Maxwell's Plum

MAXWELL'S PLUM 211 Le Roy Fantasies, Inc., and Hardwicke's Plum, Inc., a Joint Venture, d/b/a Maxwell's Plum and Amalgamated Service and Allied Industries Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 2-CA- 16845 and 2-CA-17017 May 28, 1981 DECISION AND ORDER On November 24, 1980, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and support- ing briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as herein modified. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and hereby orders that the Respondent, Le Roy Fantasies, Inc., and Hardwicke's Plum, Inc., a Joint Venture, d/b/a Maxwell's Plum, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order: 1. Substitute the following for paragraph l(e): "(e) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I In sec. C(I) of his Decision, the Administrative Law Judge correctly stated that Fox called Purtz about I week before November 21, 1979. However, he incorrectly concluded that this event preceded Olan's Octo- ber call from Fox and Respondent's October unfair labor practices. In par. (d) of the analysis section and also in the remedy section of his Decision, the Administrative Law Judge refers to Supervisor Caldas' so- licitation of employees to sign authorization cards for a union other than the Charging Party. Although the record shows that Caldas was present during such solicitation, it does not show that she did the soliciting. 2 Chairman Fanning would find that Respondent's obligation to bar- gain with the Union arose at the time of demand. I In par. I(e) of his recommended Order, the Administrative Law Judge included a broad cease-and-desist order against Respondent, rely- ing on Respondent's having been found to have committed unfair labor practices in 1972, as showing that it has a proclivity to violate the Act. We do not agree that this past conduct of Respondent is sufficient to demonstrate that Respondent has a proclivity to violate the Act. Howev- er, we do believe that the unfair labor practices found in this case are of such an egregious nature as to demonstrate Respondent's general disre- gard for employees' fundamental statutory rights, and warrant the broad remedial language. 256 NLRB No. 36 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT ask you whether you joined a union or whether you know that others did so. WE WILL NOT threaten to withhold prom- ised wage increases or other benefits from you because you engage in union activities. WE WILL NOT say anything to you to give you an impression that your union activities are under surveillance by us. WE WILL NOT tell you that you would regret joining a union. WE WILL NOT discriminate against you be- cause you join Amalgamated Service and Allied Industries Joint Board, Amalgamated Clothing and Textile Workers Union, AFL- CIO, CLC, or any other labor organization, or because you engage in any union activities. WE WILL NOT shut down our laundry be- cause you join a labor organization or engage in union activities. WE WILL NOT fail or refuse to give you em- ployment with us because you engage in union activities. WE WILL offer immediate and full reinstate- ment to Maria Acevedo, Gloria Cruz, Gra- ciella Gomez, Alexandria Holmes, Ana Rodri- guez, Domingo Rodriguez, and Gladys Rodri- guez to their former jobs with us or, if those jobs no longer exist, they will be offered sub- stantially equivalent jobs; and WE WILL make each of them whole, with interest, for all moneys lost as a result of their dismissal from work on October 19, 1979, and our failure to MAXWELL'S PLUM 211 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall them to work on or about December 6, 1979. WE WILL make whole, with interest, Dolo- res Aguilo, Maria Ramos, Marina Rodriguez, Pautino Rodriguez, Esperanso Ronquillo, and Guarino Rodriguez for all moneys lost as a result of their dismissal from work on October 19, 1979. These employees have already been offered reinstatement. WE WILL immediately recognize and, upon request, bargain with Amalgamated Service and Allied Industries Joint Board, Amalgamated Clothing and Tex- tile Workers Union, AFL-CIO, CLC, as the exclusive representative of all the employees in the unit described below with respect to your wages, hours, and other conditions of your employment and, if an understanding is reached, we will put it into a written contract which we will sign. The appropriate unit is: All full-time and regular part-time laundry employees including feeders, receivers, fold- ers, washers, and packers employed at our laundry located at 317 East 64th Street, New York, New York, but excluding guards, all other employees and supervisors as defined in the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce you in your exercise of any of the rights set forth at the top of this notice. LE ROY FANTASIES, INC., AND HARDWICKE'S PLUM, INC., A JOINT VENTURE, D/B/A MAXWELL'S PLUM DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: These cases were heard before me on June 18 and July 8-10, 1980, at New York, New York. On January 31, 1980, an Order consolidating cases, consolidated complaint and notice of hearing was issued upon the charge in Case 29-CA-16645 which was filed by the Union on October 25, 1979,1 and upon the charge in Case 2-CA-17017 which the Union filed on January 21, 1980. The consolidated complaint alleges the Employer vio- lated Section 8(a)(1) of the National Labor Relations Act, as amended (hereinafter referred to as the Act), by a variety of independent activities including unlawful in- terrogation, threats of discharge and other reprisals, threats to withhold promised benefits and creation of im- pressions that employee union activity was under surveil- lance. All dates hereinafter are 1979 unless otherwise stated. Additionally, it is alleged that the Employer discrimi- nated against employees in violation of Section 8(a)(3) and (1) of the Act by curtailing part of its operations and the attendant discharge of certain employees on or about October 19 and by failing to rehire or reinstate them after the Employer resumed its normal operations. Finally, it is alleged the Employer refused to bargain in violation of Section 8(a)(5) of the Act by engaging in a course of conduct to dissipate the Union's majority status among an appropriate unit of laundry employees, which activities consisted of the various alleged inde- pendent 8(a)(l) violations together with the alleged dis- criminatory curtailment of operations, discharges and re- fusals to reinstate employees; and by refusing and failing to recognize the Union as the exclusive collective-bar- gaining representative of those unit employees. The con- solidated complaint avers the Employer's conduct pre- cludes the holding of a fair representation election among the unit employees. The Employer filed a timely answer to the consoli- dated complaint. The answer admitted certain matters but denied the substantive allegations and that it commit- ted any unfair labor practices. All parties appeared at the hearing. Each was represented by counsel and was af- forded full opportunity to be heard, to introduce and to meet material evidence, to examine and cross-examine witnesses,2 to present oral arguments, and to file briefs.3 I have carefully considered the contents of the briefs filed by counsel for the General Counsel and the Em- ployer's counsel. No brief was received from the Union's counsel. Upon consideration of the entire record and the briefs and my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION No issue is raised as to jurisdiction or labor-organiza- tion status. Based upon the complaint allegations and the Employer's amended admissions, I find the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 4 II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Sequence of Events The following recitation is a composite of relevant un- refuted oral testimony, supporting documents, and other undisputed evidence. Wherever material conflicts exist, they are resolved. Not every bit of evidence is discussed. Nonetheless, I have considered all of it together with all 2 All witnesses were sequestered upon the Employer's unopposed motion. 3 The General Counsel's unopposed motion to correct the official tran- script is hereby granted. 4 The Board has previously asserted jurisdiction over the instant em- ployer. See MPC Restaurant Corp. and Hardwicke's Plum Ltd.. d/bla Maxwell's Plum, 198 NLRB 14 (1972). MAXWELL'S PLUM 213 arguments of counsel. Omitted matter is considered irrel- evant or superfluous. The Employer is a joint venture which operates two public restaurants in New York City. Only the entity known as Maxwell's Plum is directly involved herein. Its location is at 320 East 65th Street. The other restaurant, situated across the city, is called Tavern-on-the-Green. The two restaurants utilize the services of a laundry facility, also operated by the Employer. The laundry op- erations were conducted, before September 1978, at the Maxwell's Plum address. In September 1978, the Em- ployer relocated the laundry, together with its adminis- trative offices, to 317 East 64th Street. The laundry oc- cupies part of the basement at that address, and the of- fices, the ground floor. The basement also houses the Employer's stockroom. The stockroom is separated from the laundry by two walls. It is the organizational activi- ties of the laundry employees, and the Employer's reac- tion to them, which gave rise to the instant litigation. s The following individuals comprise the Employer's relevant managerial hierarchy. Mr. Wills, manager of Maxwell's Plum; Mr. Roy Fox, back-of-the-house man- ager (including the laundry); and Hilda Caldas, classified as laundry supervisory At relevant times, 13 individuals, excluding Caldas, regularly were working in the laundry. Alexandria Holmes, a laundry employee, became employed by the Employer in October 1978. Caldas interviewed her. Ap- parently, Holmes became concerned over lack of union representation of the laundry employees. Each employee witness who was questioned concern- ing union representation claimed, without contradiction, that none saw any union representative, paid no dues, initiation fees, or assessments to any labor organization, and none was aware of the existence of a collective-bar- gaining agreement applicable to laundry employees. Holmes contacted a Union which she had heard might be the representative of laundry employees. Thus, she telephoned Hotel, Restaurant and Bartenders Union, AFL-CIO. She was told that union only represented the Employer's bartenders and restaurant employees. 7 In fact, collective-bargaining agreements in evidence show local unions, affiliated with the Hotel and Restaurant union represented separate units of the Employer's kitch- en and dining room employees. Although the recognition clause refers to "all of (the Employer's) employees," the actual units are derived from addenda viewed in the light of the Board's finding that a separate unit of kitchen em- ployees is appropriate. (See MPC Restaurant Corp., etc., supra.) Those collective-bargaining agreements are ex- plicit in identifying the classifications of covered employ- ' The stockroom employees are not involved herein Since Aprl 1980, no employee was assigned there. Supervisors perform the necessary func- tions. Even when the stockroom employees sporadically assisted the laun- dry employees before that time, their services are not reflected on the laundry payroll. The stockroom employees were subject to a chain of su- pervision different from the laundry employees. 6 The Employer's answer denies Caldas is a statutory supervisor. How- ever, the Employer's post-hearing brief refers to her as a supervisor sev- eral times and ultimately concedes her supervisory status, stating "In effect, Caldas is a minor supervisory employee . Caldas' status will be further discussed, infra. I This testimony of Holmes is uncontradicted. No representative of the Hotel and Restaurant union appeared at the hearing. ees. Thus, the contracts specify they cover waiters, bus boys, captains, chefs, cooks, pastry cooks, and assistants. The contracts contain a union-shop clause. As noted, the testimony shows the union-security provision had not been implemented regarding laundry employees during any relevant time. Holmes pursued her efforts in seeking union represen- tation. Sometime in late September, Holmes called the Charging Party Union. She met with an organizer. She signed a card on October 11. She was given authoriza- tion cards. Holmes distributed those cards among the laundry employees. She solicited their signatures. Those employees who signed cards returned them to Holmes. In turn, she delivered them to a union representative. Of the 13 individuals employed in the laundry, excluding Caldas, 9 signed authorization cards, dated October II- 13. The authenticity of the signatures is not disputed. According to Holmes' uncontradicted testimony, Caldas told her she (Holmes) would become Caldas' as- sistant. This occurred about 2 weeks before the October 19 closing of the laundry. Thus, the promotion conversa- tion occurred roughly concurrent with Holmes' initial union activities. During the conversation, Caldas told Holmes that Caldas would ask Fox to increase Holmes' wages from $175 to $225 per week.8 Caldas and Holmes had another conversation approxi- mately I week later. This discussion approximately coin- cided with the date the laundry employees signed their union authorization cards. Caldas told Holmes she (Caldas) was trying to get a wage increase for all laun- dry employees. October 18 was a regular payday for laundry employ- ees. Caldas9 engaged Holmes and other laundry employ- ees in conversation. Thus, Caldas asked Holmes whether she had joined the Union. Holmes said no. Caldas asked Holmes to tell the other laundry employees they "are going to regret joining a union." Holmes credibly testi- fied that Caldas further said "now they won't get a raise-they won't get nothing." Caldas asked employee Dolores Aguilo' ° whether Aguilo had joined the Union. Aguilo said yes. Aguilo was employed by the Employer on the date she testified concerning this interrogation. Aguilo is an alleged discri- minatee. My earlier remarks regarding credibility of em- ployee witnesses aside, testimony of current employees is 8 Neither the promotion nor wage discussion is alleged as an unfair labor practice 9 Caldas did not appear as a witness at the hearing. She was still em- ployed by the Employer on each of the hearing dates. During the June 18 session Caldas was in the New York City area. She was out-of-state, on vacation, during the July 8-10 hearing dates. I was impressed with the demeanor and sincerity of each employee witness who testified to matters involving Caldas. Each was forthright and candid. The testimony of each is inherently consistent and mutually corroborative. Minor inconsistencies are attributed to their difficulty with the English language. Most are Spanish-speaking. Their testimony was presented through the aid of a translator Accordingly, each such witness is credited. I adopt their com- posite version of the facts. Moreover, I shall find Caldas is a statutory supervisor. Thus, she was in the Employer's control. Her failure to appear permits me to infer her testimony would have been adverse to the Employer had she testified. See Interstate Circuit, Inc.. et al. v. United Stares, 306 U.S. 208 (1939); Monahan Ford Corp, 173 NLRB 204; 2 Wig- more, On Evidence 286(a) 'o Also known as lda Marquez. MAXWELLS PLUM 213 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled to considerable weight because it is not likely to be false. Such testimony is adverse to an employee's pe- cuniary interests. Shop-Rite Supermarket, Inc., 231 NLRB 500 (1977); Georgia Rug Mill, 131 NLRB 1304, 1305 (1961), modified on other grounds 308 F.2d 89 (5th Cir.). Moreover, Aguilo allegedly was discriminatorily termi- nated on October 19 together with the other laundry em- ployees. She was reemployed during the week ending March 2, 1980, under the name Marquez. There is evi- dence to show the Employer did not recognize Aguilo (Marquez) as a former employee and suggests something sinister in her name change. In this context the precept that a current employee's testimony should be accorded persuasive weight is especially true. In this context, Aguilo (Marquez) has even more reason to be apprehen- sive concerning her testimony if it were false. The next day, October 19, Caldas asked Holmes whether Holmes knew the laundry employees had joined a union. Further, Caldas said, "You are all going to regret pining the union-Fox will talk to you." Later, on October 19, Fox appeared at the laundry. The employees were assembled at Fox's request. He ad- dressed them. Fox said the laundry would close due to mechanical problems. He said the employees' services were needed no longer. None of the regular laundry work was performed be- tween October 20 and the week ending December 9. During that period, the Employer contracted-out its laundry and linen services to organizations unaffiliated with the Employer. However, the laundry was not en- tirely shut down. Limited operations continued. Thus, Caldas worked daily throughout the period. Two restau- rant employees were transferred to the laundry. They worked with Caldas. The three of them washed and fin- ished uniforms. (During full-scale operations, the laundry employees washed and prepared the uniforms, plus nap- kins, table cloths, and other linens.) During the period of curtailed laundry operations, the Employer undertook certain repair, remodeling and re- furbishing of the laundry. In early December, the normal laundry operations were resumed. Fox and Caldas reviewed the payroll re- cords. They determined which of the former laundry employees should be recalled. According to Fox, those decisions were based upon the demonstrated attitude, productivity, seniority, attendance records, and interfa- mily relationships of the former employees. The record reflects family relationship previously had not been a cri- terion for employment in the laundry. Some employee witnesses credibly testified they obtained their jobs through references of family members already employed in the laundry. The review process resulted in the immediate recall of only three of the nine cardsigners. The parties' post-hear- ing briefs do not reflect what the Employer's records show regarding which employees had been recalled. Thus, the General Counsel's brief requests offers of rein- statement be made to G. Cruz, A. Holmes, and D. Ro- driguez. The Employer's brief indicates A. Rodriguez had been recalled. Both briefs conflict with what is con- ' The specific work done will be identified in sec. Ill,C,(1), infra. tained in the Employer's records (G.C. Exh. 28). Thus, the Employer's payroll records beginning with the week ending October 21 and ending with the week ending July 6, 1980, for the laundry indicates that seven employ- ees on the October 21 payroll had not been reemployed by July 6, 1980. Those employees are: M. Acevedo; G. Cruz; G. Gomez; A. Holmes; A. Rodriguez;' 2 D. Rodri- guez; and G. Rodriguez. My findings shall be based upon the Employer's records rather than assertions in the briefs. To complete the needed employee complement the Employer hired 14 new employees, as reflected in its payroll records for the week ending December 9. One of the former employees recalled is Marina Ramos. She had been absent from work due to illness during the week of the October 19 closure. Ramos credi- bly testified that, after her recall, Caldas told her the "main reason" for closing the laundry was that the em- ployees had signed the union cards. B. Interference, Restraint, and Coercion The complaint, paragraphs 8(a)-(d), alleges the Em- ployer, by Caldas, engaged in a variety of conduct viola- tive of Section 8(a)(l) of the Act. The Employer denied those allegations and that Caldas is its supervisor or agent. As noted, Caldas did not testify at the hearing. Nonetheless, the following description of evidence re- flects her status was fully litigated. I shall proceed to de- termine her status though I have alluded to virtual con- cessions, which appear in the Employer's post-hearing brief, that Caldas is a supervisor. In other circumstances, counsel's admissions effectively bind clients. Herein, the variation between what is contained in the Employer's answer and its brief suggests the need I clarify the super- visory issue to remove all ambiguity. I. Caldas' status Caldas, the only salaried individual working in the laundry, had extensive experience in managerial positions at other employers. Thus, between 1944 and 1965 she was laundry manager at the Savoy Plaza Hotel, New York City; from 1965-67 she was assistant to the execu- tive housekeeper for the Essex House Hotel, New York, where she was directly responsible for linen control and distribution; and from July 1967 to January 1978 she was director of laundry and linen services at Isabella Home Geriatric Center, New York City. Caldas is paid $400 per week by the instant Employer. All others working in the laundry are paid amounts at, or near, the minimum hourly wage. Caldas spends her full working time in the laundry. She reports directly to Fox who conceded he spends an average of only 5-6 hours per week in the laundry. Fox's visits to the laundry largely occurred during hours when the employees are not present. Fox is not fluent in Span- ish, whereas Caldas is bilingual. Most laundry employees are Spanish-speaking. 12 The records list the name "Ana Cerdas" on the payroll after oper- ations resumed. I note the first-name similanty to one of the Rodriguez family. If Ana Cerdas and Ana Rodriguez are one person, then the Em- ployer's assertion that "A. Rodriguez" had been recalled is correct and, actually, six employees on the October 21 payroll had not been recalled. MAXWELL'S PLUM 215 Maria Acevedo, Graceilla Gomez, and Holmes credi- bly testified Caldas told them she (Caldas) was their su- pervisor. Other employee witnesses testified Caldas inter- viewed and hired them. Fox admitted Caldas conducts preemployment interviews but claimed Caldas has no au- thority to hire without prior approval from him. The evidence shows Fox relies on Caldas' hiring recommen- dations. No evidence was adduced to show Fox ever withheld such approval. Some of the employee witnesses testified Caldas told them they were hired during their interviews, and with- out Caldas having any intervening conversation with anyone else. Fox referred to Caldas as a working foreman "respon- sible for seeing the employees did their assigned work" and for keeping attendance and other records. The total- ity of evidence derived from the credible employee wit- nesses shows Caldas approved employees' hours on time- cards, assigned overtime work, granted requests for time off, received calls from employees reporting their ab- sence, gave permission to use the Employer's telephone, reprimanded employees for tardiness and excessive talk- ing, independently handled work-related problems and grievances, and instructed employees as to the proper performance of their jobs. 3 Most of Caldas' workday was consumed in these functions. She performed laundry production work for approximately only 1 hour each day. In addition to the above, I have already noted that Caldas had been consulted by Fox regarding recall of employees in December. Fox is available to Caldas by telephone. He sought to create an impression that Caldas is a mere conduit through which he effectively supervises the laundry. Fox claimed he is in "constant" telephone contact with Caldas. I find such a situation exaggerated. Indeed, it is virtually impossible. Fox claimed he manages and is re- sponsible for the operation of the bar, the dish washers, porters, house cleaners, stewards, and laundry and main- tenance. Additionally, he is the food and beverage con- troller and manages the purchasing department. Fox's regular duties also require him to have frequent contact with vendors, independent service companies, and the Employer's warehouse, purchasing and accounting de- partment. Based upon all these activities, it is reasonable to presume that Fox utilizes his visits to the laundry when the employees are not present to confer with Caldas, give her general directions and receive her re- ports. No effort was made to have Fox define the fre- quency of his asserted "constant" telephone contact with Caldas. Based upon Fox's absence from the laundry, Caldas' perpetual presence, and Fox's other duties, I con- clude the record establishes Caldas effectively manages the day-to-day laundry operations and independently di- rects the laundry employees in their work and problems. To conclude otherwise is unrealistic and illogical. A con- trary finding would subject the laundry to operating without on-the-spot supervision. This factor is appropri- ately considered in my determination of the instant su- 1s The testimony concerning many of these functions is corroborated by documentary evidence. pervisory issue. See National Association for the Advance- ment of Colored People, 241 NLRB 430, 435 (1979). Various criteria exist by which the Board determines supervisory status. It is not necessary that an individual possess all the indicia identified in Section 2(11) of the Act. The statute is disjunctive. Possession of any indica- tion of supervisory authority makes one a supervisor. N.L.R.B. v. Metropolitan Life Insurance Company, 405 F.2d 1169 (2d Cir. 1968); Great Central Insurance Co., 176 NLRB 474, 475 (1969). That Fox referred to Caldas as a working foreman is not dispositive. Titles do not resolve the issue. Golden West Broadcasters-KTLA, 215 NLRB 760, 762, fn. 4 (1974). Moreover, Fox's description is contradicted by the Employer's records. Those records in evidence iden- tify Caldas' job description as "laundry supervisor." At the very least, I conclude the record demonstrates that Caldas asserts responsible direction over the laundry employees. Admittedly, Caldas receives generalized instructions from Fox. Fox, however, is not present in the laundry. It is Caldas who takes all necessary actions to see that the required work is done. In this connection, the record shows Caldas takes whatever action is neces- sary, including moving employees from one job to an- other. Viewed in the light of Fox's absence and the ten- uous nature of his assertion he is in "constant" contact with Caldas, it is reasonable to presume Caldas effectu- ates those tasks by using independent judgment. Such re- sponsible direction supports a conclusion Caldas is a su- pervisor. Custom Bronze & Aluminum Corp., 197 NLRB 397 (1972). Inasmuch as I have credited the testimony which indi- cates Caldas hired some employees without consulting anyone else, I also find the record reveals Caldas pos- sesses authority falling within the explicit statutory defi- nition of a supervisor. In this connection, it is also clear Caldas effectively has recommended personnel actions to Fox affecting laundry employees. Based upon all the foregoing, and the other ample in- dicia of supervisory authority contained in the record, I conclude Caldas is a supervisor within the meaning of Section 2(11) of the Act. Even if it were concluded that Caldas was not a super- visor and her activities essentially are simple, repetitive and routine (e.g., The Singer Company, 170 NLRB 1393 (1968)), I conclude Caldas is, at least, an agent of the Employer. Undeniably, Caldas was vested with ostensi- ble authority to effect personnel actions such as hiring and reprimands. Caldas held herself out as a managerial official and she clearly was perceived as such. Even at the hearing, the Employer did not seek to repudiate Caldas' general authority. As an agent, Caldas' actions bind the Employer. J. P. Stevens and Company, Inc., 243 NLRB 996 (1979). 2. Concluding findings A fair evaluation of all the credited facts appearing above, considered in the light of my finding that Caldas is a supervisor, inescapably leads to the conclusion that the Employer violated Section 8(a)(1) of the Act by the following acts and conduct: MAXWELLS PLUM 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Caldas unlawfully interrogated Holmes and Aguilo on October 18 as to whether they had joined the Union. (b) Caldas unlawfully threatened economic reprisal on October 18 when she told Holmes that the employees will not get a raise in the context of announcing to Holmes that the employees would regret joining a union. (c) Caldas, on October 18, unlawfully threatened to withhold the anticipated wage increase from Holmes when Caldas remarked the employees would not get a raise and would get nothing. (d) Caldas, on October 19, unlawfully interrogated Holmes by asking her whether she knew that the em- ployees had joined a union. (e) Caldas, on October 19, unlawfully threatened em- ployees by telling Holmes that they would regret joining the Union. (f) Caldas, on October 19, unlawfully created an im- pression that the union activities of the employees were under surveillance when she asked Holmes if Holmes knew the employees joined the Union. This violation ap- pears by implication. Literally, Caldas did not say that she or any other managerial official actually engaged in physical surveillance. However, Caldas' words clearly suggest such surveillance. Those words have the tend- ency to impart an impression that the speaker possesses positive knowledge of the subject matter of the conver- sation. Assessment of activity alleged to violate Section 8(a)(1) is to be predicated upon its reasonable tendency to have a proscribed effect. Hanes Hosiery, Inc., 219 NLRB 338 (1975); Impact Die Casting Corporation, 199 NLRB 268, 271 (1972). An employee's reaction or per- ception of the alleged illegality is irrelevant. El Rancho Market, 235 NLRB 468, 471 (1978). Upon all the forego- ing, I conclude that the record contains a preponderance of the evidence to find the Employer engaged in each of the violations alleged in paragraph 8 of the complaint. C. Discrimination 1. Curtailed operations, the discharges, and failure to recall The General Counsel contends the closing of the laun- dry on October 19, the subsequent curtailment of oper- ations, and the failure to recall all the former employees was discriminatory in violation of Section 8(a)(3) and (1) of the Act. The Employer asserts the closing was part of a preconceived need to rectify machine and heating problems. Moreover, the Employer disclaims knowledge of the union activities prior to the October 19 closing. The laundry payroll, week ending October 21, con- tains the names of the following 13 employees: M. Ace- vedo; D. Aguilo; G. Cruz; G. Gomez; A. Holmes; M. Ramos; A. Rodriguez; D. Rodriguez; Gladys Rodriguez; Guarino Rodriguez; M. Rodriguez; P. Rodriguez; and E. Ronquillo. Of these, the following employees signed union au- thorization cards on the dates indicated: M. Acevedo- October 13; D. Aguilo-October 12; G. Gomez-Octo- ber 12; A. Holmes-October 11; M. Ramos-October 12; Ana Rodriguez-October 12; D. Rodriguez-October 12; Gladys Rodriguez-October 12; and M. Rodriguez- October 12. It is admitted that all 13 employees listed above were told their services were no longer needed by the Em- ployer on October 19. The terminations occurred (a) within I week after the last authorization card had been signed, (b) only I day after Caldas unlawfully interrogated employees and threatened them with reprisals, (c) on the same day Caldas repeated her unlawful interrogation, created an impression of surveillance and repeated the threat of re- prisals, and (d) on a day which was not the customary end of a payroll period. Additionally, the Employer con- cedes the actual decision to close (or curtail laundry ac- tivities) was made on October 19, while insisting consid- erable preliminary ground work had been laid long before that date. As noted, the curtailed operations began on October 20 and existed until December 6. As previously noted, when the laundry returned to full operation, only six (or seven) of the former employees had been recalled. Prominent among those unrecalled was Holmes, the initiator of the union activity and Ace- vedo who, at the hearing, evinced strong union leanings. Also, as previously observed, the remaining laundry staff in December consisted of 14 people who had not before worked for the instant Employer. The record, indeed, does reflect the following in sup- port of the Employer's defense. Thus, Fox extensively testified to the existence of a series of mechanical prob- lems in the laundry. 14 Immediately after its relocation in September 1978, the laundry was frought with difficulties. Some examples follow. The exhaust system was inadequate in October 1978. The motor was replaced and new intake fans in- stalled. Next, two washers taken from the previous locations broke down throughout 1979. This was attributed to im- proper installation at the laundry's new quarters. The washers vibrated excessively. Those washers were re- paired several times. Ultimately, spare parts became un- available. Two replacement washers were ordered. Fox did not indicate the date the replacement machines were ordered. On relocation, two new washers were installed. Almost immediately, the inlet and drain valves malfunc- tioned and brake shoes clogged. Those machines were subjected to recurring maintenance calls through 1979. Also, a new ironer and washing machine were installed in September 1978. Its relays improperly functioned. At- tempts to correct the problem, through 1979, failed. It is noteworthy that the record reflects the laundry had not been closed during the above-enumerated re- pairs, except for 2 days in January, when the ironer was installed. 14 I credit Fox's testimony regarding the laundry's work status. To the extent that this action is contrary to my other findings by which Fox is discredited, directly or indirectly, such division of credibility resolution is appropriate A trier of fact is not required to believe the entirety of a witness' testimony. Maximum Precision Metal Products. Inc., Renault Stamping Ltd., 236 NLRB 1417 (1978). MAXWELL'S PLUM 217 The record is replete with other examples of machin- ery deficiencies. Each need not be recounted. It suffices that I find the myriad of problems actually existed. I also find several unresolved problems had accumulated during 1979. According to Fox, things reached a critical point in September. As early as September 1, Fox and Willis discussed the possibility of closing the laundry. Thereafter, Fox made initial inquiry of third-party contractors which might provide "outside" laundry service to the instant Employ- er. Stanley Olan, president of Central Laundry Service, credibly testified Fox made such inquiry of him on an unspecified date in the fall. The totality of Olan's testi- mony indicates Fox's call was made on October 18 or 19. Thus, Olan said Fox called twice. The first call consisted of a general inquiry concerning Central Laundry's avail- ability to provide laundry service to the Employer. During the second call, Fox actually arranged for Olan's organization to assume the Employer's laundry work on the day of the second call or on the next day. Central Laundry began to service the Employer on October 20. Thus, I conclude Fox's first call to Olan coincided with either or both days Caldas engaged in the unlawful 8(a)(l) activity. George Purtz, general manager of Consolidated Laun- dries, also testified to the Employer's efforts to obtain outside laundry service. Purtz was contacted earlier than Olan. Thus, Purtz testified Fox called him about 1 week before November 21. This was before the commission of the unlawful 8(a)(l) conduct. Nonetheless, I find the call to Purtz coincided with the dates (October 11-13) on which the union authorization cards were signed by Holmes and the other laundry employees. Other evidence is relevant to the issuance of curtail- ment of operations. The Employer had to insure itself of a continuing linen supply. On October 19, Fox contacted Caldas to determine the inventory of linens. Caldas as- sured Fox a sufficient supply of linen existed to carry the restaurant through the forthcoming weekend.' 5 As noted, Central began its work on October 20. The Employer's arrangement with Central continued about 4 weeks. During this time problems with soiled linen, late deliveries, and shortages were encountered. The Em- ployer replaced Central with two other contractors. No problems occurred. However, Fox testified the overall cost of using contractors was excessively expensive to the Employer. He also acknowledged the Employer knew the expense would be high well in advance of en- gaging the outside contractors' services. During the curtailment of laundry operations, the fol- lowing corrective work was done. On October 26, Rig- gers worked in the laundry to prepare it for new dryer installation. The Riggers worked 4 days. The washers were serviced. Such servicing began before October 19 and continued on various days until approximately No- 1t The General Counsel claims Fox provided self-contradictory testi- mony regarding the Employer's linen needs and inventory. It is also claimed the Employer's records are contrary to Caldas' alleged report sufficient linens were available for the weekend. I find it unnecessary to resolve these apparent conflicts. In view of the other elements on which I rely in my analysis, infra, these particular conflicts are superfluous vember 5. During the first week of November, 3 days were used to paint the laundry floor. Three new dryers were delivered on November 21. Four days were used to install them. Finally, installation of the gas heaters took 3-4 unspecified days. 2. Analysis Resolution of the discrimination issue is guided by the following legal principles. The General Counsel must prove certain elements to establish a prima facie case of discrimination. Those elements are (I) that the affected employees engaged in activity protected by the Act, (2) the employer had knowledge of that activity, (3) the ad- verse personnel action imposed upon the alleged discri- minatees was motivated by union animus, and (4) that the discipline had the effect of encouraging or discourag- ing membership in a labor organization. The General Counsel has the burden of proving his case by a prepon- derance of the evidence. Gonic Manufacturing Company, Division, of Hampshire Woolen Company, 141 NLRB 201, 209 (1963). Section 8(a)(l) violations support findings of unlawful motivation. I have found the Employer violated Section 8(a)(1) through Caldas' various conduct violative of Sec- tion 8(a)(l). Assuming, however, I am in error in those findings, 8(a)(1) violations are not necessarily a require- ment of a 8(a)(3) finding. "Actual motive, state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such case . .. the trier of fact may infer motive from the total circum- stances proved . . . . If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-at least where . . . the surrounding facts tend to reinforce that inference." Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). The Shattuck Denn principle was quoted with ap- proval by the Board in Best Products Company, Inc., 236 NLRB 1024, 1025 (1978). Support for a finding of unlawful motivation "is aug- mented [when] the explanation of the [employer's con- duct] offered by the respondent [does] not stand up under scrutiny." N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592 (Ist Cir. 1947). The issues of discrimination before me present the classic "pretext" case. The Board's recent decision in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1084 (1980), left the concepts of pretextual determi- nation undisturbed. Thus, in Wright Line, the Board ob- served, "examination of the evidence may reveal ... that the asserted justification (for alleged discrimination) is a sham in that the purported . . . circumstance ad- vanced by the employer did not exist, or was not, in fact, relied upon. When this occurs, the reason advanced by the employer may be termed pretextual." Thus, the Board distinguished so-called dual motive situations from those involving pretext. As to the Employer's knowledge of the instant union activities, there is both direct and circumstantial evidence which supports the General Counsel's prima facie case. MAXWELL'S PLUM 217 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Caldas learned that employees had signed authorization cards when Aguilo told Caldas, on October 18, that she had signed a card. Next, it is reasonable to infer, as I do, that Caldas was aware of the union activity on or before October 18. No explanation was provided for Caldas to have engaged in her unlawful interrogation of the em- ployees on October 18 and 19. That interrogation, cou- pled with the nature and extent of her threats of repri- sals, are strong indicators of her prior knowledge of union activity. Caldas explicitly warned at least Holmes she would regret having joined the Union. Moreover, the inference of employer knowledge is bolstered by the size of the unit. There were only 13 em- ployees working in the laundry. Caldas was the sole su- pervisor present with them. The cards were signed I week before Caldas' 8(a)(1) conduct. The laundry oper- ations were confined to one room. The size of the unit and operations give rise to the application of the so- called small plant doctrine from which it can be inferred that an employer has gained knowledge of its employees' union activities. Syracuse Dy-Dee Diaper Service, 251 NLRB 963 (1980), and cases cited therein. There is ample evidence of the Employer's unlawful motivation. First, such motivation is virtually admitted. Thus, after Marina Ramos was recalled, Caldas told her that the Union was the cause of the curtailment of oper- ations. Expressions of attitude toward unions made after the alleged discrimination are appropriately considered as evidence of animus. Jeffrey P. Jenks d/b/a Jenks Cart- age Company, 219 NLRB 368, 369 (1975). Further, Caldas made other statements which reflect the Employer's union hostility. Thus, on October 18, Caldas told Holmes the employees would not receive their wage increase. On October 19, Caldas told Holmes that the employees would regret joining the union. These remarks clearly prove the element of unlawful motiva- tion. There is, in addition, background evidence of unlawful motivation. I have taken official notice of the prior Board decision involving the instant Employer. (See fn. 4, supra.) Such official notice is appropriate. Delchamps. Inc., 234 NLRB 262 (1978); Plant City Welding and Tank Company, 123 NLRB 1146, 1150 (1959). In that earlier case, the Employer was found, inter alia, to have en- gaged in unlawful interrogation and issuing threats of discharge. Accordingly, I have accorded the earlier find- ings some, but not dispositive, weight. Metlox Manufac- turing Company, 225 NLRB 1317, 1325 (1976); Tama Meat Packing Corp., 230 NLRB 116 (1977). Inasmuch as the dismissal of the laundry employees on October 19 clearly is related to their union activities, it is apparent that the action taken against the laundry em- ployees could not help but discourage them from con- tinuing in their organizational endeavors. I have found the business causes asserted by the Em- ployer for its curtailment of operations and dismissal of the laundry employees actually were present. However, a fair assessment of all the record evidence persuades me the Employer grasped upon those causes as a pretext to disguise its true motivation. The record as a whole contains convincing evidence that the Employer's defense simply does not withstand scrutiny. In short, I conclude the mechanical and other deficiencies might well have warranted a temporary shutdown. Nonetheless, I conclude the shutdown was ac- celerated because of the advent of union activity. In addition to the factors, discussed above, regarding knowledge, motivation and effect, the following elements vitiate the Employer's defense: (a) Only three of the nine cardsigners were recalled when operations resumed in December. Among those not recalled was Holmes, the initiator of union activity and principal union solicitor. Also, vigorous union pro- ponent Acevedo was not recalled. Instead, 14 new em- ployees were hired. In other circumstances, these events might be pure coincidence. They would give rise only to suspicion. However, the Employer's demonstrated union hostility, unlawful interrogation, and threats and creation of an impression of unlawful surveillance make the fail- ure to recall two-thirds of the cardsigners significant. This failure reflects a persistent program by which the Employer decimated the Union's strength. (b) The Employer deviated from its previous employ- ment policies upon resumption of laundry operations in December. As noted, family relationships was a factor considered by Fox and Caldas in determining which of the employees should be recalled. The record shows the precurtailment employee complement consisted of sever- al employees related to one another. Many of them re- sided at the same address, but not necessarily within a single apartment. Many of those employees were hired by Caldas through referral to her by family members al- ready employed in the laundry. There is no evidence that the Employer considered family relationships a negative employment factor before its decision to resume its laundry operations in Decem- ber. In this context, I conclude the introduction of such a factor for recall purposes reasonably may be ascribed to the employees' union activity. (c) Experienced employees were discarded when the laundry operations resumed in December. As noted, 14 new employees were hired when operations resumed. As discussed in subparagraph (b) above, I cannot accept the Employer's explanation for its failure to recall members of the same family. Thus, the Employer's contention that it was justified in ignoring the experience of its precur- tailment employees is without substance. (d) The Employer evinced animus toward adherents of the Union. Evidence, not heretofore described, reflects that employees were asked by Caldas to sign authoriza- tion cards for the bartenders union upon their return to work in and after December. This was an apparent effort by the Employer to enhance its claim, discussed infra, that the laundry employees were represented by a labor organization other than the Charging Party and that a contract bar existed to the instant refusal-to-bargain alle- gations. Caldas' effort, in this regard, reveals such digres- sion from its required position of neutrality as reflects ad- versely upon its motivation. The Employer did not prove its claim that the Octo- ber 19 shutdown was planned to coincide with its cus- tomary business slowdown. Fox asserted this to be the case. However, there is contradictory evidence. Thus, MAXWELL'S PLUM 219 Purtz credibly testified that restaurant business in New York City normally increases around Thanksgiving. Nonetheless, the laundry's operations were curtailed pre- cisely at this time. Accordingly, I find this obvious in- consistency tends to negate the Employer's assertions. (e) The decision to subcontract the laundry work is contrary to sound business methods. Fox candidly ac- knowledged that contracting-out the laundry services in- creased the Employer's costs. He admitted that the Em- ployer knew its costs would be increased long before the purported October 19 decision to curtail its laundry ac- tivities. Moreover, Fox revealed that subcontracting in- variably resulted in diminished quality and shortages. I shall not presume to intrude upon the Employer's business judgment. The cost and quality factors, in any event, cause only suspicions regarding the Employer's motives. Nevertheless, these factors are an element of motivation which I may properly consider in the context of the record as a whole. In the particular circumstances herein, I conclude the Employer's precurtailment knowl- edge of the cost and quality factors is some, but not con- clusive, evidence of the Employer's unlawful motivation. (f) The timing of the decision to curtail laundry activi- ties gives rise to an inference it was discriminatorily mo- tivated. The scenario of events clearly shows the actual date selected for closure had not been determined until after the laundry employees signed their union authoriza- tion cards. Thus, there was no discussion concerning the inventory situation, nor was Olan contacted, before Oc- tober 18. All authorization cards had been signed by Oc- tober 13. As noted above, the Employer's various violations of Section 8(a)(l) represent its swift response to the em- ployees' organizational activity. As earlier observed, the Employer had been long-plagued with the problems it asserts justified the closing. I have discredited the Em- ployer's effort to conform the closing to a slack business period. Accordingly, I conclude the record supports the inference, which I make, that the timing of the closure on October 19 is directly related to the union activity. (g) Curtailment of laundry operations on October 19 was contrary to the Employer's past practice. With only a single exception, the laundry had not been shut down to such an extent at any earlier time. That exception oc- curred in January when the laundry was closed for 2 days for the installation of an ironer. The ironer is the largest single piece of equipment in the laundry. Fox ac- knowledged all other repairs in 1979 were accomplished without interruption of normal operations. My analysis of the work performed during the October-November curtailment leads to the conclusion that such work was not markedly different from that which was done during earlier periods of 1979 when no shutdown occurred. This conclusion is based upon an analysis of the monthly repair costs during 1979, together with Fox's detailed de- scriptions of the work performed which gave rise to those costs. The installation and repair work is described, supra. The repair costs are: January-2,281; February-$1,644; March-S656; April-$534; May-$180; June-$1,118; July-206; August-$1,167; September-$1,459; Octo- ber-S251; Shutdown-853. Thus, the total repair costs for all of October until the December resumption of operations ($1,104) was actually less than the repair costs of September, August, June, February, and January. This context tends to support the General Counsel's claim the shutdown did not have to occur when it did and enhances a conclusion the Em- ployer's reasons for it are pretextuous. (h) The Employer's defense was expounded by a wit- ness only partially credible. For reasons stated above, I have already discounted critical aspects of Fox's defense testimony. In addition, a review of Fox's description of his precurtailment activity in arranging for subcontract- ing reveals that testimony to be distorted. Thus, Fox's account of when he contacted Olan and Purtz was gen- eralized. Although Olan's and Purtz' testimony regarding contact dates was not specific in some respects, their re- counts portray Fox's activity with more certainty than his own narration. The generalization and distorted character of, and the contradictions in, Fox's testimony are persuasive indica- tors of the Employer's efforts to conceal its true motiva- tion. Upon all the foregoing, I find the Employer's reasons asserted for the October 19 closedown, dismissal of its employee complement in the laundry, and failure to recall those employees in December a pretext to mask its intent to destroy the Union's majority and its discrimina- tory motivation in taking those actions. Accordingly, I find that each of the allegations of discrimination con- tained in the complaints has been sustained by a prepon- derance of the credible evidence. D. Refusal To Bargain As indicated, the complaint alleges the Employer un- lawfully refused to bargain with the Union by engaging in a course of conduct, manifest by the unlawful 8(a)(l) and (3) activity found above, designed to dissipate the Union's majority status; and by refusing and failing to recognize and bargain with the Union on and after Octo- ber 22. The Employer interposed affirmative defenses which claim the laundry employees were subject to the oper- ation of the Employer's collective-bargaining agreement with the Hotel and Restaurant union; the aforesaid agree- ment constituted a contract bar to the union's claim; and the laundry employees do not comprise an appropriate unit for collective bargaining. Apparently content with resting upon the bare assertions of its pleadings, the Em- ployer did not specifically discuss the refusal to bargain allegations in its post-hearing brief. The 8(a)(5) allegations require a resolution of a thresh- hold issue. Specifically, it must be determined whether or not the collective-bargaining agreement which explic- itly covered the Employer's kitchen and dining room employees also applied to the laundry employees. In agreement with the General Counsel, I conclude the evidence shows the laundry employees, in fact, were unrepresented at all material times. My conclusion is based upon the following: (1) The existing agreements explicitly describe their provisions extend to kitchen and dining room units; (2) MAXWELL'S PLUM 219 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's prior unit determination regarding the instant Employer (198 NLRB 14 (1972)) does not refer to laun- dry employees; (3) employee witnesses uniformly testi- fied they knew of no incumbent union which represented them, paid no dues, assessments or initiation fees to any labor organization, and saw no such representative in the laundry; and (4) the laundry's separate location, supervi- sion and other operations described in earlier sections of this decision, together with the Board's refinement of ap- propriate units in New York City restaurants (Toffenetti Restaurant Company, Inc., 133 NLRB 640 (1961), and MPC Restaurant Corp., supra) reflect it was not within the contemplation of the instant Employer and Hotel and Restaurant union that their collective-bargaining agree- ment should apply to the laundry employees. I now turn to the merits of the refusal to bargain alle- gations 1. The appropriate unit The relevant facts regarding appropriateness of the laundry unit are contained above in sections II,A and II,B,(I). In its totality, the evidence reveals the laundry to be a physically separate and managerially autonomous entity. There is scant evidence of employee interchange. Even when such interchange occurs, it is sporadic. The laundry operations are functionally separate from both the kitchen and dining room operations. Accordingly, I find a separate unit of the Employer's laundry employees appropriate for collective-bargaining purposes. Ramada Inns, Inc., 221 NLRB 689 (1975); MPC Restaurant Corp., supra. Additionally, the testimony of the employee wit- nesses demonstrates no apparent effort by Hotel and Res- taurant union to represent them. Thus, there exists no evidence of a bargaining history in the broad unit claimed appropriate by the Employer's pleadings. 2. The request to bargain It is alleged (complaint paragraph 12(a)) that the Union made a written request of the Employer for rec- ognition as bargaining agent of the laundry employees "on or about October 22." During his testimony, Fox ad- mitted he received the recognition request approximately 10 days after the October 19 closing. Accordingly, I find that the Union did make the requisite request to bargain. There is no evidence which permits me to determine the precise date which should be fixed in this connection. In any event, whether the date is October 22, 29, or any in- tervening date, the remedy which I shall recommend will be unaffected. Accordingly, I find the union request- ed recognition some time in late October. 3. The union's majority As noted in section II,C,(I), 9 of the 13 unit employees had signed union authorization cards by October 13. The unit composition remained constant to the October 19 shutdown. Most of the authorization cards are printed in Spanish. No translation was provided for my purposes. However, Holmes' card is printed in English. All authorization cards were received in evidence without objection. No party asserted any disparity between the English and Spanish versions. Thus, I find, consistent with the lan- guage of Holmes' card, that the signatories designated and authorized the Union "as . . . (their) . . . exclusive collective-bargaining agent in all matters pertaining to wages, rates of pay and conditions of work." Where, as herein, an employer "engages in conduct disruptive of the election process, cards may be the most effective-perhaps the only-way of assuring employee choice." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 602 (1969). Accordingly, based upon all the forego- ing, I find that the Union enjoyed majority status as col- lective-bargaining agent of the appropriate unit of laun- dry employees at all times material herein. 4. The refusal to bargain The Employer's pleadings deny it failed and refused to recognize and bargain with the Union. Nevertheless, the record is devoid of evidence showing the Employer so much as responded to the Union's request to bargain, ad- mittedly received. In fact, all evidence points to the con- trary. Thus, not all former employees were recalled to work in December. Instead, the December laundry com- plement consisted mainly of new hires; Caldas solicited employees to join the Hotel and Restaurant union; and the affirmative defenses assert the Employer's belief that the laundry employees were already represented by the Hotel and Restaurant union. Moreover, the Employer's unlawful 8(a)(1) and (3) ac- tivity could not help but dissipate the Union's majority status. The unfair labor practices found herein were per- vasive. The leading union proponents were not recalled, and a total of two-thirds of the cardsigners were not re- called. The unlawful interrogations, threats, and impres- sion of surveillance were immediately followed by the dismissal of all employees. Upon all the foregoing, I find the Employer refused to bargain in violation of Section 8(a)(5) of the Act as al- leged in the complaint. N.L.R.B. v. Gissel Packing Co., Inc., supra. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of section 2(5) of the Act. 3. The Employer interfered with, restrained, and co- erced its employees on October 18, 1979, by unlawfully interrogating them concerning their union activities and threatening them with economic reprisals cause they en- gaged in such activities all in violation of Section a)(l) of the Act. 4. The Employer interfered with, restrained, and co- erced its employees, on October 19, 1979, when its su- pervisor, Caldas, asked employee Holmes if she knew that employees had joined a union.' 6 '6 This unlawful interrogation is not separately alleged in the com- plaint However, the fully litigated facts which support this violation are Continued MAXWELL'S PLUM 221 5. The Employer interfered with, restrained, and co- erced employees, on October 19, 1979, by threatening they would regret joining the Union; and created an im- pression that the union activities of its employees were under surveillance, all in violation of Section 8(a)(1) of the Act. 6. The Employer discriminated, and is discriminating, against its employees in violation of Section 8(a)(3) and (1) of the Act by having substantially closed its laundry operations and dismissing all its laundry employees on October 19, 1979; by thereafter curtailing its laundry op- erations until December 6, 1979; and by failing to recall its former employee complement to work on and after December 6, 1979. 7. The Employer has refused, and is refusing, to bar- gain collectively in good faith with the Union, on and after sometime in late October 1979, by having engaged in a course of conduct to dissipate the Union's majority status and by having failed and refused to grant recogni- tion to the Union as the collective-bargaining representa- tive of the laundry employees in the unit found appropri- ate in the following paragraph. 8. All full-time and regular part-time laundry employ- ees including feeders, receivers, folders, washers and packers employed at the Employer's 317 East 64th Street, New York, New York facility, but excluding guards, all other employees and supervisors as defined in the Act constitute a unit appropriate for purposes of col- lective-bargaining within the meaning of Section 9(b) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Employer violated Section 8(a)(5), (3), and (1) of the Act, I shall recommend it cease and desist from engaging in such conduct in the future and affirmatively take such action as will dissipate the effects of its unfair labor practices. Because the October 19 terminations have been found unlawful, the Order shall require the Employer to offer full and immediate reinstatement to the following named employees to the former or substantially equivalent job held by each, without prejudice to his or her seniority or other rights and privileges: Maria Acevedo, Gloria Cruz, Graciella Gomez, Alexandria Holmes, Ana Rodriguez,'7 Domingo Rodrigues, and Gladys Rodriguez. Because the October 19 terminations have been found unlawful, the Order shall require the Employer to make whole each of the employees named immediately above, together with those employees whose names appear below, for any loss of earnings he or she may have suf- fered as a result of the discriminatory terminations by payment of a sum equal to that which each would have earned, absent the discrimination, to the date of the Em- reported, supra, in sec. II,B,(2). Such fully litigated. but unpleaded, mat- ters appropriately provide a basis for findings of violation. Vic Tanny In- ernatrional, Inc., 232 NLRB 353 (1977), enfd. 622 F2d 237 (6th Cir 1980). " If this name refers to the same individual known as Ana Cerdas. then an offer of reinstatement need not be made. As earlier noted. Cerdas appears on the Employer's payroll for the week ending December ployer's offer of reinstatement made to each: Dolores Aguilo (also known as llda Marquez), Maria Ramos, Marina Rodriguez, Pautino Rodriguez, Esperanso Ron- quillo, and Guarino Rodriguez. Loss of earnings for all discriminatees named shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus in- terest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). To remedy the Employer's unlawful refusal to bargain, I conclude a bargaining order is warranted. The facts show the Employer embarked on an extensive and per- vasive campaign to thwart the laundry employees' orga- nizational efforts and rid itself of the Charging Party by destroying its majority support. Whether such circumstances impel entry of a bargain- ing order turns on whether there exists the reasonable possibility of erasing the effects of the unfair labor prac- tices found herein. This determination requires evaluation of whether a fair election may be conducted or whether employee sentiment once expressed through authoriza- tion cards, on balance, will be better protected by a bar- gaining order. Among the factors material in making the required assessment are the extensiveness of the unfair labor practices in terms of their effect upon election con- ditions and the likelihood of their recurrence in the future. N.L.R.B. v. Gissel, supra, 395 U.S. at 614-615. Herein, the Employer's unfair labor practices began virtually on the heels of the employees' initial organiza- tional activities. Thus, Fox's first call to outside contrac- tors occurred, for all practical purposes, simultaneous with the union activity. Thereafter, the Employer en- gaged in a rapid succession of misconduct. Those activi- ties consisted of unlawful interrogation, threats of repris- al and creation of an impression of surveillance which were designed to reach each and every unit employee. It is recalled Caldas asked Holmes to tell the other employ- ees they would regret having joined the Union. The Employer continued its course of ridding itself of the Union and its adherents. Fox immediately followed Caldas' unlawful 8(a)(l) conduct with his announcement that all laundry employees were dismissed and the laun- dry would be shut down. Then, the Employer consum- mated its arrangement to contract out the laundry work. These acts effectively deprived the unit employees of employment opportunities. The unlawful program continued. During the shut- down, the Employer ignored the Union's request for rec- ognition and bargaining. When the laundry resumed operations, the Employer implemented the new employment standard of family re- lationship. This prevented some union adherents from being recalled. Holmes and Acevedo, leading union pro- ponents, were not recalled. To wipe the slate clean, the Employer then hired new employees to fill the unit com- plement. At that point, the Charging Party was totally eliminat- ed from the picture. However, it appears the Employer was not yet satisfied. Thus, Caldas solicited employees to join the Hotel and Restaurant union. This action of so- lidification of the Employer's position, in my opinion, ad- MAXWELLS PLUM 221 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dresses the issue of the Employer's potential for engag- ing in similar unlawful conduct in the future. Absolutely no evidence was adduced to show the Em- ployer did anything to neutralize the effects of any of its misconduct. I conclude the foregoing demonstrates that the unfair labor practices found are extensive and broad. It is ines- capable that the Section 8(a)(1) conduct, followed by mass dismissal from work, at the very least, arguably rendered the Union unable to maintain its majority status. Further, I conclude the Board's normal cease-and- desist, reinstatement-backpay, and notice-posting order would be insufficient to permit a fair election within a reasonable time. The Employer carried out its threat that the employees would regret joining the Union. They were dismissed. Most of them were not recalled. The leaders among them still have not been offered reinstate- ment. Faced with such realities, it is difficult to perceive how the voters could make a rational choice in an elec- tion. Employees are particularly sensitive to the prospect of losing their jobs because of unionization and receiving benefits for rejection of a union. See N.L.R.B. v. Ex- change Parts Company, 375 U.S. 405, 409 (1964). Accord- ingly, I think it unlikely that the coercive impact of the particular unfair labor practices shown in the case at bar would be overcome by a Board-composed notice under Board (and perhaps judicial) compulsion, or even by the return of the discriminatees if they should choose to accept reinstatement offers. See N.L.R.B. v. Henry Colder Co., 447 F.2d 629, 631 (7th Cir. 1971). The events herein are strikingly similar to those found in Jim Baker Trucking Company, 241 NLRB 121 (1979). There, the Board found an employer's unlawful program, virtually identical to that herein, was sufficiently serious to warrant issuance of a bargaining order. Thus, consist- ent with my earlier stated conclusions, I shall recom- mend the Employer be ordered to recognize and bargain with the Union. Pursuant to the principles and rationale contained in Trading Port, Inc., 219 NLRB 298 (1975), the bargaining order will be effective from October 18, 1979. The date upon which the Employer overtly em- barked on its unlawful campaign. Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division 1, 228 NLRB 93 (1977). Finally, under the teaching of Hickmort Foods, Inc., 242 NLRB 1357 (1979), 1 conclude the Order should contain broad proscriptive language. As indicated above, the instant Employer earlier had been found guilty of 8(a)(1) conduct similar to that herein (MPC Restaurant Corp., supra). In Hickmort, the Board stated, "repeat of- fenders and egregious violators of the Act would be sub- ject to the traditional Board remedy for conduct which requires broad injunctive relief." This particular employ- er has been formerly found guilty of engaging in unfair labor practices. Thus, it has demonstrated a proclivity to violate the Act. I conclude the repetition, as demonstrat- ed by the instant case, of its misconduct requires entry of a broad order. Accordingly, the Order herein shall re- quire the Employer to refrain from in any other manner interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights. Upon the above findings of fact, conclusions of law, the entire record of this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER l 8 The Respondent, Le Roy Fantasies, Inc., and Hard- wicke's Plum, Inc., a Joint Venture, d/b/a Maxwell's Plum, New York, New York, its and their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating, threatening economic reprisals, and creating impressions that its employees' union activities are under surveillance. (b) Discriminating against its employees because they engage in union activities. (c) Refusing to recognize and bargain collectively in good faith with the collective-bargaining agent of its laundry employees. (d) Engaging in a course of conduct designed to dissi- pate the majority status of its laundry employees. (e) In any other manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Maria Acevedo. Gloria Cruz, Graceilla Gomez, Alexandria Holmes, Ana Rodriguez,' 9 Domingo Rodriguez, and Gladys Rodriguez to his or her former job or, if that po- sition no longer exists, to a substantially equivalent posi- tion of employment, without prejudice to his or her se- niority or other rights, privileges, and benefits; and make each of them whole in the manner described above in the section entitled "The Remedy" for any loss of pay or other benefits suffered by reason of their discriminatory October 19, 1979, dismissals and their failure to be re- called to work on or about December 6, 1979. (b) Make whole, in the manner described above in the section entitled "The Remedy," Dolores Aguilo, Maria Ramos, Marina Rodriguez, Pautino Rodriguez, and Esperanso Ronquillo for any loss of pay or other benefits suffered by reason of their discriminatory dismissal on October 19, 1979. (c) Forthwith recognize and, upon request, bargain collectively and in good faith with Amalgamated Service and Allied Industries Joint Board, Amalgamated Cloth- ing and Textile Workers Union, AFL-CIO, CLC, retro- actively to October 18, 1979, as the exclusive representa- tive of the employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate unit is: 0' In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 11 No reinstatement offer need be made to this employee if she is also kno n as Ana Cerdas. MAXWELL'S PLUM 223 All full-time and regular part-time laundry employ- ees including feeders, receivers, folders, washers, and packers employed at the Employer's facility at 317 East 64th Street, New York, New York, but ex- cluding guards, all other employees and supervisors as defined in the Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay and interest due under the terms of this Order. (e) Post at its 317 East 64th Street, New York, New York, facility, copies of the attached notice marked "Ap- pendix." 2 0 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." signed by an authorized representative of the Employer, shall be posted by the Employer immediately upon re- ceipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Employer to insure that the notices are not altered, defaced, or covered by any other material. The record reflects that the vast majority discriminates and current employees are Spanish-surnamed. Most of such employees who testified did so through the use of a translator. Accordingly, I consider it appropriate that the Regional Director arrange for Spanish-language transla- tions of the notice required to be posted by this Order and forward such translated notices to the Employer for posting. Thereafter, the Employer shall post both the English and Spanish versions of the notice and all other requirements of the posting Order shall be applicable to both notices. (f) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps the Employer has taken to comply herewith. MAXWELL'S PLUM 223