The Catalyst

THE CATALYST Randall P. Kane, Inc., d/b/a The Catalyst and Hotel, Motel, Restaurant Employees & Bartenders Inter- national Union Local 483. Case 20-CA-11333 June 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On March 15, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel submit- ted his brief in support of that decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Randall P. Kane, Inc., d/b/a The Catalyst, Santa Cruz, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We affirm the Administrative Law Judge's finding that Respondent should be required to bargain, but modify the date of the bargaining order to the date of demand, April 19, 1976, rather than the date Respondent began its unlawful course of conduct, April 5, 1976, since all the violations committed prior to that date are otherwise remedied by our adoption of the Administrative Law Judge's Order. Trading Port, Inc., 219 NLRB 298 (1975). Chairman Fanning agrees with this result for the reasons set forth in his concurrence in Beasley Energy, Inc.. d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Santa Cruz, California, on January 10, 11, 12, and 18, 1977. The charge was filed on April 19, 1976, and amended on May 17 and 25 and June 1, by Hotel, Motel, Restaurant Employees & Bartenders Inter- national Union Local 483 (Union). The complaint issued 230 NLRB No. 54 on August 19 was amended during the hearing and alleges violations by Randall P. Kane, Inc., d/b/a The Catalyst (Respondent), of Section 8(aX)(1), (3), and (5) of the National Labor Relations Act (Act), as amended. The parties were permitted during the hearing to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Posttrial briefs were filed by the General Counsel, by Respondent, and by the Union. I. ISSUES The issues are whether Respondent: 1. By admitted Supervisor/Agent DePew (Eddie) McShan and alleged Supervisor/Agent Robert Widin, made various statements in April and May 1976 that were violative of Section 8(a)(1). 2. Discharged Tony Rice and Peter Puhl on April 14, 1976; and, if so, whether those discharges violated Section 8(aX3) and (1). 3. Violated Section 8(aX3) and (1) by its discharge of Peter Puhl on May 5, 1976. 4. Violated Section 8(aX)(5) and (1) by refusing to recognize the Union as the bargaining agent of its employees. n. JURISDICTION Respondent is a California corporation engaged in the operation of a bar and restaurant in Santa Cruz. Its annual gross income exceeds $500,000, and it annually purchases directly from out of State goods and materials valued in excess of $10,000. It is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. m. LABOR ORGANIZATION The Union is an organization in which employees participate and which exists for the purpose of representing employees in collective bargaining with employers con- cerning terms and conditions of employment. It is a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The events in question occurred during the "shakedown" period following Respondent's move to new and larger quarters. The new place opened for business on St. Patrick's Day, March 17, 1976. About 86 employees were employed at relevant times in the performance of the various services that go with a bar/restaurant/live-enter- tainment operation. In late March, one of the employees, alleged discrimina- tee Tony Rice, inquired of an official of the Union about union representation; and, on April 1, Rice and alleged discriminatee Peter Puhl, along with coworker Jack Ryerson and a couple former employees, met with Robert Gamberg, the Union's business manager, to pursue the matter. Gamberg provided Rice, Puhl, and Ryerson with blank union pledge cards and instructed them to solicit the signatures of their fellow employees. 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some 51 employees signed cards between April I and 13.1 On April 19, Gamberg sent a letter to Randall Kane, Respondent's president and owner, asserting that the Union "represents a majority of the employees working in your establishment," and "requesting a meeting to negoti- ate a collective bargaining agreement." Gamberg's letter closed by asking that Kane contact him "to arrange a mutually convenient time and place to meet." Kane did not reply. B. The Alleged Independent Violations of Section 8(a)(1) 1. The first and second allegations Paragraphs 6(a), 6(b), and 12 of the complaint allege that, on April 5, DePew (Eddie) McShan, Respondent's general manager, "threatened employees with discharge of fellow employees because of their support for the Union," and "created the impression that employees' union activi- ties were under surveillance by telling them that Respon- dent was aware of their union activities," thereby violating Section 8(a)(X) in each respect. Facts: The aforementioned Peter Puhl was responsible for customer admissions the night of April 4-5. After closing, McShan commented to Puhl that there was a discrepancy of about 200 between those admitted that night and the number of admissions recorded by the counting device Puhl had used. McShan stressed the need to comply with fire code restrictions on crowd size; and reminded Puhl that, because of the high cost of acts being booked into the new place, Respondent had abandoned its former policy of permitting each employee to invite one guest to the shows free of the cover charge. Thinking that McShan was "questioning my integrity," Puhl took umbrage. The conversation became heated. Puhl attacked the new policy on guests as well as the general erosion of employee rights since the move. This prompted McShan, as Puhl recalled, to say something about Puhl's "going around and unionizing the busboys." McShan added, according to Puhl, that the employees did not need a union and Puhl disagreed, saying that they did not even get overtime pay. Puhl's version continued that McShan presently said: We'll fire all the busboys and hire Mexicans and Filipinos and they can work for $1.30 an hour and do twice the work. Frank Ryerson, also previously mentioned, testified of a conversation with McShan during the first week in April in which McShan mentioned that Puhl has "been trying to organize the busboys." McShan did not address himself, in his testimony, to the comments attributed to him by Puhl and Ryerson about Puhl's organizing the busboys. Concerning the alleged discharge threat, McShan testified that he stated to Puhl and two others, in a moment of frustration over their lack of industry: I The manner in which the signatures were solicited is described later. 2 Par. 6(d) was withdrawn by the General Counsel; and par. 6(e) was dismissed, without objection, for want of supporting evidence. All you overeducated honkies back in here think you are working and don't know what work is. I can go over there into Mexico and get a bunch of wetbacks and [sic] don't know nothing and in two days I'll teach them how to run this place and one of them will be worth three of you. According to McShan, this was not part of his conversation with Puhl after closing on April 5. Puhl and Ryerson are credited, there being no denial, that McShan made the references to Puhl's organizational activities. And Puhl is credited that McShan's statement about bringing in Mexicans occurred during that portion of their April 5 discussion concerning Puhl's organizational activities and related matters. Although both impressed me as generally conscientious witnesses, Puhl's recall was more impressive than McShan's. Conclusions: It is concluded that McShan's comments about Puhl's organizational activities imparted an impres- sion of surveillance as alleged, violating Section 8(aX)(). It is further concluded that either version of McShan's remark about bringing in foreigners, while probably not intended or construed to be a literal threat of discharge as alleged, nevertheless carried an intimidating thrust in the context made, thereby violating Section 8(aX 1). 2. The third allegation Paragraphs 6(c) and 12 of the complaint allege that, between April 5 and 13, McShan "interrogated employees about their union activities," thereby violating Section 8(aXl). Facts: McShan testified that, sometime after the organi- zational onset, he asked an employee, Kevin Samuels, if he had signed a union card, and Samuels refused to answer. McShan elaborated that his children and Samuels are friends; that Samuels frequently was in the McShan home as a consequence; and that he, McShan, could not recall if this interrogation occurred at work or in the home. Conclusion: It is concluded that McShan's questioning of Samuels, regardless of where it happened and of the informality that may have obtained because of Samuels' friendship with the family, violated Section 8(aXl) as alleged. 3. The fourth and eighth allegations Paragraphs 6(f),2 6(j),3 and 12 of the complaint allege that, in April and May, Robert Widin "interrogated employees about their union activities," and "threatened employees with cessation of operations if the employees selected the Union as their collective-bargaining represen- tative," thereby violating Section 8(aXl) in each respect. Facts: David Henderson testified that, shortly before a union meeting in May, Widin asked him if he planned to attend; and that, later in the conversation, Widin stated that Kane "would just as soon shut the place down than have a union." Widin admitted, in his testimony, that he asked several of the employees about a union meeting to be held at 3 Errors in the transcript have been noted and corrected. 356 THE CATALYST McGuire's Tavern in May, adding that he even tried to attend, but was refused admission. He wished to attend, he claimed, "because I was prounion and I was curious as to what was going on." Concerning the conversation of which Henderson testified, Widin testified that he commented on the good and bad of union representation in response to questions by Henderson. Widin denied ever raising the prospect of Kane's shutting the place down. The only significant variance between Henderson and Widin concerns the alleged shutdown remark. Widin is credited that he said nothing of the sort. Had he been inclined to such comments, it would seem likely that he would have made them to others than Henderson, and there is no testimony that he did. Beyond that, while Widin did not seem overly committed to the truth, especially in testimony going to his supervisory status, his overall demeanor was more favorable than Henderson's. Conclusions: It is concluded that Widin's queries about the union meeting violated Section 8(aXI) as alleged.4 There being no credited evidence, however, that he mentioned the possibility of a shutdown, the allegation that he thereby violated Section 8(aX1) is without merit. 4. The fifth allegation Paragraphs 6(g) and 12 of the complaint allege that, on or about April 14, McShan "threatened employees by stating it [Respondent] would not rehire its employees described in Paragraph VII below [alleged discriminatees Rice and Puhl] unless they abandoned their support of the Union," thereby violating Section 8(aX1). Facts: On April 23-some 9 days after his alleged discharge-Rice delivered a document to McShan setting forth Rice's idea of changes Respondent should make to "eliminate a lot of problems giving rise to dissatisfaction in the work force." The document proposed, among other things, that a new job description be created for Rice, and that he receive an hourly wage of $3.50. Upon leaving the document with McShan, Rice said he would not return to work until his demands were met. McShan replied that he had no authority in that regard; that it was up to Kane. McShan then suggested that Rice come back and, after the "bugs" had been worked out of the new operation, "then we'll work out all these things." McShan continued, as reported in his pretrial affidavit: 4 The complaint alleges and the answer denies that Widin at relevant times was a supervisor and/or agent of Respondent. Widin's primary occupation is as a property man for Paramount Pictures in Hollywood. For some 7 years, however, between assignments at Paramount. he has worked for Respondent. Thus, from early April through late May 1976, while waiting for production of a television series, "Serpico," to begin, he worked for Respondent. He was in charge of the busboys on the day shift during that time, and "did a little of everything"-bussed tables, put stock away, tended bar, even washed dishes once in a while. Kane testified that Widin was responsible for seeing "that the busboys performed all their duties"; that Widin was empowered to make employees remain on a job until it was finished: and that he had the authority to recommend hiring and firing. Kane's pretrail affidavit states, moreover, that Widin himself could hire and fire. Concerning hiring and firing, however, Kane testified that all the employees had the same authority. Widin testified that he had authority to tell employees to take baths and what clothes to wear; and his pretrial affidavit likewise states that he could hire and fire. Widin testified, much as Kane had in that regard, that he had no more authority "than any other old I told Rice that if they will drop the union, stop playing dirty pool, nothing would come of it. They could come back to work, no one would be fired, there would be no reprimands. And if the employees wanted an in-house association, they could have it. McShan adopted this passage in his testimony, clarifying that the "they" he referred to was Rice. He could not have been referring to Puhl, for Puhl was working regularly for Respondent at the time.5 Conclusions: The overall context of the conversation, coupled with McShan's seeming insensitivity to verbal nuance, indicates that it was not his intent to condition Rice's job status upon dropping the Union, but rather to assure him that he was welcome to return; that there would be no reprisals; and that the causes of his dissatisfaction would be dealt with as circumstances permitted. Even so, McShan must be held accountable for the literal meaning of his words, as opposed to his intent, which can fairly be read as commingling unlawful conditions, threats, and promises. Respondent therefore violated Section 8(aXI) as concerns this conduct. 6 5. The sixth allegation Paragraphs 6(h) and 12 of the complaint allege that, on or about April 15, McShan "threatened employees with loss of economic benefits and more onerous working conditions if employees selected the Union as their collective-bargaining representative," thereby violating Section 8(aX)(1). Facts: McShan admitted in his testimony that David Henderson and two other employees asked him what he thought would happen if the Union got in; and that he replied that "there would be dress codes, rules and regulations, and everything to go by," that the employees would be making less than the minimum wage after paying union dues and for their food, and that the employees might lose such benefits as free food and drinks. Conclusion: McShan's remarks must be regarded as more in the nature of retaliatory threats than good-faith predictions of the likely result of bargaining, and therefore violated Section 8(aX)(1) as alleged. employee." Allowing for a considerable degree of unconventionality in the way Respondent runs its business, this testimony is rejected as patently absurd. Indicative that Widin had power to fire, he gave Robert Lie an ultimatum to improve his personal cleanliness within a week or be fired, prompting Lie to quit. Kane testified that he had no recall of directing Widin to do this; and Widin testified: "I did it on my own." It is concluded, weighing all the evidence, that Widin was a statutory supervisor. s McShan is credited that the conversation was substantially as related herein. Rice, interestingly, denied that McShan made the assertions on which the allegation of violation is based, also denying that he placed conditions upon his return to work. McShan, as previously noted, came across as a conscientious, if sometimes imprecise, witness, while Rice seemed inclined to tailor with an eye to the eventual outcome of the case. 6 Although Rice's employment relationship with Respondent arguably had ceased by the time this incident occurred, he remained an "employee" within Secs. 2(3) and 8(a)(1) of the Act. Little Rock Crate & Basket Co., 227 NLRB 1406(1977). 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The seventh allegation Paragraphs 6(i) and 12 of the complaint allege that, on various dates in April and May, Widin "threatened employees with loss of economic benefits and more onerous working conditions if employees selected the Union as their collective-bargaining representative," there- by violating Section 8(a)(1). Facts: Frank Ryerson testified that Widin invited him to the Oak Room Tavern for drinks on April 30, 7 whereupon Widin raised the subject of unions. Widin stated, according to Ryerson, that unions in general are "very good," but that the Union "was really a bad union." Widin added, as Ryerson recalled, that, should the Union get in, Kane could make the employees get haircuts and wear suits, could impose "horrible" work schedules, could eliminate the employees' free-food privileges, and could require the employees to pay for every drinking glass that was broken. Finally, Ryerson testified, Widin said that everyone but the bartenders would get less money than before. s Another employee, Lawrence Montoya, testified of three conversations with Widin in May, all "basically the same," in which Widin said it would "be hell" when the Union got in-there would be less wages for more work, a dress code would be imposed, and haircuts would be required. Concerning the Ryerson conversation, Widin testified that his remarks were in response to Ryerson's asking his opinion about unions, and that "I told him a lot of what I thought were good things about unions and what I thought were bad things as far as The Catalyst goes .... " Widin assertedly told Ryerson that, if Respondent's employees had union representation, it was his opinion "that wages would increase, that maybe, maybe not we would get health and welfare. .... I said you don't get anything until you sit down and talk to these guys. You don't know what you are going to get ... ." Widin further told Ryerson, according to his testimony, that the advent of a union "could make things unpleasant"; that it would not mean that Kane "can't place people where he wants" concerning scheduling and assignments; and that it "would tend to impersonalize it [The Catalyst], take away a lot of liberties, a lot of little things that you can do there that you can't get away with at most jobs .... " Widin denied saying wages would be less. Widin could recall only one conversation with Montoya, testifying that his comments on that occasion also were in answer to being asked his opinion of unions and what it was like to work in a union shop. 9 He reputedly stated that a union "would depersonalize" The Catalyst and cause a loss of "personal liberties," such as being able to call in on short notice that one would miss a few days' work; that wages would go up; that Kane "could possibly put a dress code into effect"; that the hours of some of the employees might be cut back; and that, if any of the employees should be laid off, the Union was not likely to be of help in locating new work for them. Widin testified that he qualified his opinions by saying no one could be sure what I Ryerson placed this conversation on the night of the Ali-Jimmy Young prizefight. The San Francisco Public Library advises that the fight was on April 30. 8 Ryerson was a bartender. 9 Widin intimated in his testimony that the employees viewed him as might happen- "these things could happen when we sit down and bargain." He denied telling Montoya there would be less wages for more work. The chief difference between Widin's testimony and that of Ryerson and Montoya is that he would have it that he couched the possible changes in terms of the bargaining process, while their versions make no mention of this qualification. Their testimony, in addition, attributes to Widin the prospect of reduced wages, and he denied saying that. Although conveying the impression of high compe- tence, Widin seemed at times to be using his talents to conceal rather than reveal the truth. This was particularly shown by the farfetched character of some of his assertions relating to his supervisory status, previously mentioned. Ryerson and Montoya, on the other hand, impressed me as being both reasonably capable and reasonably conscien- tious witnesses. They are credited in those instances that their testimony disagrees with Widin's. Conclusion: It is concluded that Widin's remarks to Ryerson and Montoya about the adverse consequences of union representation were more in the nature of retaliatory threats than good-faith predictions of what bargaining might bring, and thus violated Section 8(aXl1) as alleged. 7. The ninth allegation Paragraphs 6(k) and 12 of the complaint allege that, on or about May 22, McShan "threatened employees that Respondent would seek to terminate unemployment benefits of former employees because of their activities in support of the Union," thereby violating Section 8(aXl). Facts: Ryerson testified that, in late May as they were leaving work, he asked McShan why Respondent had reported to the state agency handling unemployment compensation that a former employee, Richard Webb, had quit instead of the fact that he had been laid off. McShan replied, according to Ryerson, that Webb had been "behind the Union"; lo and that, if "they play dirty," Respondent would use "every dirty trick in the book." David Henderson testified that, sometime in May, McShan told him that, if the union campaign continued, he was going to see to it that Peter Puhl, Larry Montoya, and Webb were jailed for welfare fraud. McShan's version of the Ryerson conversation, which he placed in April, is that Ryerson complained to him that Kane was "playing politics" against Webb by opposing a 13-week extension of Webb's unemployment benefits; and that McShan countered that Kane could have done much worse than that by Webb had he "wanted to play dirty." McShan denied the remarks attributed to him by Hender- son. As is mentioned elsewhere in this Decision, McShan comported himself credibly on the witness stand, readily admitting some instances of misconduct. Henderson, as earlier noted, was not notably impressive in demeanor, and Ryerson's testimony just related suggests that he miscon- something of an expert on union representation by virtue of his being represented by a union in his employment with Paramount. 1' Although not on the payroll at the time, Webb attended the April I meeting--in fact, provided the facility where it was held-that marked the organizational onset. 358 THE CATALYST strued McShan's reference to playing dirty. McShan is credited in all respects concerning this allegation. Conclusion: The testimonial base having been discredit- ed, this allegation is without merit. C. The Alleged Violations of Section 8(a)(3) I. Facts The alleged April 14 discharges of Rice and Puhl. Rice was hired in August 1975. He began as a busboy, later doing occasional bartending. When Respondent moved to the present location in mid-March 1976, Rice was installed as a barboy. On the second night, professedly "tired of the bar politics," he asked McShan to switch him to security. His request was granted, and Rice thereafter did such things as maintain order on the dance floor, check ID cards to protect against the infiltration of minors, etc. In the last several days of his employment, he mainly checked hand stamps at the door to the dancing area so that no one escaped the cover charge. Puhl was hired in June 1974. At the present location, he was a combination doorman/floorman, collecting cover charges, checking ID's, wiping tables, bouncing, etc. The events in question began to unfold after the 1:30 a.m. closing on the night of April 13-14, 1976. One of the employees, Scott Garvin, informed Kane that Rice and Puhl "want to start a union." Garvin then sought out Rice and Puhl, who had just walked out the door, suggesting that they speak with Kane about the union situation. Garvin evidently undertook this without suggestion from Kane." As earlier indicated, and as will be more fully detailed later in this Decision, Rice and Puhl were among those to meet with the Union's Gamberg on April 1, and since had been active in seeking employee signatures on union cards. Rice and Puhl reentered the premises and went to see Kane, only to be told by him that he did not want a "confrontation" that night. It was decided that they instead should meet at 9 o'clock that same morning, and Rice and Puhl again began to leave. They had not gone far, however, when Garvin caught up with them and said that Kane had decided to see them than, after all. The two returned to Kane, who was standing at the bar. Garvin stood perhaps 5 feet away during the ensuing conversation, and several other employees were in the general area. Kane had had about eight bottles of beer that evening, which he termed "an occupational hazard if you are a saloon keeper." Kane shook hands with Rice and Puhl and asked where they wanted to begin. Rice responded that there was much employee discontent over "certain inequities" as between the bartenders and the busboys. He elaborated that, while the bartenders were " Garvin testified: "I was really feeling upset because a lot of the employees ... were not getting along with each other... I thought I was being a mediator or something." 12 This is a selective adoption of the testimony of Rice, Puhl, Kane, and Garvin. According to Rice and Puhl, Kane further stated, at the end of the conversation, that they should get a lawyer and sue him. Kane denied inviting them to sue him, and Garvin testified that there was no such mention. Garvin admittedly was not sure of all the details of the conversation because of the passage of time; and it was obvious, apart from the difficulties inherent in recalling the precise verbiage of an emotionally allowed to drink "as much as they pleased" without paying, the busboys had not been permitted, since the move, to have free beer or to invite their friends into the dancing area free of the cover charge. Rice continued that the employees "needed some kind of an organization to be able to ... deal with grievances and things like this," and that the Union "would get the whole trip together." At or about that point, Kane asked what was in the Union's contract. Rice answered that he was not qualified to say, but that he knew there was provision for health insurance. Kane asked where he was "supposed to get the f-g money" for that, and Rice opined that "half comes from the union and half from the employer." Rice added that Kane was "probably getting ripped off"--i.e., being stolen from-by the bartenders, and that more money would be available "to pay the people on the bottom" if Kane "tightened up his act at the top." Rice proposed that Kane hire a certified public accountant to audit the bar operation, to which Kane asked if he had any idea how much CPA's charge after midnight. Kane asked at length if Rice and Puhl believed that "all that glitters is gold"; adding that he had built the new place for fun, as a "toy," not for commerce. Rice responded with some vague reference to Federal laws; and Kane, admit- tedly "agitated and exasperated," shouted that they were "morons and imbeciles," without any concept of money, and that they should "get the hell out" and go find a job, or words to that effect. Rice and Puhl promptly left. The exchange lasted 10 to 15 minutes.' 2 On the afternoon of the same day, April 14, John Singleton, Respondent's counter manager and an admitted supervisor, asked Kane if Puhl had been fired. Kane answered in the negative, and Singleton said: "Well, he doesn't want to come back unless he talks to you because he is worried." 13 Kane told Singleton to tell Puhl "to come talk with me." Singleton conveyed the good news to Puhl, who came to see Kane later that afternoon. Kane apologized for "blowing up last night," and assured Puhl that his job was still there. Kane said he had always done his best for the employees "as far as distributing the largesse" of the business, and voiced the hope that the new place would be a better moneymaker than the old. Puhl said he was not so concerned about money as medical coverage, and Kane responded that he had checked into medical programs and found that they "weren't feasible." The conversation closed with Puhl asking to be excused from work that night, explaining that emotional distress from the previous night's encounter had prevented his getting proper rest. Kane consented. Puhl returned to work the night of April 15, missing only the one shift, remaining until discharged on May 5. That discharge is described later. charged exchange, that Rice, Puhl, and Kane were laboring under the same disability. Regardless, Kane and Garvin are credited that Kane did not make that particular statement. Kane especially came across as possessive of fairly good recall and as being disinclined to partake of self-serving falsehood. The testimony of Randolph Jamal and Thomas Schneider, called by Respondent to corroborate Kane, is given no weight for this purpose, neither having been near enough to effectively observe. 13 Earlier in the afternoon of April 14. Rice and Puhl had met with Singleton to consider an inhouse union for Respondent's employees, as an alternative to the Union. 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also on April 14, at or about noon, Rice visited McShan in McShan's office. To Rice's question if he had been fired, McShan answered: "I don't really know what happened last night, but as far as I know, you're not fired." Rice declared that he would not return under existing circum- stances; that he wanted union representation and union benefits, and would not return unless he got them. McShan urged Rice to stay on the job-"we can work things out"-- and the conversation ended.14 McShan then reported to Kane that he had told Rice he still had his job, asking if that was all right. McShan added he did not want to lose Rice as an employee. Kane replied that this was fine with him. On April 16, not a normal payday, Rice called on Kane, requesting his pay. Kane prepared a check on the unstated assumption that Rice was signifying his intention to quit. The attendant conversation, as Kane recalled, was "mini- mal." 15 Rice devoted the next several days to the preparation of a 4-page, single-spaced, typewritten document which contained, in his words, "a list of changes that, if implemented in The Catalyst, would eliminate a lot of problems giving rise to dissatisfaction in the work force." Rice delivered copies of the document to McShan on April 23, asking that McShan in turn furnish one to Kane. He also delivered copies to various of the employees to be affected by his proposed changes. The document proposed, among other things, that a new job description be created for Rice, and that he receive an hourly wage of $3.50. Upon leaving the copies with McShan, as previously described,16 Rice said he would not return to work until his demands were met. McShan replied that he had no authority in that regard; that it was up to Kane. McShan then suggested that Rice come back and, after the "bugs" had been worked out of the new operation, "then we'll work out all these things." McShan continued, as reported in his pretrial affidavit: I told Rice that if they will drop the union, stop playing dirty pool, nothing would come of it. They could come back to work, no one would be fired. There would be no reprimands. And if the employees wanted an in- house association, they could have it. As earlier mentioned, McShan adopted this passage in his testimony, clarifying that the "they" he referred to was Rice. Rice never did return to work, and there apparently was no further communication between him and officials of Respondent. The May 5 discharge of Puhl: Puhl continued on the job until May 5, when he was discharged by Kane at the start of his shift. Sometime before the discharge, possibly earlier the same day, Puhl and Widin had clashed over Widin's part in causing Robert Lie and Kevin Samuels to leave the 14 McShan is credited that Rice asked if he had been fired, and that McShan answered in the negative. Rice testified that he could not recall asking the question and that McShan did not-"absolutely not"-say he still had a job. McShan, as earlier noted, was a generally credible witness. Rice, on the other hand, gave the distinct impression of being less than candid in the interests of enhancing his case. 1s Rice's testimony that this occurred on April 14 or 15, and that Kane said "groovy" when Rice asked for his check is discredited. Respondent's payroll.1 Puhl accused Widin of stabbing Lie and Samuels in the back, and of "causing a lot of problems around there." Widin countered that Puhl was "disrupting the smooth flow of work" by taking busboys aside and "talking about whatever he was talking about"; that Puhl was "getting involved in things that didn't concern him" regarding Widin's activities; and that "that was the kind of attitude that he [Puhl] could lose his job over." Widin told Kane of his quarrel with Puhl; and, when Puhl reported for work the evening of May 5, Kane stated to him: "Seeing how we feel about each other, let's sever our relationship." Kane recalled explaining that he was "really tired of his [Puhl's] interfering with the day-to-day operations of the place . .. and of his spending all his time talking when he was supposed to be working." The next day, when Puhl called for further elaboration, Kane stated that Widin had every right to fire Lie and Samuels; that he, Kane, had become annoyed by Puhl's talking to other employees when he and they were supposed to be working; and that he "could not stand being vilified" by Puhl. In this regard, Kane testified that he had reached the conclusion, based upon reports back to him, that Puhl had been "buttonholing employees about the union and bad-mouth- ing" him. 2. Conclusions The alleged April 14 discharges of Rice and Puhl: The bedrock issue, concerning this allegation, is whether Kane in fact discharged Rice and Puhl during the early morning hours of April 14. It is concluded, in agreement with Respondent, that he did not; and, therefore, that the allegation is without merit. True, Kane was upset by Rice's espousal of union representation and benefits; true, he disparaged Rice and Puhl as "morons and imbeciles"; and true, he brought the conversation to an abrupt end by loudly ordering them to "get the hell out" and go find a job. Kane's concluding thrust, in particular, was arguably suggestive of an intent to discharge. Even McShan and Singleton were prompted to verify with Kane, later, that Rice and Puhl had not been fired. On the other hand, without belaboring semantics, Kane's word selection was outside the traditional if discharge was on his mind. It perhaps is equally arguable, then, that his words carried no jural intendment, but simply were the cloudburst of a mercurial person, brought on by the frustrations of the moment in combination with a long day and a few beers. It is necessary, therefore, to examine the surrounding events to divine Kane's true meaning. That examination preponderates against the General Counsel's discharge argument. Most telling, Kane told Puhl later on April 14, both directly and through Singleton, that his job was still there; and Puhl remained on the job, missing only the April 14-15 shift at his own request. records reveal that the check issued on April 16, and Kane credibly testified that "groovy" is "not part of my vocabulary." 's This incident, described above in Sec. IV, B, 4, in the 8(aXl) context, conflicts in testimony then being resolved in favor of McShan. 17 Lie had quit in pique after being told by Widin that, unless he improved his personal cleanliness within a week, he would be fired. Samuels apparently was fired, under circumstances not revealed on the record. 360 THE CATALYST Similarly, McShan told Rice on April 14 that, "as far as I know, you're not fired," and later verified with Kane that this was so. Rice's conduct, moreover, was scarcely that of one seeing himself as a discharge victim. He met McShan's April 14 urgings that he stay by saying he would do so only if there were to be union representation and benefits; and he thereafter submitted the four-page "list of changes," among them that a new job description and wage level be fashioned for him, conditioning his return upon the list's implementation. This bespeaks the arrogance of one who believed his services were coveted rather than in discard. This is not to say that the General Counsel's entire argument rests upon Kane's inflamed verbiage in the wee hours of April 14. There was McShan's comment to Rice, when Rice delivered his list on April 23, that if Rice would: . . . drop the union, stop playing dirty pool, nothing would come of it. They [He] could come back to work, no one would be fired. There would be no reprimands, and if the employees wanted an in-house association, they could have it. McShan's naked language certainly suggests that he was imposing a condition upon Rice's return, which suggests in turn that Rice had been discharged, or at least suspended. But, as concluded earlier, supra, when evaluating this comment as a violation of Section 8(aX)(1): The overall context of the conversation, coupled with McShan's seeming insensitivity to verbal nuance, indicates that it was not his intent to condition Rice's job status upon dropping the Union, but rather to assure him that he was welcome to return; that there would be no reprisals; and that the causes of his dissatisfaction would be dealt with as circumstances permitted. The General Counsel next cites, as proof of discharge, McShan's pretrial affidavit, in which it is stated at one point: "Sometime after he was fired4 Rice told me he thought he made a mistake in starting the union." (Emphasis supplied.) The affidavit, however, was not drafted by McShan, but by an agent of the NLRB, and McShan credibly testified that he did not give it a fine- toothed scrutiny when it was presented for signing. Beyond that, and as mentioned above, McShan's testimony generally revealed a certain casualness toward linguistic precision. Finally, the imprecision in this instance, if such was the case, may have been as much the drafter's as McShan's. Kane's affidavit, also prepared by an agent of the NLRB, states that Robert Lie was fired, when the record is plainly to the contrary. McShan's affidavit, in short, is worthy of some weight on the discharge issue, but is anything but dispositive. The General Counsel makes the additional argument that Rice, at least, was discharged, as revealed by Kane's inviting Puhl, but not Rice, to come and talk with him the afternoon of April 14. This argument ignores that the invitation to Puhl followed Singleton's disclosure that Puhl Is By contending in that forum, as well as this, for instance, that the employee had quit; or by contending that the discharge was for cause rather than through no fault of the employee. "doesn't want to come back unless he talks to you [Kane] because he is worried." No similar sentiment was conveyed on behalf of Rice. The General Counsel also argues in his brief that Respondent's failure to oppose Rice's application for unemployment benefits was "a highly inconsistent position for an employer to take with respect to an employee it claims has quit." This is a dubious premise at best. It could be argued with equal force that an employer, incensed to the point of discharging a union-sympathetic employee, would be moved by that same sense of betrayal to oppose rather than acquiesce in the employee's claim.18 And, even accepting the abstract validity of the premise, it does not necessarily obtain as concerns the employer in question. The record is replete with intimations that Kane routinely abetted his past and present employees in their efforts to maximize unemployment benefits, frustrate creditors, etc. Lastly, the General Counsel argues that the "final inconsistency in Respondent's defense to the Rice dis- charge" is this passage from Kane's pretrial affidavit: On the day before my conversation with Rice and Puhl, I had already decided to terminate Rice. Rice was simply standing in a little doorway between the two bars to keep people from going from one bar to the other and I decided that this job could be performed just as well by a simple gate. [Emphasis supplied.] Overlooking this argument's self-defeating assumption that the presumed discharge decision derived from factors independent of Rice's union sympathies, it fails to acknowledge Kane's testimony during the hearing, which put a different light on the situation: We had Tony [Rice] guarding a little hole in the wall and it seemed like he could be better used someplace else. I think what I had decided to do was terminate that job, not terminate Tony. It is concluded that Kane's live testimony in this instance, given under the known and orderly conditions of hearing, is deserving of greater credence than that in his affidavit, given under conditions unknown, especially considering other indications, previously noted, of a possible want of care by both the NLRB and some of the witnesses in the preparation of affidavits. The May 5 discharge of Puhl: That Puhl was discharged on May 5 is uncontroverted. The question to be resolved is why. It is concluded, in agreement with the General Counsel, that the discharge was at least partially motivated by Puhl's continuing union advocacy to his coworkers; and that it therefore violated Section 8(a)3). Kane, himself, as much as admitted the proscribed motive, testifying that he had grown tired of Puhl's "interfering with the day-to-day operation of the place ... and of his spending all his time talking when he was supposed to be working"; adding that he had determined that the objectionable talking had consisted of Puhl's "buttonholing employees about the union and bad-mouth- ing" him. As the Board stated in Hambre Hombre 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enterprises, Inc., d/b/a Pauchito's, 228 NLRB 136 (1977), an employee's "activity of talking about the Union during working time" is protected, absent a valid no-solicitation rule. Respondent had no such rule. D. The Alleged Violation of Section 8(a)(5) 1. Facts As previously mentioned, 51 employees signed pledge cards between April 1 and 13; and the Union made a written demand for recognition, which went unanswered, on April 19. The election processes of the NLRB were at no time invoked. Counsel stipulated that the unit never exceeded 86 employees. 9s The cards, all identical, stated: HOTEL, RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION LOCAL #483 I, the undersigned, agree and respectively designate and authorize Local #483 separately and/or collectively through any of its affiliated Locals, agents or represen- tatives to represent me, and as such representatives for me, and in my behalf to negotiate and conclude agreements as to hours of labor, wages and other employment conditions. Date Occupation Employer Signature Address City Tel. No. On April 2, to save the time of oral explanation, Rice took it upon himself to draft and duplicate a written comment, which was stapled to most of the cards thereafter distributed. It read: Once signed, this card gives the AFL-CIO permission to represent you as an unorganized worker, before the National Labor Relations Board. This does not mean you are or have to join a union. This is only the first step towards free and open discussion with regard to collective bargaining between Catalyst workers and the management. There is absolutely no way for the owner or friends of the management to find out who has signed one of these authorization cards, and it is illegal for him to fire you for doing so. 19 The complaint alleges, the answer as amended during the hearing admits, and it is found that this is an appropriate unit for purposes of the Act: "All employees of Respondent at its Santa Cruz restaurant, excluding all office clerical employees, guards, and supervisors as defined in the Act." 20 Immediately after this testimony, Rice was asked by counsel for Respondent: "And that was the sole reason that you had them sign the cards, right?" Rice answered: 'That was the reason, yes." Earlier, Rice had been asked by counsel for Respondent: "So, you told them that the sole purpose of this card was so they could get enough support for an election, right?" Rice answered: "That's about what we were trying to do, yes." Respondent asserts in its brief, citing this testimony, that "Rice secured the signatures of a number of employees by telling them that the sole purpose of signing the cards was to seek an election." (Emphasis supplied.) This interpretation is rejected. Analyzing the form of the questions and answers, Rice at most was describing his state of mind, not what he told prospective signers. PLEASE FILL OUT AND RETURN IMMEDIATELY TO YOUR UNION REP. The solicitation of signatures was done by Puhl, Rice, and Frank Ryerson. Union Representative Gamberg explained on April 1, when furnishing them with blank cards, that card solicitation was "the first step" in organizing; that, if 30 percent of the employees signed, the Union could petition for an NLRB election; and that, if 50 percent plus I cast ballots for the Union in the election, collective bargaining would follow. Rice recalled Gamberg as saying the purpose of the cards "basically ... was to get an election." The lion's share of the soliciting was done by Puhl. He estimated that he obtained about 50 signatures; and that, regardless of the presence of the stapled-on addendum after April 1, he engaged in explanatory conversation with all but 5 or 10 of those 50. Puhl testified that his standard explanation took this form: I would tell them that this is the initial step in trying to organize a union for collective bargaining, that it's not joining a union when you sign the card, that when a percentage of 30 percent was reached that they would petition for an election, that it would be held secret ballot. In order to win the election it would take 50 percent plus one. Upon winning it then they would sit down, the union representatives, and negotiate over a contract .... Similarly, Rice testified that he told prospective signers "that we're trying to get 30 percent of the people to sign so that we could have an election to decide whether or not we would have union representation"; 20 and Ryerson testified of telling would-be signers "that they were not joining a union by signing that card, that it was leading towards an election." To much the same effect, five of the card signers testified that they were told in substance, when asked to sign, that the purpose of the cards was to give the employees a chance to have an election to see if they wanted union representation.2 Counsel stipulated that an additional 11 signers, identified by name, would have testified in "substantially the same" way as these 5, if called. 22 The remaining facts pertinent to Respondent's alleged violation of Section 8(aX5)-namely, its alleged other violations of the Act-have been previously developed. 21 More specifically, Lee Jackson testified that Puhl told him that "essentially what we were doing was giving our okay to an election so that we could figure out whether or not we wanted a union"; Jonathan Eckert testified that Puhl said "we would vote on whether we wanted to have the union or not have the union"; Samuel Casson testified that Puhl told him that he "needed a certain percentage of people employed at The Catalyst to sign one of the cards, in order for there to be an election to determine whether or not the employees wanted the union"; Terri Beaudoin testified that Puhl said "the only thing that it [signingl pertained to is that there would be an election as to whether or not we wanted a union"; and Sue Phillips testified that Rice said "it would give us a chance to have an election to see if we wanted a union." 22 This stipulation is of limited meaning inasmuch as none of the five whose testimony was incorporated testified identically, and the testimony of one of the five, Beaudoin, with its "only thing" reference, arguably differed from that of the others in highly significant fashion. 362 THE CATALYST 2. Conclusions The organizational drive began April 1. By April 13, the Union had obtained cards signed by 51 of Respondent's 86 employees. On April 19, the Union sent a demand letter to Respondent, which was ignored. Meanwhile, as previously found, Respondent committed assorted violations of the Act, beginning on April 5 and continuing into May, the most serious being Puhl's discharge on May 5. Whether Respondent violated Section 8(a)(5) as alleged turns, then, on whether the Union's card majority was valid for recognitional purposes; and, if so, whether Respondent's misconduct impeded the NLRB's election processes to the point that the cards are a more reliable expression of employee sentiment. N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). The majority question: Respondent contends, of course, that the card signatures were induced by representations that they were for the sole purpose of obtaining an election; and, therefore, that the Union did not achieve a valid card majority. While the issue is hardly open and shut, this contention is rejected. The three solicitors-Puhl, Rice, and Ryerson- all testified in essence that they told the prospective signers that they were trying to obtain enough signatures to enable an election, and there can be no doubt that they were not thinking of card recognition as an alternative to an election. Yet, except for the testimony of one signer,23 there is nothing to suggest that the cards were represented as being for the sole purpose of obtaining an election, and the cards by their terms expressly designated the Union to represent "the undersigned" in bargaining.24 Walgreen Conpany, 221 NLRB 1096 (1975), involved representations much like those in question, namely, that: . . . the purpose of the card was to secure an NLRB election, and, in the event a majority of the employees cast ballots at that election favoring representation by the Union, the Union would then seek to bargain collectively with the Company .... [221 NLRB at 1102.] Sustaining the validity of the cards in that situation, the Board observed, at 221 NLRB 1096: There is nothing inconsistent between obtaining authorization cards in order to demonstrate sufficient employee interest in representation to warrant an election and in using the cards to demonstrate a union's majority. Other cases in the same genre include Levi Strauss & Co., 172 NLRB 732 (1968), and Cumberland Shoe Corporation, 144 NLRB 1268 (1963). In Levi Strauss & Co., the Board addressed itself to the solicitor's representation that signing "didn't mean that we were joining the Union, that we had our choice when the election came up." 172 NLRB 732, fn. 3. The Board, finding the cards to be valid, stated: 23 As previously related (fn. 21), Terri Beaudoin testified that Puhl told her that "the only thing that it pertained to is that there would be an election as to whether or not we wanted a union." [T hat employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambigu- ously worded authorization cards on the theory of misrepresentation. [172 NLRB at 733.] Cumberland Shoe Corporation concerned the representation that "a purpose of the cards was to secure a Board election." 144 NLRB at 1269. The Board, again deeming the cards valid, declared: [I]t does not appear that they [the signers] were told that this was the only purpose of the cards. In this case the cards, on their face, explicitly authorized the Union only to act as bargaining agent of the employees, and · .. the failure of the Union's solicitors to affirmatively restate this authorization does not indicate that it was abandoned or ignored. Yet other cases in this vein are The Great Atlantic d Pacific Tea Company, Inc., Birmingham Division, 210 NLRB 593 (1974), in which the cards were found not to have been invalidated by the representation that they were to see if the employees wanted an election and "it would be left up to the people to vote it [the union] in or out" (210 NLRB at 597); and Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489 (1972), in which the same result was reached concerning representations that "they needed so many more cards before they could go ahead and get an election," and "we need six or eight more signatures in order for the union to hold an election." 197 NLRB at 494. As a final piece of enlightenment in this area, there is the Supreme Court's oft-quoted declaration in N.LRB. v. Gissel Packing Co., supra at 395 U.S. 606-607: [E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.... We cannot agree . . . that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. To summarize, it was necessary for Respondent to prove the invalidity of at least 8 of the Union's 51 cards to destroy the Union's majority in the unit of 86. On the authority just discussed, it is concluded that Respondent did not succeed. The reliability of the cards vis-a-vis an election: The Board consistently has held in cases such as the present, involving an unlawful discharge in combination with assorted independent violations of Section 8(a)(1), that "cards 24 The addendum stapled to some of the cards, while not serving its elucidating purpose particularly weU, cannot be said to have carried a message at odds with that on the cards. 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD executed by a majority of the employees . . . in favor of the Union are a more accurate measure of the free and uncoerced desire on the issue of representation than a[n] . . . election would be." Hambre Hombre Enterprises, 228 NLRB 136. The superior reliability of the cards, together with the other requisites to an 8(a)(5) violation having been established, Respondent perforce violated that section as alleged. It is concluded, moreover, that the duty to recognize arose April 5, when Respondent embarked upon its course of unlawful conduct, even though the Union's demand came some 2 weeks later. Jimmy Dean Meat Company, Inc. of Texas, 227 NLRB 1012, fn. 2 (1977); Trading Port, Inc., 219 NLRB 298, 300-301 (1975). CONCLUSIONS OF LAW I. By giving its employees the impression that it was engaging in surveillance of their union activities; by implying to its employees that they could be replaced by Mexicans, who would do more work for less money, should they persist in their union activities; by questioning its employees concerning their union activities; by telling its employees that, if they would drop the Union, nothing would come of it, there would be no reprimands, and they could have an inhouse association if they wanted it; and by telling its employees that there would be a dress code, haircut requirements, a loss of food and drink privileges, reduced wages, and other more onerous conditions if they chose to be represented by the Union, in April and May 1976, all as found herein, Respondent in each instance engaged in an unfair labor practice violating Section 8(a)(1) of the Act. 2. By discharging Peter Puhl on May 5, 1976, as found herein, Respondent engaged in an unfair labor practice violating Section 8(a)(3) and (1) of the Act. 3. By refusing to recognize the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit on and after April 5, 1976, as found herein, Respondent engaged in an unfair labor practice violating Section 8(a)(5) and (I) of the Act. 4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not otherwise violate the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue this recommended: ORDER 25 The Respondent, Randall P. Kane, Inc., d/b/a The Catalyst, Santa Cruz, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Giving its employees the impression that it is engaging in surveillance of their union activities; implying 25 All outstanding motions inconsistent with this recommended Order hereby are denied. 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. to its employees that they could be replaced by Mexicans, who would do more work for less money, should they persist in their union activities; questioning its employees concerning their union activities; telling its employees that, if they would drop the Union, nothing would come of it, there would be no reprimands, and they could have an inhouse association if they wanted it; or telling its employees that there would be a dress code, haircut requirements, a loss of food and drink privileges, reduced wages, and other more onerous working conditions if they chose to be represented by the Union. (b) Discharging any employee because of his union activity or support, or concerted activity protected by the Act. (c) Refusing to recognize and bargain collectively with Hotel, Motel, Restaurant Employees & Bartenders Inter- national Union, Local No. 483, concerning the terms and conditions of employment of the employees in this appropriate unit: All employees of Respondent at its Santa Cruz restaurant, excluding office clerical employees, guards, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take this affirmative action: (a) Upon request, recognize and bargain with the aforementioned Union as the exclusive representative of all the employees in the appropriate unit described above and, if an understanding is reached, embody it in a signed document if asked to do so. (b) Offer to Peter Puhl immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits he may have suffered by reason of the discrimination against him, backpay to be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Santa Cruz, California, place of business copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in 28 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 364 THE CATALYST conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. APPENDIX NoTncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we participated and had a chance to give evidence, the National Labor Relations Board has found that we had committed certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, and has ordered us to post this notice and abide by it. The National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT give our employees the impression that we are engaging in surveillance of their union activities; imply to our employees that they could be replaced by Mexicans, who would do more work for less money, should they persist in their union activities; question our employees concerning their union activities; tell our employees that, if they would drop the Union, nothing would come of it, there would be no repri- mands, and they could have an inhouse association if they wanted it; or tell our employees that there would be a dress code, haircut requirements, a loss of food and drink privileges, reduced wages, and other more onerous working conditions if they chose to be represented by the Union. WE WILL NOT discharge any employee because of his union activity or support, or concerted activity protect- ed by the Act. WE WILL NOT refuse to recognize and bargain collectively with Hotel, Motel, Restaurant Employees & Bartenders International Union, Local No. 483, concerning the terms and conditions of employment of the employees in this appropriate unit: All of our employees at our Santa Cruz restau- rant, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL, upon request, recognize and bargain with the aforementioned Union as the exclusive representa- tive of all the employees in the appropriate unit described above and, if an understanding is reached, embody it in a signed document if asked to do so. WE WILL offer to Peter Puhl immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or benefits he may have suffered by reason of the discrimination against him. RANDALL P. KANE, INC., D/B/A THE CATALYST 365