Blake's Restaurant

BLAKE'S RESTAURANT Larry Blake's Restaurant and Rathskeller d/b/a Blake's Restaurant and Dinah Ackerson and Local 28, Hotel & Restaurant Employees' & Bartenders' International Union, AFL-CIO. Cases 20-CA- 11116 and 20-CA-I 1125 June 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 31, 1977, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Larry Blake's Restaurant and Rathskeller d/b/a Blake's Restau- rant, Berkeley, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I 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. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original charge in Case 20-CA-11116 was filed on February 20, 1976, by Dinah Ackerson. The first amended charge in that case was filed on March 11, 1976, and the second amended charge on April 15, 1976, both by Ackerson. The charge in Case 20-CA-11125 was filed on February 26, 1976, by Local 28, Hotel & Restaurant 230 NLRB No. 2 Employees & Bartenders International Union, AFL-CIO, herein called the Union. The complaint was issued on April 16, 1976, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 20. The complaint alleges that Larry Blake's Restaurant and Rathskeller d/b/a Blake's Restaurant, herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(aX1), (3), (4), and (5) of the National Labor Relations Act, herein called the Act. The Respondent filed an answer to the complaint and denied, inter alia, the commission of the alleged unfair labor practices. The hearing was held before me on September 9, 10, and 21, 1976, in San Francisco, California. Briefs were timely filed by November 23, 1976, by counsel for the General Counsel and by the Respondent. Those briefs have been read and duly considered. Upon the entire record and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent questions whether the Board should assert jurisdiction over the Respondent's operations since only by adding various state, county, city, and BART sales taxes to the amount of its sales does the Respondent's gross volume exceed the Board's discretionary jurisdictional standard of at least $500,000 per annum for retail enterprises which fall within the Board's statutory jurisdic- tion. Even so, the Respondent points out, by adding the sales taxes to its revenues, the Respondent's gross volume exceeds $500,000 only for the calendar year 1975. The gross volume, including sales taxes, falls short of the $500,000 yardstick for the latest 12-month period for which sales figures were presented at the hearing. The Respondent has been engaged in the operation of a restaurant and rathskeller in Berkeley, California, at all times material herein. During the calendar year 1975, the Respondent purchased goods, materials, and services valued in excess of $50,000 which originated from points outside the State of California. Also during the calendar year 1975, the Respondent had gross sales of $476,591.48 and an additional $4,500 miscellaneous income from the juke box, football machine, cigarette machine, and "Pong" machine. The sales taxes collected by the Respondent for 1975 amounted to $30,797.70. The taxes are identified on the State of California reporting form filed by the Respondent as a "State, Local and District Sales and Use Tax Return." The State of California tax is levied at 4-3/4 percent; another 1/4 percent tax for the county; I percent "local" tax-presum- ably the city of Berkeley, and 1/2 percent tax for the San Francisco Bay Area Rapid Transit District (BART). Thus, the various sales and use taxes add up to 6-1/2 percent. By adding the taxes to the Respondent's sales and miscellaneous income figures, the total is $511,889.18 for the calendar year 1975. However, for the 12-month period 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 1, 1975, through June 30, 1976, the total for taxes, sales, and miscellaneous income is $488,167.36. The General Counsel's complaint alleges that the Respondent's refusal to bargain with the Union in violation of Section 8(aXl) and (5) of the Act commenced in September 1975 and continued thereafter. The com- plaint further alleges that the discharge of Dinah Ackerson on or about March 10, 1976, was in violation of Section 8(a)(1), (3), and (4) of the Act. As noted earlier, the hearing took place in September 1976. After considering the foregoing, I conclude that for jurisdictional purposes the Board would add the state, county, city, and BART taxes to the Respondent's sales and miscellaneous income figures. J. Tom Moore & Sons, Inc., 119 NLRB 1663 (1958), and Edmund R Walker, et al. d/b/a Pacific Fine Arts, 116 NLRB 1607 (1956). Accord- ingly, I find that the Respondent's gross volume of business for the calendar year 1975 was in excess of the $500,000 discretionary standard, and the Respondent also fell within the Board's statutory jurisdiction in 1975. In Aroostook Federation of Farmers, Inc., 114 NLRB 538, 539 (1955), the Board observed that in applying its jurisdictional standards it has "relied on the experience of an employer during the most recent calendar or fiscal year, or the 12-month period immediately preceding the hearing before the Board, where such experience was available." The use of the word "or" in the Board's opinion suggests that the Board may rely on any one of the three time periods specified for jurisdictional purposes. Accordingly, I find that it is appropriate in this case to rely on the 1975 calendar year figures for jurisdictional purposes. See also the Board's Advisory Opinion in The District Court of the Tenth Judicial District of the State of Idaho, in andfor the County of Nez Perce and Cox's Food Center, Inc., 164 NLRB 95 (1967). In view of the foregoing, I find that the Board would assert its jurisdiction over the Respondent and that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Carolina Supplies and Cement Co., 122 NLRB 88 (1958). II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Background Since 1941 Larry Blake, co-owner of the Respondent, and Jack Faber, a business agent of the Charging Party Union, have known each other. From March 1946 to September 1975 Faber was a business agent of the Cooks' Union Local 228 which represented the cooks at the Respondent's restaurant. In September 1975 three local unions merged to form the Charging Party Union. The three local unions were: Cooks' Union Local 228; Bartenders' Union Local 52; and Waiters, Waitresses & Service Crafts Local 31. Since the merger of the unions, Faber has held his present position. Prior to the merger of the three local unions, they negotiated jointly their collective-bargaining agreements under a governing body which was known as the Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, of Alame- da County. The East Bay Restaurant Association, Inc., was formed about 30 years ago as an organization of employers in the restaurant business who bargained collectively with the Joint Executive Board. According to the information furnished to Faber from the records of the East Bay Restaurant Association by the executive secretary of that Association, the Respondent joined the Association on June 1, 1952, and resigned from the Association on May 6, 1970. Blake said that he rejoined the Association in January or February 1974 and was still a member at the time of the hearing in this case. The executive secretary of the Association transmitted on October 3, 1973, a list of various employers to the Joint Executive Board. Faber was given a copy of that list either by the president or by the secretary of his local union. Among the categories on the list was one entitled "Have Authorizations But the Following Are No Longer Mem- bers." The name of the Respondent was one of several names listed under that category. The foregoing findings of fact are based upon the testimony of Faber, Blake, and on documentary evidence. B. The Execution of the Contract On January 29, 1974, Faber visited Larry Blake at Blake's office on Harrison Street which is located away from the restaurant which is on Telegraph Avenue in Berkeley. Blake explained at the time of the hearing that he was a senior consultant for Restaurant Consultant Associ- ates, a division of Property Development, Incorporated, which was a real estate broker. Blake described the Association as being a group of 20 to 24 restauranteurs who make their services available to advise and assist in the conduct and development of other restaurants. At the time of his visit to Blake's office, Faber was an officer of the Joint Executive Board in addition to being a representative of Cooks' Union Local 228. Faber testified: I told Mr. Blake that we had been informed by the Restaurant Association that he had withdrawn his membership, although he was still bound by the authorization, and that we'd like to keep our files in order. So, I asked him to sign the contract. He took it, looked at it a little while, and he said, "This is a standard contract?" And I said yes, and he signed it, and that was it, other than the conversation that we had about the building. Faber later added that he also told Blake that the contract was the same contract that he was bound to by the Association with the exception of the clause concerning the arbitration hearing. The reference in Faber's testimony to the conversation about the building concerned a building occupied by the 28 BLAKE'S RESTAURANT local cooks union at the time. Faber said that Blake told him that Blake had heard that they were merging the unions and that the unions would be selling one of the buildings. Faber referred him to Pat Sander who at that point in time was secretary of the Cooks' Union Local 228 and was president of the Charging Party Union at the time of the hearing. Faber specifically denied that there was any discussion between him and Blake as to whether certain employees were or were not covered by the contract. Faber also specifically denied that anything was said regarding the organization of employees at other restaurants. The findings of fact in this section are based upon the credited testimony of Faber and upon a portion of the testimony of Blake with respect to his role in Restaurant Consultant Associates. Where there are conflicts in the testimony between Faber and Blake as to what occurred at Blake's office on January 29, 1974, I found Faber's testimony to be the credible version bearing in mind and applying in this case the guidance from the Board in its decision in Northridge Knitting Mills, Inc., 223 NLRB 230 (1976). In that case the Board stated at 235: [I ]t is abundantly clear that the ultimate choice between conflicting testimony also rests on the weight of the evidence, established or admitted facts, inherent probabilities, reasonable inferences drawn from the record, and, in sum, all of the other variant factors which the trier of fact must consider in resolving credibility. See, e.g., Retail, Wholesale and Department Store Union, AFL-CIO, (Coca-Cola Bottling Works, Inc.) v. N.L.R.B., 466 F.2d 380, 386-387 (C.A.D.C., 1972). In sharp contrast to the testimony recited by Faber, Blake gave this version to their conversation: Well, he opened the conversation himself by first of all saying that he was trying his best to get me the building on the basis of a listing, and I told him I wasn't too interested in that facet of real estate. I was dealing only in restaurants and bars. Then he brought the contract up and said that he'd like to get me back in, that he understood I was no longer a member of the Association. And apparently, this had been escaping their attention for some time. And they would like very much to have me back in. IS * a I said, well, it all depends. I said, if we can keep the status quo. And status quo being that I had my skilled personnel, the cooks, as union members, and it would also be dependent upon whether or not the Union intended to organize my competitors in that neighbor- hood. And Jack said, "That's just what we're going to do, but we need your help to do it. We need you on this contract to do it." I said, "Well, on that basis, I'll go along with you one more time." According to Blake, Faber told him that Faber was representing the Cooks' Union. Blake said that they did not discuss the contents of the contract and he did not read the contract. Blake explained: "I signed the contract despite and fully knowledgeable of its contents. It was based on the word of a man I had known over 38 years, and that was the reason why I did it." Blake asserted that his cooks and kitchen employees were members of Cooks' Union Local 228 at that point in time, but that his waiters and waitresses were not union members. He said that he had no relationship with Waiters, Waitresses & Service Crafts Local 31 since 1964 when some of his waiters and waitresses were covered. He claimed that about 1964 Local 31 was unable to supply the kind of personnel which he needed. As indicated above, I find the testimony given by Faber to be the accurate and complete version of the conversa- tion between Faber and Blake, and I have based the findings of fact upon Faber's account. It is noted that in the letter which Blake later wrote on January 13, 1976, regarding the alleged representation made to him by Faber, that Blake only mentioned the failure of the Union to organize the employees of the other restaurants in the area. No mention was made in that letter with respect to the alleged agreement to maintain the "status quo" with respect to the unit. Furthermore, health and welfare contributions had been made subsequent to the signing of the contract on behalf of employees other than cooks and kitchen employees. Such contributions made on behalf of those employees are inconsistent with the contention that the contract terms and benefits were only to apply to cooks and kitchen employees. Finally, it is noted that Blake testified that he tape- recorded his conversations with Union Representatives Faber and Frank Van Kempen because in his view they changed their statements later on. Blake did not produce any tape recording of this meeting with Faber to contradict the version given by Faber. However, because this conversation occurred several years ago and because Blake did not indicate how long he had been tape-recording such conversations, I do not rely on this final note with regard to this conversation. C. A Description of the Contract The contract which was signed on January 29, 1974, by Blake and Faber is what might be commonly called a "short-form agreement" since it consists of only one page and incorporates by reference the terms of a more lengthy agreement between the Association and the Joint Execu- tive Board. The only writing on the single-page document by Blake was his own signature. Faber filled in the spaces concerning the name, address, and telephone number of the Employer and also the date. Under the printed heading on the form "Joint Executive Board," Faber signed his name. Underneath Faber's signature was the printed title "Union Representative." Faber testified that he signed the document as a representative of the Joint Executive Board. After the contract was signed, Faber turned it over to the Joint Executive Board. The entire document actually consists of two separate agreements and several appendixes in addition to the one 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD page "short-form agreement." One agreement is with the East Bay Restaurant Association, Inc., and the Joint Executive Board. Another agreement, which has somewhat different effective dates, is between the East Bay Restau- rant Association, Inc., Berkeley Division, and the Joint Executive Board. The latter agreement incorporates the former agreement by reference, but in addition it contains a significant modification for those employers who operate "establishments located within one mile of the campus of the University of California, at Berkeley, California." It should be noted here that the Respondent's restaurant is located near the Sather Gate entrance to the Berkeley campus of the university. In pertinent part, the Berkeley Division modification states: 3. The Union agrees that each establishment covered by this Agreement employing three (3) or more union members shall be permitted to employ not more than six (6) bona fide student workers, on a part-time basis at a wage rate of not less than the fair Bear rate per hour and that such student workers shall not be required as a condition of employment to join any of the various unions which are parties to this Agreement, or to secure or pay for any work permits from such unions. Student workers who are now or who may in the future join the union, shall not be discriminated against because of such membership. No student workers, other than those who come under the jurisdiction of the Cooks', Pastry Cooks', and Assistants', Local 228, shall be allowed to do any part of the work coming under the jurisdiction of Local 228. No student workers, other than those who come under the jurisdiction of the Bartenders' Union, Local 52, shall be allowed to do any of the work of a Bartender. A bona fide student worker is hereby defined as a University of California student who works not more than twenty (20) hours per week. Should a bona fide student worker, as herein defined, work more than twenty (20) hours per week, he shall obtain a work permit from the Union and shall be subject to all the terms and conditions of this Agreement. The "fair Bear rate" has historical significance. Accord- ing to Faber, it dates back to 1938 or 1939 when a law student at the university and two union organizers established the hourly rate of pay for working students enrolled at the University of California at Berkeley. Faber said that the rate of pay for students under the "fair Bear rate" is set by the "Associated Students." The use of the term "Bear" has reference to the golden bear of the University of California at Berkeley. By its terms, the effective dates of the contract between the Berkeley Division of the Association and the Joint Executive Board are from September 12, 1973, through August 23, 1977. The findings of fact in this section are based on documentary evidence and the testimony of Faber. D. The Appropriate Unit The contract between the Association and the Joint Executive Board contains the following recognition clause: Section 2. RECOONmToN. The Employer recognizes the Union as the sole bargaining agency for all employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limitation those employed in the classifications set forth in Appendices A, B, and C, and office workers. Appendix A to the contract lists job classifications and wage scales for the following: waiters; waitresses; dish- washers; vegetablemen; day porters; night porters; bar boys and girls; managers; assistant managers; head waiters; head waitresses; men and women in charge of departments; captains; hostesses; cashiers; checkers; com- bination cashiers and checkers; food checker; head banquet waiter or waitress; banquet waiters and waitress- es; banquet buffet waiters and waitresses; cocktail waiters and waitresses; hat check employees; dairy lunches, chuck wagons, hofbraus, donut shops, park concessions, window service employees and counter and supply men or women; cafeteria workers; miscellaneous employees; soda fountain employees; waiters or waitresses employed as car hops in drive-in restaurants and fountains; vending machine and/or wagon workers; beer tenders; wine stewards; and room service waiters and waitresses. Appendix B to the contract lists job classifications and wage scales for a variety of chefs, cooks, cook's helpers, pantrymen, and related functions. Appendix C to the contract classifies bartenders, head bartenders, service bartenders, and tavern bartenders. The General Counsel's complaint alleges the appropriate unit in somewhat different terms than the recognition clause of the contract. The General Counsel's description of the unit is less inclusive than the collective-bargaining agreement. It is also less inclusive than the listing of job classifications and employees, which was prepared by Charging Party Ackerson and another employee. The complaint alleges the appropriate unit to be: "All waiters, waitresses, bartenders, cooks and busboys employed by Respondent at its Berkeley, California, location; excluding guards and supervisors as defined in the Act." The Respondent's answer to the complaint denied the allega- tion which alleged the foregoing as an appropriate unit. A list of job classifications and employees prepared in January 1976 by Charging Party Ackerson and a waitress named Lynn Fine and submitted to Union Business Agent Frank Van Kempen at that time was introduced in evidence by counsel for the General Counsel. That exhibit lists the following classifications: cooks, managers, bus- boys, dishwashers, waitresses main floor, waitresses and waiters Rathskeller, and hostesses. The categories of dishwashers, hostesses, and managers employed by the Respondent were not mentioned in the General Counsel's unit description. After considering the documentary evidence concerning the unit description and the entire record, I find that the appropriate unit is the one set forth in the contract to 30 BLAKE'S RESTAURANT which the parties agreed, but with the exclusion of certain statutory categories. Thus, I find the appropriate unit in these circumstances to be: All employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limitation those employed in the classifications set forth in Appendices A, B, and C of the collective-bargaining agreement, and office workers employed by the Respondent at its Berkeley, California, restaurant, excluding guards and supervi- sors as defined in the Act. The more limited unit description urged by the General Counsel is at variance with the contract and the foregoing finding. Nonetheless, I find that the Respondent had notice early in the proceeding of the contract provisions which the General Counsel was asserting were binding upon the Respondent. The contract itself was introduced in evidence through the first witness called by counsel for the General Counsel on the first day of the hearing. In addition, it was clear from the outset of the hearing that the parties disagreed as to the scope of the unit coverage of the contract. The Respondent contended that the contract only applied to the cooks and what it called backroom employees, whereas the General Counsel and the Charging Party Union contended that the contract provisions covered a broader unit. In these circumstances, the appropriateness of the unit was placed in issue by the pleadings; the contentions were made early in the hearing as to the scope of the unit coverage of the contract, and the opportunity afforded to all of the parties to develop the evidence. E. The Meeting at Jack London Square in Oakland In September 1975 Frank Van Kempen, a business agent of the Union, received a telephone call from Larry Blake who asked to set up a meeting with Van Kempen regarding health and welfare matters which were being investigated. About 3 days later the two met at a restaurant in Jack London Square in Oakland. Van Kempen testified regard- ing his conversation with Blake: Well, he said he was being investigated by the health and welfare fund for the employees and pension for the members, and at that time he did not know what his status was, whether he owed or not. He asked me if he did owe could he have an opportunity to start with a clean slate. Van Kempen did not remember what his response was to Blake's inquiry regarding the clean slate, but he said that he did not offer any deal to Blake and he did not have any authority regarding health and welfare matters. Nevertheless, by checking copies from the billing for the trust fund, Van Kempen determined in January 1976 that the Respondent was making health and welfare payments on all of its five cooks; one of its two managers; and one of its three dishwashers at that time. Although the list marked by Van Kempen does not indicate that health and welfare contributions were being paid on behalf of busboy Marcelino Anchante, Blake testified that the Respondent had made such contributions on behalf of Anchante since about December 1975. Blake's version of his conversation with Van Kempen was different from the version given by Van Kempen. Blake acknowledged that he had received notification from the Union's health and welfare or pension organization that a request was being made for an audit of the Respondent's health and welfare contributions, but he said that was not the purpose of his meeting in Jack London Square with Van Kempen. According to Blake, Van Kempen suggested a deal to him whereby Blake's employ- ees would join the Union in toto and the Union would wipe the slate clean and begin anew. At first, Blake testified that he had taped the entire conversation with Van Kempen at Jack London Square. It was his practice to tape-record such conversations with Union Representatives Van Kempen and Faber. However, he subsequently said that he had not tape-recorded the meeting at Jack London Square. No tape recordings of any conversations were produced at the hearing. After considering the foregoing and the entire record, I have decided to base the findings of fact in this section upon the testimony given by Van Kempen rather than the testimony of Blake insofar as it conflicts with Van Kempen's version. It seems to me that Van Kempen's version is more consistent with the other findings of fact in other sections and is more probable than the one offered by Blake. F. The Meeting Between Larry Blake and Van Kempen in January 1976 Three of the Respondent's waitresses joined the Union in early January 1976. They were Charging Party Ackerson, Lynn Fine, and Nora Sercovich. Within a few weeks after they joined the Union, they complained to Van Kempen that they were not being paid union scale and in addition they complained that their hours were being reduced. Van Kempen suggested that they file charges with the Board. Sometime thereafter Van Kempen received a telephone call to meet with Larry Blake at his office on Harrison Street. Van Kempen testified on direct examination regarding that conversation in Blake's office as follows: A. Mr. Blake made a statement saying that he was not happy what had been going on around in Berkeley with all the restaurants opening up, there was not much organizing being done, and the reason he signed a contract was because Mr. Faber, an associate of mine, made a statement that, well, he made a promise of organizing, and Mr. Faber was supposed to have made a statement that the contract was only good for the people who worked in the back and not for the people out in front. Q. Did Mr. Faber [sic] say the people in front were covered by the contract? A. He said they were not covered by the contract. While the record clearly shows that Van Kempen was asked on direct examination at the hearing whether Faber said the people in the front were covered by the contract, I 31 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believe this was merely a slip of the tongue by counsel for the General Counsel. No party has moved to correct the record in this regard. However, I find that it is clear from the context of the testimony that Van Kempen actually had reference to Blake's statement to him and not to any statement made by Business Agent Faber. This finding is also consistent with the Respondent's position that the contract did not cover the employees working in the front part of the restaurant. The foregoing findings in this section are based upon documentary evidence and also on the testimony of Van Kempen. Blake related a second conversation with Van Kempen which Blake stated he had tape-recorded. How- ever, no tape recording was produced. Blake placed the time of the conversation as being sometime in mid- December 1975 and about I week after the conversation at Jack London Square. According to Blake, Van Kempen once again suggested a deal at that second meeting and Blake inquired why the Union was so interested at that time. Blake's version is that Van Kempen responded with a somewhat vulgar expression which meant that the Union had been lethargic for 15 years. In his testimony, Van Kempen did not recall that he made such a response as was attributed to him by Blake. Blake said that he told Van Kempen that he would join the Union if the Union would organize the 35 to 40 restaurants in the area. At another point in his testimony, Blake related a conversation with Van Kempen which he also placed as having taken place in December 1975. However, he said it was at a restaurant in Jack London Square. As noted earlier, Van Kempen said that the conversation at Jack London Square took place in September 1975. Blake stated that Van Kempen told him that three employees had joined the Union and requested that their wage rates be raised to the contract level. While Blake asserted that this occurred in December, it is uncontradicted that the three waitresses did not join the Union until early January 1976. For the reasons previously indicated, I find that Van Kempen has related the more reliable version of the conversation between himself and Blake, and I base the findings of fact on Van Kempen's testimony. G. Larry Blake Resumed a More Active Role in Management of the Restaurant Blake indicated that he began to take a more active part in the management of the restaurant beginning in late 1975 and early 1976 than he had for several years just prior thereto. For several years he had visited the restaurant only about once a week for an hour or so. Due to changing circumstances, Blake increased his role in the management of the restaurant. He explained: As we brushed on it a moment ago, Berkeley, and specifically Telegraph Avenue, where Larry Blake's is located, has suffered turmoil, politically, with riots in the streets, for a long period of time, from 1964 through 1972, during which time many groups and agencies, in addition to the union, lost interest in that area. Our business, of course, suffered a great deal, and I began to watch the district more closely after 1972 when I began to notice the riots had ceased, that the nature of people living there and visiting there was again changing, and there were differences in the attitudes of the students at the school. They became less politically motivated and in a sense some degree of normalcy began to return to the area along somewhere in 1973. It was still nowhere near normal until the middle perhaps of 1975, and that is when I thought perhaps it might again be worth reconsidering in terms of spending the time trying to develop a successful business. t* * * * So, I began to spend the time late in '75 and actively once I was able to clear my responsibilities in the real estate end [and] the consulting end along about February 1976, I became free to spend the time to do so. H. Larry Blake's Letter to the Joint Executive Board On January 13, 1976, Larry Blake sent the following letter to the Joint Executive Board: On January 19, 1974, I executed the standard restaurant union contract at the behest and urging of the union's business agent Mr. Jack Faber. Mr. Faber represented to me at the time that the union would immediately organize all restaurants in the Berkeley, and in particular that area served by my individual restaurant. It was on the basis of that specific representation that I executed the above-mentioned contract. At no time since that execution has the union attempted in any way to organize all restaurants in my area. I therefore contend that the union did not intend to attempt any such organization at any time and that the representations made by Mr. Faber on behalf of the union were false. It is, therefore, my contention that the above- mentioned contract is void in its inception based on its representation. It is, therefore my further contention that the contract has no force and effect and is void. The foregoing is based on documentary evidence introduced at the hearing. Although the letter does not so state, Blake said that the letter was written in response to the three waitresses having joined the Union and the busmen having joined earlier. In his view the Union had breached Faber's verbal under- standing with him to maintain the "status quo" by sending a business agent to organize my people who had heretofore been excluded from organization." As indicated earlier, I have found that Faber did not make such a verbal agreement with Blake. 1. Ackerson's Conversation With Escalante on Saturday, January 10, 1976 Dinah Ackerson began working for the Respondent in October 1973 and continued to work as a waitress for the Respondent until she was terminated on March 10, 1976. 32 BLAKE'S RESTAURANT During most of the time of her employment at the restaurant, she was a student at the University of California at Berkeley. She was graduated from the university with a degree in archeology in December 1975. Usually she worked from 15 to 20 hours a week at the restaurant while she was attending the university. She said that she worked more hours during the summer months and also after her graduation. On Saturday, January 10, 1976, Percy Escalante, who at that point in time was manager of the restaurant, telephoned Ackerson to inform her of a general reduction in working hours for employees. During that conversation Ackerson informed Escalante that she had joined the Union. In fact, Ackerson and waitress Fine had joined the Union earlier that same week on Tuesday, January 6, 1976, and waitress Sercovich had joined on Wednesday, January 7, 1976. Ackerson appeared as a witness on three different occasions during the hearing and testified several times with regard to her telephone conversation with Escalante, just as she did with respect to many of her conversations with others. Nevertheless, her last recital of that telephone conversation during the General Counsel's rebuttal case while she was being cross-examined is the most detailed and coherent account by her of that particular event. Ackerson testified at that point: The phone rang, I picked it up, and Percy said, "Dinah, this is Percy." And we chatted about ridiculous things, then he said, "Listen, I called you because I have to cut back everybody's hours." And I said, "Why?" And he said, Mrs. Blake had told him to. And I said, "Well, why?" And he said he had to reduce everyone's hours to below 20 hours a week because the health and welfare people were investigat- ing them, and she wanted all the students, all the front end employees hours below 20 so that the payroll would show that they wouldn't have to pay health and welfare benefits. I was surprised, and I told him that my hours couldn't be reduced. Well, that he wasn't supposed to reduce my hours, because I had joined the Union. He sounded very surprised, and he said, "1 wish you hadn't done that. I wish you had talked to me before you did that." And I said, well, it was done. And he said that it could be very bad now, Mrs. Blake could make it very difficult for us. And I couldn't see that we were getting anywhere [anylmore. And then he asked me what hours I wanted, what shifts I wanted, since he said that - well, since I worked there a long time, I usually would end up getting the better shifts to work. And I told him. And we chatted a little bit more and said good-bye. The foregoing findings of fact are based upon the testimony of Ackerson who is credited as giving the complete and accurate version of the conversation. Percy Escalan te gave a shorter version of the telephone call. Escalante was a manager of the restaurant from June 1972 until August 19, 1976, when he voluntarily quit work there and became an auditor employed by the State of California. Escalante said that it was a Saturday in mid- January 1976 when he telephoned Ackerson regarding her working hours. He said that he told her that she was not going to get the hours which she had requested, and he suggested to her that she speak with Ms. Blake. Escalante said that Ackerson told him that she was in the Union and that she should get the hours now. Escalante testified that he told her that she would have to discuss it with Ms. Blake. Escalante said that Ms. Blake told him in January 1976 that most of the people working in the restaurant were students and that they should not work over 20 hours. He said that Ms. Blake told him that "The Union requires us to hire people under 20 hours, only students." Such testimony indicates that Ms. Blake understood the union contract to apply to the front end employees, but Ms. Blake indicated to the contrary in her testimony. At first she testified that she told bookkeeper Alice Williams, "No, we don't have front end Union employees," when Williams informed her that the three waitresses had joined the Union and asked whether their pay should be increased. However, after being confronted during cross-examination with her affidavit which was given in March 1976, Ms. Blake acknowledged that her response to Ms. Williams was: "I said we would wait and hear from the Union." I found Escalante's account of his conversation with Ms. Blake to be convincing. J. Ackerson's Conversation With Escalante on Sunday, January 11, 1976 The next day Ackerson had a brief conversation with Escalante at the restaurant. She said that Sercovich was present during the conversation. Ackerson testified: We were talking about what had just happened, our joining the Union, and I asked Percy what might happen, what would be the result, and he said Mrs. Blake could make things very difficult, very hard for us. I asked in what way, and he said she might keep us at a level of 20 hours a week and not permit us to work anymore, or she might make us work a full schedule, that is 36 to 40 hours a week and keep us to that, or she might make us work down in the Rathskeller, which is - well, it is not a very good place to work in comparison to the regular dining hall. At the hearing Ackerson elaborated on the basis for her opinion with respect to the Rathskeller as contrasted with the upstairs dining area. She gave her view that: "The Rathskeller is more rowdy, more physically unbearable than upstairs in the regular dining hall. There are notably less tips than upstairs where I was working." Sercovich was not called as a witness in this proceeding. No contention is made that the statements by Escalante, who was a manager and an admitted supervisor within the meaning of the Act at that point in time, constituted violations of the Act. Instead, the counsel for the General Counsel urges that the foregoing shows union animus on the part of the Respondent. Escalante did not contradict the version given by Ackerson. Thus, her testimony with regard to the foregoing is undenied and is credited. 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To Ackerson's knowledge neither she nor the other two waitresses who joined the Union were treated any differ- ently insofar as scheduled hours were concerned. Ackerson said that both Fine and Sercovich voluntarily left the Respondent's employment around the first or second week of February 1976. Ackerson said that she and Escalante were personal friends. According to her, although Escalante was a manager, they both formed a common opinion concerning the restaurant. She testified "this went on for a long time. We both commonly agreed the service was lousy, the food was lousy, the place was filthy, and we just worked there to get through school." K. Ackerson's Conversation With Larry Blake on Wednesday, February 11, 1976 While Ackerson was at work at the restaurant on Wednesday evening, February 11, 1976, Larry Blake approached her and asked why she was still working there. He told her that many of his former employees had gone on to better paying positions after learning the basics in his restaurant. Blake told her that thousands of students had come through the place and worked, but when they left college, they went on to better jobs. Blake wanted to know what she was trying to do and why she was still there. Ackerson testified that her response was: "I said all I wanted was union wages and better hours. I thought I was entitled to them as a union member. I asked him what he would do if he were in my shoes, and he said he would stop what I was doing." She added that "he said I was rocking the boat in the activities I was doing." Larry Blake's recall of his conversation with Ackerson on that occasion was different. He pointed out that he had employed over 10,000 persons who had been students for the most part, and that he had often offered them friendly advice. Blake acknowledged that he had known earlier in January 1976 that Ackerson, Fine, and Sercovich had joined the Union. He said that he was not overly concerned about that because it was often a thing which a student did after receiving basic training in his restaurant and then getting a job in a more professional restaurant. Blake said that he pointed out to Ackerson that she could leave the restaurant and earn as much as $40 to $80 for an evening's work as a waitress in another restaurant, whereas in the Respondent's restaurant she would be fortunate to earn $12 in an evening. He explained to her that the nature of his business involved the hiring of students who needed a small temporary income while they were getting through school and who needed a restaurant which could make adjustments to their schedule. Blake continued by stating: I explained to her that a union operation per se where everybody would be required to work a full 40 hours a week in order to justify $50 or $60 a month welfare payments, in order to justify all of the things that were required by the Union, you had to allow for the students, you had to give them certain recompense like making your schedules very flexible from week to week and from day to day and from hour to hour in many cases, and that this was the only way our business would work, and that many other students had seen this, had recognized the advantages of it. I pointed out to her that in 37 and a half years I had never had a labor dispute with any employee, and that I couldn't understand this one, and asked her then after this presentation when it was so much more advanta- geous for her to go do it as others had done when they graduated, to go on into their own field of endeavor or to go on into a better job, why didn't she do it. Her answer at the time was, "Oh, I'm going to see this through, it's a great experience." After considering the foregoing and the other events and conversations in this proceeding, I have decided to credit Ackerson's version of these events and conversations while following the guidance from the Board in its decision in Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1976). The weight of the evidence, established facts, inherent probabilities, and reasonable inferences support Acker- son's account where it is in conflict with the accounts given by others. L. Ackerson's Conversation With Larry Blake on Wednesday, February 18, 1976 Ackerson was scheduled to report for work at 6 p.m. on Wednesday, February 18, 1976, but she arrived at work about 5 minutes late. Larry Blake was standing by the cash register when she walked past him. Blake said: "I don't care how many unions you join, you are late one more time and you are out." Prior to that time Ackerson had been late for work on two or three occasions which she acknowledged were her own fault. She conceded that she had also been late a couple of other times, but she claimed that she was not at fault on those occasions because she had not been informed in changes in her schedule. Nevertheless, whether she was at fault or not, she had never before been warned about being late for work. Based upon Ackerson's observation of other employees who worked at the Respondent's restaurant, Ackerson formed the opinion that the other employees were "frequently not on time." The foregoing findings are based upon the testimony of Ackerson who was not specifically contradicted with respect to the foregoing and who is credited. M. Ackerson's Conversation With Larry Blake on Thursday, February 19, or Friday, February 20, 1976 A day or two following the conversation with Larry Blake referred to above on February 18, 1976, there was still another conversation at the restaurant between the two. Thus, the conversation would have taken place either on Thursday, February 19, or Friday, February 20, 1976. While Ackerson was at work in the dining area, Blake asked her to come over and sit with him in the booth and talk. Blake asked Ackerson what she was trying to prove and what she was trying to do. Ackerson replied that she was not trying to prove anything, and that she was just trying to get what she thought were her rights. 34 BLAKE'S RESTAURANT Blake told her that he knew a lot of people in the restaurant business in northern California. He said that he would be willing to find Ackerson a job, perhaps a better one than she had. He told her that he would do anything to help her get a better job. Blake asked if she would be interested. Ackerson replied no and commented that it would be a good way to get her out of the way. She said that Blake rephrased the question by "saying if he had met me, say, in a bar and he thought I was a capable person and offered me a job, would I accept it then, and I said I probably still wouldn't." The conversation then shifted to Lynn Fine who had formerly worked as a waitress at the restaurant. Blake said that Fine was working at the Marriott in Berkeley. He said that the owner of the Marriott was a good friend and "with one phone call, he could have her lose her job by telling the owner he had hired a trouble-maker." Blake told Ackerson that she was creating tension among the employees by her actions and that she was talking to customers about the problem. Blake stated that three to five customers had complained to him about what Ackerson was saying and that it was bad for business. Blake stated that Ackerson's "conscious and unconscious attitude were hurting his business and I had a negative attitude toward him. And that was a bad situation." The foregoing findings of fact are based upon Ackerson's testimony. Blake's version is that he had a discussion with Ackerson about 2 or 3 weeks prior to her dismissal and that he asked if she was talking with customers regarding her troubles. According to Blake, Ackerson told him, "Well, all of us are." Blake testified that he then asked her whether she had talked to Don Thompson and she responded, "Well, he's a friend of mine, of course, I told him." Ackerson's testimony is that it was on March 10, 1976, during their conversations that Larry Blake said that she was downgrading the restaurant image and she replied, "Yes, but I'm not the only one." As previously indicated, I have credited Ackerson's testimony. N. The Events Concerning Ackerson During the Evening of Wednesday, March 10, 1976 i. Her conversation with Leona Blake behind the bar On Wednesday, March 10, 1976, Ackerson was sched- uled to work at the restaurant from 6 p.m. to 2 a.m., but she arrived at work early, about 5:30 p.m. Ackerson looked at the posted schedule and noticed that she was scheduled to work her regular 19-1/2 hours. However, she also noted that at least one of the other employees, Tricia Harris, was scheduled to work more hours. Ackerson saw Leona Blake, the wife of Larry Blake and a co-owner and general manager of the restaurant, working behind the bar. Ackerson asked Ms. Blake if Ackerson would also have more working hours beginning next week. Ms. Blake replied that she would have to make a call, and that if Ackerson did have more hours, Ackerson would have to work those hours in the Rathskeller. The foregoing findings of fact are based upon the credited testimony of Ackerson. Ms. Blake testified that the conversation took place about 6 p.m. while she was working behind the bar in the Rathskeller. She said that customers were present at that time and that she was making change for a customer. She said that Ackerson asked her about increasing her hours and that she replied that she would have to take the matter up with Percy Escalante. Ms. Blake said that Ackerson persisted in questioning her about increasing her working hours, so Ms. Blake responded, "Dinah, if I have to increase your hours, it may require you working the Rathskeller some hours." Ms. Blake testified that Ackerson replied in a loud voice, "I will not," and walked upstairs. As previously indicated, I have found the account related by Ackerson to be the credible version, and I have based the findings of fact on her testimony. 2. Her conversation with the Blakes 2 hours later in the Rathskeller About 2 hours later, which would have been around 8 p.m., during the evening of March 10, 1976, Ackerson had a second conversation with Ms. Blake. Larry Blake was also present during this conversation as he and Ms. Blake were seated at a table and having a glass of beer. Ackerson was on her way to the restrooms which are located on the lower floor where the Rathskeller is also located. Custom- ers were present in the Rathskeller. Ackerson asked Ms. Blake if she had decided whether or not Ackerson could work the additional hours next week. Ms. Blake replied no, that she had not checked into it, or that she had not contacted Percy Escalante. Ackerson said that she needed to know because she needed the money. Larry Blake then told Ackerson, "Don't make another problem. We have worked 12 hours today already. We are tired. You are not to present any more problems, and get your ass upstairs and go to work." Ackerson walked a few steps away from the Blakes and then she came back and told Larry Blake that she did not like to be referred to that way. Blake did not say anything. Ackerson left and went upstairs. The foregoing findings are based upon the testimony of Ackerson. Larry Blake's version differs from her account. He said that Ackerson asked Ms. Blake whether she was going to get more hours and Ms. Blake replied that she had not had a chance to think it over and that she had not talked with her advisor. Blake said that Ackerson asked who her advisor was, and that Ms. Blake responded, "I simply can't do it at this moment, and I haven't had a chance to talk to Percy. Let us have time to think about it. We'll talk about it tomorrow, or when he says so." Larry Blake described Ackerson's voice "to be shrill and she shrieked, and it was embarrassing, and in the room were some 35 customers," so Larry Blake told her that they had had a long day and did not want to talk about this now. He stated that he told her that he and Ms. Blake would take the matter under consideration and talk to Ackerson later. However, Blake said that Ackerson told him that she was no longer a student; that she had a right to have more time, and that she should not work in the Rathskeller. At that point Blake testified that he wanted the conversation brought to an end, so he told her, "Dinah, this is it. We've been reasonable with you. You get your ass 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back upstairs to work, or you won't be working here, period." According to Blake, she went away for a few steps and then returned and said, "I object to your talking to my rear end in that manner," and then went to work. Percy Escalante's testimony regarding the foregoing was brief. He was working at the bar at that point in time. He estimated that he was standing about 10 to 12 feet away from the participants. He said that Larry Blake had his back to him. All that Escalante heard was Ackerson say to Larry Blake: "You shouldn't talk to me like that." Ms. Blake testified that it was around 8 p.m. when Ackerson again approached her regarding increasing her working hours. Ms. Blake said that she was having a glass of wine and that Mr. Blake was having a beer while they were sitting at a table in the Rathskeller. She testified that Ackerson accused Ms. Blake of discriminating against her. In Ms. Blake's opinion Ackerson appeared to be agitated and her voice was getting louder. She said that she told Ackerson that she had worked a long day and that she was going to take this up with her advisor. Ms. Blake said that Ackerson walked away and then returned and asked, "Who is your advisor?" At that point she stated that Larry Blake told Ackerson that she had been bothering them long enough. She testified: "At the end of the conversation, he told her to get her ass upstairs and go to work." For the reasons indicated earlier, I have credited Ackerson's testimony and base the findings of fact on her version of this conversation. 3. Her conversation with Larry Blake in the upstairs dining hall A few minutes later that evening Ackerson had another conversation with Larry Blake. This conversation took place in the upstairs dining hall, and it was also in the presence of customers who were in the dining room. Ackerson again began the conversation. She told Blake that she thought he was being unfair, extremely unkind, and rude to her. Blake replied that he had every right to do so, and that she was a bad worker and a troublemaker. Ackerson asked why she was a bad worker and he did not answer. However, Ackerson testified that Blake told her: He went on to say some employees called and said I called him a son of a bitch behind his back, and I asked him for any names of these employees, who they could possibly be, and he refused to answer, he ignored the question and went on saying I was a bad worker and a trouble-maker. He said I was talking to customers about the problem. Again, I asked who and he refused to explain. He continued the accusations saying I was a bad worker, a trouble-maker and by that time we were both yelling. He never once gave me any answers to any questions I asked, and then he said if I continued to press the issue, I would be fired. * * He said the tension I was creating among his employees made it - what I was doing made it bad for business and the restaurant. He said I was the reason his restaurant was doing so badly. As noted previously, Ackerson admitted that when Larry Blake accused her of downgrading the restaurant's image, she answered: "Yes, but I'm not the only one." At the hearing Ackerson specifically denied having characterized Larry Blake as an s.o.b. to Percy Escalante or any other employee. Escalante also testified that Ackerson had not called Larry Blake an s.o.b. or any other names to him. Escalante said that Ackerson did tell him that Larry Blake was unfair. Escalante testified that he had not received any complaints from customers regarding Acker- son's work. Larry Blake had a different recollection of their conver- sation. He testified that he was at the dessert counter and wrapping some pastries to take home when Ackerson approached him and again asked why she could not have more working hours. He said that she accused him of singling her out for harassment because of her union activities. Blake told her to cut it out or he would let her go. He said that people were listening and it was not good for business. He told her to get back to work. Blake described Ackerson's tone of voice in this manner: "It grew in a crescendo, beginning first with just a normal voice, but getting louder and ultimately shrieking, to the point where all heads in the room were turning around looking." For the reasons previously stated, I have accepted Ackerson's testimony as the credible version of these conversations, and I have based the findings of fact on her testimony. 4. Her conversation with Larry Blake a few seconds later A few seconds later after the foregoing conversation, Ackerson initiated still another conversation with Larry Blake in the upstairs dining area. Customers of the restaurant were in the dining room. She told Blake that she did not want either one of them to get mad, but she would like to know, if she did get more hours to work next week, why would she have to work in the Rathskeller. She told him that since she had worked in the restaurant for 2-1/2 years, she had a lot of seniority. Ackerson said that Blake "yelled at me that the restaurant is not union, that there is no seniority system, that I was a bad worker and fired me." At that point Ackerson began crying. She followed Blake downstairs and asked, "Am I really fired?" Blake replied "yes." Ackerson said that Escalante then came upstairs and she asked him why, what was wrong, and what she had done. Escalante replied that he did not know. Ackerson got her things and left. Larry Blake gave a different version of the conversation than that related above by Ackerson. While he related the event in his testimony at the hearing, he also gave the following account in an affidavit which he made only 9 days after the incident took place: I then finished wrapping up the items of food I was taking home. I attended to some details at the cash register. There was only a lapse of seven or eight minutes when Dinah came back and began to reopen the conversation, again loudly. She said she was going to keep this matter before the National Labor Relations 36 BLAKE'S RESTAURANT Board, no matter how long it took her. I said to her, "Dinah, I warned you twice, this is it, you're fired." She got her coat and purse. I thought it very odd for a woman who had only a few minutes before been tense, she was now smiling. That was the end of the incident. She went home. Blake testified that his affidavit was not totally accurate in indicating that he fired Ackerson immediately after she mentioned the Board. In any event, I have credited the testimony of Ackerson previously and I have based the findings of fact on her version. O. The Conversation Between Larry Blake and Donald E. Thompson Donald E. Thompson lives in the same building in which the Respondent's restaurant is located. He estimated that he ate meals at the restaurant at least once every two days and had been doing so since August 1956. In July or August 1976 Thompson had a conversation with Larry Blake on the street corner. Thompson testified: I had just finished eating at another restaurant across the street, and I was returning to my apartment. And of course, that's in the same building in which Mr. Blake's restaurant is located. And Mr. Blake was standing at the corner, the approach to my apartment. I greeted Mr. Blake. He greeted me. And it must have been about, I'd say, 5:30 or 6:00 at night. It was in the evening, with the sun just setting, and he had trouble looking at me, he was - he kept shielding his eyes with his hand. And he asked me at that time - the substance of what he asked me at that time was that, "Some of my employees tell me that you've stopped patronizing my restaurant," or that's not exactly his words - "Stopped patronizing my restaurant because I was a mean employer." And I denied this vehemently at the time, and I said that I had known him since August of 1956 and that I did not believe he was a mean employer, and that the reason I stopped was because I wanted to lose weight, the reason I stopped going into his restaurant was because I wanted to lose weight. I believe that is the substance of what I said to him. Thompson knew Dinah Ackerson who acted as his waitress at times. He considered her to be a friend. From time to time Thompson joked about the food served at the restaurant. He said that Ackerson had not talked with him regarding the food, although Ackerson said that she had expressed her view that the food and service were lousy and the place dirty. However, Thompson said that he never complained to Blake regarding Ackerson. The foregoing findings are based upon the credited testimony given by Thompson. He acknowledged that he considered Ackerson to be a friend and Ackerson also said that he was a very personal friend with whom she met often for dinner. However, he is a longtime and frequent customer of Larry Blake's and exhibited no discernible hostility towards Blake. Thompson was retired from the Armed Forces after sustaining an injury and has been visiting the Respondent's restaurant for 20 years. Nevertheless, the conversation between Thompson and Blake took place at least 7 or 8 months after the termination of Ackerson and no mention was made of Ackerson's name in the conversation. Blake described an earlier conversation with Thompson which he said took place prior to the discharge of Ackerson. In that earlier conversation Blake said that he inquired of Thompson whether any of the gossip that was going around the restaurant had been disturbing to him or had reached his ears. According to Blake, Thompson replied that he knew what was going on and that it bothered him a little bit. Significantly, no reference was made in that conversation to Ackerson. Blake alluded to three to six other unnamed customers who had complained about being told of the restaurant's problems by employees. However, Blake chose not to disclose the identity of those persons because he felt that they were good customers of the restaurant. Also, he did not reveal the specific nature of the complaints, nor the time and circumstances in which such complaints were made. P. Conclusions Based upon the credited testimony given by Business Agent Faber, I find that the Union and the Respondent entered into a collective-bargaining agreement on January 29, 1974, which by its terms is applicable to the employees of the Respondent in the following described unit: All employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limitation those employed in the classifications set forth in Appendices A, B, and C of the collective-bargaining agreement, and office workers employed by the Respondent at its Berkeley, California, restaurant, excluding guards and supervi- sors as defined in the Act. The credible evidence does not establish that the collective-bargaining agreement was obtained through any form of fraud, coercion, duress, or deceit. The recognition clause of the contract is not so ambiguous as to require interpretation by parol evidence. For a discussion of the parol evidence rule as it was applied in another case arising in the State of California, see the discussion by the Administrative Law Judge, whose findings were adopted by the Board, in Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 439, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri- ca, (Pittsburgh-Des Moines Steel Company), 196 NLRB 971, 975 (1972): The parole evidence rule, in its simplest terms prohibits the introduction of any extrinsic evidence to vary or add to the terms of an integrated legal instrument. It does not exclude evidence that the instrument is invalid or ineffective or to prove facts rendering an agreement voidable for mistake, illegality, fraud, or duress. It does not exclude evidence to explain 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a latent ambiguity in the instrument. State courts in California follow the "plain meaning rule," i.e.: If no ambiguity or uncertainty is asserted, and the writing has a clear meaning on its face, parol evidence is not admissible to interpret it. The theory is that unless there is some ambiguity or uncertainty there is no need for the extrinsic evidence; the plain meaning of the words should be accepted and not disturbed by evidence showing that they were used in a different sense. [Witkin, California Evidence Section 373.] The United States Court of Appeals for the Ninth Circuit, in a case arising in California has applied the "plain meaning" rule. Commodity Credit Corporation v. Rosenberg Bros. & Co., 243 F.2d 504, 508 (1957). Although the rule has been vigorously attacked by Wigmore, (Evidence §2461, et seq. ) and others, and although language apparently clear may sometimes be shown by surrounding circumstances to mean some- thing different from what is apparent, the dictum of the court in Eustis Mining Co. v. Beer, 239 Fed. 976, 982, is good sense as well as good law: We must realize, not only that there is a critical breaking point, as it were, beyond which no language can be forced, but that in approaching that limit, the strain increases. It is further concluded that the Union's majority status in the contractual unit is presumed to continue at least during the life of the contract and even thereafter. As the Board held in its decision in Walter E. Heyman d/b/a Stanwood Thriftmart, 216 NLRB 852, 853 (1975): A contract, lawful on its face, raises a presumption that the contracting union was the majority representa- tive at the time the contract was executed, during the life of the contract, and thereafter. An employer, however, may defend a refusal to bargain on the terms of a new contract if it can "demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status .... " Respondent contends that no presumption of majority status attaches to its contract with the Union because the Union lacked the necessary majority status at the time the contract was executed. The Board has held that events time-barred by the limitations provision of Section 10(b) of the Act may not be used to overcome the presumption of majority status raised by a contract valid on its face. The contract contains a clause which recognized the Union as majority representative and a lawful union-security clause. The legality of the Union's initial recognition by Respondent was precluded by Section 10(b) of the Act from being attacked at the time of Respondent's termination of the contract and withdrawal of recogni- tion from the Union. Therefore, we find that Respon- dent may not defend its refusal to continue to recognize and bargain with the Union by an attack on its initial recognition of the Union. [Footnotes omitted.] In the instant case, the contract was executed on January 29, 1974, which is outside the 10(b) period of the charge in this matter. The Board has recently reiterated the principle of Bryan Manufacturing Company, 362 U.S. 411 (1960), in its decision in Tahoe Nugget, Inc., d/b/a Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976). In that case the Board stated: The Board has held, in light of the Supreme Court's decision in Bryan Manufacturing Co., that a respondent may not defend against a refusal-to-bargain allegation on the ground that original recognition, occurring more than 6 months before charges had been filed in the proceeding raising the issue, was unlawful. Any such defense is barred by Section 10(b) of the Act, which, as the Court explained in Bryan, was specifically intended by Congress to apply to agreements with minority unions in order to stabilize bargaining relationships. [Footnotes omitted.] In accord with the foregoing Board precedents, I conclude that the Union's majority status in the contrac- tual unit is presumed as of the time that the collective- bargaining agreement was entered into between the Union and the Employer. I further find in accord with Board precedents that the Union's majority status in this case is presumed to have continued at least during the life of the contract, which in this instance is still in existence, and that the presumption has not been rebutted. I also conclude that the evidence does not establish that the Union has abandoned representation of the contractual unit since it entered into the collective-bargaining agreement on Janu- ary 29, 1974. Additionally, I conclude that the Union's failure to file a grievance concerning the scope of the coverage of the contract or the termination of Ackerson does not preclude the Union from pursuing the matters through the filing of unfair labor practice charges, nor does it preclude Charg- ing Party Ackerson from pursuing her own unfair labor practice charges. After considering all of the foregoing, I conclude that by refusing to recognize and bargain with the Union as the exclusive representative of the employees in the appropri- ate unit described above, and by repudiating the collective- bargaining agreement with the Union, the Respondent has violated Section 8(aXl) and (5) of the Act. The General Counsel's complaint alleges that the Respondent's refusal to bargain with the Union began "on an unknown date in September 1975." I conclude that the evidence does not support that allegation as to the time that the unfair labor practice commenced. Instead, I conclude that the Respondent's refusal to recognize and bargain with the Union in the appropriate contractual unit commenced on or about January 13, 1976. That is the date of the Respondent's letter to the Joint Executive Board. The contents of the letter have been set forth previously. I am not unmindful that Larry Blake reiterated the Respondent's position in his conversation with Van Kempen in January 1976. While the exact date of that meeting was not established, it appears that it took place a few weeks after the three waitresses joined the Union in early January 1976. Therefore, I have concluded that their meeting took place shortly after the January 13, 1976, letter was sent. 38 BLAKE'S RESTAURANT The Respondent's answer to the General Counsel's complaint did admit the paragraph in which the General Counsel alleged a refusal to bargain with the Union since "an unknown date in September 1975." Nevertheless, the complaint did not allege the appropriate contractual unit. It referred to the more limited unit description in the General Counsel's complaint. As I have discussed earlier, I find the contractual unit to be the appropriate unit description rather than the one urged by the General Counsel. Accordingly, I conclude that the admission in the Respondent's answer does not establish that the Respon- dent refused to bargain with the Union in September 1975 in the contractual appropriate unit. Turning now to the allegations regarding the termination of Ackerson, it is well to note first the Board's holding in Herb Arthur, Inc., d/b/a Custom Carpet Installations, 225 NLRB 1036 (1976), wherein the Board stated at 1037: The critical question in determining whether a violation of Section 8(a)(3) has occurred is whether the employer has encouraged or discouraged membership in a labor organization by its discriminatory action. It is well settled that a specific antiunion purpose need not be proved where a natural consequence of an employer's action is such encouragement or discour- agement. Even if the Respondent had a legitimate reason for terminating Ackerson, a violation of the Act may be found if Ackerson was, in fact, discharged because of her union membership and union activities. The Board adopted the findings of the Administrative Law Judge in Karl's Farm Dairy, Inc., 223 NLRB 211 (1976), where he concluded at 215: The issue here, as in every Section 8(a)(3) termina- tion case, is a determination of the true purpose or real motive for the discharge. If McCoy was, in fact, discharged because of his union activities, it makes no difference that there may also have been a legitimate reason for firing him. Conversely, if McCoy's discharge was not discriminatorily motivated, it is immaterial whether the discharge was arbitrary, unfair or unrea- sonable. An employer may hire or fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the Act. [Footnotes omitted.] The Board has reiterated the principle in Charles Edwin Laffey, d/b/a Consolidated Services, 223 NLRB 845 (1976), where the Board stated: "It is well established that a discharge motivated in part by an employee's exercise of Section 7 rights is a violation of the Act even though another valid cause may also be present." In the instant case there is no dispute of the fact that prior to the termination of Ackerson on March 10, 1976, the Respondent had knowledge that Ackerson had joined the Union in early January 1976 and that Ackerson had filed an unfair labor practice charge against the Respon- dent in February 1976. Based on Ackerson's credited testimony, the conversations between Ackerson and Larry Blake which took place on February 11, 18, and 19 or 20, 1976, reveal a hostility to the exercise of her rights under the Act and a desire on the part of Blake to get her to leave her employment at the restaurant. The conversations between Ackerson and Escalante on January 10 and 11, 1976, also are indicative of a similar hostility on the part of Ms. Blake. While it has been noted that Ackerson and Escalante were personal friends, nevertheless, Escalante was a supervisor and agent of the Respondent at that point in time. The events which occurred during the evening of March 10, 1976, have been set forth in detail above. Without repeating those details, it is obvious that Ackerson was persistent in seeking an increase in her working hours at the restaurant, that the voices of Ackerson and Larry Blake were raised in volume at times, and that customers were present while these conversations were taking place. However, in view of: (1) the timing of the termination of Ackerson after she had joined the Union and after she had filed an unfair labor practice charge against the Respon- dent; (2) the Respondent's knowledge of the foregoing activities which are protected by the Act; and (3) the animus of the Respondent towards Ackerson in the exercise of her rights under the Act, I conclude that counsel for the General Counsel has established by a preponder- ance of the evidence that the termination of Ackerson by Larry Blake on March 10, 1976, was motivated in part by her union membership and activities and in part by her having filed an unfair labor practice charge under the Act. Accordingly, I conclude that the Respondent thereby violated Section 8(a)(1), (3), and (4) of the Act in terminating Ackerson and thereafter failing to reinstate her. In view of the circumstances of this case, it is well to note the Board's rationale and holding in Trustees of Boston University, 224 NLRB 1385 (1976), where the Board said: As noted by the Administrative Law Judge, the return of a discriminatee to the employ of a less than receptive employer frequently leads to a difficult and awkward situation. In this case, the apparent personality conflict between Schiffer and Stephanou will not make any easier the restoration of the status quo prior to the unfair labor practices. Nonetheless, the remedial nature of the Act and its policy favoring reinstatement to a discriminatee's former position outweigh the difficulties attendant to Schiffer's returning to her former job. Where, as here, the employer's provocations as well as its illegal discrimination contributed substantially to creating a suspicious and tense atmosphere, the employer cannot allege that its own illegal actions warrant restoring a discriminatee to ajob other than his or her former one. The Board has long held that an employer can restore a discriminatee to a "substantially equivalent job" only when the discriminatee's former job is no longer available. It is a significant consider- ation that other employees be made aware, through the discriminatee's return to his or her former job, that their rights to engage in concerted activity are protected by the Act. Finally, despite the difficulties, we believe it is incumbent upon the employer, in order to comply with our Order, and the discriminatee, in order to fulfill the legitimate job requirements of the position to which 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he or she is to be reinstated, to attempt to work together harmoniously and forget past animosity. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Larry Blake's Restaurant and Rathskeller d/b/a Blake's Restaurant is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 28, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limitation those employed in the classifications set forth in Appendices A, B, and C of the collective-bargaining agreement, and office workers employed by the Respondent at its Berkeley, California, restaurant, excluding guards and supervi- sors as defined in the Act. 4. At all times material herein, the Union has been, and is, the exclusive representative of all employees in the above-described appropriate unit for the purposes of collective bargaining. 5. By refusing since on or about January 13, 1976, to recognize and bargain with the Union as the exclusive representative of the employees in the unit described above, and by repudiating the collective-bargaining agree- ment with the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. By discharging Dinah Ackerson on or about March 10, 1976, and thereafter failing to reinstate her, because of her union membership and activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 7. By discharging Dinah Ackerson on or about March 10, 1976, and thereafter failing to reinstate her, because she filed an unfair labor practice charge under the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (4) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(aXl), (3), (4), and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged Dinah Ackerson and has failed to reinstate her, I shall recommend that the Respondent make her whole for any loss of earnings suffered as a result of the discrimina- tion against her by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of the discrimination against her until the Respondent offers her reinstatement, less her net earnings during such period. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716(1962). In view of the nature of the Respondent's unfair labor practices found herein, I shall recommend that the Respondent cease and desist from infringing in any other manner on the rights of its employees guaranteed by Section 7 of the Act. Brom Machine and Foundry Co., 222 NLRB 74 (1976); SKRL Die Casting, Inc., 222 NLRB 85 (1976); N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the recommended Order set forth below. In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. ORDER Larry Blake's Restaurant and Rathskeller d/b/a Larry Blake's Restaurant, Berkeley, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit described below, and repudiating the collective-bargaining agreement with the Union. The appropriate bargaining unit is: All employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limitation those employed in the classifications set forth in Appendices A, B, and C of the collective-bargaining agreement, and office workers employed by the Respondent at its Berkeley, California, restaurant, excluding guards and supervi- sors as defined in the Act. 40 BLAKE'S RESTAURANT (b) Discharging an employee and failing to reinstate that employee because of the employee's union membership or activities on behalf of Local 28, Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO, or any other labor organization. (c) Discharging an employee and failing to reinstate that employee because of the employee's having filed an unfair labor practice charge under the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Recognize and bargain,upon request, with the Union as the exclusive representative of the employees in the appropriate unit described above, and honor the collective- bargaining agreement with the Union. (b) Offer Dinah Ackerson immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (c) Make whole Dinah Ackerson for any loss of earnings suffered by her as a result of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of money due under the terms of this Order. (e) Post at its Berkeley, California, restaurant copies of the attached notice marked "Appendix." In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copies of the notice, on forms to be provided by the Regional Director for Region 20, after being duly signed by the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTIcE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present evidence, it has been found that we violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL recognize and bargain, upon request, with Local 28, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of the employees in the unit described below and honor the collective-bargaining agreement with the Union. The appropriate bargaining unit is: All employees engaged in or in connection with the preparation, handling, and serving of food and/or beverages, including without limita- tion those employed in the classifications set forth in Appendices A, B, and C of the collective- bargaining agreement, and office workers em- ployed by the Respondent at its Berkeley, California, restaurant, excluding guards and supervisors as defined in the Act. WE WILL NOT discharge an employee and fail to reinstate that employee because of the employee's union membership or activities in behalf of Local 28, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT discharge an employee and fail to reinstate that employee because of the employee's having filed an unfair labor practice charge under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer to Dinah Ackerson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. WE WILL pay to Dinah Ackerson the amount of her loss of earnings resulting from our having discharged her, and WE WILL pay her 6 percent interest per annum on such loss of earnings. LARRY BLAKE'S RESTAURANT AND RATHSKELLER D/B/A BLAKE'S RESTAURANT 41