Village IX, Incorporated d/b/a Shenanigans

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Village IX, Incorporated d/b/a Shenanigans and Local 595, United Retail Workers Union. Cases 33-CA-4836, 33-CA-5328, and 33-RC-2697 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 3, 1982, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in par- tial support of the Administrative Law Judge's De- cision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law I Respondent asserts that the Administrative Law Judge's resolution of credibility, findings of fact, and conclusions of law are results of bias. After a careful examination of the entire record we are satisfied that this allegation is without merit. There is no basis for finding that bias and par- tiality existed merely because the Administrative Law Judge resolved im- portant factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S 656, 659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn the intergrity or competence of a trier of fact." Further- more, it is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the reso- lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has excepted to the Administrative Law Judge's conclu- sion that it violated Sec. 8(a)(1) of the Act when David Block, one of Respondent's owners, during an April 14, 1980, meeting with a number of the bargaining unit employees, threatened employees with the closure of Shenanigans if they selected the Union as their bargaining agent. Re- spondent contends that the Administrative Law Judge improperly relied on the transcript of a tape recording of that meeting, made by employee Karon Tuttle, as direct evidence, noting that the transcript and recording were introduced for impeachment purposes only Although the Adminis- trative Law Judge refers to and quotes from the transcript, he does so to demonstrate the accuracy of the testimony of Cathy Werner, the head bartender at Shenanigans, whom the Administrative Law Judge found to be "perhaps the most impressive witness to testify at the hearing" We note that the Administrative Law Judge did not specify the date as of which Respondent was required to engage in collective bargaining with the Union. In Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), the Board stated that in the absence of an al- leged violation of Sec. 8(a)(5) of the Act and where the union has not made a demand for recognition, the respondent will be ordered to bar- gain with the union as of the date on which the respondent initiated its campaign of unfair labor practices. Therefore, we shall date the bargain- ing order as of December 22, 1980, the date on which the Union obtained majority status, and the date after which Respondent continued its course of unlawful conduct. For the reasons stated in his concurring opinion in Beasley Engery, Inc., supra, Member Fanning would make the bargaining order prospective in nature. 264 NLRB No. 122 Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Re- spondent did not violate Section 8(a)(1), (3), and (4) of the Act by refusing to allow Ralph Griffiths access to its restaurant to wait for his wife, em- ployee Deatra (Dee) Griffiths, to finish work. He concluded that Ralph Griffiths was a nonemployee union organizer who solicited on-duty employees to join the Union and that Respondent's property rights outweighed any right Griffiths may have had to engage in such activity at the restaurant. We disagree with this conclusion. The events leading up to Griffiths' expulsion from Shenanigans are as follows. At the beginning of the union campaign, Ralph Griffiths, like the spouses of a number of other employees, regularly went to the restaurant to pick up his wife after work. 2 Because the employees are often not sure exactly when they will complete their work, Grif- fiths would normally go to the restaurant early and wait as much as several hours for his wife, during which time he spoke with other employees and in- vited them to join the Union. After his wife was fired on April 15, 1980,3 how- ever, Griffiths received several warnings about speaking to the employees. During the summer of 1980 he and his wife visited the restaurant and sat at a table in the bar. At some point, Manager Mike Denning came to their table and told them that they were not to speak with any on-duty employ- ees and that if they did they would be asked to leave. Despite Griffiths' protest that they had not spoken about the Union to any employees, Den- ning repeated his warning. On November 20, the day Dee Griffiths was re- instated pursuant to the terms of a settlement agreement entered after a Section 10(j) proceeding, Mr. Griffiths waited for his wife to complete her work and spoke with employees Gail Cox and Charlene Jones. After Griffiths had been there about 2 hours, Block approached him and tried to provoke him into a fight by calling him a "fat ass," telling him he was "ugly," and asking him who he was going to sue that week. Thereafter, Block told Griffiths that he wanted him to leave and did not want him in the restaurant any more. Finally, the General Counsel has excepted to the Administrative Law Judge's finding that employee Deatra Griffiths was the Union's "principal employer [sic] organizer." Because there is no evidence of an agency re- lationship between the Union and Griffiths, we find that she is more properly characterized as the principal union adherent at Shenanigans. 2 The record indicates that it is Respondent's policy to allow spouses and friends of employees to wait in the restaurant for employees to finish work. I All dates herein are 1980 unless otherwise specifically noted. 908 SHENANIGANS Following the incident on November 20, Grif- fiths complained to the Regional Office, which issued a clarification as part of the settlement agreement stating that Griffiths was to be treated the same as any other individual who waits at the restaurant for employees to get off work. In reli- ance on the letter he went into the restaurant on two more occasions. He did not discuss union ac- tivities with anyone inside the restaurant on either occasion, although during his second visit he did solicit the signature of an off-duty employee, Steve Conrad, on an authorization card while in Grif- fiths' car, which was parked in the parking lot. Thereafter, he received a letter from Manager Denning postmarked December 11, stating that he was again reminded that if he came into the restau- rant to eat or to drink he would not be served and would be asked to leave. After receipt of the letter, Ralph Griffiths waited for his wife in his car and entered the restaurant only long enough to ask his wife when she would be through. The Administrative Law Judge concluded that Ralph Griffiths was a nonemployee union organiz- er and that Respondent, therefore, was not obligat- ed to extend the same visitation privileges to him as it did to the spouses of other employees. We dis- agree. There is no evidence in the record that Grif- fiths was an agent of any union, or had any official duties with the Union involved here. While the Union reimbursed him for gas and expenditures used in connection with transporting some employ- ees to union meetings held at the Griffiths' home, his sole conduct with respect to the Union was to assist his wife with her organizing activities. No evidence was presented that he participated in any union activities independent of his wife. Indeed, on the occasion that Griffiths solicited an employee's signature on a union card, Griffiths' wife had sent the employee to see him. Moreover, after Respond- ent's initial warning to Griffiths not to speak about union activities with any on-duty employee, Grif- fiths did not do so. In fact, the evidence fails to reveal that Griffiths spoke to any employee about the Union while visiting the restaurant after No- vember 26. Under these circumstances, it is clear that Griffiths continued to enjoy the status of a spouse of an employee and should have continued to enjoy the privileges associated with such a status with respect to waiting for his wife. It is also clear that Respondent's action was aimed as much at Dee Griffiths as it was at her husband and that the action was taken because of her union activities and involvement with Board processes. Respondent's action against Ralph Grif- fiths constituted a form of harassment and imposed more onerous working conditions on Dee Griffiths. By refusing to allow Ralph Griffiths to sit and wait for his wife in the restaurant as it allowed other persons waiting for employees to do, Respondent denied Dee Griffiths a work-related privilege for a discriminatory reason. Therefore, we conclude that Respondent violat- ed Section 8(a)(1), (3), and (4) by discriminating against Deatra Griffiths when it barred her hus- band from waiting in the restaurant for her to com- plete work while at the same time it permitted spouses and friends of other employees to wait in the restaurant for those employees. 4 The Administrative Law Judge also recommend- ed that the allegation that Respondent violated Section 8(a)(1), (3), and (4) of the Act by failing to timely invite union adherents Deatra Griffiths and Karon Tuttle to its January 20 "aniversary" party be dismissed. He concluded that while the January 20 postmarks on the invitations which were mailed to Griffiths and Tuttle created a suspicion that Re- spondent deliberately mailed the invitations on the afternoon of the party, the General Counsel failed to prove that such was the case. We do not agree with this conclusion. On January 20, Respondent closed Shenanigans for the evening and held an "anniversary" party for all of Shenanigans' employees at the Village Inn Pizza Parlor, which the owners of Respondent, Dale Holt and David Block, own through a differ- ent corporation. When Block first planned to hold the party he indicated to Manager Denning that he intended it to be a campaign party and did not want Tuttle and Griffiths invited. However, Block testified that Denning wanted to have an "anniver- sary" party and invite all of the employees. Den- ning in fact ignored Block's senitments and drew up an invitation list which included all of the em- ployees. Denning handed employee Denise Kull the invi- tation list and requested that she mail the invita- tions to the party. The invitations billed the party as "Shenanigans' First Year Anniversary Party," and stated that it was "For Shenanigans' Employ- ees Only." Kull testified that she mailed all of the invitations I or 2 days before the party. However, employee Tuttle testified that she did not receive an invitation to the party until January 21 and that the envelope it was mailed in was postmarked on January 20. The envelope used to send employee Griffiths' invitation, which was stipulated in the 4 Accordingly, we also find, contrary to the recommendation of the Administrative Law Judge, that the Union's objection to conduct affect- ing the election of January 22, 1981, in Case 33-RC-2697 which concerns the barring of Ralph Griffiths from Respondent's premises is menritorious and therefore sustain the objection Dal-Tex Optical Co., Inc., 152 NLRB 1317 (1965), enfd. 378 F.2d 443 (5th Cir. 1967). 909 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record, carried a "January 20 PM" postmark. Kull testified that either four or five employees, includ- ing Rose Carter and a cocktail waitress named Sally, also did not receive timely invitations. Kull stated that on the day of the party she was informed that Carter was upset that she had not re- ceived an invitation. Kull said that the party was for everyone and told the person who reported the information about Carter to make sure that every- one understood that the party was for all Shenani- gans' employees. There was no evidence that this was in fact done and Kull did not recall if any an- nouncement concerning the party was posted in the restaurant. On the evening of the party, employee Tuttle was distributing leaflets in the Village Inn parking lot. She saw Block and informed him that she had not received an invitation to the party then in progress. Block replied "You didn't deserve one bitch." In light of the circumstances surrounding the in- vitation of Tuttle and Griffiths to the party, we find that the January 20 postmark on their invita- tions raises an inference, which has not been rebut- ted here, that Respondent deliberately mailed them on the afternoon of the party. The Administrative Law Judge cites nothing to support his lack of faith in the reliability of the Postal Serivce. Fur- ther, it is undisputed that Block did not want to invite Tuttle and Griffiths to the party because he believed that Respondent would be wasting its time trying to sway their votes. In addition, Respond- ent's discriminatory intent is amply demonstrated by Block's comment to Tuttle in the presence of other employees, which the Administrative Law Judge found to be a violation of Section 8(a)(1) of the Act, to the effect that her union activity made her undeserving of an invitation.5 In light of the above, we find the General Counsel has presented sufficient evidence to sustain the finding that the invitations were mailed to Tuttle and Griffiths on the afternoon of the party. The record demonstrates that the party was pub- licized as, and held out to employees to be, a cele- bration related to the first anniversary of Shenani- gans and unrelated to the union campaign. As such, the party was an expression of gratitude to employ- ees for their services during Respondent's first year of operation, and constituted a benefit granted to employees for such services. Respondent's action in delaying the mailing of the invitations constituted a denial to openly prounion supporters of an invita- tion to a company-sponsored, work-related func- tion which had no open connection with any at- tempt by Respondent to communicate its position S See Delchamps, Inc., 244 NLRB 366 (1979) with respect to the Union to its employees. There- fore, we find that Respondent violated Section 8(a)(1), (3), and (4) of the Act by failing to timely invite Deatra Griffiths and Karon Tuttle to its Jan- uary 20 anniversary party because of their union activities. AMENDED CONCLUSIONS OF LAW Add the following as Conclusion of Law 6 and renumber the remaining Conclusion of Law: "6. By prohibiting Deatra Griffiths' husband from waiting in Shenanigans for her to complete her work while allowing the friends and spouses of other employees to wait for them and by failing to invite Deatra Griffiths and Karon Tuttle to a social function for all employees, Respondent has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Village IX, Incorporated d/b/a Shenanigans, Deca- tur, Illinois, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Add the following as paragraphs l(h) and (i) and reletter the remaining paragraph: "(h) Prohibiting the spouses of employees who are union supporters from waiting in Shenanigans for such employees to complete their work while allowing the friends and spouses of other employ- ees to wait for them. "(i) Failing to timely invite employees to a social function for all employees because of their union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the petition in Case 33-RC-2697 be, and it hereby is, dismissed in its entirety. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees regard- ing their union activities or sentiments. 910 SHENANIGANS WE WILL NOT threaten employees with clo- sure of Shenanigans if they select the Union as their bargaining agent. WE WILL NOT promulgate or enforce a no- distribution rule which prohibits the distribu- tion of union literature in nonworking areas of the restaurant during the nonworking time of employees involved. WE WILL NOT prohibit employees lawfully on premises from distributing union literature by threatening to have them arrested or by de- stroying their literature. WE WILL NOT tell employees engaged in union activities they were not invited to a social function for all employees because they did not deserve to be invited. WE WILL NOT assault nonemployee organiz- ers in the presence of employees. WE WILL NOT prohibit the spouses of em- ployees who are union supporters from wait- ing in Shenanigans for such employees to com- plete their work while allowing the friends and spouses of other employees to wait for them. WE WILL NOT fail to invite employees in a timely fashion to social functions for all em- ployees because of their union activities. WE WILL NOT discourage employees from joining or participating in activities on behalf of Local 595, United Retail Workers Union, or any other labor organization, by discharging them because they join or support a union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed by Section 7 of the Act. WE WILl, upon request, recognize and bar- gain with Local 595, United Retail Workers Union, as the exclusive representative of all employees in the appropriate bargaining unit, and, if an understanding is reached, embody same in a signed document if asked to do so. The appropriate unit is: All full-time and regular part-time employ- ees including waiters, waitresses, busboys, cooks, bartenders, dishwashers, cashiers, hostesses, black-jack dealers, cocktail wait- resses and clean-up personnel employed at the Employer's Decatur, Illinois facility; but excluding owners, managers, assistant man- agers, bookkeepers, casual employees, office clerical employees, guards and supervisors as defined in the Act. VILLAGE IX, INCORPORATED D/B/A SHENANIGANS DECISION STATEMENT OF THE CASE DONALD R. HOI. .EY, Administrative Law Judge: Upon charges filed by Local 595, United Retail Workers Union (herein called the Union), in Cases 33-CA-4826 and 33-CA-5328, the Regional Director for Region 33 of the National Labor Relations Board (herein called the Board) issued on April 23, 1981, an order withdrawing approval of settlement, order consolidating cases, and consolidating complaint and notice of hearing, in which he, inter alia., withdrew approval of a settlement agree- ment previously entered in Case 33-CA-4826, and al- leged that Village IX, Incorporated d/b/a Shenanigans (herein called Respondent), engaged in specified conduct which violates Section 8(a)(1), (3), (4), and (5) of the Na- tional Labor Relations Act (herein called the Act). Re- spondent filed a timely answer denying it had engaged in the unfair labor practices alleged. On April 28, 1981, the Regional Director for Region 33 issued his Report on Objections, Order Consolidating Cases, and Direction of Hearing in Case 33-RC-2697, thereby consolidating Objections 1 through 6 filed by the Union, after the election conducted in such representa- tion case, with the instant case for hearing. The hearing in this matter was held before me in Springfield, Illinois, on October 26, 27, and 28, 1981. All parties appeared and were afforded the opportunity to participate fully. Counsel for the General Counsel and counsel for Respondent have each filed post-hearing briefs. Upon the entire record in the case, and from my observation of the demeanor of the witnesses while testi- fying, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, an Illinois corporation, operates a restau- rant in Decatur, Illinois. During the 12-month period preceding issuance of the complaint its gross revenue ex- ceeded $500,000 and during the same period it purchased and caused to be transported to its Decatur operation, from States other than Illinois, goods and materials valued in excess of $5,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) of the Act. 11. STATUS OF THE LABOR ORGANIZATION The record reveals, inter alia, that the Union exists for the purpose of representing employees with respect to their terms and conditions of employment. The Union's status is not in serious dispute. I find it is a labor organi- zation within the meaning of Section 2(5) of the Act. 11i. IHI: ALI. EGED UNFAIR LABOR PRACTICES A. Business of Respondent Shenanigans is a restaurant which was opened in mid- December 1979. It is located on Mound Road in Deca- tur, Illinois, and the stock of the corporation-Village IX, Incorporated-is owned by Dale Holt and David 911 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Block. Holt and Block own several other restaurants in the Decatur area, including the Village Inn Pizza Parlor located on East Persian Road in Decatur. By April 1980,' some 45-50 employees were working at Shenanigans. The complaint alleges, and Respondent admits, that such employees were supervised at all mate- rial times by: Holt and Block, owners; Mike Denning, manager; and Tom Baird, assistant manager. It is undis- puted, and I find, that each of the named individuals are and have been at all times material supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. B. Commencement of Union Organizational Drive On March 19, some 3 months after Shenanigans was opened, Deatra (Dee) Griffiths, a waitress working in the restaurant, contacted the Union regarding representation for Respondent's employees. The following day, a union organizer, Irma Ryan, met with Griffiths to discuss the matter. At that time, Griffiths signed a union authoriza- tion card and was given blank cards which were to be distributed among the employees. After Dee Griffiths became the Union's principal employee organizer, she enlisted the aid of her husband, Ralph, who was em- ployed elsewhere. The Griffiths discussed the Union with Respondent's employees on Respondent's premises and elsewhere.2 Between March 20 and April 14, Grif- fiths held some 13-14 meetings for Respondent's employ- ees at her home. By April 13, Ryan claims about half of Shenanigans' employees had signed authorization cards. The record reveals that Respondent's management learned the employees, including Dee Griffiths, were en- gaged in union activity in late March. At that time Mike Denning, a Mr. Cooper, who then managed the Village Inn Pizza Parlor, and an employee of Shenanigans- Terry (Hank) Kelm-all lived in the same apartment complex. When called as a witness by the General Coun- sel, Kelm testified without contradiction that in late March Cooper informed him a union was attempting to organize the employees at Shenanigans and that he (Cooper) desired that Kelm meet with the owners, Holt and Block, and tell them how he (Kelm) had beat a union when it tried to organize a Dairy Queen that Kelm had managed for several years. Kelm testified that he did meet with Holt and Block and that he told them he beat a union at Dairy Queen by hiring a number of relatives before an election was held. After meeting with Holt and Block, Kelm indicated he discussed the situation at Shenanigans with Manager Denning, his next door neighbor, several times in late March. According to Kelm, Denning identified the Grif- fiths as troublemakers during such discussions, indicating he wanted to get rid of Dee Griffiths and was trying to find a reason other than her union activities.3 All dates herein are 1980 unless otherwise indicated. 2 Ralph Griffiths normally picked his wife up when she quit work. During the early part of the campaign, the record reveals he frequently waited for his wife in the restaurant's lounge where he frequently dis- cussed the Union with employees, some of whom were working at the time. I When asked if he had such a conversation with Kelm, Denning First indicated he did not recall. Asked to be more positive, he said, "No." I credit Kelm. By letter dated March 30, union organizer Ryan noti- fied Respondent that the Union was engaged in an active organizing campaign at the facility. 4 When he appeared as a witness, part-owner Block testified he read the letter several days after it was received on April 2, but he knew little about the situation until Sunday, April 13. On that date, Block appeared at the restaurant at approxi- mately 7 a.m. with Cooper. Marc Karch, then employed at Shenanigans as a dishwasher, was performing janitori- al duties at the restaurant that morning and he testified that he overheard Block tell Cooper that the employees were having a union meeting that night from 7 to 8 o'clock. According to Karch, when Block made the comment Cooper pointed to him (Karch) and told Block to be quiet. Karch claims Block replied, "I don't give a shit."5 In pretrial statements given to the Board, Block indicated he learned late in the day on April 13, through discussions with an employee named Judy Cox and an unidentified employee, that Dee Griffiths and her hus- band had both been talking in favor of the Union in the restaurant. At some point during the day on April 13, Block learned that the union meeting scheduled to be held that night was to be held at Dee Griffiths' house.6 C. The Griffiths' Termination 1. Facts On Sunday, April 13, Dee Griffiths was scheduled to work the dinner shift which commenced at 5-5:30 p.m. Before the schedule had been prepared, she had sched- uled and publicized a union meeting which was to be held in her home that evening starting at 7. Consequent- ly, at 11-11:30 a.m., she telephoned the restaurant. A cashier, Joanne Erkenbeck, answered the phone and Griffiths indicated she wanted to talk to Gail Cox, a waitress friend. Erkenbeck informed her that Cox was busy and asked what she wanted. Griffiths informed Er- kenbeck she was scheduled to work that evening but did not feel well and wanted to ask Cox if she would work for her or get someone else to agree to work for her. Griffiths asked that Erkenbeck give the message to Cox and indicated that if Cox did not call her she would be in to work. When she appeared as a witness, Cox testi- fied that on receiving Griffiths' message she asked an- other waitress, Nan Tyrolt, if she would work Griffiths' hours on the Sunday evening in question. When Tyrolt said she would, Cox telephoned Griffiths and told her Tyrolt had agreed to substitute for her that evening. What happened after Cox informed Griffiths that Tyrolt would work for her on April 13 is in dispute. Cox claims she was at the register at or about I p.m. and that Tyrolt started to leave at that time and encountered Denning who asked where she was going. Cox claims Tyrolt said she had to work a double, and explained that she was working for Dee-that Dee had called in sick. 4 See G.C. Exh. 4. s Cooper did not appear as a witness and Block claimed Cooper merely told him at the time that he had heard there had been union meet- ings. I credit Karch. 6 See G.C. Exh. 2. As indicated, infra, Griffiths called in to request time off on April 13. Block indicated in his statement that he knew before she called that the meeting was to be held at her house that night. 912 SHENANIGANS At that point, Cox claims she stated: "[n]o, she didn't call in sick, she just wants to know if she can get a re- placement. Somebody else to work for her. But, if not, she will come in." According to Cox, Denning asked if Dee was on the phone then and she (Cox) said no. On the other hand, Denning claimed during his testimony that he learned Tyrolt was to work Griffiths' hours that Sunday when Tyrolt came to the manager's office and indicated she wanted to sign the schedule change book to indicate that she was to work Griffiths' hours because Griffiths had called in sick. According to Denning, he informed Tyrolt he would not okay the schedule change until Dee called him. 7 Although Denning claims, in effect, that he told Tyrolt she could not work for Grif- fiths the evening of April 13, the record reveals that Tyrolt did, in fact, work for Griffiths that evening.8 According to Block, Denning called him on Monday morning, April 14, and suggested that they look into this thing a little further because the Union seemed to be in a little farther along than anyone suspected. Thereafter, Block met with an attorney and, as a result of advice re- ceived, he decided to call a meeting of employees to dis- cuss the union situation with them. Apparently, Denning had advised Block before he met with the attorney that he wanted to fire Griffiths as Block claims he asked Denning after talking to the attorney if he would have fired Dee if she had not been involved in union activity. Block claims Denning said yes, and that he then told him he could fire her or not as he chose.9 At approximately 4 p.m., April 14, Judy Cox, de- scribed to be an assistant supervisor, called Griffiths, who was scheduled to be off that day, and told her there was to be a meeting of waitri'0 at 9:30 p.m. Subsequent- ly, Denning called the employee to request that she come to the restaurant at 6 p.m. to meet with him. When Griffiths arrived at the restaurant at the appoint- ed time, Denning informed her he was removing her from the schedule because she did not show up for work the night before and she had not obtained his permission for Tyrolt to work in her place. Griffiths objected, stat- ing she was not the only one who had called in and switched hours with someone else without permission and Denning then informed her she had called in sick three times in March and he had told her if she called in sick again she would need a doctor's excuse. While Grif- fiths attempted to change Denning's mind by citing other instances of waitresses' absences which did not result in I Block testified he was in the office when Tyrolt attempted to sign the schedule change book and he corroborated Denning's version of the incident. 8 The General Counsel was permitted to obtain Gail Cox's testimony while Respondent was presenting its case as Cox had been unavailable before the General Counsel closed his direct case. Denning was called as a witness immediately before Cox testified. He was not recalled to dis- pute her testimony. Tyrolt was not called as a witness by either side. In the circumstances, I credit Denning's assertion that he told Tyrolt in the office that Griffiths would have to call him before he would okay a work schedule change and I also credit Cox's assertion that she told Denning later that Griffiths was not calling in sick but just wanted to get someone to substitute for her, but, if not, she would come in. a See G.C. Exh. 2. lo Waitri is a word Respondent used to describe both waiters and waitresses. discharge, Denning informed her he had made up his mind and did not intend to change it. 2. Analysis The General Counsel contends that facts summarized above establish, prima facie, that Respondent discharged Griffiths in violation of Section 8(a)(3) of the Act. I agree as the facts as I view them show that: (1) Griffiths was the principal employee organizer; (2) Denning was aware that the employee was engaged in union activities and he had indicated he was looking for a reason to fire her; and (3) employee was terminated for missing work on April 13 despite the fact that she had arranged for a substitute to work her hours. Respondent claims it rebutted the General Counsel's prima facie showing of a violation by proving that Grif- fiths had called in sick on a sufficient number of occa- sions prior to April 13 to have caused Manager Denning to inform her that in future situations she would be re- quired to produce a doctor's excuse to verify her illness. According to Denning, Griffiths' failure to talk to him personally on April 13 and her failure to bring a doctor's excuse to the meetings on April 14 caused him to dis- charge her. 11 The main difficulty with Respondent's defense is the fact that the record evidence which I credit reveals that Denning was made aware on April 13 of the fact that Griffiths was not attempting to utilize Respondent's so- called sick call procedure but was, instead, merely at- tempting to get a substitute to work her scheduled hours that day. A conclusion that Griffiths was utilizing the schedule change procedure rather than the sick call pro- cedure is bolstered by the fact that Tyrolt rather than an on-call waitress actually worked Griffiths' hours on Sunday, April 13. 2 Denning admitted during his testi- mony that employees had in the past switched hours without obtaining the manager's permission and, signifi- cantly, that no employee had been fired for switching worktimes without permission. In sum, I conclude that Respondent chose on April 13 to treat Griffiths' request that a substitute be permitted to work her hours as a sick call situation. As previously in- dicated, Denning had previously informed Kelm he was looking for a reason to fire the employee because she was engaged in union activities. In the circumstances, I find that Respondent has failed to prove that it would have terminated Griffiths for arranging for a substitute to work her hours on April 13 irrespective of her participa- tion in union activity. Accordingly, I find, as alleged, that Deatra Griffiths was terminated in violation of Sec- tion 8(a)(1) and (3) of the Act as alleged. D. The April 14 and 15 Meetings Respondent Owners Block and Holt met with Re- spondent's employees on Monday, April 14, from ap- I The record reveals that Respondent's employees, including Grif- fiths, are aware of its policy which requires that employees calling in sick are supposed to talk to the manager on duty at the time. 12 The record reveals that Respondent designates certain waiters and waitresses as "onl call" waitri who can be summoned with little notice to work for an absentee employee in a sick call or emergency situation. 913 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proximately 9:30 until 10 p.m. and on the afternoon of the next day two meetings were held with the remaining employees to discuss the situation. Waiters, waitresses, and other personnel attended the Monday meeting and busboys, dishwashers, and others attended the Tuesday afternoon meeting. The complaint alleges that Respond- ent, through Block's comments at the April 14 meeting, "threatened its employees that it would close down its business if its employees selected a union to represent them," and it alleges that Respondent violated the Act during the April 15 meeting when Block repeated the above-described threat and "threatened its employees with unspecified reprisals if they selected a union to rep- resent them." 1. The April 14 meeting The General Counsel's witnesses, Karon Tuttle and Cathy Werner, attended the Monday meeting. Tuttle carried a tape recorder to the meeting in her purse and recorded Block's comments during the meeting. The tape was placed in the record as General Counsel's Exhibit 40 and a transcript of the tape prepared by a court reporter was placed in the record as General Counsel's Exhibit 15. Werner, the head bartendress at Shenanigans, and perhaps the most impressive witness to testify at the hearing, summarized the comments made during the April 14 meeting stating: A. As I said, that is the way Mr. Block, began the meeting. And, he told us that they had talked to their attorneys that morning, and that they had been briefed on what they could and could not say to us. He told us that he did know, there was a union meeting held the night before. And, he said, so I am here to tell you my side, the truthfull [sic] side if you will. He began to speak of the intensity of the competition in the restaurant business. Stating that, restaurants could not exist with the union, in fact Shenanigans could not. If a union came in, five years from now it would no longer be Shenanigans, that we would all be losers. In connotation to that, I guess to get the point across, he told us that unions were like a cancer, that eat at you, and eat at you, and you either do something about it or you die. I guess that was his way of getting a point across to us, that we would all be losers, if the union came in. That the union would force Shenanigans to die out. He talked about some rumors, about the vast amounts of money that they had made, since the place had opened, which was four months at that time. And, he told us that the rumors were not true. And in fact that it would, probably be at least 10 years, before they saw any profits from the place. He told us of a restaurant that he had been in, re- cently, that was a union restaurant. And, then he asked us how would we like to work in an environ- ment like that. He told us, if they had to pay us union wages, that they would have to raise food prices, and that the customers would not pay those prices, and that the customers would go elsewhere to eat. He told us, that there was one place in town, that was a union restaurant, and that being the Sheridan Inn. He said, the only reason that the Sheridan hadn't failed was because they didn't require as many employees as Shenanigans. Mr. Block, did assure us, several times through out the meeting, that he was not threatening us in any manner, he was merely stating facts. He, reminded all of us, of how well we were doing at Shenanigans, and there was a little discus- sion among the employees about how good or bad the tips were, and a mention of the fact that you had to take some of the bad days with the good. He said, well some of us had been doing better before we came to Shenanigans, that maybe we should go back to where we came from. Inspection of the transcription of the tape taken by Tuttle reveals that Werner's summarization of Block's comments made during the April 14 meeting fairly re- flects the general tenor of his comments. Thus, Block in- dicated at the outset of his remarks that, inter alia: The restaurant business involves a great deal of competition, that Respondent needed every edge it could get to exist, and that restaurants have difficulty existing without any adverse conditions. Immediately thereafter, he stated, "Unions do not work in restaurants .... The balance is not there .... If the Union exists at Shenanigans, She- nanigans will fail. That is it in a nutshell."'3 Subsequent- ly, after describing the investment he and Holt had made in the restaurant and the commitments they had made, Block indicated they would not have invested or com- mitted themselves unless they thought there was a future for the restaurant, and he then commented, "But I won't be here if there is a Union within this particular restau- rant. I am not making a threat. I am making a statement of fact."'4 Block then observed that those in the restau- rant business had to watch their expenses, indicated he and Holt had taken no money out of the business, and then indicated that if he had in fact taken $475,000 out of the business in 4 months as rumored that "Then I would be willing to pay whatever the Union might be asking down the road." 1' After noting again that he and Holt would not make anything out of Shenanigans for a long time but that management and the employees appeared to be doing well, Block again stated, "But Shenanigans cannot exist, Dale Holt and I cannot continue on, with a union in here."' 6 Block then indicated that Shenanigans was doing well-that is paying for itself and paying off the liabilities incurred and thereafter commented: I am not here to try to sell Shenanigans. I am here to try to sell our feelings on what we know as far as what we have to do to exist. We cannot afford to pay Union wages. I respect anybody who wants to listen to Union conversations. And I re- spect anybody who wants to join the Union if that '3 See G.C. Exh. 51, p. 4. 14 Id. at 6. '^ Id. at 17. 16 Id. at 9. 914 SHENANIGANS in essence is a workable place and can afford to pay Union wages. We can't in the restaurant business. 7 Observing that the restaurant in town which had union personnel was struggling, Block informed his audience that other places in town were nonunion and, if Re- spondent had to raise menu prices to pay higher employ- ee wages, people would go to the other places. He then observed that he had to pay his bills or he would not be there. At that point, Block stated he considered the Union a cancer, indicating he intended to fight it. From that point on, several members of the audience partici- pated in the discussion. When Block regained the audi- ence again he commented:' Shenanigans can possibly exist with labor prob- lems for a period of time. But in the long run we won't make it. The cancer will eat us up, and we will fall by the wayside. And if you walk into this place five years down the road, if there is a Union in here, then I guarantee you it won't be a restau- rant. I don't know what it will be. But wherever you people will be working in this town, in Deca- tur, it will not be in a Union restaurant. It will be in a non-Union restaurant, because there is a Union in town, it's at the Sheridan, and I think they only use one or two waitresses during the week and maybe three on the weekends. And you get Union wages, and I doubt if you get hardly any tips. I am not making a threat. I am stating a fact. When you are dealing with the Union you had better consider the pros and cons. I am sure there is a lot of pros that are involved. I haven't looked into them in that great of detail because this is my first experience with them. I only know from my mind, from my heart and from my pocketbook how I stand on this. And I don't like the idea of looking at a Union as far as my employees are concerned. During the remainder of his speech, Block reiterated his feeling that unions do not work in restaurants and he re- iterated that in his opinion that Respondent would lose its competitive standing if it had to pay union wages. 2. The April 15 meeting The record reveals Respondent held two meetings with employees on April 15; one with busboys, cooks, and dishwashers and one with hostesses and cashiers. The only evidence offered by the General Counsel con- cerning those meetings was brief testimony of a conclu- sionary nature which was given by employee Marc Karch. Karch indicated that management personnel at- tending the meeting were Cooper, Holt, Block, and Den- ning. Asked what was said during the meeting, the wit- ness answered that "they" said, inter aria: If the union should come in Shenanigans it would result in very few personnel, cause they would have no way of paying the wages, to everyone that was working there now. 7 Id. at 10. ' Id at 17 and 18 They, said, it would result in a vastly and uncom- fortable situations, for some people. Okay, he said, who would be the first one to walk a picket line, on the first day in snow or rain or whatever, and then he said, would you please raise your hand? Analysis As indicated by the General Counsel in his brief (pp. 15 and 16), the U.S. Supreme Court indicated in N.L.R.B. v. Gissel Packing Co., Inc.,19 that employer predictions about the effect of unionization "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable conse- quences beyond his control." The Court indicated its agreement with the lower court's view that "conveyance of the employer's belief, even though sincere, that union- ization will or may result in the closing of the plants is not a statement of fact unless, which is most unprobable, the inevitability of closing is capable of proof." Recently, in Crown Cork & Seal Company, Inc., 255 NLRB 14 (1981), a case in which the employer predicted that pay- ment of union wages would cause the employer to lose its principal customer because that customer would be able to purchase elsewhere at cheaper prices, the Board held that there was no objective factual basis for the pre- diction that employees' selection of the union as their bargaining agent would, per se, increase the employer's labor cost to the point that the customer would be driven away, thus forcing closing of the plant. In the instant case, Block informed Respondent's em- ployees in no uncertain terms that their selection of the Union as their bargaining agent would cause Shenanigans to fail. He did not base his prediction on any objective facts; he merely stated that the competitive situation in the restaurant business produces a situation which will not permit a restaurant to operate if a union represents its employees. It is clear, and I find, that, by predicting during the April 14 meeting that the restaurant would close if the employees selected the Union as their bar- gaining agent, Block threatened employees in violation of Section 8(a)(1) of the Act as alleged. The General Counsel urges me to find that Respond- ent, through Block's conduct, repeated the above-de- scribed threat at the April 15 meetings and he claims, in addition, that Block threatened employees with unspeci- fied reprisals and unlawfully interrogated them. As noted above, the only witness who gave testimony regarding the April 15 meetings was employee Karch. Patently, Karch's testimony is conclusionary in nature and he failed to indicate who made the conclusionary statements he described. In fact, he failed to attribute any particular remarks made during the meeting he attended to Block. Accordingly, I find that the General Counsel has failed to prove that Respondent, through Block's conduct, vio- lated Section 8(a)(l) of the Act as alleged on April 15. '9 395 U S 575, 617 620 (1969). 915 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Respondent's Post-Settlement Actions Involving the Griffiths Pursuant to the terms of a settlement agreement en- tered after the 10(j) proceeding mentioned, supra, Re- spondent reinstated Dee Griffiths with backpay on No- vember 20. As she was pregnant and due to deliver at the time of the hearing, Griffiths was not called as a wit- ness. The parties stipulated that paragraphs 4, 5, and 6 of her pretrial statement s and the transcript of her testimo- ny in the 100j) proceeding2 ' could be treated as substan- tive evidence. Subsequent to the time that Griffiths was reinstated, the General Counsel contends that Respond- ent violated Section 8(a)(1) of the Act by promulgating a rule which prohibits the distribution of union literature on Respondent's premises, and that it violated Section 8(a)(4) of the Act by preventing Ralph Griffiths from visiting the restaurant for the purpose of picking his wife up after work. The General Counsel sought to prove the allegations through the testimony of Dee and Ralph Griffiths. 1. The no-distribution rule In her pretrial statement, Dee Griffiths indicates that, at the time of her return to work at Respondent on No- vember 20, the assistant manager, Tom Baird, told her that "there would be nothing distributed on Company time, nothing in pamphlets put out, that would be imme- diate grounds for discharge." She further indicated that after she returned in November employee Delores Jarett distributed Mary Kay cosmetics pamphlets at Respond- ent and that Jarett showed her a pamphlet while they were both working on one occasion. Finally, she indicat- ed in the statement that she was given an antiunion paper signed hy Barbara Kelly and Lisa Williams on December 30 and was informed that lots of the papers were then stored in the cloakroom located in the restaurant. When Barbara Kelly appeared as a witness, she testi- fied that she and Lisa Williams prepared the antiunion leaflet placed in the record as General Counsel's Exhibit 41. Kelly indicated that when Denning learned of the pamphlets he told her not to pass them out while she or anyone else was on the clock. She claims she did not dis- tribute any of the leaflets while she was on the clock and she did not give any to any employees who were work- ing at the time. Both Block and Denning indicated that Respondent had no rule prior to the union election (January 22, 1981) which prohibited distribution of union or other types of literature on Respondent's premises. Denning indicated he discovered the "Kelly" leaflets in the cloakroom next to the cashiers stand one morning before the restaurant opened and that he thereafter put the leaflets in a brown envelope with Kelly's name on it. He later told Kelly that management did not want it to look like it was dis- tributing the leaflets and told her to distribute them on her off-duty time. Denning testified he was aware of the fact that employee Jarett sold Mary Kay cosmetics, but he did not know she engaged in such activities during her worktime or the worktime of others. 20 Ci C. Exh. 48. 21 G C. Exh. 49 Analysis In Walton Manufacturing Company, 126 NLRB 697 (1960), the Board set forth the general rule to be ob- served in situations involving promulgation and enforce- ment of no-solicitation and no-distribution rules applica- ble to working time (at 698): No-solicitation or no-distribution rules which pro- hibit union solicitation or distribution of union lit- erature by employees during working time are pre- sumptively valid as to their promulgation, in the ab- sence of evidence that the rule was adopted for a discriminatory purpose; and are presumptively valid as to their enforcement, in the absence of evidence that the rule was unfairly applied. Subsequently, in Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962), the Board held unlawful a rule, the reach of which prohibited employees from distributing union literature in nonwork areas during their nonwork- ing time. Most recently, in T.R. W. Bearings Division, a Division of T.R. W., Inc., 257 NLRB 442, 443 (1981), a case involving the legality of a no-solicitation rule, the Board stated: We, however, see no inherent meaningful distinc- tion between the terms "working hours" and "working time" when used in no-solicitation rules. Both terms are, without more, ambiguous, and the risk of such ambiguity must be borne by the pro- mulgator of the rule. Either term is reasonably sus- ceptible to an interpretation by employees that they are prohibited from engaging in protected activity during periods of the workday when they are prop- erly not engaged in performing their work tasks (e.g., meal and break periods). As such, either term tends unlawfully to interfere with and restrict em- ployees in the exercise of their Section 7 organiza- tional rights. In the same decision. it held at 443: In view of the foregoing, we held that rules pro- hibiting employees from engaging in solicitation during "work time" or "working time," without further clarification, are, like rules prohibiting such activity during "working hours," presumptively in- valid. Applying the foregoing teachings in the instant case, I conclude that the no-distribution rule promulgated by Assistant Manager Baird on November 20, 1980, was un- lawfully broad because it prohibited Griffiths from dis- tributing union literature in nonwork areas of the restau- rant during nonworking times such as breaks and meal periods. Assuming, arguendo, that the rationale of T R. W. should not be applied to a no-distribution situation, I would nevertheless find that the no-distribution promul- gated by Baird was unlawful because it is clear that he promulgated the rule for a discriminatory purpose. Thus, the record reveals that prior to November 20 Respond- ent had no rule prohibiting distribution of literature of any type in the restaurant, that the rule was promulgated 916 SHENANIGANS during the midst of the union organization campaign, and that the rule was first announced to the leading union ad- herent in the facility. In the circumstances, there can be little doubt that Baird's purpose in announcing the rule to Griffiths was to curb the employee in the exercise of her Section 7 rights rather than to accomplish some le- gitimate objective. For the reasons stated, I find that the no-distribution rule promulgated by Respondent on November 20, 1980, violated Section 8(a)(1) of the Act as alleged. 2. Respondent's expulsion of Ralph Griffiths from Shenanigans At the outset of the union organization campaign, Ralph Griffiths regularly went to Shenanigans to pick up his wife, Deatra, after work as they had only one auto- mobile. It is undisputed that he would on such occasions normally go to the restaurant early and wait as much as several hours in the bar for his wife to complete her work. During that period, he spoke with Respondent's employees who were working and invited them to join the Union. Griffiths indicated during his testimony that the atti- tude of Respondent's management toward him changed after his wife was fired on April 15. Thus he testified without contradiction that shortly after that date he and his wife went to the restaurant and while there were ap- proached by Dale Holt who told him that his attorney had advised him that he could ask the Griffiths to leave the restaurant if they came there to conduct outside ac- tivities. Holt further stated that they were welcome to come in there to eat and drink. During the summer of 1980, Griffiths indicated he and his wife again visited Shenanigans and sat at a table in the bar. While there, they spoke with some of the em- ployees they had not seen in a while, including employee Gail Cox. 22 At some point, Denning came to their table and advised them that they were not to talk to any on- duty employees. He stated that, if they did it again, they would be asked to leave. Griffiths protested that they were not talking "about any activities," and Denning re- peated he did not want them to talk to employees. On November 20, the day Deatra Griffiths was rein- stated, Mr. Griffiths went to the restaurant with his wife and Erma and Steve Ryan at approximately 5 p.m. Deatra went to work at 5:15 p.m. and Griffiths and the Ryans left at approximately 8 p.m. Griffiths returned to the restaurant at or about 9 p.m. and went to the bar. During the next hour or hour and half, he spoke with employees Gale Cox and Charlene Jones. At approxi- mately 10:30 or 11 p.m., Block approached him and and attempted to bait him by calling him a "fat ass," stating he was really "ugly," calling him "fat ass" again, and asking who he was going to sue that week.23 After a time, Griffiths asked Block if he wanted him to leave, and Block replied he did, that he did not want him in there anymore. 22 The record does not reveal whether the unnamed employees and Cox were working. I assume they were. 23 Block testified he did not recall asking Griffiths who he was going to sue that week I credit Gnffiths. When Griffiths informed the Regional Director that Block had asked him to stay away from the restaurant, the Region sent Respondent a letter stating, inter alia:2 4 You are advised that Deatra Griffiths' husband must be treated the same as other individuals who wait at the restaurant for employees to get off work. This means he may wait as others do for a reasonable period of time inside the restaurant for his wife to get off work as long as he engages in no conduct that would justify Respondent's request for him to leave. After the above-described letter dated November 26 was sent to Respondent, Griffiths visited the restaurant on two occasions. He testified that he did not engage in any conversation with employees during those visits. Grif- fiths did indicate, however, that on November 28 Dee Griffiths sent employee Steve Conrad to see Ralph who was in his car in Respondent's parking lot. After Conrad got in Griffiths' car, the latter solicited his signature on an authorization card. On December 11, 1980, Respondent's manager, Den- ning, sent Ralph Griffiths a letter, the body of which states:2 5 On November 20th, 1980 you were informed by David Block, owner of Shenanigans that you were no longer welcome at Shenanigans and you were asked to leave. Since that time, I have received reports that you have been in Shenanigans several times for reasons other than picking up your wife from work. I cannot allow that to happen any longer. I will not warn you again. If you come in Shenanigans to eat or to drink, you will not be served and will also be asked to leave. If you do not acknowledge the request at that time, other steps will be taken to insure that our wishes are fulfilled. After receipt of the above letter, Ralph Griffiths went into Shenanigans only long enough to ask his wife when she would be through. He then waited for her in his car. Management of Shenanigans have said nothing to him. Analysis The General Counsel contends that by refusing to allow Ralph Griffiths access to its restaurant from No- vember 20 forth to wait for his wife to finish work on the same basis allowed to its other employees' spouses, Respondent violated Section 8(a)(1), (3), and (4) of the Act. He claims in his brief (p. 21) that under the ration- ale of Montgomery Ward & Company, Inc., 256 NLRB 800 (1981), Respondent's conduct was improper. At the outset, I noted that the record in this case clearly reveals that during the union campaign Ralph Griffiths was a nonemployee organizer for the Union. As none of the spouses of other Respondent employees were shown to be union organizers, it does not necessarily follow that Respondent was obligated to extend the same 24 G.C Exh 9. 2 5 G.C. Exh 5 917 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restaurant visitation privileges to Griffiths as were ex- tended to the spouses of other employees. During the years, several name cases have treated the right of nonemployee organizers to visit employers' premises and the concomitant property rights of employ- ers. Thus, in N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105 (1956), in the context of a manufacturing plant facility to which the public was not invited, the Su- preme Court held that access to an employer's plant premises may be denied organizers unless they can dem- onstrate significant difficulty in reaching the employee complement with their message. On the other hand, in Marshall Field & Company,26 the Board held that public restaurants in a retail store are considered nonselling, public areas, rejecting Respondent's contention that it could lawfully prohibit solicitation in its public restau- rants because such activity would disrupt its business. The Board's rationale was: While it is true that sales of merchandise, in this case food, are made to customers in the restaurants, the situation with regard to store restaurants is oth- erwise markedly different from that existing in the admittedly selling portions of the store. Customers patronizing at the restaurants, for the most part, are placed at separate tables and are served by restau- rant employees who are not, and who have not been, the subject of solicitation by the charging Union. The comparative isolation of customers from each other, coupled with the fact that no solicita- tion is carried on among employees on duty in the restaurants, make[s] remote the possibility of sub- stantial interference with the Respondent's business by solicitation of off-duty employees. In Montgomery Ward & Company, Inc.., supra, relied upon by the General Counsel, the Board merely reaf- firmed its holding in Marshall Field finding that the em- ployer could not lawfully exclude nonemployee organiz- ers from its restaurant in a situation wherein the organiz- ers were keeping appointments with off-duty employees who did not work in the restaurant. Patently, the situation presented in the instant case dif- fers from the situations presented in Marshall Field and Montgomery Ward as Griffiths admittedly spoke with on- duty employees of Shenanigans while he was in the fa- cility until he was excluded by Block on November 20. As the Board carefully noted in both of the above-men- tioned cases that the nonemployee organizers were not attempting to talk to or organize restaurant employees, it appears reasonable to assume that had such been the case the Board may have concluded that the rule of Babcock & Wilcox was applicable. In sum, I find that prior to November 20, 1980, Ralph Grif'iths was a nonemployee union organizer who, while visiting Respondent's premises, solicited on-duty employ- ees to join the Union. In my view, Respondent's proper- ty rights outweighed any right Griffiths may have had to engage in such activity at the restaurant. Accordingly, as no showing has been made that Respondent's action 26 98 NLRH 88 (1952), modified on other grounds and enfd. 200 F.2d 375 (7th Cir. 1952). caused the Union significant difficulty in reaching the employee complement with its message, I find that Re- spondent did not violate Section 8(a)(1), (3), and (4) of the Act as alleged by barring Ralph Griffiths from the restaurant. F. The January 20, 1981, Anniversary Party On January 20, 1981, Respondent closed Shenanigans for the evening and held a so-called anniversary party for Shenanigan employees at the Village Inn Pizza Parlor (herein called Village Inn). Ownership of the Vil- lage Inn is vested in a corporation other than Respond- ent, but Holt and Block own the stock of such corpora- tion. The General Counsel claims that Respondent violated the Act in numerous respects at or near the time of the above-described party. Thus, the complaint alleges that the failure to invite Griffiths and Tuttle to the party con- stituted violation of Section 8(a)(l), (3), and (4) and it further alleges that Respondent violated Section 8(a)(1) by: (1) removing prounion leaflets from employees' cars parked at the Village Inn; (2) prohibiting employees and nonemployee union organizers from distributing proun- ion literature in the Village Inn parking lot; (3) physical- ly assaulting union agent Steve Ryan in the Village Inn parking lot in the presence of employees; (4) interrogat- ing an employee concerning his union activities; and (5) promising employees a trip and tickets to a University of Illinois basketball game and thereafter granting such benefit. The allegations are discussed individually below. 1. The alleged failure to invite Karon Tuttle and Deatra Griffiths to the party Respondent's manager, Denning, testified that several days prior to January 20, 1981, he handed a Shenanigans employee, Denise Kull, a list of all Shenanigans employ- ees and requested that she address envelopes to such in- dividuals and use them to mail them invitations to a so- called anniversary party to be held at the Village Inn Pizza Parlor on January 20. Kull testified she followed Denning's instructions and mailed invitations to all em- ployees, including Tuttle and Griffiths, I or 2 days before the party. Kull testified that, when she mailed the invitations, she separated the envelopes by grouping those with a town address and those with an out-of-town address before depositing them in the appropriate slots. Karon Tuttle testified she received an invitation to the anniversary party on January 21 and the envelope con- taining it was postmarked January 20. The envelope used to send Griffiths her invitation was stipulated in the record.2 7 It was postmarked "PM" on January 20. When he appeared as a witness, Respondent's part owner Block candidly admitted that when the party in question was being planned he indicated to Denning that he intended it to be a campaign party and he did not feel that known union adherents Tuttle and Griffiths should be invited. Denning testified that, since the invitations billed the party as a first anniversary party, he ignored 27 See G.C. Exh. 45. 918 SHENANIGANS Block's sentiments and decided that all Shenanigans em- ployees should be invited. Without objection from the General Counsel, Re- spondent adduced hearsay testimony through employee Kull to the effect that four or five Respondent employ- ees, including Rose Carter, a cashier, and Sally, a cock- tail waitress, informed Kull on the day of the party that they had not received invitations to the party. Kull claims she told Carter to tell employees who indicated they had not received invitations everyone was invited. Finally, Tuttle testified, without contradiction, that while she was distributing union literature in the Village Inn parking lot on January 20, she informed Block that she had not received an invitation to the party then in progress. Block replied, "You didn't deserve one, bitch." Analysis Careful consideration of the above facts relating to the party invitations causes me to conclude that the General Counsel has shown that Respondent, through Block's January 20 comment to Tuttle, violated Section 8(a)(1) of the Act. Patently, when Block told Tuttle she had not received an invitation to the party because she did not deserve one, the employee would have reasonably con- cluded she was being punished for engaging in union ac- tivities. With respect to the mailing of the invitations, the Gen- eral Counsel urges, in effect, that I discredit the testimo- ny given by Denning and Kull and find it is unlikely that the postal service failed to process the Tuttle and Grif- fiths envelopes expeditiously. In view of Block's candor in connection with the invitation matter, it would seem to be illogical that Denning would claim that he disre- garded Block's expressed sentiments toward Tuttle and Griffiths unless he really did. Moreover, I must confess I have less faith in the reliability of the postal service than the General Counsel. In sum, while the fact that the en- velopes containing the party invitations addressed to Griffiths and Tuttle were both postmarked January 20 creates a suspicion that Respondent deliberately mailed them during the afternoon of January 20, I am con- stained to find that the General Counsel has failed to prove that such was the case. 2. The parking lot altercation On January 20, 1981, Terry Kelm was the manager of the Village Inn. Kelm testified that, during the afternoon of January 20, he placed a sign in the front window of the restaurant which indicated that the facility would be closed to the public that night. Before the party began, he sent his employees home and turned off the lights in the parking lot. 28 It is undisputed that, at approximately 9 p.m. on Janu- ary 20, Karon Tuttle, union organizer Irma Ryan, and Ryan's husband, Steve, parked their car in the Sheraton Inn parking lot located adjacent to the Village Inn and they proceeded to the Village Inn parking lot where zs The record reveals the parking lot is isolated as opposed to being part of a shopping center. The Village Inn is located near a Sheraton Inn, but the parking lots of the two establishments are distinct and are separat- ed by a grass divider. they placed copies of a leaflet placed in the record as General Counsel's Exhibit 8 under the windshield wipers of cars parked in the lot. At some point, Tuttle pressed a copy of a leaflet against a window of the Village Inn and she was observed by Kelm. Kelm then went out to the parking lot and was given a copy of a leaflet by the trio. Upon inspecting it, he observed that Block would not like it and he requested that Tuttle and the Ryans leave.2 9 The leaflet distributors then went back to their car. Kelm returned to the restaurant and showed Block the copy of the leaflet. Block instructed Kelm to remove the leaflets from the cars in the parking lot and instruct- ed him to let him know if the people came back because he would "kick some ass." Kelm removed the pamphlets as requested. While Kelm was removing leaflets with the assistance of Judy Cox, described to be an assistant manager at Shenanigans, Tuttle and the Ryans watched. Thereafter, they decided to reproduce more leaflets and releaflet the cars in the Village Inn parking lot. After obtaining more leaflets, they returned to the area, parking in the Shera- ton Inn lot again. They then went to the Village Inn lot and started to place more leaflets under the windshields of cars. Kelm observed them and told Block. Block ran from the restaurant and approached Steve Ryan who was then bending over Block's car.30 Kelm instructed Shenanigans employee Beverly Redpath to keep every- one in the restaurant and also went outside. When Block reached Steve Ryan, he asked what he was doing on his car and pushed Ryan down in the snow with his arms. Tuttle and Irma Ryan then rushed to the area and Mrs. Ryan began to address Block using profanity and she swung at him several times. On the third try, she hit Block in the mouth. Block then called Mrs. Ryan a number of vulgar names and demanded that the three in- dividuals get off the property, threatening to call the police if they did not. Tuttle and the Ryans refused to leave, and, at some point, Block shoved Mr. Ryan down again. Apparently, Block and the leaflet distributors argued and exchanged obscenities for 15-20 minutes before Kelm, Holt, and Denning restrained Block and permitted Tuttle and the Ryans to return to their car. According to Tuttle, Shenanigans employees Linda Lehman, Beverly Redpath, Judy Cox, and Deborah Ma- thias came from the restaurant to the parking lot during the altercation. At some point, Holt asked Tuttle how she got mixed up in "this situation." Tuttle replied that she had been mixed up in the Union for a long time. After Tuttle and the Ryans left the Village Inn parking lot, Kelm and Judy Cox again removed the leaflets which had been placed on cars in the lot. Ryan subse- quently reported the incident to the local police and sev- eral policemen appeared at the party later and discussed the situation with Respondent's management. No arrests were made. Ia Tuttle denied that Kelm asked them to leave the parking lot at that time. I credit Keim. 30 Block claimed the tires on his car had been slashed shortly before the date in question. 919 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis The General Counsel claims that Respondent violated Section 8(a)(1) of the Act by preventing the Ryans, who are clearly nonemployee organizers, from distributing prounion literature at the Village Inn parking lot because the Union had no other reasonable means of communi- cating its organizational message to Respondent's em- ployees as Respondent's discriminatory distribution rules prevented the Union from communicating its message to employees at Shenanigans. He further contends that Re- spondent violated Section 8(a)(1) by preventing employ- ee Tuttle from engaging in such activity because she was lawfully entitled to be on the premises. Finally, the Gen- eral Counsel contends that Respondent, through Block's actions, violated Section 8(a)(1) by assaulting nonem- ployee organizer Steve Ryan in the presence of employ- ees. Respondent contends that application of the U.S. Su- preme Court's decisions in N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105 (1956), and Central Hard- ware Co. v. ANL.R.B., 407 U.S. 539 (1972), requires a finding that Tuttle and the Ryans trespassed on the Vil- lage Inn property on January 20 and that they were law- fully prevented from distributing union literature because the record reveals they had adequate alternative means of communicating with employees. Respondent further contends that under the rationale expressed in Stark Ce- ramics, Inc., 155 NLRB 1258 (1968), enfd. 375 F.2d 202 (6th Cir. 1967), Block's physical contact with Ryan should not be held to be violative of Section 8(a)(1). With respect to the trespass issue, the Court held in Babcock & Wilcox, supra, in the context of a manufactur- ing plant facility to which the public was not invited, that access to an employer's premises may be denied to nonemployee organizers unless they can demonstrate sig- nificant difficulty in reaching the employee complement with their message. Citing Republic Aviation Corporation v. N.L.R.B.,3 ' the Court went on to observe that no such restriction can be placed on the employees' right to discuss organization unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. Subsequently in Central Hardware, supra, the Supreme Court applied the rationale of Babcock & Wilcox to find that the employer lawfully prevented non- employee organizers from distributing literature on the employer's store parking lots which were open to the public. Applying the foregoing to the facts in the instant case, I find that Respondent did not violate Section 8(a)(l) by preventing the Ryans from distributing literature in the Village Inn parking lot, but it did violate the Act by threatening employee Tuttle with arrest if she failed to cease her activity and leave the parking lot. With respect to the Ryans, the General Counsel was obligated to prove that the Union should have been per- mitted to trespass upon Village Inn property to distribute literature because it had no effective alternative means of reaching the employees or that others were permitted to solicit or distribute literature on such property and the Union was discriminatorily denied the same rights. In :1 324 US 793. 803 (1945) fact, Tuttle and Ralph Griffiths both testified that they either solicited (Griffiths) or distributed literature (Tuttle) at Shenanigans' parking lot without interference from Respondent, and the record reflects that the Union imparted its message to employees at some 13-14 union meetings held at the Griffiths' house between late March and mid-April 1980. Such facts convince me that the Union was not required to place leaflets on employees' cars at the Village Inn parking lot because they had no satisfactory alternate means of communicating with em- ployees. Similarly, I find that the General Counsel's contention that Respondent discriminated against the Union by al- lowing others distribution privileges to be without merit. Thus, while the record does reveal that Respondent's as- sistant manager, Baird, informed employee Griffiths at the time of her reinstatement that she would be fired if she solicited while on the job at Shenanigans, the no-so- licitation rule thereby promulgated was limited to solici- tation inside the restaurant. As noted, solicitation and leaflet distribution were accomplished in the Shenanigans parking lot without management interference and the record contains no evidence which would reveal that anyone had been permitted by the Village Inn manage- ment or Respondent officers to solicit or distribute any form of literature in the Village Inn parking lot. Application of the principles outlined in Babcock & Wilcox and Republic Aviation to the facts as they relate to employee Tuttle convince me she was unlawfully pre- vented from distributing literature at the Village Inn parking lot. Accepting Respondent's contention that all employees of Shenanigans were invited to attend the so- called anniversary party, it is clear that Tuttle was law- fully on the Village Inn property during the evening of January 20. The employees she wished to communicate with were also on the property and, under the rationale expressed in the above-mentioned cases, Tuttle was per- mitted to communicate with them concerning union mat- ters absent a showing that a restriction was necessary to permit Respondent to maintain production or discipline. No such showing was made. For the reasons stated, I find that Respondent violated Section 8(a)(1) of the Act on January 20, 1981, by pre- venting employee Tuttle from distributing union litera- ture at the Village Inn.3 2 Remaining for discussion is the General Counsel's con- tention that Respondent violated Section 8(a)(1) by as- saulting Steve Ryan in the presence of employees and his contention that Respondent further violated Section 8(a)(l) by removing leaflets from the automobiles of em- ployees. As revealed, supra, Respondent's part owner Block pushed Steve Ryan down on two occasions during the parking lot altercation. Employee Tuttle observed Block's conduct and one can reasonably infer that most '2 Respondent claims that by placing leaflets on vehicles in the Village Inn parking lot Tuttle violated a Decatur ordinance placed in the record as Resp Exh. 3. The ordinance prohibits such activity on "any public street . .. or other public ground . unless the same be rolled or fas- tened or weighted down so it shall not be blown about or scattered by the wind." I find the ordinance to be inapplicable in the circumstances of this case 920 SHENANIGANS of the employees attending the party later learned what had occurred in the parking lot.3 3 A similar situation was considered in Sullivan Surplus Sales, Inc., 152 NLRB 132, 149 (1965), and the Trial Examiner, with subsequent Board approval, found that the employer's president vio- lated Section 8(a)(1) of the Act by assaulting a union representative on the employer's premises after the repre- sentative refused to leave the property.3 4 The normal effect of Block's conduct, which forcibly demonstrated opposition to the Union, is to restrain employees in the exercise of the rights guaranteed in the Act. According- ly, I find that Block's conduct violated Section 8(a)(1) of the Act. 3 5 With respect to the removal of the prounion leaflets from the cars of employees, I note that employee Tuttle lawfully placed a number of those pamphlets on the cars in the lot. By removing those leaflets from the employ- ees' cars, Respondent clearly interfered with Tuttle's at- tempt to exercise rights guaranteed by Section 8(a)(1) of the Act. Moreover, the record clearly reveals that the first leaflets placed on employees' cars by the Ryans were placed before Kelm or Block ordered them off the property. In the circumstances, I find that by removing the prounion leaflets from the cars of employees on Jan- uary 20, 1981, Respondent violated Section 8(a)(1) of the Act as alleged.3 6 G. The Alleged Interrogation of Employee Kim Tescher Paragraph 5(i) of the complaint alleges that Block and Holt interrogated employees concerning their union or other protected concerted activities on January 20, 1981. The General Counsel sought to prove the allegation through testimony given by Kelm. Kelm testified that on the evening of the party a re- tarded employee named Kim Tescher came to the party early and that Holt and Block engaged Tescher in con- versation in his presence. Kelm testified "they" asked Kim if any of the union people had visited him in his home and he said that they had and they talked to him about the Union and left a card. Kelm could not recall whether it was Block or Holt who asked Tescher if the union people had visited him at home. Block testified that Tescher, rather than Holt or him- self, initiated the discussion of the Union on the occasion in question. According to Block, Tescher told him they (union people) had been to his home and they had made him nervous. Block claims Tescher asked him what he should do and that he replied, "There's nothing to do, we're not here to discuss the Union." While Respondent urges me to credit Block's version of the above incident rather than Kelm's version, I found 3s The record fails to reveal whether employees other than Tuttle ac- tually observed Block shove Ryan to the ground. 34 See also N.LR.B. v. H. R. McBride d/b/a H. R. McBride Construc- tion Company, 274 F.2d 124, 126-127 (10th Cir. 1960), and N.L.R.B v. Gibb Corporation, et al.. 297 F.2d 649, 650, 651 (5th Cir. 1962). 3s Stark Ceramics, Inc.. supra, cited by Respondent is factually distin- guishable. There, in a context of strike violence. a supervisor threatened to retaliate against a striker involved in unprotected activity Here, Block attacked Ryan before he told him to leave the property and Block was not reacting to acts of violence engaged in by Ryan. a3 See Dee Knitting Mills, Inc., 214 NLRB 1041, 1049 (1974) Kelm to be the more reliable witness and credit his testi- mony.37 Accordingly, I find as alleged that Respondent violated Section 8(a)(1) of the Act on January 20, 1981, by interrogating an employee concerning his union activ- ities. H. The Alleged Basketball Game Benefit Paragraph 5(j) and (k) of the complaint alleges that on January 20, 1981, Respondent promised to take employ- ees to a University of Illinois basketball game if Re- spondent won the election and that the promise was later fulfilled. The General Counsel sought to prove the alle- gations by calling Block as an adverse witness. Predictably, Block's testimony failed to support the General Counsel's claim. He testified that Respondent had a basketball team and one of the players, employee Joseph Stewart, was quite interested in the University of Illinois team and had never been to one of their games. According to Block, he indicated to Stewart, employee Anthony Muex, and employee Doug Short prior to the tie that the Union filed its petition in Case 33-RC-2697 (on December 22, 1980) that he would take them to a University of Illinois basketball game. Block claims they later decided to go to the Iowa-Illinois game and he ob- tained the tickets at or near January 20, 1981. While Block admitted the above-named employees were told on a date near January 20 that they were going to the game the weekend following the election scheduled in the above-indicated representation case for January 22, he denied that he told employees their trip was depend- ent on the outcome of the election. When Muex and Stewart were called as witnesses during the presentation of Respondent's case, they corroborated Block's testimo- ny. Analysis While the record reveals that Block took only bargain- ing unit employees to the game in question and it reveals that he had never taken employees to a basketball game prior to the occasion under discussion, the General Counsel has failed to adduce sufficient evidence to prove that Block promised to take employees (or took them) to a basketball game to influence their vote in the election as alleged. I recommend that paragraphs 5(j) and (k) of the complaint be dismissed. 1. The Alleged Refusal To Bargain Paragraphs 7 and 8 of the complaint allege, in effect, that since December 22, 1980, a majority of Respond- ent's employees in a specified bargaining unit have desig- nated the Union as their bargaining agent and that Re- spondent, despite the Union's demand for recognition as the employees' bargaining agent, has refused to recog- nize and bargain with the Union. Paragraph 12 of the "7 Kelm was interviewed by a Board agent on February 20. 1981, and signed a statement at that time. He was fired the same day. He subse- quently volunteered to give the Board more information, including his version of the Tescher incident on March 24, 1981 While Kelm may well harbor animosity toward Respondent, his testimony was given in a straightforward manner and I gained the impression he testified truthful- ly 921 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint alleges that such conduct violated Section 8(a)(5) of the Act. Analysis While the General Counsel contends Respondent has refused to bargain with the Union in violation of Section 8(a)(5), the record fails to reveal that the Union ever in- formed Respondent that it represented a majority of its employees in the bargaining unit set forth in paragraph 7(a) of the complaint. While paragraph 7(d) of the com- plaint alleges that the Union requested recognition and bargaining by filing the petition in Case 33-RC-2697, the petition merely indicates that it is supported by more than 30 percent of the employees in the unit described therein. I find that the General Counsel has failed to prove that the Union made a valid request for recogni- tion and/or bargaining and recommend that the refusal- to-bargain allegation be dismissed. J. The Request for a Bargaining Order 1. The appropriate bargaining unit Paragraph 7(a) of the complaint alleges the appropriate bargaining unit to be: All full-time and regular part-time employees em- ployed by Respondent at its Decatur, Illinois restau- rant known as Shenanigans, including waiters, bus- boys, cooks and bartenders, dishwashers, cashiers, hostesses, blackjack dealers, cocktail waitresses, and clean-up personnel, but excluding owners, manag- ers, assistant managers, bookkeepers, casual employ- ees, office clerical employees, guards and supervi- sors as defined in the Act, as amended. Respondent's answer admits, and I find, that the above-described unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union's majority status During the hearing, the General Counsel introduced in evidence some 28 signed authorization cards which were executed by individuals employed by Shenanigans. Re- spondent does not dispute the authenticity of the cards. It claims, however, that the Union obtained an unspeci- fied number of the employees' signatures by representing that they would be charged no union initiation fee if they executed cards before the election, indicating at the same time that those employees joining after the election would be required to pay the full initiation fee. Respond- ent sought to prove its contention through the testimony of employees Steve Conrad and Denise Kull. Kull testified that she attended a union meeting in De- cember 1980, which was also attended by Mrs. Ryan, Dee Griffiths, Karon Tuttle, Mr. Griffiths, Cris McClain, and Steve Conrad. According to Kull, Mrs. Ryan told those attending that employees who joined the Union before the election would not have to pay an initiation fee but those who joined after the election would be re- quired to pay an initiation fee. Conrad testified that Dee Griffiths induced him to sign a card by telling him that, if he did not sign a card and the Union went through, he would have to pay a $55 or $60 fee to join the Union and that any new employee hired would have to pay an initiation fee. Conrad claims Irma Ryan told him the same thing at a union meeting attended by Denise Kull, Tuttle, Cris McClain, the Griffiths, and Irma Ryan. Irma Ryan testified that she uniformly informed em- ployees that those who joined and signed authorization cards before the Union obtained a contract ratified by the employees would not be required to pay an initiation fee, but those joining after a contract had been reached would pay such a fee. During her testimony, Irma Ryan impressed me as being a knowledgeable union organizer. I credit her as- sertion that she told prospective members they would not be required to pay an initiation fee if they joined before a contract with Respondent was ratified. Kull was not an impressive witness and I consider her entire testi- mony to be suspect. While Dee Griffiths was not called to rebut the remarks Conrad attributes to her as her health did not permit her to attend the hearing, I am convinced that Ryan did not tell him he would have to pay an initiation fee if he failed to join the Union prior to the election. Consequently, I find his testimony regarding the initiation fee matter to be inaccurate also. In sum, I credit Ryan rather than Kull and I credit Ryan's denial that she announced at a meeting attended by Conrad that those employees joining the Union before the election would not be required to pay an initi- ation fee, but that those joining afterwards would be re- quired to pay such a fee. Assuming, arguendo, that Dee Griffiths did induce Conrad to sign a card by telling him what he claims, such misrepresentation would affect only Conrad's authorization. As the parties stipulated that the 47 employees named in General Counsel's Exhibit 46 were employed in the bargaining unit on December 22, 1980, and that the 46 employees named in the list placed in the record as General Counsel's Exhibit 47 were em- ployed in the unit at the time of the election on January 22, 1981, I find that the Union has, since December 22, 1980, been designated by a majority of Respondent's em- ployees in an appropriate bargaining unit as their collec- tive-bargaining agent. 3. The representation case and the Union's objections The Union filed its petition in Case 33-RC-2697 on December 22, 1980, and an election was held among Re- spondent's employees in the above-described bargaining unit on January 22, 1981. The tally of ballots revealed: Approximate number of eligible voters-47 Void ballots--I Votes cast for Petitioner-12 Votes cast against participating labor organization-28 Valid votes counted-40 Challenged ballots-3 Valid votes counted plus challenged ballots-43 The Union filed timely objections to the election on Jan- uary 29, 1981, and those objections are now before me for resolution. They are discussed below: 922 SHENANIGANS Objection 1 states, in effect, that on or about January 5 Respondent sponsored the circulation of a document containing various threats, promises, and misrepresenta- tions in the event employees selected the Union as their bargaining agent. Employee Barbara Kelly testified that she and her fellow employee Lisa Williams drafted the document complained of during their off-duty time. After Williams had the document duplicated, Kelly took the copies to the cloakroom where she claims she passed out four or five copies to employees who were off the clock. Re- spondent's manager, Denning, testified that he discov- ered the documents and placed them in a brown enve- lope, instructing the cashier to give them to Kelly. Thereafter, Denning instructed Kelly to remove the doc- uments from the premises and to refrain from passing them out while she or any other employee was on the clock. A copy of the document in question was placed in the record as General Counsel's Exhibit 41. It states: The following is a list of facts and what is likely to happen if a union is brought in to Shenanigans: I. Businessmen do NOT tip union restaurant em- ployees. 2. No bus boys. 3. Cut in employees (cooks; 4 waitri instead of 5 and 6). This means more tables to wait on and waitri will have to bus own tables. 4. Higher wages mean a cut in employees' hours. (Possibly no part-timers). 5. Higher wages mean high food prices, there- fore, less business. 6. Small business unions are not beneficial to part-time employees. (Compared to corporations and large businesses.) 7. Lot of discord among employees. 8. No more changing hours or shifts; no more trading hours with fellow employees. 9. No more switching of jobs, i.e., waitri, cock- tail, cook, bus boy, cashier, hostess, bar-tend. 10. No discount on food or drinks. 11. Strictly-timed breaks in designated areas only. 12. No sitting in the restaurant after clocking out or after hours. 13. No employee under 21 allowed in lounge area. 14. Stricter rules of attire, i.e., hair off shoulders, hair nets, aprons, uniforms. 15. Cannot vote union out. 16. Everyone has to vote against union. 17. Absolutely no eating or drinking during working hours. 18. Union dues. (Reprimands) 19. Forced to buy uniforms (regardless of what the uniform is--T-shirt, aprons . . . ) 20. Turn in uniforms at end of employment or pay for it. (This is if uniforms are furnished.) 21. Part-time employees will most likely go. (Sheraton Inn is an example.) 22. Part-time employees do not benefit from in- surance, paid vacations .... 23. The so-called "job protection" offered by the union is unfair. If someone is not doing his or her job, they don't deserve to be there anyway! Why work with someone who "sluffs off" and uses a crutch like the union "to protect his rights"? While management sponsorship of the preparation and distribution of a document such as the one described above would constitute objectionable conduct, I must conclude on the present record that Respondent has not been shown to have participated in either the preparation or the distribution of the document under discussion. Ac- cordingly, I find Objection I to be without merit and recommend that it be overruled. Objection 2 states: 2. ON THE EVENING OF JANUARY 28, 1981 IN THE PUBLIC PARKING LOT OF VILLAGE INN PIZZA DECA- TUR ILLINOIS AN AGENT OF THE EMPLIOYER COM- MITTED AN ASSAULT AND BATTERY ON A UNION AGENT IN THE PRESENT OF EMPLOYEES OF THE EM- PI.OYER WHILE UNION AGENTS AND EMPLOYEES WERE ENGAGED IN PROTECTED CONSERTED [SIC] ACTIVITY BY DISTRIBUTING HANDBILLS TO EMPILOY- EES GATHERED BY THE EMPI OYER FOR A CAPTIVE AUDIENCE MEETING. FURTHER THE EMPLOYERS AGENT DESTROYED HANDBILI S DISTRIBUTED BY PE- TITIONER TO EMPLOYEES IN THE PRESENCE OF OTHER EMPLOYEES. As I have found, supra, that Respondent, through Block's actions on January 20, violated Section 8(a)(1) of the Act by assaulting nonemployee organizer Steve Ryan in the presence of employees and by causing others to remove prounion literature from the windshields of em- ployees' automobiles, I find Objection 2 to be meritori- ous and recommend that it be sustained. Objection 3 states: 3. ON OR ABOUT JANUARY 20 1981 THE EMPI.OYER UNLAWFULLY INTERROGATED EMPI OYEES ABOUT THEIR UNION ACTIVITIES. The evidence offered in support of this objection was that evidence concerning the interrogation of employee K. Tescher by Holt and Block. Having found, supra, that Respondent unlawfully interrogated Tescher concerning his union activities, I find Objection 3 to be meritorious and recommend that it be sustained. Objection 4 states: 4. ON JANUARY 21 1981 THE EMPLOYER MATERI- AI.LY MISREPRESENTED THE NAMES AND POSITIONS OF UNION AGENTS WHO WOULD REPRESENT EM- PLOYEES IN THE EVENT OF CERTIFICATION, MATERI- Al LY MISREPRESENTED THE RESUI TS OF UNION CERTIFICATION, AND THREATENED) EMPI.OYEES WITH "TROUBI E AND DISCONTENT" IN THE EVENT OF UNION CERTIFICATION. The evidence offered in support of this objection is a document entitled "It's Your Choice," which was placed in the record as General Counsel's Exhibit 44. Respond- 923 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent admits that copies of the document were mailed to employees on or about January 18, 1981. the document states: IT'S YOUR CHOICE So Remember.. So Remember.. So Remember . So Remember.. So Remember. . So Remember . So Remember. So Remember .. So Remember .. I If you did sign the "Union Authorization Card" you are not obligated to vote for the union. 2 It's easy to join a union. How hard is it to quit the union? 3 To consider the people in the union you will be working with. The organizers, Erma Ryan and Ralph Griffiths will be your leaders. Leaders of unions make prom- ises. You must make the promises work. 4 The union's organizers' only real interest in you is in the money it will take out of your pockets to pay their salaries. 5 You and I don't need an outsider constantly stir- ring up trouble. Your viewpoints can be voiced through our open-door policy. 6 To consider the economic effect on a union restaurant trying to exist in a city where no other restaurant is involved with a union. 7 If we say "no" to promises of the union, there could very well be a strike. We will bargain in good faith, but the law expressly provides that we do not have to agree with any union demand. Can you exist without an income during a strike? Note: You cannot receive unemployment compensation if you are on strike! 8 A union survives only by creating a need for itself -- by creating trouble, grievances and discontent. You do not need an outsider to create problems between you and me in order to justify his dues "take." 9 If you reject the union, you will be better off because (1) you will still have your freedom from dictation by outsiders; (2) you will not be paying your weekly dues and other sums to benefit others; (3) you will be free from the threats of strikes and the loss of income and jobs that goes with strikes; (4) and you will not have a restaurant to work in where there are people who have an interest in creating trouble, dissention and grievances in order to justify the union's existence. So Remember . .. 10 When voting to consider the three (3) parties involved. They are the Union, -The Management and You. -The Union: WHO ARE THEY? Are they really trying to help you-or themselves? -The Management: not a Caterpillar or ADM-just a small restaurant trying to survive in a highly competitive business. You: IT'S YOUR CHOICE!! Signed [Shenanigans] Although the complaint does not allege that Respond- ent violated the Act by mailing copies of the above-de- scribed document to employees, the General Counsel as- serts in his brief that items 3, 5, and 8 constitute objec- tional conduct. With respect to item 3, he contends that by labeling Ralph Griffiths an "organizer" and by refer- ring to him as a potential "leader" along with Irma Ryan, Respondent misrepresented a material fact. Having concluded, supra, that Respondent lawfully excluded Griffiths from its restaurant because he was known to have carried on organizational activities among its em- ployees during their working time, I conclude Respond- ent could justifiably conclude he was a union organizer. As the record reveals some 13-14 meetings were held at the Griffiths' home and it reveals that Ralph Griffiths ac- tively participated in such meetings by, inter alia, driving employees to and from them, it is reasonable to assume that employees attending may have concluded he was a "leader." I find that by describing Ralph Griffiths as an "organizer" or a "leader" Respondent did not engage in objectionable conduct. Items 5 and 6 are felt by the Gen- eral Counsel to constitute objectionable conduct because they describe the Union as an organization which stirs up trouble, dissention, and grievances to justify its exist- ence. Noting that the items contain "no threat of repri- sals or force or promise of benefit . .. ," I find the ex- pressions fall within the purview of Section 8(c) of the Act. 924 SHENANIGANS For the reasons stated, I find Objection 4 to be with- out merit, and recommend that it be overruled. Objection 5 states: 5. ON OR ABOUT NOVEMBER 20 1980 AND CON- TINUING AT ALL TIMES THEREAFTER THE EMPLOY- ER VIOLATED THE SETTLEMENT AGREEMENT IN 33- CA-4826 AND CHANGED THE WORKING CONDITIONS OF EMPLOYEES BY BARRING THE HUSBAND OF EM- PLOYEE GRIFFITHS FROM ITS PREMISES. THIS ACTION WAS ALSO A REPRISAL AGAINST GRIFFITHS IN VIO- LATION OF SECTION 8(AX4) OF THE ACT. Having found, supra, that Respondent did not violate the Act by informing Ralph Griffiths he was not welcome to eat or drink in its restaurant, I find the instant objection to be without merit and recommend that it be overruled. Objection 6, the conclusionary objection, states: 6. BY THE ABOVE ACTS AND BY OTHER ACTS AND CONDUCT THE EMPLOYER HAS ADVERSELY AFFECT- ED THE RESULTS OF THE ELECTION AND HAS INTER- FERED WITH THE FREE, UNFETTERED CHOICE OF EMPLOYEES IN SELECTION OF THEIR BARGAINING AGENT. Having found that Objections 2 and 3 are meritorious, I further conclude that by engaging in such objectionable conduct Respondent interfered with the laboratory con- ditions necessary to insure that employees could exercise a free and untrammeled choice in the election held on January 22, 1981. While Respondent's misconduct would normally cause me to recommend that the January 22, 1981, election be set aside and that the Board order that a second election be held, I find hereinafter that issuance of a bargaining order is appropriate in this case. Conse- quently, I recommend that the election held in Case 33- RC-2697 be set aside and that all proceedings in connec- tion with that case be vacated. 4. The request for a bargaining order In N.L.R.B. v. Gissel Packing Co., Inc., supra, the Su- preme Court decided that a bargaining order is proper in cases where the employer's unfair labor practices have the tendency to undermine the union's majority strength and impede the election process, and where "the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected [thereby]." For the reasons stated below, I find that issu- ance of a bargaining order is appropriate in the instant case. In this instant case, Respondent discharged the princi- pal employee organizer, Griffiths, shortly after it learned she was attempting to organize its employees. Immedi- ately thereafter, Block, one of the owners, threatened all Respondent employees by equating the selection of the Union as their bargaining agent with sure closure of the restaurant. As observed by the General Counsel in his brief (pp. 33 and 34), the discharge of known union ac- tivists and threats of plant closure are unlawful acts which have a lasting effect upon employees. Moreover, the instant Respondent continued throughout the organi- zation campaign to demonstrate that it had no intention of permitting employees to exercise their free and unfet- tered choice in a Board-supervised election. Thus it pro- ceeded to destroy the laboratory conditions which should exist at the time of an election by coercing em- ployee Tuttle by telling her she had not received an invi- tation to the so-called anniversary party because she did not deserve one; by promulgating an unlawful no-solici- tation rule during the organization campaign; by interfer- ing with the legitimate distribution of prounion literature on the eve of an election; by assaulting a union organizer in the presence of employees 2 days before the election; and by unlawfully interrogating an employee concerning his union activities during the anniversary party. Each of the unlawful acts described had a tendency to undermine employee support for the Union and impede the election process. Noting the severity of the unfair labor practices committed by Respondent and the fact that it continued to act unlawfully until the eve of the election scheduled for January 22, 1981, 1 conclude that the possibility of erasing the effects of past practices and ensuring a fair election by the use of traditional remedies is indeed slight in the instant situation. In sum, having considered all the relevant facts con- cerning Respondent's unfair labor practices, I conclude that they were sufficiently serious and pervasive in char- acter to preclude the holding of a fair election and to warrant the issuance of a bargaining order.3 s CONCLUSIONS OF LAW i. Village IX, Incorporated d/b/a Shenanigans is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 595, United Retail Workers Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees in- cluding waitri, busboys, cooks, bartenders, dishwashers, cashiers, hostesses, black-jack dealers, cocktail waitresses and cleanup personnel employed at the Employer's De- catur, Illinois facility; but excluding owners, managers, assistant managers, bookkeepers, casual employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for bargaining within the meaning of Section 9(b) of the Act. 4. Since on and after December 22, 1980, the Union has represented a majority of the employees in the bar- gaining unit described above. 5. By engaging in the unlawful acts described in sec- tion III, above, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act. 3s Having found that Respondent continued, after entering the settle- ment agreement in Case 33-CA-4826, to engage in conduct designed to deprive employees of their Sec. 7 rights, I find that tne Regional Direc- tor properly set aside such settlement agreement. Prnceton Sportswear Corporation of Pennsylvania, 220 NLRB 1345 (1975) 925 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes and policies of the Act. Having found that issuance of a bargaining order is ap- propriate and necessary for the reasons set forth above, it shall be recommended that Respondent be ordered to recognize and bargain in good faith with the Union as the exclusive representative of the employees in the ap- propriate bargaining unit described in Conclusion of Law 3, and, if an understanding is reached, to embody such understanding in a signed agreement. Since Respondent's violations are egregious in nature, in addition to cease-and-desist provisions addressed to specific conduct, a broad cease-and-desist provision is warranted. a9 Upon the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursu- ant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 40 The Respondent, Village IX, Incorporated d/b/a She- nanigans, Decatur, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their union ac- tivities or sentiments. (b) Threatening employees with closure of Shenani- gans if they select the Union as their bargaining agent. (c) Promulgating or enforcing a no-distribution rule which prohibits the distribution of union literature in nonworking areas of the restaurant during the nonwork- ing time of employees involved. (d) Prohibiting employees lawfully on premises from distributing union literature by threatening to have them arrested or by destroying their literature. a3 Cf. Hickmott Foods. Inc., 242 NLRB 1357 (1979). 40 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (e) Telling employees engaged in union activities they were not invited to a social function for all employees because they did not deserve to be invited. (f) Assaulting nonemployee organizers in the presence of employees. (g) Discouraging employees from joining or participat- ing in activities on behalf of Local 595, United Retail Workers Union, or any other labor organization, by dis- charging them because they join or support a union. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, recognize and bargain with Local 595, United Retail Workers Union, as the exclusive rep- resentative of all employees in the appropriate bargaining unit, and, if an understanding is reached, embody same in a signed document if asked to do so. The appropriate unit is: All full-time and regular part-time employees in- cluding waitri, busboys, cooks, bartenders, dish- washers, cashiers, hostesses, black-jack dealers, cocktail waitresses and clean-up personnel em- ployed at the Employer's Decatur, Illinois facility; but excluding owners, managers, assistant managers, bookkeepers, casual employees, office clerical em- ployees, guards and supervisors as defined in the Act. (b) Post at its place of business in Decatur, Illinois, copies of the attached notice marked "Appendix." 4t Copies of said notices, on forms provided by the Region- al Director for Region 33, after being duly signed by Re- spondent, shall, be posted by it 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. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 926