The Holding Co.

THE HOLDING COMPANY Gary Maughan and Michael Walsh, et a., a California Limited Partnership, d/b/a The Holding Company and Hotel and Restaurani Employees and Barten- ders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Cases 20-CA-11323, 20-CA-11693, and 20-RC-13488 August 15, 1977 DECISION, ORDER, AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 15, 1977, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this consolidated proceeding.' Thereafter, both Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith, and to adopt his recommended Order, as modified herein. The Administrative Law Judge concluded that after the Union obtained authorization cards from a majority of unit employees Respondent violated Section 8(a)(1) of the Act on seven occasions and discharged four employees in violation of Section 8(a)(3). Accordingly, he overruled challenges to the ballots of the four unlawfully discharged employees. The Administrative Law Judge also found that Respondent interfered with the election by engaging in certain objectionable conduct. In fashioning an order to remedy Respondent's unlawful and objectionable conduct, the Administra- tive Law Judge made the following recommendation: A certification of representative should be issued to the Union if the revised tally of ballots results in a I On June 12 and 15. 1976, an election was conducted among the employees in the stipulated unit. The tally of ballots showed that of approximately 31 eligible voters. 12 cast ballots for, and 15 cast ballots against, the Petitioner. There were four challenged ballots, sufficient in number to affect the results of the election. These ballots were cast by the four employees whose discharges were alleged to have been unlawful. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility 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. We note that, in sec. IV of the Administrative Law Judge's Decision dealing with the 8(a)(3) violations. the Administrative Law Judge inadver- 231 NLRB No. 53 union majority. If, however, the Union does not ultimately prevail in the election, the Board should then determine whether the Union is entitled under Gissel Packing Co.,3 to a bargaining order directed against Respondent. 4 In effect, the Administrative Law Judge determined that the Union was entitled to either a certification of representative or a bargaining order, but not both. The General Counsel took exception to this rationale, asserting that the out- come of the election should not be determinative of whether a bargaining order should issue. We agree with the General Counsel on this matter. In The Great Atlantic and Pacific Tea Company, Inc., 230 NLRB No. 102 (1977), decided by the Board after the Administrative Law Judge issued his Decision herein, we not only ordered the employer to bargain retroactively with the union as a remedy for its unfair labor practices committed after the union attained majority status, but we also directed the Regional Director to issue a certification of represen- tative to the union if the revised tally of ballots resulted in a union majority. That result is based on the rationale that a certification alone would not suffice to correct any unilateral changes the employ- er may have instituted between the time when its bargaining obligation commenced and a certification of representative issued. Moreover, a certification alone might well require the union to institute still another unfair labor practice proceeding in order to compel the employer to honor the certification by bargaining with the union. 5 Finally, if the union ultimately prevailed in the election, a bargaining order should not preclude the union from enjoying any of the benefits to which it may otherwise be entitled as the certified representative of the unit employees. Since the Administrative Law Judge failed to determine whether Respondent's unfair labor prac- tices, committed subsequent to the time that the Union obtained a majority of authorization cards, 6 dictate the imposition of a bargaining order, we ourselves will analyze Respondent's unlawful con- duct in light of Gissel Packing Co., and its progeny. tently stated that the discharges took place on Apnl 13. 2 days before the end of the pay penod, whereas it is clear from his Decision and the record that he intended to state that the discharges took place on Apnl 14, I day pnor to the end of the pay period. N. L R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 4 If a bargaining order was not deemed appropriate, a second election would then be conducted. 5 See Pope Maintenance Corporation. 228 NLRB 326 (1977); Independent Sprinkler& Fire Protection Co., 220 NLRB 941,964 (1975). 6 Chairman Fanning finds it unnecessary to pass on the correctness of the Administrative Law Judge's ruling regarding Wilner's card, as there is a majority even without it. Nor does he and Member Jenkins adopt the Administrative Law Judge's comments about the effect of Irving Air Chute, addressed, as they are, to an entirely hypothetical situation. 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(l) of the Act by threatening to discharge an employee because of his union sympathies and activities, to impose adverse working conditions if employees support a union, to take economic reprisals against employees who actually vote for the Union, to sell or "get rid of' the business if the Union prevails, and to refuse to sign a contract with any union. The Administra- tive Law Judge also found that Respondent violated Section 8(a)(1) by interrogating an employee about her and her coworkers' union sympathies and activities, and by soliciting an employee to inform management of the union activities of other employ- ees. We also adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) of the Act by discriminatorily discharging four employ- ees who were active union adherents, including the leading union organizer among the employees.7 We are persuaded that these unfair labor practices clearly had "the tendency to undermine majority strength and impede the election processes."8 Under these circumstances, a bargaining order is warranted not only to protect the employees' right to determine freely whether they desire union representation, but also to insure that Respondent does not profit from his own wrongful conduct.9 Moreover, we shall date the bargaining obligation as of April 1, 1976, the date on which Respondent committed its initial violation of Section 8(a)(1) and "embarked on a clear course of unlawful conduct." 10 Accordingly, as we find merit in the General Counsel's exception, we shall adopt the Administra- tive Law Judge's recommended Order as modified herein and issued the Direction set forth below. 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 the Respon- dent, Gary Maughan and Michael Walsh, el al., a California Limited Partnership, d/b/a The Holding Company, San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Insert the following as paragraph 2(c) and reletter the following paragraphs accordingly: "(c) Recognize, effective from the date beginning April 1, 1976, and, upon request, bargain collectively and in good faith with Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, as the exclusive representa- tive of all employees in the appropriate unit, with respect to rates of pay, wages, hours and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: "All regular full-time and part-time employees of the Holding Company at its operation at #2 Embarcadero Center, San Francisco, California; excluding the manager, office clerical employees, guards and supervisors as defined in the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. DIRECTION It is hereby directed that the Regional Director for Region 20 shall, within 10 days from the date of this Decision, open and count the ballots cast by Jane Findlay, Winston Matthews, Thomas McDermott, and Dana Wilner in Case 20-RC-13488, and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative. However, if the revised tally shows that the Petitioner has not received a majority of the valid ballots cast, the Regional Director shall set aside the election results, dismiss the petition, and vacate the proceedings. I The Administrative Law Judge concluded that the discharges of Jane Findlcy and Winston Matthews were motivated in part by Respondent's union animus. We note, however, that his Decision otherwise clearly indicates, the record demonstrates, and we therefore find that the reasons asserted by Respondent to justify these discharges were pretextual in nature, and that the discharges were motivated entirely by Respondent's union animus. I Gissel Packing Co., supra at 614. 9 See Pilot Freight Carriers, Inc., and BBR of Florida, Inc., 223 NLRB 286, 306 (1976); Bushnell's Kitchens, Inc., 222 NLRB 110, 119 (1976): Montgomery Ward & Co., Incorporated 220 NLRB 373, 374, 392 (1975); The Great Atlantic and Pacific Tea Company, Inc., Birmingham Division, 210 NLRB 593, 602(1974). o1 Trading Port, Inc., 219 NLRB 298, 301 (1975); Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division, 228 NLRB 93 (1977). Chairman Fanning would issue a prospective bargaining order only. 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 both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. We intend to abide by the following: 384 THE HOLDING COMPANY Section 7 of the Act gives all .employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL offer to reinstate Jane Findlay, Winston Matthews, Thomas McDermott, and Dana Wilner to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without loss of seniority or other rights previously enjoyed, and will make them whole for any loss of earnings suffered because of their discharges, together with 6-percent interest per annum. WE WILL NOT discourage membership in Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization of our employees, by discharging any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL recognize, effective from the date beginning April 1, 1976, and, upon request, bargain collectively and in good faith with Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appro- priate bargaining unit is: All regular full-time and part-time employ- ees of the Holding Company at its operation at #2 Embarcadero Center, San Francisco, California; excluding the manager, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT interrogate our employees about their or their coworkers' union sympathies and activities; threaten our employees with reprisals including onerous working conditions, discharge, or the sale of the business if they join or support the Union; tell our employees it would be futile for them to support a union because we would never agree to a contract with a union; solicit our employees to keep other employees' union activi- ties under surveillance and to keep us informed about employees' union sympathies and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in exercis- ing their rights under Section 7 of the National Labor Relations Act, as amended. GARY MAUGHAN AND MICHAEL WALSH, ET AL., D/B/A THE HOLDING COMPANY DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: This consolidated proceeding is based upon unfair labor practice charges and a representation petition filed by the above-named Union in Case 20-CA-11323 on April 15, 1976, as amended April 28, 1976, and in Case 20-CA- 11693 on July 13, 1976, as amended August 31, 1976. The General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 20, issued complaints in Case 20-CA-11323 on May 28, 1976, as amended November 2, 1976, and in Case 20-CA-11693 on August 31, 1976, alleging that the above-named Employer, herein called Respondent, has engaged in unfair labor practices within the meaning of Section 8(aX)(l) and (3) of the National Labor Relations Act, herein called the Act. Respondent filed timely answers denying the commission of the alleged unfair labor practices. In the representation case, Case 20-RC-13488, the Union filed a representation petition on April 15, 1976, seeking an election among a unit of Respondent's employ- ees. Pursuant to a Stipulation for Certification Upon Consent Ele'tion, executed by the parties and approved by the Board's Regional Director for Region 20, a secret ballot election was conducted on June 12 and 15, 1976. The tally of ballots shows that of the approximately 31 eligible voters, 12 cast ballots for, and 15 cast ballots against, the Union. There were four challenged ballots, sufficient to affect the results of the election, which were cast by the four employees-Winston Matthews, Jane Findlay, Thom- as McDermott, and Dana Wilner-whose discharges are in issue in the unfair labor practice proceeding. The Union filed a timely objection to Respondent's preelection conduct based upon the alleged unlawful discharge of Dana Wilner. On November 2, 1976, pursuant to an order of the Board, the Regional Director of Region 20, ordered a hearing before an Administrative Law Judge to resolve the four challenged ballots and the Union's objection and further ordered that the hearing be consolidated with the unfair labor practice cases involved herein. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Gary Maughan and Michael Walsh, et al., d/b/a The Holding Company, the Respondent, is a California limited partnership which operates a bar and restaurant at Two Embarcadero Center, San Francisco, California. Respon- dent annually has a gross volume of sales exceeding $500,000 and purchases and receives supplies exceeding $50,000 directly from suppliers outside the State of California. Respondent admits it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES The essential questions presented in the unfair labor practice proceedings are whether Respondent interrogated an employee about her Union sentiments and activities and those of other employees, and requested said employee to engage in the surveillance of employees' union activities; told an employee it was futile for the employees to support a union since Respondent would never enter into a collective-bargaining agreement with a union; threatened employees with economic reprisals to discourage them from supporting the Union; discharged four employees because of their union sympathies and activities; and, if Respondent engaged in some or all of this misconduct, is it obligated to recognize and bargain with the Union as the employees' bargaining representative to remedy the mis- conduct. The essential questions presented in the representation proceeding are whether the four employees whose ballots are challenged were eligible to vote and whether the Union's objection to the election was meritorious. The voting eligibility of the four dischargees, whose ballots have been challenged, depends upon whether, as alleged in the unfair labor practice proceedings, they were discharged for union activities. Likewise, the merit of the Union's election objection depends upon whether, as alleged in the unfair labor practice proceedings, dischargee Dana Wilner was discharged for union activities and, if so, whether this conduct occurred during the critical period so it may serve as a basis for setting aside the election. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts in Chronology Respondent operates a bar and restaurant known as The Holding Company which during the time material to this ' All dates herein unless otherwise stated refer to 1976. 2 The April I conversation between Walsh and McDermott is based upon McDermott's testimony. Walsh denied cursing unions in general or case employed between approximately 24 to 29 employees under the supervision of managing partners Gary Mau- ghan and Michael Walsh and Manager Larry McElwaney. On March 12, 1976,1 waitress Dana Wilner, an alleged discriminatee, visited the Union's offices and spoke with union organizers about union representation. She was given a copy of a collective-bargaining agreement negotiat- ed by the Union and a supply of union authorization cards for employees to sign. The cards designated the Union as the employees' collective-bargaining representative. On March 19 Wilner signed a union authorization card and the same day, while at The Holding Company, solicited seven employees to sign these cards. Two employees who signed cards were alleged discriminatees, Jane Findlay and Winston Matthews. On March 22 Wilner solicited bartend- er Thomas McDermott, another alleged discriminatee, to sign a card. He signed and, while at work, solicited two of the bartenders to support the Union. Findlay notified two employees about union meetings or matters of significance concerning the Union. Matthews, a cook, told the two employees who worked with him in the kitchen that he was a union sympathizer. On March 19 in addition to soliciting employees to sign cards Wilner gave waitress Jill Ballinger several cards to distribute. On March 19, while at work, Ballinger solicited two employees to sign cards and on March 20, while off duty, solicited another employee. The first union organizational meeting was scheduled for March 29 at McDermott's residence and was attended by approximately 12 employees including the alleged discri- minatees. The employees discussed the terms of the contract the Union had negotiated with other employers and discussed the benefits the employees expected from union representation. On April 1, in the morning, McDermott and managing partner Michael Walsh had a brief conversation about the current strike by the unions which represented workers employed by the city of San Francisco. McDermott and Walsh indicated their disgust with the strike which had shut down the city's public transportation system. Walsh ended the conversation by cursing labor unions in general and by telling McDermott: "I'll be damned if I'll ever sign my name to any union contract." McDermott mumbled something to the effect that he agreed with Walsh.2 On April 2, the manager of The Holding Company, Larry McElwaney, approached waitress Jane Lochrie in the restaurant and asked, "What's this about a Union?" Lochrie replied that the subject of union representation had only been casually discussed by the employees and "pretty much dismissed." McElwaney asked "who'd been interested in the union?" Lochrie named employees who were no longer working for The Holding Company. McElwaney told her The Holding Company did not want a union because it could not afford one, that a union would not help "things," and stated, "he thought he would have to get rid of the little girl in the kitchen," and warned Lochrie that "he made the schedule out and that he could change hours if he had to keep the union out." McElwaney stating he would not sign his name to a union contract. McDermott impressed me as the more trustworthy witness. 386 THE HOLDING COMPANY explained to Lochrie that he had learned about the Union from waitress Karin Purcell3 who had told him about the Union's organizational campaign and that she was upset about it. McElwaney asked Lochrie "to keep him in- formed" about "who was involved in the Union and when meetings were taking place." Lochrie agreed. 4 On Tuesday, April 13 from about 7:30 to 9 p.m. approximately 10 of The Holding Company's employees, including the 4 alleged discriminatees-Matthews, McDer- mott, Findlay, and Wilner-met with union officials at the Union's offices. By this date a majority of The Holding Company's employees had signed cards designating the Union as their bargaining representative. The employees present at the April 13 union meeting discussed whether the Union should petition the Board for a representation election or inform management that a majority of the employees had signed union authorization cards and demand that the company voluntarily recognize and bargain with the Union. The employees directed the union officials to file a representation petition with the Board and also to notify the company of the Union's majority status. On Wednesday, April 14 between 8 and 9 p.m., long after Matthews, McDermott, Findlay, and Wilner had finished work and left the premises, the Respondent's managing partners, Walsh and Maughan, decided to discharge them immediately. Walsh prepared their final paychecks and deposited the checks in the mail and phoned all but Wilner 5 and told them they should not come to work the next day inasmuch as they had been discharged and their final checks deposited in the mail. Findlay asked several times for an explanation for her discharge. Walsh refused to divulge the reason but, in reply to this question, answered, "it's in the best interests of the company." Findlay insisted on her right to know the reason for her discharge and in effect asked for a meeting with Walsh to discuss the matter. Walsh replied, "he felt there was no need" for an explanation but, when Findlay continued to press for an explanation told her "maybe sometime in the future" he would arrange to meet with her and give her an explanation. Similarly, when Matthews asked for the reason he was discharged, Walsh told him "it was for the good of The Holding Company." Walsh turned down Matthews' request for a more detailed explanation and a meeting to discuss the matter. In a like manner, when McDermott asked why he was discharged, Walsh an- ' In September McElwaney and Purcell became husband and wife. 4 The descnption of the April 2 conversation between McElwaney and Lochrie is based upon Lochne's testimony. McElwaney flatly denied uttering any of these remarks. He testified all he talked to Lochrie about was the current city strike. In urging that I credit McElwaney's denial Respondent contends that in other respects Lochrie's testimony is inconsistent and that her testimony about the conversation was inherently incredible because Purcell, at the time the conversation took place. at least overtly, was a union sympathizer. I have carefully considered these contentions but, based upon my observation of the witnesses, Lochne impressed me as an honest witness making a sincere effort to accurately present what occurred between herself and McElwaney. McElwaney impressed me as an untrustworthy witness. Walsh did not have Wilner's phone number. The description of the discharge interviews is based upon the alleged discriminatees' testimony. Walsh's testimony does not differ in most significant respects. In those instances where his testimony differs I have credited the version given by the discharged employees who impressed me as more credible and reliable witnesses than Walsh. swered, "for the good of the restaurant," commenting "that's all there is to be said." The next day, April 15, when Wilner arrived for work, Walsh immediately notified her that she was discharged and would have been discharged the night before but he did not have her telephone number. Wilner asked why she was discharged. Walsh, as in the case of the other alleged discriminatees, answered "let's say it's for the good of the restaurant." Wilner stated it was the first time she had ever been fired from a job and wanted an explanation but Walsh refused to discuss the matter any further.6 On April 15 the Union filed a representation petition in Case 20-RC-13488 seeking to represent The Holding Company's employees. An election was held on June 12 and 15 with, as described above, 12 votes being cast for, and 15 against, the Union with the challenged ballots of the 4 alleged discriminatees being determinative. On June 15, after the results of the election had been announced, Manager McElwaney, while at the bar, informed one of the cocktail waitresses about the results of the election and commented that with the 4 challenged ballots the vote would be 16-15 in favor of the Union. At this point, with tears running down his face, McElwaney made a forceful gesture with his hands and stated: "We have 12 people working here who voted for the Union and we've got a lot of shit and we've got to shovel it."' Also on June 15, late in the evening, when bartenders Teasdale and Barnett were in the process of closing up for the night, managing partner Walsh sat down where they were working and commenced a long, rambling monologue about the election and the Union, often repeating himself. In pertinent part Walsh stated he was depressed about the outcome of the election, that he wanted to keep control of his business and would "sell the business if the Union did come in." 8 Walsh explained he would lose control of the business if the Union came in and it would no longer be enjoyable for him to operate it, "so he would get rid of" the business. Regarding the election, Walsh stated he had guessed I I employees would vote for the Union but another employee, whose sentiments he was not sure of, must have voted for the Union. Walsh did not like the idea, he told Teasdale and Barnett, that 12 of his employees had voted for the Union and was personally hurt by their conduct which indicated they did not trust Walsh.9 7 The description of McElwaney's remarks to the cocktail waitress is based upon the testimony of Michael Teasdale, a bartender, who was at his work station approximately 5 feet from where McEJwaney was talking. McElwaney denied ever telling anyone that "we have a lot of shit around here and we have got to start shoveling." Teasdale, in manner and demeanor, impressed me as an honest and reliable witness, a more trustworthy one than McElwaney. 8 Walsh knew there was a distinct possibility that the Union might win the election and thus "come in" inasmuch as a complaint had issued against Respondent alleging that the employees whose challenged ballots would determine the outcome of the election had been unlawfully discharged. 9 This description of Walsh's remarks is based on Teasdale's testimony. Walsh acknowledged he spoke to Teasdale at the time in question, denied certain of the remarks attributed to him, failed to specifically deny he threatened to sell the business if the Union succeeded in winning the election, and admitted he was "very emotional" and had expressed his disappointment about the results of the election, telling Teasdale he did not think the employees needed a union. As I have indicated. supra, Teasdale's demeanor was that of an honest witness. In assessing his credibility I have (Continued) 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusionary Findings I. The alleged interference, restraint, and coercion in violation of Section 8(a)(l) of the Act a. McElwaney's conduct On April 2, as fully described supra, The Holding Company's manager, McElwaney, questioned employee Lochrie about the Union's campaign and, in the context of voicing Respondent's opposition to union representation, told Lochrie he would have to discharge employee Matthews.10 Since the topic of conversation was McElwa- ney's desire to learn as much as possible about the Union's organizational campaign including the names of the employees who were union adherents, it is clear his threat to discharge Matthews was based on a belief that Matthews was a union adherent. In its context McElwa- ney's threat was reasonably calculated to impress Lochrie as being motivated by McElwaney's belief that Matthews was a union adherent. Accordingly, I find that by threatening to discharge Matthews because of his union sympathies and activities Respondent violated Section 8(a)(l) of the Act. Likewise, Respondent violated Section 8(a)(l) when McElwaney in the same conversation warned Lochrie he could change the employees' working schedules in order to keep the union out. This constitutes an explicit threat of adverse working conditions if the employees supported the Union. Respondent also violated Section 8(aX)(1) of the Act when McElwaney during this conversation questioned Lochrie about her union sympathies and activities-"what's this about a Union?"-and about the union sympathies and activities of other employees-"who'd been interested in the union?" McElwaney did not have, and did not suggest to Lochrie there was a legitimate reason for questioning her and gave no assurances against reprisals. " Quite the contrary, McElwaney told Lochrie he would discharge Matthews on account of his union activities and threatened employees with adverse working conditions if they support- ed the Union. In these circumstances, McElwaney's interrogation of Lochrie reasonably tended to restrain and coerce Lochrie in the exercise of her statutory right to support the Union, hence, violating Section 8(aX)(1) of the Act. In addition, McElwaney's request that Lochrie "keep him informed" about "who was involved in the union and when meetings were taking place," is violative of Section 8(a)(1) as a management attempt to induce an employee to inform on the union sympathies and activities of other employees. N.L.R.B. v. The Borden Company, 392 F.2d 412, 414, fn. 2 (C.A. 5, 1968). considered he was laid off from work by Respondent shortly after June 15 and filed charges with the Board accusing Respondent of laying him off because of his union activities. I have also taken into account the General Counsel's failure to corroborate Teasdale's with Barnett's testimony. Nonetheless, since Teasdale impressed me as an honest witness who was telling the truth, whereas Walsh did not, I have credited Teasdale's testimony. 'o McElwaney did not mention Matthews by name, rather, he referred to "the little girl in the kitchen." There were three persons working in The Also violative of Section 8(aXl) of the Act is McElwa- ney's conduct of June 15, when, as fully described supra, in the presence of employee Teasdale, McElwaney told a waitress that "we [Respondent] have 12 people working here who voted for the Union and we've got a lot of shit and we've got to shovel it." This crude figure of speech is, as alleged in the complaint, a none too subtle threat that the employees who voted for the Union in the representa- tion election of June 12 and 15 would suffer economic reprisals. b. Walsh's conduct On April 1, as described fully supra, Walsh, one of The Holding Company's two managing partners, informed employee McDermott, "I'll be damned if I'll ever sign my name to any union contract." In short Walsh made it quite clear to McDermott that Respondent would never agree to a contract with the Union. This threat that Respondent "would never agree to a contract, since it warned of the futility of organization, was a form of restraint prohibited by Section 8(aXl)." N.LR.B. v. Varo, Inc., 425 F.2d 293, 299 (C.A. 5, 1970), especially in view of Respondent's other unfair labor practices found herein. Likewise, Respondent violated Section 8(a)(l) of the Act when, on June 15, as fully described supra, Walsh told employees Teasdale and Barnett he would either "sell" or "get rid of" the business if the Union won the representation election. 2. The alleged unlawful discharges of Wilner, McDermott, Findlay, and Matthews in violation of Section 8(aX3) and (1) of the Act a. The General Counsel's case I am persuaded the record establishes a strong prima facie case of unlawful discrimination in the cases of the four dischargees involved herein, which imposed upon Respondent the duty of going forward with evidence giving an adequate explanation for its decision to discharge the employees. N.LRKB. v. Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9, 1969). This conclusion is based upon the totality of the following considerations. 1. Each dischargee openly supported the Union. Wilner initiated the Union's organizational campaign and, while at The Holding Company, solicited several employees to support the Union. McDermott, at whose residence the Union's first organizational meeting was held, signed a union authorization card and, while at work, solicited two employees to support the Union. Findlay signed a union authorization card and notified employees about union organizational meetings and other matters of significance involving union representation. Matthews signed a union card and, while at work, communicated his prounion Holding Company's kitchen, all of whom were male. Thus, it is clear that McElwaney was talking about Matthews, who management and the employees knew was a homosexual. " Lochrie, because of a fear of reprisal, falsely told McElwaney, in response to his interrogation, that the subject of union representation had only been "casually" discussed among the employees and falsely named employees who no longer worked for Respondent as having expressed an interest in union representation. 388 THE HOLDING COMPANY sentiments to other employees. Each dischargee attended all of the Union's organizational meetings, on March 29 and April 13. 2. Respondent was hostile toward union activity in general and toward union activists in particular. Manager McElwaney, in violation of Section 8(aX)(1), threatened employees with economic reprisals if they supported the Union; threatened to discharge alleged discriminatee Matthews because of his prounion sentiments; and solicited an employee to keep the employees' union activities under surveillance for management. Managing partner Walsh indicated it was a sign of disloyalty to management for employees to support the Union; that management did not want a union; and, in violation of Section 8(a)(1), told employees it was futile for employees to support the Union because if the Union succeeded in winning the representation election Walsh would never agree to a contract and would either sell or "get rid" of the business. 3. Respondent's refusal to give the dischargees an explanation for their discharges is an indication that the discharges were unlawfully motivated. A. J. Krajewski Manufacturing Co. Inc. v. N.LR.B., 413 F.2d 673, fn. 2 (C.A. 1, 1969). Walsh, as fully described supra, refused to give the dischargees an explanation for their discharges even though each dischargee asked, and some of them literally begged him for an explanation. Walsh simply told them they were discharged because it was in the "best interest" or for the "good" of The Holding Company. The inference of illegality which flows from Walsh's refusal to give an explanation is bolstered by his frivolous, shifting, and sometimes inconsistent reasons advanced to justify this conduct.: 2 When asked why he refused the dischargees' several requests for an explanation, Walsh gave these answers: First of all, it was all on reasons that we had related before and, to be fair to them and fair to me, you can't do something like that over the phone. I did not want to fire them on the phone. I would have rather dealt with them face to face, except that meant then calling them in and then sending them home, and that was not fair either. * *t I had four people to fire. I had three schedules to redo. I had a lot of things to take care of that night after I talked to them and it was late, along with getting back to running the restaurant, and was fully prepared to talk to them at a later date if they'd ask me to, but what I was trying to relate to them was that I don't want to get into details at this time. I am open to discuss all the problems that we are getting rid of you for because we've already related them to you, but I don't want to do it and spend an hour on the phone with each employee.3 12 When testifying about his reasons for refusing to give the dischargees an explanation for their discharges Walsh in manner and demeanor did not impress me as a trustworthy witness. 1i The record reveals that Walsh, rather than suggest that the dischargees talk with him at greater length at a later date, specifically discouraged any When asked why he did not simply tell them they were discharged for poor work performance and that he would explain the reasons in more detail when he had the time, Walsh's answer, given in an unconvincing manner which was contrary to his earlier testimony, was as follows: Because I was-You know, I don't like firing people and it was very difficult to do it in the first place, and I wanted to keep it just as short as-and tight as I could. I just said, "I won't discuss it with you know," and it was just because I did not want to go into it. I was nervous about it, quite honestly. I did not like doing the duty. Walsh's several explanations, whether viewed separately or in their totality, do not ring true. If, as Respondent contends, each alleged discriminatee was discharged for not heeding management's previous warnings to improve their work performances, it would have been quite simple and natural for Walsh to have stated they were being discharged because their work performances had not improved despite previous warnings. Instead Walsh re- fused to advance any explanation but simply stated it was in the "best interest" or for the "good" of The Holding Company. This statement comes very close to being an implied admission they were being terminated on account of their union sympathies where, as here, the record indicates that Walsh is of the opinion that union represen- tation is not in the "best interest" or for the "good" of The Holding Company. In any event, Walsh's refusal to give the dischargees an explanation for their discharges is evidence for inferring that the wholesale discharge of the employees involved herein was discriminatorily motivated. 4. The timing of the discharges, coming as they did on the heels of the Union's April 13 meeting, is strong evidence of unlawful motivation. On the evening of Tuesday, April 13 the Union held a meeting attended by 10 of The Holding Company's employees, including the 4 alleged discriminatees, at which time the employees decided the Union should take immediate steps to file a representation petition with the Board and contact Re- spondent in an effort to become the employees' bargaining representative. Less than 24 hours later Respondent decided to discharge the four alleged discriminatees, none of whom is being accused of engaging in the type of flagrant misconduct normally associated with such summa- ry dismissal. That the timing of this wholesale discharge of employees was not just coincidental in time with the Union's organizational campaign and the meeting of April 13 is illustrated by the fact that the discharges took place in the middle of the discharged employees' workweek and 2 days before the end of the pay period and several days prior to payday. Indeed Walsh's testimony indicates Respondent normally terminates employees at the end of the payroll period because, in Walsh's words, it is "the logical time to get rid" of employees. Moreover, since Thursday and Friday, the last 2 days of the discharged future discussion with one dischargee and outright refused to meet with another and in the case of the dischargee. who personally came to Walsh's office, refused to give her an explanation for the discharge commenting that "maybe" at some unspecified time in the future such an explanation would be forthcoming. 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' workweek, are particularly busy lunch days and all four of the dischargees worked the lunch shift, it was particularly illogical for Respondent to discharge them when it did, especially since no previous arrangements had been made to hire new employees to fill the four vacancies created by the discharges. Until new hires could be employed to replace Findlay, Wilner, and McDermott, the work schedules of three currently employed persons were changed by Walsh who notified these employees on the evening of April 13 about the change in their work schedules for the following day. Regarding the vacancy caused by Matthews' termination another kitchen employ- ee was able to take over his job as cook but it was then necessary for Walsh, the same evening, to contact an applicant to fill the vacant kitchen job. In short, the evening of April 13, was a hectic one for Walsh. In his words, "I had four people to fire. I had three schedules to redo, I had a lot of things to take care of that night after I talked to them [referring to the dischargees] and it was late .... " I am convinced that if the wholesale discharge of the four employees involved herein was motivated by legitimate business considerations Walsh could have first decided upon their termination, then gone about securing replacements to fill the vacancies created by their impend- ing departures and, only then, at the end of the payroll period or of the dischargees' workweek tell them face-to- face they were discharged and explain to them the reason for their discharges rather than at night by telephone in the middle of the workweek precipitously notify them of their discharges and refuse to explain the reason for the discharges. 5. The abrupt and highly unusual manner in which this wholesale discharge of employees was handled by manage- ment is not consistent with the way in which an employer discharges employees for legitimate business reasons; rather, it suggests illegality. The decision to discharge was a joint one reached by managing partners Walsh and Maughan during the evening of Wednesday, April 14. Between 8 and 9 p.m., San Francisco time, Walsh phoned Maughan who was visiting his family in Miami, Florida, where it was between II p.m. and 12 midnight, at which time they decided to terminate the four alleged discrimina- tees. Immediately after reaching this decision Walsh prepared the employees' final paychecks which were mailed to them that same evening. The same evening Walsh also phoned the alleged discriminatees and told them they were discharged.' 4 None of them is being accused of engaging in the type of misconduct normally associated with such a hasty dismissal. This haste and the 14 As found supra, Walsh did not have Wilner's phone number so was unable to notify her that she was discharged until the following day when she arrived for work. 16 During the hearing Walsh acknowledged that the manner in which the dischargees were notified about their discharges was unusual. He testified, "you can't do something like that [referring to informing employees the reasons for the discharges] over the phone. I did not want to fire them on the phone. I would rather have dealt with them face to face." His reason for abruptly terminating the employees over the phone in the middle of the workweek without giving them an explanation, was not given in a convincing manner. 16 There were 10 employees who attended the meeting, including the 4 dischargees. ~T Respondent urges that since one of the most active union adherents, Jill Ballinger, was not discharged it negates any showing that the discharges strange and unconventional manner in which Respondent handled these discharges,15 especially when viewed in the context of the refusal to furnish the dischargees an explanation for their discharges, strongly suggests that the wholesale discharge of employees involved herein was not based upon legitimate considerations but rather upon illegal ones. 6. The disproportionate number of union adherents abruptly discharged who attended the April 13 union meeting and who signed cards for the Union is persuasive evidence of discrimination. Thus, 40 percent of the employees who attended the April 13 union meeting were abruptly discharged less than 24 hours later.16 No employ- ee who did not attend this meeting was discharged. Also this represents a 100-percent discharge of union card signers, while the percentage of union card signers in the whole voting unit at this point of time was only 57 percent. This disproportionate number of union adherents dis- charged who had signed cards and attended the April 13 union meeting, when viewed in the context of Respon- dent's extreme hostility toward union representation as expressed by its violations of Section 8(a)(1) herein, and the abruptness and the unusual manner in which the discharg- es were effected, is persuasive evidence of discrimination. See N.L.R.B. v. Midwest Hanger Co. and Liberty Engineer- ing Corp., 474 F.2d 1155, 1158 (C.A. 8, 1973). Also see N.LR.B. v. Chicago Steel Foundry, 142 F.2d 306, 308 (C.A. 7, 1944), where the court stated: To be sure, percentage evidence, standing alone, will not support or sustain an order based on § 8(aX3) of the Act. . .. . But disproportionate treatment of union and nonunion workers may be very persuasive evidence of discrimination. . . and may create an inference of discrimination leaving it to the employer to give an adequate explanation of the discharge or layoff.... The aforesaid considerations in their totality persuade me the General Counsel has established by a preponder- ance of the evidence a strongprimafacie case of unlawful discrimination for each dischargee involved herein.'7 In so concluding, I have carefully considered the testimony of Respondent's supervision-managing partners Walsh and Maughan and Manager McElwaney-that they were without knowledge that any one of the alleged discrimina- tees was a union adherent or that its employees in general were conducting a union organizational campaign. Since all three failed to impress me as honest witnesses I did not give significant weight to their conclusionary denials of of Findlay, Matthews, and McDermott, who were less active in their support of the Union, was motivated by Respondent's union animus. I disagree. The wholesale discharge of union adherents, as occurred in this case, albeit one of the more active union adherents was not included, is sufficient to warn those who remain that they will suffer the same fate if they persist in organizational activities, especially, where as here, two of the most active union adherents-Wilner and McDermott-were included in the discharge. It is well settled that the failure of an employer to discharge all union activists is no defense to those discharges which are demonstrated to be discriminatorily motivated. See The Rust Engineering Company, et al. v. N.LR.B., 445 F.2d 172, 174 (C.A. 6, 1971); N.LR.B. v. Puerto Rico Telephone Company, 357 F.2d 919 (C.A. 1, 1966); Nachman Corporation v. N. LR.B., 337 F.2d 421, 424 (C.A. 7, 1964); N.LR.B. v. W. C Nabors, d/b/a W. C Nabors Company, 196 F.2d 272, 276 (C.A. 5, 1952). 390 THE HOLDING COMPANY knowledge of union activities. Quite the contrary, a careful assessment of all of the evidence pertaining to the discharges leads me to reject Respondent's contention that it was not cognizant of the discriminatees' union sympa- thies and activities. Rather the whole record demonstrates that at the time of the wholesale discharges involved herein, Respondent possessed knowledge of the dischar- gees' union activities. I am particularly persuaded as to the validity of this finding by the following evidence, inter alia:s8 Each dischargee openly supported the Union; the small number of employees working at The Holding Company (between 24 and 29 during the relevant times) and the very close day-to-day contact management maintained with the employees; 19 the Respondent exhib- ited a hostility toward union activity in general and union activities in particular, threatening to discharge one of the discriminatees because of his union sympathies; the timing and the abruptness of the discharges, which occurred in the middle of the workweek within 24 hours of the alleged discriminatees attending a union meeting; the highly unusual manner in which the discharged employees were notified about their discharge, over the phone at night and, despite their requests, were not given an explanation for their discharges; the disproportionate number of employ- ees that were discharged who signed union cards and attended the April 13 union meeting; and, the fact that prior to the discharges Respondent was attempting to learn the names of those employees who favored the Union and, in this regard, interrogated at least one employee about the union activities and sympathies of employees and solicited this employee to keep the union activities of employees under surveillance and keep management informed about the union sympathies and activities of the employees. Accordingly, I conclude there is ample evidence upon which to predicate the inference that the managing partners, Walsh and Maughan, were aware of the prounion efforts of employees Wilner, Findlay, McDermott, and Matthews when they decided to discharge them. I shall now evaluate Respondent's reasons for discharg- ing the alleged discriminatees. b. The Respondent's justification for the discharges Jane Findlay Findlay began working at The Holding Company in September 1975 as a food and cocktail waitress. In its posthearing brief Respondent urges Findlay was an unsatisfactory employee because: "[Findlay] did not attend to her tables [and] as a result she did not clear the '" It is well settled that proof of knowledge of union activity may be shown by circumstantial as well as by direct evidence. Famet, Inc. v. N.L.R.B., 490 F.2d 293 (C.A. 9, 1973), and N. L. R.B. v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (C.A. 2, 1972). i9 Walsh, Maughan, and McElwaney each spent between 10 to 12 hours daily, 6 days a week. on the premises of The Holding Company mainly in the working areas supervising the employees and continually visiting with them, on a first-name basis, and even working with them. In Walsh's words: It's a very small shop. It's only 3.000 square feet. The widest part of the restaurant is no wider than this courtroom. You're watching and seeing and eating and working with the same people from 4 to 8 hours a day .... So you're around, you understand all their personal problems or you get to know what they're doing and you know whose going to tables of plates, ashtrays and glasses as expected"; "numerous" customers complained about her rudeness; employees complained about her attitude; "Findlay was never friendly or gregarious"; "she was very poor on cocktails." The evidence offered in support of these contentions is not impressive. Regarding the complaints employees voiced about Findlay's attitude, Walsh testified that once, in February, newly hired waitresses asked if Findlay was the head waitress, stating she had told them to perform certain duties in connection with their side work-filling salt and pepper shakers, etc.-which they had been led to believe was not required of them. Walsh did not reprimand Findlay but, as he testified, simply told her that if she thought the new waitresses were not doing their work correctly to come to either himself or Maughan or McElwaney and not to take it upon herself "to train" the new employees. This was the first and last time Findlay engaged in this type of conduct. The only other testimony adduced by Respondent in support of this contention was McElwaney's testimony that three new employees told him they felt "intimidated by Findlay when they came to work that she was very cold to them and did not like a new person coming into the operation." Respondent offered no evidence to indicate in what manner Findlay's alleged poor disposition toward new employees affected the operation of the restaurant. It is a fair inference that the matter had virtually no impact upon the employees' work or the operation of the restaurant inasmuch as McElwaney admittedly never spoke to Findlay about the matter. The contention that Findlay was a "very poor" cocktail waitress is based upon the conclusionary testimony of Walsh, Maughan, and McElwaney. What it amounts to is that Findlay prior to her employment with Respondent never worked as a waitress and, as a result, was not familiar with the names of the various cocktails. Also, according to McElwaney, when waiting on luncheon customers she would inquire, "may I take your order now," rather than, "would you care to have a cocktail." In connection with her lack of knowledge about the names of the various cocktails Findlay was told, when she first began working in September 1975, to become familiar with the names of the cocktails by reading a book on the subject. Other than this, the testimony of Maughan, McElwaney, and Walsh reveals no further discussion by management with Findlay about her cocktail service?2 The contention that Findlay was a poor waitress because she did not clear her tables of dirty dishes, glasses, and ashtrays is based upon Walsh's testimony that Findlay school, what classes they're taking, what they're doing with their hobbie. It turns into basically a family relationship .... When you have a small shop like ours, everyone is working and the) all sit and eat together; they converse together, they work together all day long. They're all interrelated as far as their job activities; and, anything that happens to anyone of them, everybody else knows about. 20 I recognize that at one point in his testimony Walsh volunteered, "we tried to work with [Findlay] on [selling cocktails] and get her to sell more." This conclusion was never particularized by either Walsh. McElwaney, or Maughan. 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "was a sloppy waitress, her tables were very sloppy. The plates, the ashtrays, the empty drink glasses, they were usually picked up by somebody else rather than her." Walsh did not particularize this generalization nor was his testimony corroborated by either Maughan or McElwaney who, when asked to detail Findlay's work problems, conspicuously neglected to mention that she was a "sloppy waitress" as described by Walsh. The testimony offered in support of the contention that Findlay was not friendly or gregarious and that manage- ment received numerous complaints from customers about her rudeness, like the other misconduct attributed to Findlay, is singularly lacking in specifics. Walsh testified that when he hired Findlay he knew she was a quiet rather than a gregarious person but that after she began working he observed she was inattentive and rude to customers which type of conduct increased sharply on or about March 1, 1976. The only evidence adduced by Respondent concerning this alleged inattentiveness or rudeness toward customers by Findlay, which approximates any degree of specificity, is McElwaney's testimony that two customers in the middle of March, one named Mack Hood and the other named "Jim," complained she had been rude. Respondent's supervisors-Walsh, Maughan, and McEI- waney-testified that on several occasions they discussed the problems they were having with Findlay. Walsh testified McElwaney and he discussed Findlay's work problems two or three times, the last time at the very end of March when McElwaney told Walsh he was having "continuing problems" with Findlay's job performance and with her attitude toward the new hires and, Walsh further testified, that at about the same time McElwaney recommended Findlay's discharge. McElwaney testified he related his problems with Findlay to Maughan and Walsh, as the problems occurred, and as early as March I decided she should be fired at which time he voiced this recommen- dation to Maughan and Walsh and in late March repeated this recommendation. Walsh and Maughan, according to McElwaney, agreed with his evaluation of Findlay but said she should be given a chance to improve. All three supervisors testified that on several occasions they made it clear to Findlay they were dissatisfied with her perfor- mance. McElwaney testified he spoke with Findlay three times about her unsatisfactory performance, the last time in the middle of March when he told her that he had a complaint from two customers that she had been rude and told her he would not tolerate this type of conduct. Maughan testified he spoke with Findlay about her work deficiencies approximately two or three times, the last time in the first week of April when he threatened her with discharge "if she did not once again get her performance up to par." Walsh testified that whenever he was in the restaurant during lunch he would speak to Findlay about her poor work, the last time being on April 14, the day she was discharged. Findlay's version of her employment history is in sharp conflict with management's testimony. It is undisputed that when she started work in September 1975 management knew she had never previously worked as a waitress. The result was that for the first 2 to 3 months of her employment, as she testified, she received frequent criti- cism about her lack of efficiency; slowness in serving customers and clearing off the tables; and the fact she was not familiar with the names of the numerous mixed drinks. But, after this initial 2- or 3-month training period, Findlay testified, she became a proficient waitress who received no more than the usual comments from supervision, on the floor of the restaurant, that were made to all of the waitresses, i.e., "did you catch that table"-"they are done eating, can you get that bussed." Findlay denied that during her last several months of employment she was spoken to, let alone criticized or reprimanded, about her work performance, her attitude toward customers, her lack of knowledge of cocktails, or that any member of management indicated they were displeased with her work performance, and she denied that on April 14 anyone said anything about her work. I credit Findlay's testimony that after her initial period of employment she became a proficient waitress who was never criticized, reprimanded, or spoken to by manage- ment about her work performance or attitude. Findlay's demeanor in presenting her testimony was that of a person intent on telling the truth, whereas the demeanor of each one of Respondent's witnesses was that of a person not interested in the truth but rather in bolstering Respon- dent's case. I realize this is a harsh judgment and I am not an infallible observer and that appearances sometimes are deceiving. However, the whole record not only fails to indicate that I have done Walsh, Maughan, and McElwa- ney an injustice, rather it strongly suggests their testimony was fabricated. Findlay was admittedly Respondent's top selling lunch- eon waitress and from January 1976 continually to the date of her discharge was assigned to those sections of the restaurant which generated the most business. McElwaney, who assigned the waitresses, testified he made work assignments based upon his evaluation of the waitresses' job performances, particularly their speed and courtesy toward customers. Several waitresses apparently objected to McElwaney's system of work assignments, feeling that a strict rotation system should be used. They voiced this complaint to him at a meeting in March 1976 and specifically asked why McElwaney continually assigned the same waitresses to the better work stations. In reply, it is undisputed, McElwaney stated that "Findlay and Marilyn [Galinsky] were the two top selling waitresses for lunch" and that this was the reason they were assigned to the busier work stations. Obviously, the continual assign- ment of Findlay to work stations which, because they were so busy, brought her into contact with more customers than the other waitresses and allowed her to earn more money than the others, does not square with the picture of Findlay painted by Maughan, Walsh, and McElwaney: a sloppy and inefficient waitress, rude and inconsiderate toward the customers, who was the subject of countless reprimands, and whose discharge had been recommended. In an effort to explain why such an undesirable employee was continually assigned the best work stations Walsh, Maughan, and McElwaney each gave a different and inconsistent reason. Walsh testified Findlay was assigned to the better work stations because they "had a high 392 THE HOLDING COMPANY visibility factor... so you could see everything she was doing . and could make corrective suggestions."21 Maughan, however, made no mention of the need to keep Findlay's work under surveillance but justified her assign- ment to the better work stations, "because they are easier sections to work . . . they are much more compact." Finally, McElwaney relied upon a completely different reason, namely, Findlay had requested to work late thus he assigned her to section "d," the "late station" which happens to be one of the best work stations in the restaurant?. It is undisputed that approximately the first part of February McElwaney asked Findlay to work evenings as a cocktail waitress. A strange request if, as Walsh, Maughan, and McElwaney testified, Findlay was a "very poor" cocktail waitress. Walsh's inability to explain to Findlay the reason for her discharge despite Findlay's repeated requests for an explanation belies the testimony of Walsh, Maughan, and McElwaney that they considered her a highly unsatisfacto- ry employee who had personally been reprimanded by each of them on several occasions and had been threatened with discharge if she did not improve. Based on the foregoing I find that prior to discharging Findlay Respondent had not indicated that her job was in jeopardy or otherwise reprimanded her on account of her work performance or attitude but, to the contrary, for the last 3-1/2 months of her employment continually assigned her to work stations normally reserved for those waitresses held in high esteem by management. These circumstances, plus the insubstantial evidence adduced by Respondent to justify its contention that Findlay was an unsatisfactory employee, when added to the factors which make up the General Counsel's prima facie case, supra, establish that Findlay's discharge was motivated, at least in part, by the Respondent's union animus. Accordingly, I find that by discharging Findlay the Respondent violated Section 8(a)(l) and (3) of the Act. Winston Matthews Matthews, employed as a cook, began his employment at The Holding Company July 25, 1975. The Holding Company only serves one meal, lunch, and during the time material to this case only served hamburgers, salads, and a daily special (i.e., stew, spareribs). Matthews' duties were to prepare the salads, the daily special, broil the hamburgers, and order the produce, bread, and meat. Matthews, as he testified, "sort of ran the kitchen" under the direct supervision of McElwaney and Maughan. Matthews' prior work experience as a cook was limited to several months' work as a fry cook and short order cook. He was trained by Maughan. His work performance was regarded as sufficiently satisfactory to pass the company's 30-90-day probationary period for new hires and manage- 21 This does not ring true because The Holding Company, as Walsh admitted, is a "very small shop ... only 3,000 square feet. The widest part of the restaurant is no wider than this courtroom." Obviously, it was not necessary for McElwaney to assign Findlay to one of the better work stations in order to keep her work under surveillance. 22 Section "d" remains open for business until approximately 4 p.m. whereas all of the other sections in the restaurant stopped serving lunch at 3 p.m. The record reveals Findlay worked late only 2 days a week, Thursday ment continued to regard him as a satisfactory employee until approximately January when, according to Respon- dent's witnesses Walsh, Maughan, and McElwaney, his overall work performance progressively commenced to deteriorate in virtually every conceivable respect. They testified Matthews was an unsatisfactory employee for the following reasons: His attitude in communicating with management and his fellow employees was poor; custom- ers complained about his food; constantly tardy for work; he ordered too much bread and lettuce thus causing spoilage; management was unable to reach him at home when he was absent from work; he gave employees food to take home; he gave employees too much food to eat for their lunch; he prepared an insufficient number of salads for lunch; and once was responsible for the spoilage of a substantial amount of hamburger. During this period from approximately January to April 14, according to Maughan, Walsh, and McElwaney they had numerous discussions among themselves about Matthews' unsatisfactory work performance. Also, on numerous occasions, they discussed this with Matthews who was threatened with discharge by McElwaney, the first week in April, and by Maughan, the last week in March, if his job performance did not improve. In the middle of March, according to Walsh's testimony, or according to McElwaney's, as early as February 1, McElwaney recommended to Walsh that Matthews be terminated and, at this time, McElwaney commenced to train another kitchen employee to take over Matthews' duties if he failed to improve his work performance. 23 Matthews testified that Maughan or McElwaney spoke critically to the three kitchen employees as a group about their work on approximately seven occasions. Matthews further testified that McElwaney spoke to him alone about his work performance only once, approximately I month before his discharge. McElwaney told him to "keep things clean" and to prepare himself and the kitchen staff "a little bit better." Matthews testified that management did not threaten him with discharge or other discipline or criticize him, as Maughan, McElwaney, and Walsh testified. Regarding the specific instances of misconduct they attribute to him, Matthews testified as follows: (I) He denied being continually late for work but testified he was tardy between 2 to 5 minutes once every 2 weeks and was reprimanded only once when he was 30 minutes late; (2) he testified that on the three or four times when he was absent from work he notified supervision about his absence and stayed home and was never reprimanded for not being at home when supervision tried to reach him nor was accused of this conduct; (3) regarding the episode of the spoiled hamburger, Matthews testified the other kitchen employees were responsible for this and that when Maughan spoke to him about the matter Matthews told him it was the responsibility of the other kitchen employees to replace the unused hamburger in the cooler at the end of the work shift and Friday. Since the kitchen closed Friday at 3 p.m. she worked late regarding food service only I day a week. Under the circumstances McElwaney's justification for assigning Findlay to section "d- is palpably false. 23 McElwaney at first testified he recommended Matthews' discharge approximately February I and then in later testimony inconsistently placed the date of this recommendation as approximately March I and in other testimony dated it as of late March. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that Maughan answered that he would investigate the matter and never mentioned the subject again; (4) regarding giving the employees too much food for their lunch, Maughan testified this took place only twice, the first time in July 1975 and the last time in January 1976 when Maughan observed an employee sitting at a table eating lunch with more food than allowed under company policy, so, he spoke to Matthews who denied having given the waitress extra food; and (5) regarding giving employees food to take home McElwaney testified that on approxi- mately March I an employee told him Matthews was giving employees a half pound of uncooked hamburger to take home if they did not want to eat it at the restaurant for lunch,24 but McElwaney never did speak to Matthews about this and no one ever advised him there was anything improper about allowing the employees to take their lunch home. Based upon my observation of their manner and demeanor while testifying I received the impression McElwaney, Maughan, and Walsh were not trustworthy witnesses when testifying about Matthews' alleged failings but were more interested in building a case against him. Matthews impressed me as a trustworthy witness making a sincere effort to truthfully answer questions. I find that while Respondent may not have been entirely satisfied with his performance, its displeasure never reached the point where Matthews was threatened with discipline, including termination, if his performance failed to improve.2 5 Also indicative that Matthews' alleged unsatisfactory work performance was not a significant factor behind his discharge is the fact that exactly I week prior to the discharge Maughan informed Matthews, who approxi- mately 2 months earlier had received a pay raise of 20 cents an hour, "you're doing a good job and we are raising you a dime an hour," and thanked him for doing a good job.26 It strains credulity to believe that on approximately the same day Matthews received a pay raise that McElwaney, as he testified, threatened him with discharge if his work performance did not improve and that the previous week Maughan, as he testified, made a similar threat to Matthews. The conclusion that management never threat- ened Matthews with discipline, let alone termination, is bolstered by Walsh's refusal to give Matthews an explana- tion for his discharge. In reply to Matthews' repeated requests for an explanation Walsh told him that at "this 24 Employees are entitled to a half pound hamburger for lunch, a chefs salad, or a daily special. 25 Likewise I reject Walsh's explanation of Matthews' April 14 miscon- duct which Walsh testified triggered the decision to fire Matthews on that date. Walsh was not questioned about this significant matter during either direct or cross-examination so, after both counsel concluded their examina- tion, I asked him what triggered the decision to discharge Matthews. Walsh answered in substance that the proverbial "straw that broke the camel's back" was a "tremendously bad day" in the kitchen on April 14: A large number of meals were returned by customers as being undercooked; there was "disharmony in the kitchen"; and Matthews failed to prepare a sufficient number of salads. Walsh further testified that although not all of the blame for this situation could be placed on Matthews that Matthews was more responsible than the other kitchen employees since he occupied a more responsible position. I observed Walsh very closely when he gave this testimony, in response to my question, and he was not a convincing witness. Moreover, I find it significant that Respondent, as part of its case-in-chief, did not question Walsh about this significant matter and failed to adduce corroborative evidence of the events of April 14 through McElwaney whose time" he could only tell him he was being discharged "for the good of The Holding Company." When Matthews inquired when Walsh could discuss the matter in greater detail, Walsh simply ignored the question. I am convinced that if, as Respondent's witnesses say, management on numerous occasions reprimanded Matthews about specific work problems and on at least two occasions threatened him with discharge if he failed to improve, that Walsh would have simply told Matthews that previously he had been reprimanded and threatened with discharge due to poor work performance and was now being discharged for not improving his performance. Based on the foregoing I find that prior to discharging Matthews Respondent did not indicate to him that his job was in jeopardy if he failed to improve his work perfor- mance or otherwise threatened him with discipline on account of his work performance but, to the contrary, the week before he was discharged Respondent granted him an increase in his pay and complimented his work. These circumstances when added to the factors which make up the General Counsel's prima facie case, supra, including Manager McElwaney's threat to discharge Matthews because of his union sympathies, establish that Matthews' discharge was motivated, at least in substantial part, by Respondent's union animus. Accordingly, I find that by discharging Winston Matthews the Respondent violated Section 8(a)(3) and (1) of the Act. Thomas McDermott On August 15, 1975, McDermott began his employment with The Holding Company as a bartender. Respondent's supervisory staff-Walsh, Maughan, and McElwaney- testified he was an unsatisfactory employee because his bad attitude alienated customers and employees, he had the habit of breaking an unusually large number of glasses, and his cash register was short of cash. They also testified that on numerous occasions his unsatisfactory work performance was discussed among supervision and, like- wise, on numerous occasions, each one of them personally criticized him about his unsatisfactory performance. Maughan and Walsh testified that their several conversa- tions with McDermott culminated with a meeting between the two of them and McDermott on March 2427 when McDermott was issued an ultimatum to either change his attitude toward work or face discharge and, then, early in responsibility, as Maughan testified, was to see that lunch functioned properly. Also, Matthews credibly testified that no one spoke to him on April 14 about his work performance. For these reasons, I reject Walsh's explanation of the April 14 events which supposedly triggered the decision to discharge Matthews. 28 Respondent admittedly granted Matthews a pay raise on April 7 but Maughan denies complimenting his work as described above. Matthews impressed me as the more trustworthy witness, thus, I have credited his testimony. Maughan explained the April 7 pay raise on the ground that the two other kitchen employees received a pay raise on that day, that Matthews' raise was the smallest, and was granted because Maughan "was trying to save his job and did not want to cause animosity if the other fellows got that kind of raise and he got none." In general Maughan failed to impress me as a credible witness and his testimony on this point was not given in a convincing manner, hence, I have rejected it. 27 Walsh was unsure of the date of this meeting. He placed it as taking place in late March or early April. Maughan testified it took place about 2 weeks before McDermott's discharge. McDermott, who impressed me as the more reliable witness, testified it took place March 24. 394 THE HOLDING COMPANY April, McElwaney likewise testified he issued an ultimatum to McDermott if he continued to break glasses and did not change his attitude toward the customers, he would be discharged. McDermott credibly testified that neither Walsh, Mau- ghan, nor McElwaney ever issued a discharge ultimatum to him. He specifically denied that during the meeting of March 24 Maughan and Walsh criticized or told him his attitude was poor or threatened to discharge him if his work performance and attitude failed to improve.28 During his 8-1/2 months of employment, McDermott credibly testified, only once did supervision indicate it was not satisfied with his work. This occurred on February 9 when McDermott was reassigned to the 11 a.m.-7:30 p.m. shift from the night shift. In reply to McDermott's inquiry about the reason for this reassignment Walsh told him he was spending too much time talking with the cocktail waitresses instead of being attentive to the customers and that when waiting on customers he was too slow in filling the cocktail waitresses' orders and told McDermott that his "attitude and spirits" seemed to fluctuate, which "somewhat dis- turbed" Walsh. 29 Regarding the cash shortages in McDermott's cash register, the record reveals that all bartenders suffer cash shortages, the sum of money in the cash register at the end of the bartender's work shift is less than the amount of customers' billings. Walsh admitted that all bartenders were short small amounts of money but testified McDer- mott "was more erratic than the other bartenders." McElwaney testified that while all bartenders suffered small shortages, on one occasion McDermott was short approximately $20 and, as a rule, suffered cash shortages more frequently than the other bartenders. McDermott acknowledged that once in February, as McElwaney testified, he was short a large sum of money-$24--but credibly testified he was not criticized for this and that the next workday the missing money was located-another bartender paid a bill with the money-and that McElwa- ney informed him the matter had been straightened out and that there was in fact no money shortage. There is no evidence that supervision ever criticized or even spoke to McDermott about the subject of cash shortages. Indeed, when Walsh and Maughan were asked at the hearing to list their complaints or problems they had with McDermott neither one mentioned the matter of cash shortages. Under the circumstances, the record overwhelmingly demon- strates that the matter of McDermott's alleged cash 2" It is undisputed that neither Maughan nor Walsh initiated the March 24 meeting. rather McDermott asked to talk with them. This is hardly an indication that on March 24 Walsh and Maughan. as they testified, were so unhappy about McDermott's work performance that they were thinking in terms of discharging him. 29 In crediting McDermott's denials over the testimony of Walsh. Maughan, and McElwaney, I was influenced by the sincerity of McDer- mott's demeanor when he testified whereas Walsh, Maughan, and McElwaney did not impress me as honest witnesses. In addition. if, as Respondent's witnesses testified, they reprimanded McDermott about specific work problems and on at least two occasions. shortly before his discharge, issued him discharge ultimatums, why did Walsh refuse to give McDermott an explanation for his discharge? As indicated supra, on February 9. when Walsh reassigned McDermott to a different work shift he had no problem explaining the reassignment to McDermott. I am convinced that Walsh's inability to give such an explanation to McDermott on the date of the discharge belies the testimony of Maughan, Walsh, and McElwaney shortages was of no concern to Respondent and played absolutely no part in his discharge. Regarding the breaking of glasses the record establishes that due to the nature of their work it is not unusual for the bartenders to break glasses. What was unusual, Walsh and Maughan testified, was the extraordinary large number of glasses which were continually broken by McDermott because of his clumsiness and the fact that he picked up too many with one hand. They testified the problem of McDermott's glass breaking existed since the start of his employment in August 1975 and with the installation of a new dishwasher in November 1975, Walsh testified, the problem got worse. Maughan testified he warned McDer- mott half a dozen times about carrying too many glasses in one hand, explaining, "[McDermott] likes to have a trick where he could get as many stem glasses in one hand as he could and generally break half of them." In order to prove his point that McDermott continually broke large quanti- ties of glasses, Maughan volunteered, "[McDermott] broke practically all the beer mugs in the cooler one night, which is not easy"-"as he was putting beer mugs in [the cooler] he managed to destroy most of them." Since approximately 72 beer glasses are stored in the cooler this constitutes a substantial amount of breakage, nevertheless, Maughan, who witnessed the event, did not testify he reprimanded McDermott for his negligence. McDermott, on the other hand, credibly testified that when he first began work he broke more than the normal amount of glasses but thereafter broke no more than was usual and that the only time anyone from management mentioned the matter, let alone reprimand him, was in March when, as he broke a glass, Walsh commented, "you are all thumbs." In regards to the above-described beer glass episode McDermott credibly testified that during the middle of February he broke about 5 to 10 beer glasses as he placed them in the cooler and that Maughan, who witnessed the incident, made no comment. This is not surprising for it is undisputed that McDermott was not at fault. The glasses broke because the area in the cooler where they were stacked in three tiers was uneven, thus causing the glasses which McDermott was stacking to fall. It is undisputed that the bartenders had been after management for quite some time to remedy this situation. In sum, the record overwhelmingly establishes that the matter of McDermott breaking glasses was of little concern to Respondent and played absolutely no part in his discharge. that previously they had given him a discharge ultimatum or had spoken to him in such a manner that he should have realized his job was in jeopardy. 30 The testimony of Respondent's witnesses that from the start of his employment McDermott was prone to break an extraordinary large number of glasses and that his problem became ever more acute starting in November 1975 and that Respondent regarded the matter with concern is belied by the fact that in the middle of December 1975 in an effort to find a suitable person for night shift manager, Maughan and Walsh initiated an interview with McDermott, among others, to determine if he was interested in working for The Holding Company at the management level. If Maughan and Walsh, at this time. felt McDermott was negligently breaking an enormous number of glasses and viewed the matter with alarm, as they testified, it is clear they would not have considered him as an applicant for a management position. Moreover, during the interview. as McDermott credibly testified. Maughan and Walsh told him "they were pleased with Ihis I performance." 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regarding McDermott's poor attitude, Maughan and Walsh testified in effect that during his first 5 months of employment he maintained a proper attitude, he was gregarious and pleasant to customers and employees. Suddenly in January 1976, according to Walsh, he underwent a complete change in personality. In Walsh's words McDermott became "moody," "depressed," and "uncommunicative," very rarely speaking to anyone. He "alienated" customers and employees because, as Walsh testified, his attitude "affect[ed] the feeling in the restau- rant. Gloom tends to spread gloom." Customers com- plained, McElwaney testified, that McDermott was "moody" and had a bad temper. Maughan testified that "often times during the peak cocktail period" he observed McDermott ignoring everyone and "staring off in space," and further testified that customers complained McDer- mott was "cool" and "short" with them. In other words after 5 months of employment McDermott underwent an abrupt change in personality from a personable individual to a "moody," "gloomy," "depressed," "uncommunica- tive," "bad tempered," and "rude" individual. I think not. Walsh, McElwaney, and Maughan, as they testified, impressed me in manner and demeanor as more interested in making a case for Respondent than in the truth. I am persuaded they grossly exaggerated McDermott's failings. I am sure, as shown by Walsh's remarks to McDermott at the time of his February 9 transfer from the night shift and his reassignment in late March to the day shift, that Respondent was "somewhat" disturbed by McDermott's attitude and did not regard him as one of its better employees. However, as found supra, the record establishes that subsequent to Walsh's February 9 criticism no one from management reprimanded McDermott about his attitude or otherwise indicated to him that his employment was in jeopardy due to his attitude. Under these circum- stances I cannot say the evidence which shows that Respondent regarded McDermott as a problem employee due to his unsatisfactory attitude is sufficient to rebut the General Counsel's strong prima facie case that McDer- mott's discharge was motivated in substantial part by Respondent's union animus. Indeed, the General Counsel's primafacie case is bolstered by the patently false reasons- the breaking of glasses and the cash register shortages- advanced by Respondent's witnesses during the hearing to justify the discharge. Accordingly, I find that by discharg- ing McDermott the Respondent violated Section 8(a)(3) and (I) of the Act. Dana Wilner On August 15, 1975, Wilner began work for The Holding Company as a cocktail and food waitress. Walsh testified that the "main problems" with Wilner's work performance involved "the service that she gave the tables and her attitude towards the customers." He testified that com- mencing in approximately January 1976 Wilner's perfor- mance deteriorated and got progressively worse, that "her overall waitressing ability was getting less and less proficient through lack of attention," and although she was not alienating employees, "she was very, very rude with customers, very short with them, very unfriendly with them." Before January, Walsh testified, Wilner was "friendly" to the customers and "seemed to be having a good time ... enjoying what she was doing," but starting in January her performance progressively declined. No customer complained to him personally, but Walsh testified he observed Wilner's poor attitude and customers' complaints were relayed to him by Maughan and McElwa- ney. On six occasions, from February into April 1976, McElwaney, according to Walsh, spoke to him critically about Wilner's performance and, at the end of March, recommended her discharge. Walsh refused to discharge Wilner since he wanted to make an effort to get Wilner to improve her performance because, as he testified, "at one point in time I thought she was a very good waitress. She had slipped downhill a lot." Walsh further testified he "frequently" spoke to Wilner continuously about her unsatisfactory performance up to the last day of her employment. Maughan testified that Wilner throughout her employ- ment was inefficient in clearing customers' dirty dishes and was "standoffish" and rude to customers. While there were no customer complaints about her attitude when she first began working, Maughan testified that thereafter between 8 and 10 customers complained to him she failed to give them good service and/or was unfriendly and rude. Maughan testified he considered Wilner's overall work efficiency as so unsatisfactory that soon after she started working in August 1975 he recommended her discharge to Walsh. Wilner was not discharged because Walsh felt she should be given a chance to improve her performance. McElwaney, according to Maughan, spoke critically to him about Wilner's performance three or four times during February and March, the last conversation taking place late in March when McElwaney recommended Wilner's discharge. McElwaney told Maughan, "he did not like any part of [Wilner's] performance." Maughan voiced his agreement with McElwaney's sentiments and told him he would discuss the recommendation with Walsh, which he did. Nonetheless, Wilner was not discharged. In regards to whether he spoke to Wilner personally about her unsatis- factory performance Maughan testified that throughout Wilner's employment he continually reprimanded Wilner for not properly clearing dirty dishes from customers' tables and also spoke to her about customers' complaints that she was rude and, in this last respect, either in February or March, told Wilner she would be discharged if her attitude toward the customers did not improve. McElwaney testified Wilner was the poorest of all the waitresses because she was late for work, rude, and unfriendly to the customers, was slow in removing dirty dishes from customers' tables, and was slow in giving the customers their checks when they wanted to leave. When he assumed the position of manager of The Holding Company in January 1976, McElwaney testified, he promptly came to the conclusion Wilner was an unsatisfac- tory employee and, in speaking about her work ability to the other waitresses, it is undisputed that he described her as a "shitty waitress." In January 1976, McElwaney testified he recommended to both Maughan and Walsh that Wilner be discharged. Walsh rejected this recommen- dation but instead told McElwaney to teach Wilner to become a better waitress. Thereafter, McElwaney testified 396 THE HOLDING COMPANY he spoke about Wilner critically to Maughan and Walsh approximately a dozen times, the last time at the end of March when once again he recommended Wilner's dis- charge. Nevertheless, Wilner was not discharged. Also, according to McElwaney, he personally spoke to Wilner about her poor work performance three or four times, the last time in the middle of March when he warned her if her performance failed to improve she would be fired. The composite testimony of Walsh, Maughan, and McElwaney is that almost throughout Wilner's entire period of employment management regarded her as an undesirable employee who, from the start of her employ- ment, was continually on the brink of discharge because she was inattentive and rude to customers, late for work, and did not clear her tables of dirty dishes properly. In only one respect, involving the matter of tardiness, did Wilner refute this testimony. On this subject, McElwaney initially testified Wilner was late for work more than any other waitress except one and specifically testified she was late for work by 15 minutes once or twice a month throughout her employment but later changed this to once or twice during one particular month. Neither Walsh nor Maughan, in their respective testimony, mentioned Wil- ner's alleged tardiness, nor is there any contention by McElwaney that he ever spoke critically to Wilner about her tardiness. Wilner credibly testified she was only "occasionally" late for work and that McElwaney spoke to her about this only once when she was 15 minutes late-the latest she ever was-at which time McElwaney simply commented "you're kind of late today." Under the circumstances I find Respondent did not regard Wilner's tardiness for work as a serious matter and it played absolutely no part in her discharge. In sum a composite of the uncontradicted testimony of Walsh, Maughan, and McElwaney establishes that virtual- ly throughout Wilner's entire 8 months of employment she was regarded by management as an unsatisfactory employ- ee who was continually on the brink of being discharged because of the manner in which she waited on customers and her inability to properly clear tables.3' It is also undisputed that Wilner's conduct immediately prior to her discharge was no more unsatisfactory than it had been in the past. In other words there is no evidence of any specific act or acts of misconduct which either triggered the discharge or was the proverbial straw which broke the camel's back. The essential question for decision is, what motivated Walsh's decision to hastily discharge Wilner on the evening of April 14 in the middle of a workweek at a time when he had not even hired a replacement. Walsh in effect testified the only difference between the conditions which existed on April 14 and those existing previously was that Walsh and Maughan had decided to discharge Matthews, hence, according to Walsh and Maughan, so long as they were discharging one employee it would be no :" In so concluding I have considered the fact that the demeanor of Walsh, Maughan. and McElwaney indicated that in general they were not trustworthy witnesses. Also I have taken into account the fact that there is a strong indication in the record that their testimony concerning Wilner's performance and attitude was exaggerated inasmuch as it is undisputed that Maughan signed a letter of recommendation for Wilner, stating that Wilner "has performed her duties well and is regarded as a valued employee." Maughan did not explain the circumstances surrounding this undated letter. more "disruptive" 3 2 to fire all four of the company's unsatisfactory employees at the same time. This explana- tion is absurd and, in advancing it neither Walsh nor Maughan was a convincing witness. The foregoing, plus the fact that Wilner was discharged at the same time as three other employees all of whom were discharged because of their union sympathies and activi- ties, persuades me that Respondent has failed to rebut the General Counsel's prima facie showing that Wilner's discharge was unlawfully motivated and, I find, that in discharging Wilner Respondent seized upon her poor work record as an opportunity to rid itself of an active prounion employee. Accordingly, I find that by discharging Wilner Respondent violated Section 8(a) (3) and (1) of the Act. The cases of Wilner and McDermott are troublesome ones because an employer does not have to tolerate poor performance merely because the offenders are leading union adherents. Here even prior to Wilner's or McDer- mott's union activities management regarded their work performance as unsatisfactory, in Wilner's case to a far greater degree than in McDermott's and threatened Wilner with discharge if she did not improve. Nevertheless we have been repeatedly advised, as stated by the court in N.LR.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (C.A. 9, 1970): [T]he cases are legion that the existence of a justifiable ground for discharge will not prevent such discharge from being an unfair labor practice if partially motivated by the employee's protected activity; a business reason cannot be used as a pretext for a discriminatory firing.... The test is whether the business reason or the protected union activity is the moving cause behind the discharge.... In other words, would this employee have been discharged but for his union activity?. . . [Citations omitted.] Here I am persuded for the reasons set forth above that Respondent's union animus was at least a partial motiva- tion in Wilner's and McDermott's discharges and that they would not have been discharged but for their union sympathies and activities. V. THE REPRESENTATION CASE The Union urges in its objection to the representation election that by discharging Dana Wilner Respondent prevented the employees from freely exercising their choice in the representation election. Also, before me for decision are the challenges to the ballots cast by Dana Wilner, Winston Matthews, Jane Findlay, and Thomas McDer- mott. I have found, supra, Respondent unlawfully discharged Wilner, Matthews, Findlay, and McDermott in violation of Nonetheless, since Wilner did not deny the above-described threats and reprimands by management and since employee Lochrie, a witness for the General Counsel, corroborates McElwaney that as early as January 1976 he regarded Wilner as an unsatisfactory employee and expressed this thought openly, I have credited the uncontradicted testimony of Walsh. Maughan. and McElwaney concerning Wilner's performance. 32 Walsh defined "disruptive" as. "the attitude, the conversations that take place between the other help" about a discharge. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(3) and (1) of the Act, therefore, I shall recommend the challenges to their ballots be overruled. Respondent urges that the Union's objection not be considered on its merits because by proceeding to an election while the unfair labor practice case involving Wil.ier's discharge was pending the Union waived its right to base an objection to the election on this termination and, in any event, it argues that Wilner's discharge did not occur within the critical period of time. The contention that the Union waived its right to use Wilner's discharge as a basis for setting aside the election is based upon an erroneous view of the law, see Owens- Corning Fiberglas Corporation v. N.LR.B., 435 F.2d 960 (C.A. 4, 1970), thus I reject it. Likewise, I reject the further contention that Wilner's termination did not occur within the period of time critical to the election. The law is settled "that the date of filing of the petition . . . should be the cutoff time in considering alleged objectionable conduct in contested cases." The Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278 (1961). In the instant case on April 15 the Union filed its representation petition. Respondent argues that Wilner "was actually terminated on April 14." The record establishes that on April 14 between the hours of 8 and 9 p.m., Respondent decided to discharge the four discrimina- tees, including Wilner, and prepared their final paychecks which were immediately deposited in the mail and, at that time (the evening of April 14) by telephone notified three of the discriminatees that they were discharged. Respon- dent was unable to contact Wilner since it did not have her phone number. Wilner was told she was discharged the next morning when she arrived for work. There is no evidence that on the evening of April 14 Respondent informed any of its employees about Wilner's discharge. The essential question for decision is whether Respon- dent's decision to discharge Wilner which was reached outside of the critical period but not communicated to Wilner until the start of the critical period, can be a basis for setting aside the election. I am of the view that Wilner's discharge must be considered on its merits as a basis for setting aside the election. Thus, it is clear from Walsh's words that when, on April 15, he notified Wilner about her discharge that Respondent believed the discharge was not effective until it was actually communicated to Wilner. Walsh, as Wilner credibly testified, told her she was discharged but would have been discharged earlier, the previous night, if the company possessed her phone number. Indeed, the Court of Appeals for the Sixth Circuit has held that "In order for the termination of an employment relationship to be effective, the intent to terminate must be communicated to the other party by some affirmative action." Westchester Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 908 (1968), citing Miami Rivet Co., 147 NLRB 470, 483-484 (1964). In any event, in deciding whether alleged objectionable conduct has oc- curred within the critical period the Board has rejected the argument that the date a decision was effective is the 3:1 The Board has held in West Texas Equipment Company, 142 NLRB 1358. 1359 (1963), that employer conduct occurring on the day a representation petition was filed, although prior to the time of its filing, takes place within the critical period. The Board refuses to fractionalize the significant date, instead it has consistently held that "the most significant date would be when the information as to the [decision] was first conveyed to the employees," Stafford Furniture Corporation and Futorian Manufacturing Company, 116 NLRB 1721 (1956), fn. 3 1722, (a case which involved an increase in wages decided upon prior to the filing of a representation petition but not announced until the petition had been filed). Here, the decision to discharge Wilner was not communicated to either Wilner or other employees until April 15, the date the Union filed its representation petition.3 3 For these reasons I find Wilner's discharge occurred within the period of time critical to the election and since, as found supra, her discharge violated Section 8(a)(3) and (1) of the Act I further find that by discharging Wilner, the leading union adherent, the Respondent interfered with the conduct of the election. Based on the foregoing I shall recommend that the Board overrule the challenges to the ballots cast by McDermott, Matthews, Wilner, and Findlay in the election held on June 12 and 15, 1976, and shall direct that their ballots be opened and counted. In the event that each one of these ballots was cast for the Union, thereby giving the Union a majority of the votes cast despite the preelection miscon- duct by the Respondent found herein, I shall recommend that the Board certify the Union as the bargaining representative of the Respondent's employees. In the event, however, that any one of these ballots was cast against the Union, or proves to be invalid for any reason, I shall recommend that the Board consider the matter of whether the Respondent's unfair labor practices in Cases 20-CA-11323 and 20-CA-11693 are sufficient so as to warrant a remedial bargaining order and, if so, to dismiss the petition in the representation case but, if not, to direct a new election when the Regional Director advises the Board that the circumstances permit a free expression by the employees of their desires with respect to represen- tation. CONCLUSIONS OF LAW 1. The Respondent, Gary Maughan and Michael Walsh, et al., d/b/a The Holding Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By warning an employee that it was futile for the employees to support the Union because Respondent would never agree to a contract with any union, Respon- dent engaged in unfair labor practices within the meaning of Section 8 (aX)(l) of the Act. 4. By threatening to discharge an employee because of his union sympathies or activities and threatening to impose adverse working conditions if the employees supported the Union, Respondent has engaged in unfair day the petition is filed. Accordingly, even assuming, Wilner's discharge took place on April 15 prior to the time the petition was filed it does not affect the validity of the Union's objection. 398 THE HOLDING COMPANY labor practices within the meaning of Section 8(aX I) of the Act. 5. By interrogating an employee about her union activities and sympathies and about the union activities and sympathies of other employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 6. By soliciting an employee to keep employees' union activities under surveillance and to keep management informed about the union activities and sympathies of employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX)(1) of the Act. 7. By threatening employees who voted in favor of the Union with economic reprisals, Respondent has engaged in unfair labor practices within the meaning of Section 8(aXI) of the Act. 8. By threatening employees that Respondent would either sell or get rid of the business if the Union won the representation election, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX I) of the Act. 9. By discharging Winston Matthews, Jane Findlay, and Thomas McDermott on April 14, 1976, and Dana Wilner on April 15, 1976, because of their union sympa- thies and activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX3) and (I) of the Act. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found Respondent has engaged in unfair labor practices violative of Section 8(aX3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found Respondent discriminatorily discharged employees Winston Matthews, Dana Wilner, Thomas McDermott, and Jane Findlay, I shall recommend that Respondent offer each of them immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of such discrimination by payment of a sum of money equal to that which they normally would have earned as wages from the date of their discharges to the date of said offers of reinstatement, 3 4 less their net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with i4 There was testimony that in September 1976 Respondent changed its lunch menu to a more elaborate bill of fare and hired a professional chef. Whether this would have resulted in the termination of Winston Matthews during the normal course of business is a matter for the compliance stage of this proceeding. 3. During the period March 29 through 31. 1976. 15 of 24 unit employees had signed cards: 16 of 25 had signed cards during the period Apnl I through 4. 16 of 26 had signed cards dunng the penod April 5 through 9; 16 of 27 had signed cards during the period April 10 through 12: and 16 of 28 had signed cards during the period April 13 through 14. interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As the unfair labor practices committed by Respondent were of a character which go to the very heart of the Act, I shall recommend that it cease and desist therefrom and in any other manner from interfering with the rights of employees guaranteed by Section 7 of the Act. N. LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). The General Counsel additionally seeks a remedial bargaining order. The law is settled that such an order is appropriate where a respondent employer commits perva- sive violations of Section 8(aXl) and (3) of the Act which preclude the holding of a fair rerun election, the union files meritorious objections to set aside the election, and the union at one point of time was designated as the exclusive bargaining representative by a majority of the employees in an appropriate unit. In the instant case the Union as found, supra, filed a meritorious objection to the representation election. Also the record establishes that immediately prior to the unlawful discharges involved herein, a majority of the employees in an appropriate unit signed cards designating the Union as their bargaining representative. In this regard, the parties agree that all the regular and part-time employees employed at The Holding Company excluding the manager, office clerical employees, guards, and statutory supervisors constitute an appropriate unit. The record establishes that from March 29 through April 14 a majority of the bargaining unit employees signed union authorization cards.35 The cards, which are identical, unambiguously recite that the card signer authorizes the Union to act as the employees' representative for purposes of collective bargaining. Respondent adduced testimony surrounding the cards signed by employees Barnett, Purcell, York, Gaymen, and Menaker. I am of the opinion that the representations made to these card signers do not suffice to "deliberately and clearly canceled" the unambiguous language of the cards. N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 606 (1969). Barnett testified he asked McDermott for a card, that McDermott gave him one and told him, "take it home read it; it's to petition for an election." Barnett took the card home, read and signed it,-and returned it to McDermott without any further conversation. s Wilner, who solicited the majority of the cards involved in this case, including the ones signed by Purcell, York, Gaymen, and Menaker, testified she had no independent recollection of what she specifically told the employees, but credibly testified that generally she asked the employees to read the card, told them its purpose "was for collective bargaining, to have the Union represent us," and also told the employees that one reason to sign the card was to 36 Barnett at vanous times answered "yes" when asked if McDermott told him the "sole" or "primary" purpose of the card was to petition for an election. The testimony set out in the text was given by Barnett when asked in a nonleading manner to testify about what took place and what was stated in connection with his signing of the union card. Barnett convincingly testified that while he positively remembers McDermott telling him, as described above, that the card was "to petition for an election," he does not remember McDermott using the word "sole" in this connection. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facilitate the filing of a petition to have an election and also told them that if more than a majority of the employees signed cards the Union would go to the Employer and ask for voluntary recognition without an election. In connection with Purcell's card Wilner testified she had no independent recollection of what words she used when she solicited this card and further testified it was "possi- ble," but unlikely, that she told Purcell that if she signed a card "we can have an election at The Holding Company." Purcell did not testify. In connection with Gaymen's card Wilner testified she thought she told Gaymen "we are trying to have the Union represent us. If you would like to have the union represent us in collective bargaining sign the card." She further testified she may also have told Gaymen, "we're trying to have an election at The Holding Company. Other employ- ees have signed the card, and that's what the purpose of the card is," but testified she does not believe she made this statement. Gaymen did not testify. Wilner testified that when soliciting York to sign a card she probably "said something like the following to him: Stephen, sign this card, the purpose being that when you sign it, we can then have an election at The Holding Company." York, a witness in this proceeding, was not questioned about this matter. Wilner testified that when soliciting Menaker to sign a card, "I may have said that one of the reasons for signing the card was to have an election," but testified she was without an independent recollection of whether she in fact made this statement. She specifically denied having told Menaker that the "real reason for signing the card is to have an election." Menaker did not testify. Based on the foregoing I find that the totality of the circumstances surrounding the card solicitation involving employees Barnett, Purcell, Gaymen, York, and Menaker does not add up to an assurance to the card signer that his or her card will be used for no purpose other than to help get an election. I note additionally that the cards state unambiguously that the cards are for representation purposes. Consequently I find that the cards signed by these employees, as well as the other cards in evidence in this proceeding, were proper expressions of support for representation purposes. N.LR.B. v. Gissel Packing, supra at 606-608. Respondent contends that several of the authorization cards should be invalidated in light of N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). In Savair the Supreme Court held that a union interferes with an election when it offers to waive initiation fees only for those who sign union authorization cards before the election. The Court was concerned with the Section 7 right of employees to refrain from union activity and with the buying of endorsements through the waiver of initiation fees to those joining the union before the election and thereby painting a false portrait of employee support. The Court, while recognizing a legitimate interest in waiving fees, stressed that there is no legitimate union interest which justifies 17 What Wilner "may" have stated to York does not constitute an admission that Wilner in fact made the statement. a, Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974); D.A.B limiting waiver offers to those signing cards prior to the election. In the instant case the evidence adduced by Respondent in support of its contention that the Union improperly waived initiation fees is based upon its examination of Wilner, the employee who initiated the Union's organiza- tional campaign and the one who solicited most of the card signers. On March 12, when Wilner initially visited the Union's offices she was informed by the union representa- tives that "there was a possibility" that employees who signed authorization cards before the election "might have their initiation fees waived." Thereafter, Wilner on one occasion, March 29, at the organizational meeting held at McDermott's home, mentioned the subject of an initiation fee waiver to employees. During the meeting which was not attended by any union representatives Wilner told the employees that "the union officials had said there was a possibility of union initiation fees being waived." There is no evidence that Wilner made this statement in the context of an attempt to convince employees to sign union authorization cards. Respondent, in questioning Wilner, made no effort to establish the context of the remark. The record establishes that of the card signers, three (Purcell, Gaymen, and York) signed cards at this meeting and one (Blake) who attended the meeting signed his card April 1. The record is silent as to whether Wilner's statement about initiation fees was made before or after Purcell and Gaymen signed their cards. In York's case Wilner testified she solicited him to sign the card during the meeting and "may have said, [to York] we may have our initiation fees waived."37 York, a witness for the General Counsel, who testified about another matter was not interrogated by Respondent about the circumstances surrounding his card solicitation. I find that the statement made to Wilner that "there was a possibility" that employees who signed authorization cards before the election "might have their initiation fees waived," to be proscribed by Savair, hence, Wilner's card, which she signed subsequently, is invalidated and may not be used in computing the Union's majority status. However, Wilner's statement to the employees made at the March 29 meeting that "the union officials had said there was a possibility of union initiation fees being waived" did not transgress the specific mandate of Savair. Wilner's statement did not in any way imply that the waiver of initiation fees was limited to those employees who signed union cards, let alone those who signed cards before the election. Under the circumstances the instant case is easily distinguishable from those Board Decisions cited by Respondent38 in which a union's offers to waive fees were found to have created an ambiguity as to when an employee would have to join the union, or sign a union card, in order to avoid paying initiation fees. See Allied Metal Hose Company, Inc., 219 NLRB 1135 (1975). ("If we join the union ... we don't have to pay any initiation fee," held not to constitute an impermissible offer to waive initiation fees.) Accordingly, even assuming the cards of Purcell and Gaymen were signed following Wilner's Industries, Inc., 215 NLRB 527 (1974); Deming Division, Crane Co., 225 NLRB 657 (1976). 400 THE HOLDING COMPANY statement, they are not tainted by it nor were the cards of York and Blake. In sum, the record establishes that one of the authoriza- tion cards, the one signed by Wilner, is invalid and may not be used in computing the Union's majority status. Nevertheless, as found supra, even without Wilner's card the Union was designated as the bargaining representative by a majority of the company's employees in an appropri- ate unit from March 29 through April 14, 1976, and as found supra, filed a meritorious objection to the representa- tion election. In these circumstances a remedial bargaining order would ordinarily be appropriate if the unfair labor practices committed by Respondent are sufficient to warrant such a remedy under the principles set forth by the Supreme Court in N.LR.B. v. Gissel Packing, supra. However, a bargaining remedy is premature in this case because it is highly likely that the Union will receive a majority of the ballots cast in the representation election and be certified by the Board. Cf. Free-Flow Packaging Corporation, 219 NLRB 925 (1975), and M.S.P. Industries, Inc., d/b/a The Larimer Press, 222 NLRB 220 (1976). In the event this does not occur or, one or more of the unlawful discharges are found without merit in enforce- ment proceedings, it will then be time enough for the Board to decide whether the unfair labor practices are sufficient to warrant a bargaining remedy. Of course if Wilner's discharge is ultimately found to be lawful the Union is not entitled to a bargaining remedy under any circumstances inasmuch as there would be no meritorious objection before the Board to set aside the representation election. Irving Air Chute Company, Inc., 149 NLRB 627 (1964), enfd. 350 F.2d 176 (C.A. 2, 1965). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 39 Respondent Gary Maughan and Michael Walsh, et al., d/b/a The Holding Company, San Francisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, Hotel and Restaurant Employees and Bartenders Union, Local 2, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, by discharging its employees, or otherwise discriminating against them in any manner with regard to their hire or tenure of employment or any term or condition of employment because of their union member- ship or activities. (b) Interrogating employees about their union member- ship, sympathies, or activities or about the union member- ship, sympathies, or activities of other employees. :" In the event no exceptions are 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. (c) Threatening employees with economic reprisals including onerous working conditions, discharge or the sale of the business if they join or support the above-named Union, or any other union. (d) Telling employees it would be futile for them to support the above-named Union, or any other union, because it would never agree to a contract with a union. (e) Soliciting employees to keep employees' union activities under surveillance and to keep management informed about the employees' union membership and activities. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Jane Findlay, Dana Wilner, Thomas McDer- mott, and Winston Matthews immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent employment, without prejudice to seniority or other rights and privileges previously enjoyed, and make each whole for any loss of earnings they may have suffered as a result of the discrimination against them, in the manner set forth above in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of reinstatement under the terms of this Order. (c) Post at its place of business in San Francisco, California, copies of the attached notice marked "Appen- dix."40 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representatives, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER DIRECTED AND ORDERED that in Case 20- RC-13488 the Regional Director for Region 20 shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the ballots of Jane Findlay, Thomas McDermott, Dana Wilner, and Winston Matthews, and thereafter shall prepare and serve upon the parties a supplemental tally of ballots, including therein the count of said challenged ballots and that, in the event the Union has lost -the election conducted on June 12 and 15, 1976, among the 40 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of Respondent, that this election be, and it hereby is, set aside.41 41 In the event that this election is set aside, we shall then consider whether Respondent's unfair labor practices found to have been committed in Cases 20-CA-11323 and 20-CA-11693 are sufficient to warrant a remedial bargaining order and, if such relief is warranted, we shall dismiss the representation petition or, if a remedial bargaining order is not warranted, we shall direct a new election when the Regional Director advises us that the circumstances permit a free expression by the employees of their desires with respect to representation. 402