosphere of its establishment had led it to formulate a policy whereby employees from Strip establishments would be scrutinized carefully in view of the numerous complaints concerning the type of service afforded patrons in such establishments, i.e., a "rush-rush" type of service designed to minimize the time spent serving customers' meals. There was no dispute concerning the type of service afforded in Strip establish- ments. However, notwithstanding Respondent's generaliza- tion, at no point did it detail the manner in which it intended to closely scrutinize such applicants for employ- ment and at no point did it introduce evidence of special scrutiny being given to particular applicants from Strip establishments. Indeed, in contrast to instructions concern- ing the nonunion policy which its supervisors were to follow, at no point, so far as the record discloses, is there any evidence of specific standards by which Strip appli- cants were to be judged being communicated to interview- ers. It is, therefore, difficult to credit Respondent's general- ized description of an asserted policy of closely scrutinizing applicants with prior employment at Strip establishments. This difficulty is merely compounded when the applica- tions of many of the persons who were hired by Respondent are examined closely. For example, Cathy Steele applied for the position of cocktail waitress, presumably a sensitive position since she would be dealing with the public. But, her only prior experience in such a position involved 2 days' work at the Westward Ho Motel and Casino. All of her other experience appears to have involved either retail sales work or freelance modeling. In a like vein, Bettie Scarcelli was hired as a hostess, notwithstanding prior experience only as a cigarette concessionaire and, at that, during the period 1963 through 1967. Both Alice Horn and Vickie Cudahy were hired as cocktail waitresses without regard to the facts that the former had only once served as a waitress, from January 1966 to June 1967, and that the latter had never served as a waitress, so far as her application discloses. Other examples of applicants who were employed not- withstanding prior experience which did not particularly qualify them for the positions for which they were hired were : Louis M. Clery who was hired as a busboy, notwithstanding prior experience only in operating a packing machine; Karen M. Cross who was hired as a pantry girl or busgirl, notwithstanding prior employment only as a cashier and stock clerk for Sears and as a beautician's aide at Joseph Magnin ; Daniel H. DeMint who was hired as a barboy, notwithstanding prior employ- ment only as a truckdriver-aircraft loader and as a supervisor in Gold Crown Billiards; Jerrold J. James who was hired as a dishwasher and busboy, notwithstanding prior employment only as a receiving clerk and general 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance person at a dress shop; and Michael E. Jones, who was hired as a busboy and dishwasher, notwithstand- ing prior employment only as a cleanup person, stockboy, and mechanic. Of course, these individuals were only buspersons and not waiters or waitresses. Yet, buspersons' contacts with customers were of sufficient magnitude and regularity to warrant including them in the tip subsidy program. Seemingly, therefore, Respondent would be concerned with their image, work experience, and, particu- larly, the manner in which they performed duties bringing them in contact with customers. It is, of course, perfectly conceivable that these persons demonstrated greater potential than applicants such as, for example, Insabella, who applied on March 24-a few days after Cudahy had applied-and who had worked as a waitress, serving both food and drinks, for almost a year prior to filing her application with Respondent-unlike Cudahy whose prior employment included no work as a waitress. However, Respondent made no contention that it had taken potential into account in selecting employees for hire. In fact, it presented no explanation for its selection of the specific applicants which it had hired, beyond the generalized assertion that it was closely scrutinizing appli- cants with prior Strip employment to avoid hiring person- nel whose work habits were contrary to the atmosphere which Respondent was attempting to create in its establish- ment. This is hardly a satisfactory explanation for rejecting experienced applicants in favor of relative novices. Conse- quently, in view of Respondent's failure to explain specifi- cally how this asserted policy had been implemented and in light of the numerous applicants without significant restau- rant experience who were hired, I find that this defense has been advanced solely to cloak Respondent's true motive for refusing to hire applicants whose backgrounds or com- ments during their employment interview disclosed that they were supporters or members of the Union. Lest there be any doubt of this conclusion, it is laid to rest by Henderson's admission that at the time of the Insabella incident he had gotten "indication" that Sadri had been refusing to hire applicants solely because of their union sympathies. J. The Information Disclosed During the Interviews As found above, several applicants had been interrogated during their employment interviews with Respondent. The replies of Murdock, Fardoux, Frisk, and Green clearly i i Respondent contends that Jacobs, as well as certain other applicants, had been applying for the position of executive chef and as that position was supervisory Respondent had the right to inquire into their union sympathies and to exclude them from consideration for employment as supervisors because of the sympathy which they displayed toward the Union. Yet, notwithstanding this contention , Respondent presented no evidence which would support the conclusion that its purpose in interrogating applicants had been to preclude them from obtaining employment with Respondent as supervisors. Indeed, the fact that Respondent did hire supervisors who had been members of the Union and the further fact that applicants for nonsupervisory positions had also been interrogated regarding their union sympathies, negates Respondent's contention Moreover, Jacobs testified that he would have been willing to accept a nonsupervisory position as working chef. Yet, following his interview, no such position was offered to him. Rather, so far as the record discloses, all consideration of employing Jacobs ceased once he, unlike Corzine, displayed reluctance to disavow the Union. 12 Respondent points to the fact that, following the Insabella incident, demonstrated their sympathy toward the Union. While Wood did not unequivocally demonstrate that he support- ed the Union, he testified that he had "left myself open, waiting to see what the offer was, you know." Thus he did not disavow support for the Union, as did Whitcomb, who had denied that he was a member of the Union when asked by Sadri, and as did Corzine, who had promised to obtain a withdrawal card when the subject of the Union arose during his interview with Martin. Charlotta Jackson had accompanied Murdock to the interview and, while there is no direct evidence regarding what had been said to her during her own interview, it is reasonable to infer that her obvious friendship with Murdock led Respondent to assume that she, also, would be sympathetic to the Union. Don Jacobs, responding to an advertisement in an Arizona newspaper, had been interviewed by Sadri. When asked if he was a union member, he replied that he had been in past years, but had withdrawn his membership after moving to Arizona because "Arizona was a right-to-work State, and a very weak Culinary Union, and I could derive no benefits from being a union member, so I took a withdrawal." By contrast, the Union, of course, is quite strong in the Las Vegas area and when Sadri next asked how Jacobs felt about the Union, the latter vacillated, replying, "Well, I have no real feeling. I can go either way. If it is a union house, I can reinstate. If it is not, why I will keep my withdrawal." However, though the interview ended cordially, Jacobs was never recalled for a further interview by higher management nor was he hired.11 In contrast with Jacobs, Corzine was employed, as stated above, after he had asserted his intention to withdraw from the Union if he obtained employment with Respondent. Similarly, Whitcomb denied that he had been a member of the Union when asked about the matter during his interview. He, like Corzine, was then offered employment with Respondent. Indeed, any doubt that answers disclos- ing union sympathies or membership influenced Respon- dent's hiring decisions is laid to rest by the situation involving Insabella who, upon disclosing during an inter- view with Martin that she had paid an initiation fee to become a member, was promptly denied employment with Respondent and who, ultimately, obtained employment only when Sadri made an issue of the matter with Henderson.12 The testimony of Gordon Scott, however, requires more critical examination, for Scott had been the manager of a Henderson had instructed the supervisors and management officials not to discriminate against applicants because of their membership in the Union Indeed, the testimony shows that Henderson had then repeated that direction on a number of occasions thereafter Thus, argues Respondent, it is clear that its intention was to prevent any further discrimination against applicants on the basis of union membership. Yet, this is not a wholly convincing argument . Sadn's testimony that the discrimination had contin- ued thereafter, at the behest of Martin and Abraham, was not effectively refuted. Further, the evidence regarding applicants who were employed and who were rejected following the Insabella incident discloses that the pattern of discrimination against employees who indicated support for the Union during their interviews and who had been previously employed in Las Vegas, particularly Strip establishments, continued after the Insabella incident. Two possibilities exist to explain this situation. First, Henderson, who did not become involved in the day-to-day operations of Respondent, may well have intended that his instructions be carried out but his management officials may well have disregarded those instructions in an effort to effectuate the overall policy of remaining nonunion. Second, it may well be that Hender- ALEXANDER'S RESTAURANT AND LOUNGE 177 restaurant where Sadri had once worked and had applied for a position with Respondent at Sadri's behest. Scott testified that Sadri had invited him to apply for the position of maitre d' and, in February, had told Scott that he and two other employees, Helen Schmuck and Larry DeCorski (since deceased), had been hired. Then in mid-March, testified Scott, Sadri had called and said that, because Respondent was not to be a union house and because Scott and Schmuck had been affiliated with the Union, they would not be hired. Sadri did testify that Scott and Schmuck had not been hired because of their past affiliation with the Union. However, he denied having told Scott that this had been the reason for the refusal to employ him. Further, Schmuck testified that Scott had reported to her that the reason that she had not been hired as a waitress was that Respondent intended to hire only men. Indeed, an examination of the applications of employees whom Respondent did hire discloses that no females were hired for the position of dining room waitress and that females were hired only as cocktail waitresses and cashiers. Moreover, although both Scott and Schmuck claimed to have filed applications showing their prior employment at union establishments in Las Vegas and while Sadn claimed to have placed Scott's application "in my desk," where the other applications produced by the General Counsel had been placed by Sadri, no applications by Scott or Schmuck were produced to corroborate their testimony regarding the fact that their applications had disclosed prior employment at union- represented establishments. As found above, Sadri was not a credible witness. Neither, in my opinion, was Scott. In view of the fact that the allegations regarding the refusal to hire Scott and Schmuck rested solely upon the testimony of these two untrustworthy witnesses and in light of Schmuck's testimo- ny concerning what she had been told by Scott, Sadri's denial that he had told Scott the assertedly real reason for the refusal to hire him, and the absence of the application forms which purportedly showed prior employment at union establishments in Las Vegas, I do not credit the testimony concerning the allegedly unlawful refusal to hire Scott and Schmuck. K. The Newspaper Advertisements There is no evidence that Respondent placed any newspaper advertisements seeking employees in any Las Vegas newspaper. However, the record does disclose, and Henderson admitted as much, that Respondent did place advertisements in the Los Angeles, California, "Times" and in the Phoenix, Arizona, newspapers. Henderson asserted that these advertisements were necessitated by the fact that Respondent was seeking cooks. Yet, accepting as true Henderson's testimony that the advertisements were con- fined to soliciting cook applicants , it is difficult to under- stand why Respondent would need to resort to out-of-state advertising in order to find qualified individuals. For, by the time that Respondent was prepared to open its son, alerted to Sadn's dissatisfaction with the policy of rejecting applicants who displayed union sympathies, may well have been attempting to build a record establishing the purity of Respondent's intent should Sadn ever pursue the matter further and make an issue of Respondent's discriminatory restaurant, it had before it the applications of a number of employees seeking positions as chefs: Wood (filed February 4), Mighell (filed February 12), Chandler (filed February 10), Fardoux (filed February 17), Stewart (filed February 20), Jacobs (filed February 22), McKinnis (filed February 25), Stark (filed February 26), Kirk (filed March 13), Harkson (filed March 10), Frisk (filed March 31), and Walters (filed April 2). At no point did Respondent see fit to explain why none of these applicants had been chosen for employment. True, as Respondent points out in its brief, some of them had applied for the position of executive chef. Yet there is no evidence that they would have declined positions as working chefs. In any event, so far as the record discloses, Respondent did not see fit to even inquire if they would accept positions as working chefs. What was evident is that each of them either had admitted possible union affiliation during employment interviews and/or had filed applications disclosing prior employment in establishments likely to have bargaining relationships with the Union. V. ANALYSIS As found above, Respondent violated Section 8(a)(l) of the Act by interrogating applicants for employment to ascertain their attitude toward the Union. Moreover, as also found above, Respondent violated Section 8(a)(3) and (1) of the Act by conferring tip subsidies upon employees in July and August. The General Counsel, in addition, contends that Respondent violated the Act by conducting a hiring practice designed to eliminate members and support- ers of the Union. The testimony of the former supervisors support that contention. However, Respondent urges that the circumstances of the former supervisors' severances of employment with Respondent provide a basis for inferring that they would not be favorably disposed toward Respon- dent. Indeed, as found above, Sadri and Petrunjo did display hostility toward Respondent to the extent that they provided contrived evidence in an effort to penalize Respondent. However, the other three supervisors - Buck, Whitcomb, and Mejlaender - appeared to be testifying honestly and I credit their testimony that Respondent did formulate and implement a plan whereby applicants displaying a sympathetic attitude toward the Union were to be precluded from consideration for employment. Their testimony seemed honest and it corresponded with a number of objective considerations, as well as with several admissions. It is clear that Respondent had a motive for refusing to hire applicants who appeared favorably disposed toward the Union. Respondent's officials admitted that there had been a policy that Respondent was to be a nonunion establishment. It was also clear that this policy was not one of passive hopefulness - Respondent engaged in a series of acts designed to implement that policy. Thus, the substance of the policy was communicated to, and known by, all management officials and supervisors. Before opening, Respondent had sought the aid of local counsel to ascertain how that policy could be implemented. During the inter- hiring practice . In either case, Henderson's statements would not serve to exculpate Respondent 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viewing process, Respondent's personnel went out of their way to state that policy to applicants who disclosed a disposition in favor of the Union. Abraham was dispatched to a Los Angeles conference to obtain information on further implementation of that policy. Following receipt of the Union's letter demanding recognition, Respondent prepared a list of employees upon whom it could rely to support its policy. Moreover, it is clear that Respondent's conduct, designed to implement its nonunion policy, was not confined to lawful action. Rather, Respondent unlawfully interrogated applicants in an effort to ascertain their attitude toward the Union. It granted tip subsidies in July and August for the purpose of dissuading employees from supporting the Union. It directed that surveillance be conducted of the Clery brothers to ascertain what activity they were engag- ing in on behalf of the Union. Against this background, Respondent's hiring practices must be evaluated. The management officials were admit- tedly aware that were Respondent to hire applicants from the Las Vegas area it would be impossible to achieve an employee complement not composed of a substantial number of the Union's members and supporters, a situation posing a threat to Respondent's nonunion policy. Examina- tion of the applications filed by the employees whom Respondent chose to employ discloses that very few had any significant degree of prior employment in the Las Vegas area, in establishments and in classifications for which the Union served as the bargaining representative. Thus, of 41 applicants hired prior to receipt by Respondent of the charge in this matter, 17 had never held employment in the Las Vegas area; 8 had worked in the Las Vegas area, but for firms not involved in the food service industry where the Union served as the bargaining representative of employees;13 7 had brief, if any, recent employment in Las Vegas establishments and, in view of the nature of these establishments, the Union was probably not serving as the bargaining representative for their employees; 2 flatly disavowed the Union during their interviews; 1 had worked at the only nonunion establishment that Respondent was able to specify as operating in Las Vegas; 1 was hired in an apparently supervisory capacity; 14 1 had previously been self-employed; and I had formerly been employed in a supervisory capacity. Moreover, of the remaining appli- cants who were hired, one - Insabella - admittedly had been denied employment because she had joined the Union. She was hired, ultimately, only because Sadri chose to make an issue of the matter by heatedly protesting Respondent's refusal to employ her. The General Counsel presented applications of a series of persons who had applied for employment with Respondent. 13 Respondent appears to argue that were it truly discriminating against Union-oriented employees it is unlikely that it would have hired any applicant who might have been a member of any labor organization. This, however, does not follow of necessity In order to operate , Respondent was compelled to staffits restaurant To do so, it would have to obtain employees from somewhere Its concern was with employees who would be favorably disposed toward the Union. Thus, the fact that an employee might formerly have been employed as a truckdriver, thus possibly being a member of a labor organization representing truckdnvers, does not mean that Respon- dent would be subjected to possible demands for representation by the Union based upon that individual's poor membership in, or sympathies toward, a labor organization which represented other types of employees Many of these applicants display significant experience in the food service industry. Yet Respondent did not see fit to advance any specific reasons for rejecting these specific applicants in favor of those which it accepted for hire, many of whose experience was virtually negligible . Of course the management officials were relying upon the supervisors' judgment with respect to the qualifications of applicants. Nonetheless, it was clear that Respondent's management officials did participate in the process of selecting appli- cants for hire, and, thus, had to be cognizant of the reasons for their selection. In fact, as the Insabella incident demonstrates, management officials did overrule superviso- ry recommendations. In these circumstances, significant weight must be accorded to Respondent's failure to even attempt to advance an explanation for the selection of specific applicants who were hired and for the rejection of others whose applications were proffered by the General Counsel. True, Respondent did assert that it had been according special treatment to applicants with experience in Strip establishments because of the differences in styles of service. Yet, at no time did Respondent show specifically the manner in which it had implemented such an asserted policy - no evidence of standards for judging such applicants was produced, no evidence of dissemination of such standards to interviewers was introduced, and no evidence of consideration of specific applicants under such an asserted policy was adduced. Accordingly, I find that this policy was advanced only to disguise the real motive for rejecting employees with Las Vegas, particularly Strip, backgrounds-that they were likely to have been members and supporters of the Union. This conclusion is reinforced by the evidence that advertisements were placed in out-of-state newspapers, but not in Las Vegas newspapers, when applicants from the Las Vegas area were available to fill the classification listed in the advertising; that applicants were interrogated regarding their union sympathies; that applicants who disavowed the Union during such interrogation were hired, but that those who failed to do so were not hired; that efforts were made to dissuade applicants who disclosed membership in the Union from pursuing employment with Respondent; and that Respondent's management officials constantly reiter- ated Respondent's nonunion policy to its supervisors, thereby inviting the latter to take action during the interviewing process consistent with that policy. Finally, there is Henderson's admission that Sadri had been discriminating against union members and sympathizers. Therefore, in the circumstances presented in the instant case, I find that the General Counsel has established by a preponderance of the evidence that Respondent was 14 Though Respondent argues that it would not have hired supervisors with a background of membership in the Union, such as Sadn , had it been intent upon discriminating against the Union's supporters, this conclusion does not follow of necessity. So far as the record shows, none of the supervisors made any protest when advised of Respondent 's nonunion policy. Indeed, Sadn willingly consented to obtaining a withdrawal from the Union. Moreover, as shown by Respondent's argument in connection with executive chefs, the existence of supervisors with union backgrounds posed no threat to Respondent's policy so long as they were willing to adhere to that policy, since such individuals would be ineligible to participate in any campaign on behalf of the Union and could be discharged in the event that their favoritism toward the Union became active. ALEXANDER'S RESTAURANT AND LOUNGE 179 pursuing "a pattern or practice of refusing to hire appli- cants for employment because the applicants were Union members or had previously worked in Union establish- ments." Further, I find that it did this by interrogating applicants and by carefully scrutinizing the applications which they filed, in an effort to identify those who were sympathetic to the Union and whose prior employment demonstrated a likelihood of union membership, by virtue of prior employment in Las Vegas establishments, where the Union represented employees, in food service classifica- tions. Using this dual standard as a guide, I find that the evidence does establish, based upon the testimony of disclosures during interviews and examination of the information on their application forms, that the following applicants were the victims of this discriminatory hiring policy: Dorothea R. Murdock, Don H. Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart Gary A. Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B. Frisk, and Joseph A. Russo.15 Respondent makes three additional contentions requiring further discussion. First, it argues that some applicants named by the General Counsel failed to pursue their applications by returning to further pursue employment with Respondent. Yet, it is clear that in filing their applications and in participating in the interviews they had done everything necessary to perfect an application for employment with Respondent. That Respondent construed the filing of an application as a continuing request for employment is best illustrated by the hiring of Ric Crawford who initially applied for employment in June, but who was not actually interviewed and employed until August. Accordingly, these were continuing applications for employment at later dates, and there was no need for these applicants to further pursue the matter to perfect their request for employment. As found above, such further pursuit would have been futile. The Lummus Company, 101 NLRB 1628, 1632 (1952), enfd. as modified 210 F.2d 377 (C.A. 5, 1954); Consolidated Western Steel Corporation, et al., 108 NLRB 1041, 1044 (1954); cf. Southern Cotton Oil Crude Mill, Division of Hunt Foods and Industries, Inc., 144 NLRB 959, 960, fn. 3 (1963). Second, Respondent asserts that it has not been shown that vacancies existed for all of the discriminatees. How- ever, the Board stated in Shawnee Industries, Inc., subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451, 1452-53 (1963), enforcement denied on other grounds 333 F.2d 221 (C.A. 10, 1964): Under the Act an employer must consider a request for employment in a lawful, nondiscriminatory manner, and the question whether an application has been given 15 Russo's application discloses that he was not previously employed in the Las Vegas area ; however, it also discloses his rate of pay, both in Sacramento and Lake Tahoe , being listed as "scale " Martin was unwilling to concede that the word "scale" would indicate that an employee had been employed in a union establishment . Yet, it seems obvious that the use of such a term in describing a rate of pay could mean only that the employment was covered by a collective-bargaining agreement . Significantly, none of the applications filed by employees whom Respondent did hire contain that such consideration does not depend on the availability of a job at the time an application for employment is made. Consequently, the Act is violated when an employer fails to consider an application for employ- ment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the employer's backpay obligation. Therefore, "final determination of job availability and possible backpay liability will be properly left to compli- ance." Apex Ventiliating Co., Inc., 186 NLRB 534, fn. 1 (1970). Finally, Respondent contends that none of the applicants who listed executive chef as the position for which they were applying can be considered a discriminatee since such a position is supervisory. While applicants for supervisory positions are not normally entitled to the protection of the Act, there is no evidence that Respondent had a superviso- ry classification of executive chef. Nor is there any evidence that Respondent evaluated applicants for employment on the basis of the positions which they listed on their applications. Indeed, Petrunjo was hired as head chef, notwithstanding the fact that he had listed on his applica- tion that he was applying for the position of "chef." Moreover, Jacobs indicated that, notwithstanding his insertion of the classification executive chef on his applica- tion, he would have been willing to accept a position as working chef had it been offered him. It was not. Nor was such a position offered to the other applicants who listed "executive chef' on their applications. However, there has been no showing that Respondent failed to offer them employment because they had listed that classification on their applications. What has been shown, as found above, is that Respondent refused to consider for employment applicants who divulged union sympathies and affiliations during their interviews and/or whose employment applica- tions disclosed prior employment in establishments where the Union was the bargaining representative of the employ- ees. In these circumstances, I find that the evidence is not sufficient to support the conclusion that the applicants who listed executive chef on their employment applications were seeking solely supervisory positions. The evidence with respect to the allegations that Dorothy Jean Gosnell, Gordon Scott, and Helen Schmuck were denied employment unlawfully must be dismissed. With respect to Scott and Schmuck, as found above the evidence does not support the conclusion that they were denied employment because of their union sympathies or their prior employment in establishments where the Union was the bargaining representative. With respect to Gosnell, the only evidence concerning her is the application which she filed. Examination of that application discloses that it does not contain any indicia of prior union affiliation, save for Sadri's markings and writings which, as found above, are nomenclature. In this regard, I do not credit Martin's testimony that the use of words such as "day" and "shift," when used in reference to a rate of pay, indicated to him that a collective-bargaining agreement was in force There is nothing so unique about these words to justify such an assertion and in so testifying Martin appeared to be attempting to buttress Respondent's defense, since these two terms were used to describe previous wage rates on several applications of employees hired by Respondent. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not reliable evidence for establishing a violation. Therefore, I recommend that the allegation regarding Gosnell , Scott, and Schmuck be dismissed. Similarly, as found above, a preponderance of the evidence does not establish that Richard Ogden had been terminated because of Respon- dent's suspicion that he was a union member or sympathiz- er. Accordingly, I recommend that this allegation likewise be dismissed. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relation 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. Alexander Dawson, Inc. d/b/a Alexander's Restau- rant and Lounge 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. Local Joint Executive Board of Las Vegas Culinary Workers Union Local 226 & Bartenders Union Local 165, Hotel & Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating applicants for employment regard- ing their union membership and sympathies, I fmd, Respondent violated Section 8(ax1) of the Act. 4. By granting tip subsidies in July and August 1975 for the purpose of dissuading its employees from supporting the Union, I find, Respondent violated Section 8(aX3) and (1) of the Act. 5. By engaging in a pattern or practice of refusing to hire applicants for employment because those applicants were union members or had previously worked for union establishments, I find, Respondent discriminated in regard to the hire of Dorothea R. Murdock, Don H . Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary A. Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B. Frisk, and Joseph A. Russo, thereby discouraging membership in the Union and, accordingly, I find that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The evidence is not sufficient to establish that Respondent unlawfully refused to hire Dorothy Jean Gosnell, Gordon Scott, and Helen Schmuck, nor is the evidence sufficient to establish that Respondent was unlawfully motivated in making the decision to discharge Richard Ogden. THE 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. It having been found that Respondent unlawfully dis- criminated against Dorothea R. Murdock, Don H. Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary A. Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B. Frisk, and Joseph A. Russo with respect to their applications for employment, it will be recommended that Respondent be required to offer them employment in the same position in which they would have been hired absent the discrimination against them, if such positions became available subsequent to the filing of their applications, and, if no such position becomes available, in a substantially equivalent position. In the event that such positions did not become available following the date upon which they filed their applications, it will be further recommended that, in such case, Respondent be required to place their names on a preferential hiring list and offer them the first such positions that become available, in which it would have employed them absent any discriminatory considerations. It will further be recommended that Respondent be required to make them whole for any loss of earnings they may have suffered by reason of the failure to give them nondiscriminatory consideration for employment in the manner outlined above, less net earnings during the period of such backpay accrual. Backpay is to be computed on a quarterly basis making deductions for interim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforce- ment denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 16 The Respondent, Alexander Dawson, Inc. d/b/a Alexan- der's Restaurant and Lounge, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating applicants for employment concerning their union membership and sympathies. (b) Granting tip subsidies or other benefits to employees for the purpose of dissuading them from supporting the Union or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment for engaging in activity on behalf of a labor organization. is In the event no exceptions are filed as provided by Sec. 10246 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board , the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec . 102.48 waived for all purposes. ALEXANDER'S RESTAURANT AND LOUNGE 181 (c) Refusing to hire job applicants because they are members or sympathizers of the Union or because they worked in establishments where the Union had served as the bargaining representative of employees. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make Dorothea R. Murdock, Don H. Jacobs, Chris G. Dunkle, Charlotta M. Jackson, H. Lee Marshak, William D. Harkson, Jimmy Walters, John C. Chandler, Sue L. Pantano Mastrogioeanni, Charles L. Stewart, Gary A. Mighell, Terry M. Lewman, Marcel M. Fardoux, Manfred R. McKinnis, Laurel L. Green, Elmer Lee Wood, Larry B. Frisk, and Joseph A. Russo whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Offer the above-named employees immediate employ- ment, subject to the conditions and limitations set forth in the section of this Decision entitled "The Remedy." (c) Preserve and upon request make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights as set forth in "The Remedy" section of this Decision. (d) Post at its Las Vegas, Nevada, facility copies of the attached notice marked "Appendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 31, after being duly signed by the 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, 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 an unlawful refusal to hire Dorothy Jean Gosnell, Gordon Scott, and Helen Schmuck, and insofar as it alleges that Richard Ogden was unlawfully discharged. 17 In the event that the Board's Order is enforced by a Judgment of the to a Judgment of the United States Court of Appeals Enforcing an Order of " United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board " shall read "Posted Pursuant