Nyari Odette, Inc.

NYARI ODET'E, INC. Nyari Odette, Inc. and Local 274, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Case 4-CA-7884 April 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On January 21, 1977, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions. 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 has decided to affirm the rulings, findings,l and conclu- sions of the Administrative Law Judge, and to adopt his recommended Order.2 We shall, however, modify the remedy herein to conform with the Board's policy as expressed in Valley Oil Co., Inc., 210 NLRB 370 (1974), and Drug Package Company, Inc., 228 NLRB 108 (1977). Respondent shall notify the discharged strikers immediately that each will be reinstated upon making proper application therefor. In addition thereto, we shall modify the recommended Order to provide that backpay commence for each striking employee beginning 5 days subsequent to his unconditional offer to return to work.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Nyari Odette, Inc., New Hope, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 2(d): "(d) Immediately notify those employees who have participated in the strike which began on February 14, 1976, including Charlotte Besson, Helen Orlando, Anthony Orlando, Virginia Owens, Michelle Owens, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem, Peter Cruice, Maia Deem, Marie Deem, John Owens, and Judith Ott, that it has no objection to their reinstatement and, thereafter, upon their unconditional application therefor, offer 229 NLRB No. 4 them reinstatement to their former jobs or, if such jobs are not available, to substantially equivalent jobs, and make them whole for the period commenc- ing 5 days after the date of any such application for any loss of pay they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to the amount they normally would have earned as wages and benefits, in the manner set forth in the section of this Decision entitled'The Remedy.'" 2. Substitute the attached notice for that of the Administrative Law Judge. I The Charging Party has excepted to the Administrative Law Judge's failure to conclude that the Respondent effectively discharged its work force prior to the time they engaged in protected concerted activity, and/or that any application for reinstatement by said employees would have been futile. These are essentially factual findings, turning on resolutions of credibility. we have carefully examined the record and are unconvinced that a clear preponderance of all of the relevant evidence reveals that the Administrative Law Judge's credibility resolutions were incorrect and that his findings should be reversed. In accord with our established policy in this regard, the Charging Party's exceptions are hereby overruled. See Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). 2 In par. 2() and (g) of the recommended Order, the Administrative Law Judge inadvertently referred to Region I. This should read "Region 4." 3 Chairman Fanning. for the reasons stated in his dissenting opinions in Valley Oil Co., Inc., and Drug Package Company, Inc., supra, would find that all the discharged employees are entitled to backpay from the date of their discharges, subject to normal offsets, until the date that each receives a valid offer of reinstatement, and that, in the context of an unfair labor practice strike, the 5-day rule has no logical application. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and and ordered us to post this notice. WE WILL NOT engage in reprisals against our employees for joining, assisting, or supporting Local 274, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, by changing working conditions, terminating privi- leges previously enjoyed, or otherwise harassing employees in order to discourage membership in or support of that Union. WE WILL NOT discharge, lay off, or otherwise discriminate against employees because they joined, assisted, or supported a union, or because they engaged in a lawful strike or other lawful concerted activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by the National Labor Relations Act. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, bargain collectively with Local 274, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the bargaining representative of the employees in the appropriate unit set forth below with respect to employee wages and working conditions, and any changes in wages and working conditions, and, if an agreement is reached, we will embody the understanding in a signed agreement. The appropriate bargaining unit is: All dining room, bar, kitchen employees, hostesses, and hat check employees em- ployed by the Company at its New Hope, Pennsylvania, restaurant, excluding all other employees, guards and supervisors as de- fined in the National Labor Relations Act. WE WILL make Charlotte Besson whole for any loss of pay or benefits which she may have suffered by reason of her termination from employment until the date she declined to come back to work. WE WILL immediately notify Charlotte Besson, Helen Orlando, Anthony Orlando, Virginia Ow- ens, Michelle Owens, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem, Peter Cruice, Maia Deem, Marie Deem, John Owens, and Judith Ott that we have no objection to their reinstatement, and that upon their unconditional application for such, WE WILL offer them reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, and WE WILL make them whole by paying them any wages and benefits they may have lost because we discharged them unlawfully, commencing 5 days after any such application for reinstatement is made. If necessary, any replace- ments hired since February 14, 1976, to replace such employees, will be dismissed, and, if there are still not enough positions available for all the strikers, WE WILL put their names on a preferen- tial hiring list to be employed before any new employees are hired. NYARI ODETTE, INC. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Philadelphia, Pennsylvania, on June 8, 9, 10, 11, and 14, 1976, upon a complaint issued on April 30, 1976, as amended at the hearing, based upon charges filed on February 26 and March 16, 1976, by the above- ' The complaint alleges changes in two specific rules, but changes in Respondent's rules generally and specifically, and changes in the manner of named Charging Party (herein the Union). The complaint alleges that the above-named Respondent (I) refused and continues to refuse to bargain with the Union as a representative of an appropriate unit of Respondent's employees, (2) changed working conditions of its employ- ees to retaliate against its employees for selecting the Union as their bargaining representative,' (3) unlawfully interrogated employees about union activities, (4) terminat- ed Charlotte Besson because of her support of the Union, and (5) discharged 15 named employees alleged to be unfair labor practice strikers protesting the discharge of Besson. It is alleged that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Respondent's answer denies the commission of the alleged unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respondent, in the operation of a restaurant and bar at New Hope, Pennsylva- nia, during a recent annual period had gross receipts in excess of $500,000, and received goods valued in excess of $10,000 directly from outside the Commonwealth of Pennsylvania), and to support a finding that the Union is a labor organization within the meaning of the Act. There have been several motions, requests, and rulings thereon, and attendant correspondence filed since the close of the hearing. I have issued a separate order identifying these matters, assigning exhibit numbers to them, and receiving them into the formal file in this proceeding. These posthearing matters involve the following: (I) A request by Respondent (treated as a motion) that certain rules and regulations assertedly promulgated by the Pennsylvania Department of Enviornmental Resources be received in evidence. Though the documents submitted were not authenticated as I requested, in the absence of any claim that they are not authentic, and over General Counsel's objection, I have indicated to the parties that I would take official notice of the documents submitted. This is discussed hereinafter. (2) A motion by Respondent to reopen the record for taking of additional testimony, opposed by General Counsel and the Union, was denied on the ground that the evidence proffered was available or could have been obtained with due diligence and presented at the hearing. (3) A motion by General Counsel to reopen the record to receive portions of the transcript developed in a 10(j) proceeding before the U.S. district court (occurring after the close of the hearing in this proceeding) allegedly affecting the credibility of a witness in this proceeding. This motion, opposed by Respondent, was originally denied on the basis that the motion did not provide a sufficient basis for the action requested. General Counsel thereafter provided certain additional particulars and moved that the ruling denying the motion be reconsidered. In opposing General Counsel's motion, Respondent, relying upon the District Judge's findings and refusal to grant a 10(j) injunction, assertedly on the same facts as in the present proceeding, claims that the district court's action constitutes res adjudicata of this case, and moves that this proceeding be dismissed on that basis or on the presenting such rules, were litigated extensively during the heanng, as discussed hereinafter. 138 NYARI ODETTE, INC. basis of collateral estoppel. Respondent's motion to dismiss on the grounds stated is denied. See Acker Industries, Inc., 184 NLRB 472 (1970). The Board, in United Industrial Workers of North America of Seafarers International Union of North America, AFL-CIO-Pacific District, etc. (Sea-Land Service, Inc., et al.), 207 NLRB 958 (1973), involving a motion identical to that of General Counsel here under consideration, rejected the motion to introduce a posthearing 10(j) transcript into evidence, finding that the issues could be resolved on the record already made and upon the contentions of the parties. For the same reasons, as discussed hereinafter, I find that it would serve no useful purpose to reopen this matter further and I hereby deny General Counsel's motion. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due consider- ation of the briefs filed by the General Counsel, the Union, and the Respondent, I make the following: FINDINGS AND CONCLUSIONS A. Introduction For a number of years the Chez Odette Restaurant (herein Chez Odette) at New Hope, Pennsylvania, was operated by Odette Myritil (herein Odette). In the latter part of April 1975, the operation of the restaurant was taken over by John Nyari (herein Nyari), the principal owner of Respondent. In the latter part of 1975, the Union began an organizing effort at Chez Odette and on February 7, 1976 (all dates hereinafter are in 1976, unless otherwise noted), an election was conducted by the Board in a unit of dining room, bar, and kitchen employees and hostesses and hatcheck employees of the restaurant, in which the employees selected the Union by a vote of 15 to 3. General Counsel's witnesses testified to a series of incidents, allegedly harassing to the employees, occurring shortly after the election and during the course of a week thereafter. Prominent among these incidents was Respon- dent's posting, on February 9, the next workday after the election, of a sheet of rules for the conduct of the employees allegedly different in form and substance from previous practices. These rules, the reasons for their posting, and the prior practices were much litigated. General Counsel contends that Respondent posted these rules, and engaged in other conduct discussed hereinafter, in retaliation against the employees for selecting the Union. B. Interference With, and Restraint and Coercion of Employees 1. The work rules Although there is some slight dispute as to the form and content of the notice posted by Respondent, I find that the following was the notice posted on February 9, on the letterhead of Chez Odette: 2 An asserted state regulation against smoking in the kitchen is discussed hereinafter. The testimony of the head chef. Respondent's witness, however, NO SMOKING THE SURGEON GENERAL ADVISES SMOKING CAN BE DANGEROUS TO YOUR HEALTH. WAITERS AND WAITRESSES Each team is responsible for their own stations: a. b. c. d. e. Wipe chairs after each seating Clean salt and pepper shakers Refill Sugar Individual coffee pots Hair nets required on duty ALL PERSONNEL ASSIGNED TO A STATION WILL REMAIN AT THEIR STATION ALL DURING WORKING HOURS. IF STATION IS SLOW CHECK WITH THE MANAGER AND WILL ASSIST OTHER STATIONS IF BUSY. APPEARANCE WAITRESSES: Hair neat and orderly. Nails clean and manicured. Blouse and uniform immaculate. Stockings worn at all times. Shoes highly pol- ished. WAITERS: Hair combed and cut to reasonable length. Nails clean and trimmed. Pants cleaned and pressed. Shirt immaculate. Tie. Shoes neatly polished. Apron free of stains. /s/ John Nyari Respondent's witnesses assert that these rules (except that pertaining to hair nets) had been previously posted at various times on separate sheets of paper. Nyari thought that some of these might still be posted on the bulletin board. However, these were not produced. General Counsel's witnesses denied that such rules (except those pertaining to "side work," i.e., subpars. a, b, c, d, above) had previously been posted. Similarly, Respondent's witnesses claimed that these matters had been discussed at meetings with employees for months before the notice was posted. To the extent questioned, General Counsel's witnesses denied that these rules were discussed at employee meetings, except that one witness recalled discussions about side work. It is clear that the Respondent had never previously posted accumulated rules in the form posted after the election. A discussion of these specific rules follows. (a) Smoking: General Counsel's witnesses testified that, prior to the posting of the rules, they were permitted to smoke in various designated places in and about the restaurant. Respondent's management agrees with this, but asserted that Respondent desired to prohibit smoking in the kitchen which was considered unhealthy and not desirable for good food preparation. 2 The employees, however, clearly understood that the new posted rule forbade smoking anywhere in or about the restaurant, employee Sallie Potts stating, "we weren't even supposed to was that even Nyari and Finch, Respondent's management. smoked in the kitchen. 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD smoke in the ladies room really. .... We were not allowed to smoke, period." According to Potts, whom I credit, after the election and before the rules were posted, Nyari "told us we weren't allowed to smoke anymore." Although Nyari and the restaurant manager, Leon Finch, testified generally that the posted rules did not change previous policies, and Finch asserted that the rule was not intended to prohibit smoking entirely, there is no evidence that Respondent made any attempt to advise the employees that the posted rule did not mean what it plainly stated.3 On the basis of the evidence, I find that this rule constituted a change from prior practice. (b) Hair nets: It is clear that Respondent did not require waitresses to wear hair nets prior to the union election. Unlike the other asserted rules, it is not claimed that such a rule has been previously posted at the restaurant. Respon- dent does say that hair nets were "discussed" at employee meetings in connection with Respondent's concern that the employees be neat and that their hair be orderly. Nyari and Finch testified that this matter was discussed after loose hair was found in food, which Finch said probably occurred in October or November 1975. However, I find, as previously stated, Respondent did not require the wearing of hair nets until the rule was posted after the election. During the time immediately before the union election, in January or February, according to Nyari, he called the county health department, which he stated informed him that the waitresses should wear hair nets. (Nyari states that the country health department also told him that the employees should not be permitted to smoke in the kitchen.) However, Respondent Manager Finch admits that, even after making it "a regulation to wear hair nets," "[Respondent is] not carrying this through at the moment because we found that the hair spray holding relieves that situation." As previously noted, after the close of the hearing, Respondent requested that official notice be taken of certain asserted rules and regulations of an agency of the Commonwealth of Pennsylvania, in particular section 151.43 of those rules, which provides in part: "(b) Hair nets, caps or other effective hair covering shall be used by employees engaged in the preparation and service of food or washing of utensils and equipment to keep hair from food and food-contact surfaces," and "(c) Persons engaged in the preparation, handling or service of food shall not use tobacco in any form while in equipment and utensil washing, food preparation or food serving areas. However, designated locations in such areas may be approved by the licensor for smoking, where no contamination hazards will result." These rules and regulations were either known to Respondent, or could have been ascertained with the exercise of due diligence prior to the hearing. The failure to submit these matters at the hearing raises questions as to the weight which should be given to them. If properly presented at the hearing, the applicability of these provi- sions, their proper interpretation, and the exceptions to these provisions recognized by the authorities in day-to- : Nyari, who was much given to long-winded, rambling, and largely unresponsive answers, indicated that he had given instructions concerning smoking in designated places and forbidding smoking in the kitchen, before day enforcement could have been properly explored. As it is, the record shows that Chez Odette operated for a number of years in a manner which Respondent now says was violative of these provisions even though it appears there were periodic investigations of the restaurant by the authorities. Even after promulgation of the rule requiring hair nets, apparently in accord with the provisions set forth above, Respondent admits that it is not in compliance with its own rule. Whether its current practice conforms to the state regulations is a question that could best have been litigated at the hearing. In this state of the record I cannot find that hair nets are required in restaurants in Pennsylva- nia by state authorities. I find that Respondent's rule requiring hair nets was a clear change from prior practice. (c) Remaining at stations: Prior to the union election, the waitresses and waiters were accustomed to sit at a table in a particular area when there were no customers in the dining room, or the restaurant was not busy. The employees might use this time to fold napkins, or smoke at that place. On occasion members of management have sat at the table with such employees. Sallie Potts, one of the waitresses, testified credibly that, on these occasions, she was never warned for indulging in this practice, but "after the election, we weren't allowed to sit there anymore." Potts also claimed that the employees were not even permitted to leave their stations to go to the bathroom without obtaining a replacement as they were before the rule was posted. Manager Finch asserted merely that the rule both before and after the union election was to the effect that the employees were expected to "stand in a professional manner on the station, and we constantly found them smoking and slouching and sitting down. You'd come in the room with customers; they'd all jump up." He states this was discussed at employee meetings. Nyari claimed that the posted rule made no change from the previous practices. There was no specific evidence, however, that the employees had previously been required to seek permission to leave their assigned stations when the restaurant was not busy. On the basis of all the evidence, it is found that the posted rule constituted a change from the prior practices. (d) Personal appearance and side work: It seems agreed that the various rules posted with respect to personal appearance (except as to hair nets) were matters which would reasonably be expected of waiters and waitresses, but it is disputed as to whether these matters had been previously posted in written form. Based upon consider- ation of all the evidence, I find that they had not. I find that notices with respect to side work had been previously posted as separate matters. (e) Other alleged restrictions: General Counsel's witnesses testified that another principal change in their working conditions after the union election was a rule prohibiting the union election. My strong impression is that Nyari's testimony tended to be overly exaggerated, imprecise, and not entirely consistent. I do not find Nyari's testimony reliable. 140 NYARI ODEITE, INC. them from drinking soda and coffee during working hours as previously permitted. 4 Respondent agrees that employ- ees were permitted to drink nonalcoholic beverages during working hours, though not in places where customers were served. In fact, Respondent previously permitted the employees to get sodas from the bartender without charge. Sallie Potts, however, testified that after the election, on February 7, when she was drinking a soda in a hallway of the restaurant, Nyari came by and "ripped" the soda out of her hand, and "told me that we weren't allowed to have anything-I couldn't have it-and we couldn't have anything." Potts said, "Not even a drink of water?" to which Nyari replied, "No, nothing." Nyari asserted that on an occasion he did find Potts with a drink in her hands at her work station, that he took it but did not pull it from her hand, and that he tasted it and found it to be alcoholic, whereupon he said to Potts, "I told you before, no drinking on the job," and left to perform other functions. To the extent that these two versions of the incident differ, I credit Potts. This being so, I find it unnecessary to consider here the extensive testimony taken concerning Respondent's asserted practices and problems with respect to consumption of alcoholic beverages by employees. It was also testified that, after the election, Respondent instituted a practice of requiring the employees to leave the premises immediately after work, and forbidding them to congregate or talk in the hallways or on the floor while on duty. Nyari asserted that a rule requiring the employees to ring out their timecards and leave the premises after work had been in effect for a long time. Inasmuch as these two items were barely touched on in the evidence, are not mentioned in the briefs, and would not in any event require substantial change in the Order recommended hereinafter, I find it unnecessary to pass upon whether these matters constitute independent viola- tions of the Act. 2. Other asserted harassment of employees (a) Helen Orlando testified that on the evening of February 7, the day of the election, Nyari took her aside and told her to "start shak[ing] up these people because they are lousy waiters and waitresses, I don't like the way they work, and you better start to shake them up, they are your crew, you better do something with them, they are sloppy, they are not doing their jobs."5 This does not seem to be denied. I credit Orlando. This matter was not alleged as a specific violation of the Act. (b) Also on the evening of February 7, Nyari called Helen Orlando (who had been active on the Union's behalf and was its observer at the election) and her husband into his office, told them that Manager Finch had reported that they had stolen food from the restaurant, and asked for their resignations. Both employees denied the accusation and refused to resign. According to the testimony of Helen 4 The witnesses, who had not been inside the restaurant since February 14. and had not seen the posted notice since that date, testified that this rule was part of those posted. This was in error. I At the hearing Respondent raised a claim that Orlando was a supervisory employee. This will be considered hereinafter. 6 General Counsel asserts that in the 1O(j) proceeding Nyari testified that Orlando, Nyari accused her of stealing "two steaks au pouivres," and when she refused to resign "because I haven't done anything," Nyari asserted that he would proceed to ruin her reputation. This was not denied and is credited. Helen Orlando in fact continued to be employed until the incidents of February 14, related hereinafter. So far as the record shows, Respondent's management had no further conversation with her during this interval concern- ing this matter. The matter of the accusations against the Orlandos was extensively litigated, particularly that against Helen Orlan- do. The alleged incident in which she was involved (as well as that involving her husband) occurred at least 2 weeks before the union election, possibly longer. On this occa- sion, Helen Orlando had ordered three steaks "au pouivres" for a table in the bar area which seated two persons. She states that the third steak was for the bartender who she says was permitted to order from the menu. Another employee, John Oliver, was carrying the steaks into the bar area on a tray when Manager Finch confronted Oliver and Orlando and accused them of stealing the steaks. Orlando states that the two customers for whom the steaks were ordered had left the table. Finch asserts that Orlando offered to pay for the steaks, which were returned to the kitchen, to which he replied that she should "forget it," that the "damage was done." Respondent's several contentions with respect to this incident do not seem to bear analysis. There seems to be no question that the incident occurred substantially as set forth above. However, Respondent's contention that this constitutes thievery would appear to be overblown. It is obvious that there was no intent on the part of the employees to take the steaks out of the restaurant. It must then be assumed that Finch was complaining that the employees intended to eat the steaks themselves. However, in his testimony in another context, Nyari insisted that Orlando had the privilege of ordering whatever food she desired for herself, though he asserted that other employees could not order steaks. 6 Assuming (without deciding) that the bartender and Oliver were not entitled to order steaks for themselves, at the most, therefore, Finch might have considered Orlando delinquent in ordering steaks for them when she should not have done so. That this matter was not considered of great significance is indicated by Respondent's actions in regard to the issue prior to the election. Not only was Orlando not discharged or otherwise reprimanded prior to the election, but there is no evidence that the Respondent took any action at all with respect to the bartender or Oliver. Both were still employed until February 14. Indeed, according to Finch, he did not even report this matter to Nyari until sometime thereafter, he says about a week and a half before the election. Notwithstanding a claim that Respondent was experiencing a considerable problem with pilferage, Nyari also took no action until, as noted, he asked for Orlando's resignation after the election. Recognizing that this Helen Orlando "could order what she liked," including steaks. I find that Nyan testified to the same effect in the present hearing Since this is so, and since I consider it unnecessary to refer to the transcnpt of that hearing to adequately assess Nyari's credibility, I am denying General Counsel's motion that I take notice of the transcript of that proceeding. 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct appears odd, in the circumstances, Nyari first asserted that he did nothing because of a letter assertedly received from the Union that he should not fire anyone during the representation campaign. The record is convinc- ing, however, that there was no such letter. Nyari and Finch also asserted that they failed to act in this situation because of general advice of their previous counsel that they maintain the status quo and not fire anyone during the election campaign, and that they did not bring this specific problem to the attention of counsel. Considering Respon- dent's asserted problem with pilferage, I find such position difficult to believe, if, in fact, Respondent was truly concerned about this incident. Lastly, Nyari offered no explanation as to the reason he felt he was free to act after the Union had won the election though fettered during the period when the Union was seeking representation. When Nyari brought up the issue with Union Representative Clark immediately after the election, at a time the two were casually discussing the resolution of problems by bargain- ing, Clark cautioned Nyari against discharging employees at that time, though agreeing that thievery should not be condoned. (c) During the union campaign Nyari embarrassed Helen Orlando by calling her to answer some customers' enquiries about the Union, asserting to them that she was "a spokesman for the Union." Though this is alleged as illegal interrogation, I find it is rather another instance of harassment of employees because of the Union, which violated Section 8(a)( ) of the Act. 3. Conclusions The record as a whole and the discussions above are convincing that, after the representation election, Respon- dent engaged in a number of retaliatory moves against the employees for voting for the Union. The timing of these incidents is most significant. Immediately after the elec- tion, Respondent's owner, Nyari, began to react harshly toward the employees, indicating that working conditions would be tightened, accusing one of the leaders in the union campaign of misconduct in an occurrence which took place weeks before, and upbraiding a waitress for drinking soda in circumstances which had heretofore been permitted.7 On the next working day, Nyari posted a set of working rules in a form significantly different from previous practice, several of which rules were new or more restrictive than prior ones. When questioned as to why he posted the rules at that particular time, when he claimed to have been having these problems for months, Nyari first asserted that "it was about time the people started abiding by the rules . . ." and then claimed that he had been prevented from posting the rules by a letter received from the Union. However, the records shows that he did not receive such a letter. When asked a similar question, Respondent's manager, Finch, claimed that the posting of the rules at this time "must have been a coincidence." I do not pass upon whether the rules, or the manner of their presentation, would be reasonable in the operation of 7 Respondent, in its brief, argues that it is not reasonable to believe that Nyari would have said the things which I have credited. However, I believe that the testimony reveals an emotional reaction to the results of the election, not necessarily a reasonable one. Respondent's restaurant. The Act does not, of course, prohibit an employer from effecting changes he normally would make in employee working conditions simply because his employees are engaged in an organizational effort. But it does condemn as an unlawful restraint upon employees' self-organizational rights "retaliatory changes in working conditions" in response to their attempts to secure union representation. See White Sulphur Springs Company, d/b/a Greenbrier Hotel, 216 NLRB 721, 727 (1975), and cases cited. On the basis of all the evidence, I am convinced and find that Respondent would not have instituted the changes in the rules found above, nor would they have been posted at the time they were except for the fact that the employees had selected the Union as their bargaining representative. For the reasons stated, I find that Respondent, by posting, on February 9, changes in work rules which forbade smoking on the restaurant premises, and which required the waitresses to wear hair nets and to remain at their stations at all times during working hours unless permis- sion was obtained, interfered with, restrained, and coerced employees in the exercise of rights guaranteed under Section 7 of the Act and thereby violated Section 8(a)(l) of the Act. C. The Termination of Besson Charlotte Besson began working as a full-time hostess at Chez Odette in 1973. In May 1975 she became a part-time hostess, and thereafter, until February 14, she customarily worked Saturday evenings and during lunchtimes as required. It is admitted that Respondent was satisfied with her work. Besson signed a union authorization card during the organizational campaign. She states that the employees were aware that she supported the Union, and she voted for the Union at the election. On Friday, February 13, Nyari called Besson on the phone and told her that, because business was slow and he desired to economize, he would like Besson "not to come in for a couple of Saturdays until business picks up," at which time he said he would be happy to call her back again. Besson indicated that she understood and that she would await Nyari's call. Nyari's initial recollection of this conversation, in essence, conforms to the above. However, when thereafter asked if "union activities or union affiliation" had come up in that conversation, Nyari recalled that during the call Besson expressed sympathy for him because of the union situation and said that she was one of the employees who had voted against the Union.8 He states that he assured her that he accepted the employees' choice, that he only wanted harmony and unity, and that 12 to 15 employees had already told him that they had voted against the Union. On the following day, February 14, about 4:30 p.m., Besson took her daughter, Anne Besson, who was also employed at the restaurant, to work. At that time Besson talked with Manager Finch in the restaurant office. In the I Besson denied that she told Nyari that she was one of the employees who had voted against the Union. 142 NYARI ODETFE, INC. course of their discussion about other matters, Finch told Besson that he was surprised that she was not working that evening since the restaurant had 300 reservations and would be very busy.9 Besson replied that she had been told not to come in because business was so slow. In discussions thereafter with the other waitresses at the restaurant that afternoon, Besson was questioned about not working that evening. When she informed them that she had been told not to come in to work, the waitresses told her that she was being replaced by William Soriero, who operated Respondent's parking lot (and the parking lots of other restaurants in the area), and who occasionally had assisted Chez Odette by serving as a host. After observing Soriero working as host in the restaurant,'0 Besson again spoke to Finch, observing that she had been replaced "very quickly." Finch advised Besson to "[j just let it ride, don't say anything. I'll see you'll be back here." Besson nevertheless thereafter called Nyari from her home and accused him of not telling her the truth concerning the reasons he had not permitted her to work, that the restaurant had 300 reservations," and she observed that she had been replaced by Soriero. Nyari replied that it was "my business what I do with my restaurant," that he liked Soriero and wished to give him a job, and that the 300 reservations had come in during the day on Saturday. Besson accused Nyari of firing her because of the Union and said he could not do that without a valid reason. Nyari replied, "Well, that's the way it goes," and told Besson that he now knew who the three employees were who voted against the Union. Nyari appears to deny that such a phone conversation occurred (he denied a phone conversation with Besson on February 14, but then vaguely added, "The other conversa- tion must have been after that day").' 2 He asserts, rather, that he had a casual conversation with Besson in the restaurant when she brought her daughter in to work on February 14, in which Besson noted that it looked as if Respondent was "going to be busy," and readily agreed that Pappas and Finch would be able to handle the customers alone. Nyari further states that Besson did not in this short conversation remonstrate with him concerning his previous claim that he would not need her because business was slow, but proceeded to the office to talk to Finch. Besson, on her part, denied that she had a conversation with Nyari in person in the restaurant that day. Respondent strongly disputes that the phone conversa- tion, which Besson asserts occurred after she left the restaurant on February 14, actually took place. The issue is important in the resolution of the issues in this matter and I have given it close attention. It is claimed that Besson's credibility was destroyed by her assertion in a written statement obtained from her by 9 The average number of reservations for a Saturday at that time of year was between 150 and 200. The increase in business on February 14 was attributed to the fact that this was Valentine's Day. '° Soriero wore special clothing when he was working at the restaurant. On the evening of February 14, the employees noted that Soriero was dressed as a host. Soriero told Virginia Owens that he was working that night. According to Orlando (denied by Soriero), Soriero had told her the previous Monday that he would be working that Saturday night. i" Besson, after talking with Finch, had personally checked the reservation book. Respondent's counsel that the "arrangement" between Nyari and herself that she was not to work that Saturday night had "nothing to do with the union." However, I was impressed with her explanation that this referred to her feelings when Nyari initially called her, before she discovered that the restaurant was in fact busy that evening and Soriero was working as a host. Her assertion that she was upset and confused when she made the statement for counsel is borne out by the circumstances in which she was requested to give a statement and by inspection of the statement itself which indicates, as she testified, that she added the assertion in question while attempting to correct other statements written in the statement by counsel. Upon my observation of the witnesses and consideration of the entire record, I credit Besson's testimony as to the conversations set forth above. In addition to my conviction that Nyari's testimony generally is not reliable, I believe that Besson's testimony accords most nearly with the probabilities of the situation. Soriero arrived at the restaurant on February 14 about the same time as Besson, if not before, and continued work as a host until the walkout by the employees after 6 p.m. It is more than likely that Besson saw Soriero there as she says she did. Certainly the other employees saw Soriero and advised Besson that Soriero was working in her place as she testified. I find it quite improbable that Besson would not have brought this up if she had talked to Nyari at the restaurant while she was there (his testimony would indicate that he was there approximately an hour and a quarter after Besson arrived at 4:30 p.m.).'3 On the other hand I find it most probable that Besson would remonstrate with Nyari concerning this in the circumstances as she asserts she did. In support of Respondent's contention that Nyari asked Besson not to come in on February 14 because business was slow, the record shows that restaurant business in the area is normally diminished in January, February, and March. Nyari testified that his auditor had suggested that he make some economy moves and that this was one result of that advice. Nyari asserts that he was unaware that Valentine's Day was normally a busy day in the restaurant, and that business increases when the occasion falls on a Saturday, as in 1976. On the other hand, Nyari's testimony shows that 150 reservations for Saturday night, an unusual number, had been received prior to Saturday. Both Nyari and Finch had commented to Virginia Owens during the week that the restaurant "was going to be busy" on Saturday. On Valentine's Day, Finch called Lorraine Jackson, who was not scheduled to work, about 4 p.m., to ask her to come in to work as a waitress. 12 General Counsel asserts that, in the 10(j) proceeding. Nyari "indicated that such a phone conversation did, in fact, take place." i3 Nyari says that about 3 p.m. he asked Soriero, in a phone call, to come in as a favor to him to give him time to go and change his clothes, presumably before the dinner hour. Soriero asserts that Nyari knew that Soriero had to get back to his regular business. Nevertheless, though Soriero arrived at the restaurant about 4:30 p.m., Nyari estimates that it might have been as late as 5:45 p.m. before he left to change. Nyari states that he returned to the restaurant about 6:30 p.m. that evening. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions As noted, the General Counsel contends that Besson was terminated because of her support of the Union and the employees' selection of the Union as their representative. Respondent contends that this was but one of several economies Respondent undertook during the slow winter season at the restaurant. However, this period of slow business clearly began in January. No adequate reason was advanced for making this move only after the representa- tion election, in a context of other retaliatory activity.' 4 Furthermore, Nyari was aware by Friday, February 13, that Saturday would be busy. An unusual number of reservations for Saturday had already been received by that time and both Nyari and Finch had commented to one of the waitresses that Saturday would be busy. Indeed, Finch expressed surprise that Nyari had told Besson not to come in to work. During the course of the day on Saturday, in fact, Finch called another waitress, Jackson, who was not scheduled, to come in to work, and Nyari called Soriero to come in to assist as a host. I do not credit the testimony of Soriero and Nyari that the former was to come in for only a short time that afternoon. The record indicates the contrary. Soriero came dressed as a host. His explanations-e.g., that he usually dressed this way just in case his brother who operated a restaurant in New York might need him-did not ring true.15 Though Soriero asserted that he needed to get to his other business, and came only to give Nyari time to change his clothes, Nyari apparently made no effort to leave for this purpose for over an hour after Soriero's arrival. Soriero further told Virginia Owens that he was there to work the evening.'6 Indeed, as has been found, Nyari did not deny to Besson that Soriero had been hired in her place, but rather indicated that her accusation was correct. Finally, when Besson complained to Nyari that he had replaced her with Soriero and accused him of having an antiunion motive, his reply was not one of denial, but one of indifference, indicating that he knew Besson was not one of the employees who had voted against the Union. On the basis of the above and the entire record, it is found that Respondent terminated or laid off Besson on February 14 because of her support of the Union and because the employees had selected the Union as their bargaining representative, and thereby violated Section 8(a)(l) and (3) of the Act. D. The Work Stoppage There is some dispute as to the events on February 14 leading up to the walkout of the employees. It is unnecessary to set out all of these incidents in detail. I find " Respondent, as noted previously, asserted that it could take no action because of an alleged letter from the Union requiring it to maintain the status quo, but Respondent received no such letter. 1s Soriero's connection with Respondent was more than casual. He had an office in the restaurant premises. In fact, though he was not then an employee of Respondent, he attempted to vote in the representation election because he considered his interests were affected. Soriero's testimony as to how he came to the conclusion that he should vote in the election was quite implausible. HI I find it unnecessary to resolve the conflict between Orlando and Soriero as to whether the latter told Orlando earlier in the week that he was going to be working as a host on Saturday. February 14. the following: The employees were accustomed to finding the schedule of their work assignments for the following week posted by 5:30 p.m., or earlier, on Saturday afternoon. The schedule was not posted by that time on February 14. Based on their knowledge of the recent discharge of a busboy named Lee,17 and the apparent termination of Besson that evening, against the back- ground of other Respondent actions since the election set forth above, the employees became apprehensive of their own job security when the schedule was not posted. The employees made this known to Finch and to Nyari. These two sought to assure the employees that their names would be on the work schedule for the next week. The record as a whole, including the testimony of Respondent's witness Lorraine Jackson, makes it plain that the employees had decided to leave as a group in protest of Respondent's actions. Jackson informed Nyari of this. Nyari and the employees had a further discussion in the kitchen before they left the building, in which Nyari told the employees that the schedule was not prepared and would be posted when Nyari was ready, that "it was his restaurant and he would run it the way he wanted to, and since [the employees] didn't like it [they] could get out." 18 Respondent's witnesses assert that the employees as a group, and Orlando individually, stated that they were resigning or quitting. The employees who testified, includ- ing Orlando, denied this. While it is probable that the employees, or some of them, made some comment that they were leaving, or would not work that evening, I find that the employees did not state that they were quitting their employment or resigning. The employees' expressed concern over losing their jobs, as well as their subsequent conduct, is inconsistent with an intent to sever their employment with Respondent. After Nyari told the employees to leave, almost all of the employees left and assembled on the parking lot.' 9 Nyari followed the employees into the parking lot and asked them to return to work. The employees said that they would return to work if he would agree to take Besson and Lee back. Nyari said that he was unaware that Lee had been fired and that Besson had not been fired, but that he would not make any concessions to the employees with respect to the employment of Lee or Besson. Nyari blamed the Union for what was happening and offered to discuss increased benefits with the employees if they would return to work. When the employees did not respond to these overtures, Nyari told them to leave his property and never set foot on Respondent's property again, either as a customer or a worker. The employees thereafter called James J. Clark, presi- dent of the Union, and informed him of their actions. The 1? Lee had been discharged after the election in circumstances which seemed unfair to the employees. Lee had been prounion. However, it is not claimed that Lee's discharge violated the Act. "I It is noted that Nyari used similar language to Besson when she called to protest the hiring of Soriero to replace her. 19 The record shows that the following employees left work and assembled on the parking lot at that time: Helen Orlando, Anthony Orlando, Virginia Owens, Michele Owens, Maia Deem, Marie Deem, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem, Judith Ott, John Owens, and Peter Cruice. General Counsel states that Melissa Owens also walked out with the others. If so, this may be established in a compliance hearing, if necessary. 144 NYARI ODEITE, INC. following Monday morning the employees established a picket line at the restaurant which continued to the time of the hearing. Conclusions As noted, on the evening of February 14, 14 or more employees concertedly left work in protest of Respondent's termination of Besson and Lee, and because of their anxiety over their job security. Respondent contends that the employees thereby quit, intending to sever their employment permanently. As previously noted, I find this inconsistent with the employees' anxiety over their own job security, expressed to Respondent, which immediately preceded their concerted action. While it is possible that so large a group might agree simultaneously to sever their employment permanently, such action is not normal. Where such mass leaving of employment occurs, it is usually in protest of some action (or inaction) of the employer with respect to the employees' working condi- tions. The essence of such protest is that the employees want to be employed, albeit under changed conditions, not that they desire to permanently leave their employment. See, e.g., Grismas Corporation, 205 NLRB 1108, 1118 (1973), and cases cited. The evidence in this matter supports such a conclusion here. Thus, the record shows that the employees wanted to continue their employment, but wanted Respondent to take steps, including the reinstatement of Besson, that they considered would reinforce the security of their own employment. This is further shown by the fact that the employees turned for help to their bargaining agent, informing representatives of the Union of their reasons for walking out, and by the fact that the employees set up a picket line on the next working day which they have since maintained to the date of the hearing in this matter. These actions are consistent with a strike over working conditions, not a severance of employ- ment. I find that, by concertedly leaving their employment on the evening of February 14, the employees engaged in a strike over working conditions protected by Section 7 of the Act. Since an object of the employees' strike was to protest the discriminatory termination of Besson and to seek her reinstatement, I find that the employees were engaged in an unfair labor practice strike. As has been noted, when the employees left work, and Respondent was unable to persuade them to return except by conceding to their demands, Respondent brusquely told the employees to leave and under no circumstances return to Respondent's restaurant, even as customers. The normal inference to be drawn from this is that Respondent was thereby discharging the employees because of their con- certed action. I so find. See R & S Steel Corp., 222 NLRB 69 (1976). It is therefore found that Respondent, by discharging the employees who were engaged in the work stoppage, which was protected under the Act, violated Section 8(a)(1) of the Act, and thereby aggravated and prolonged the strike, reinforcing its character as an unfair labor practice strike. See Astro Electronics, Inc., 188 NLRB 20 It is admitted that the Union was certified on February 17, in the following unit: "All dining room, bar, kitchen employees, hostesses and hat check employees employed by Respondent at its New Hope, Pennsylvania, 572 (1971). I find it unnecessary to pass upon General Counsel's contention that the discharges of the strikers also violated Section 8(aX3) of the Act. Thereafter, when Charlotte Besson declined to accept Respondent's offer to return to work on May 29, 1976, because Respondent's dispute with the strikers had not been settled, Besson joined the strike and became an unfair labor practice striker herself. E. The Refusal To Bargain 1. The requests and refusal Beginning on or about February 18, after the Union had been certified by the Board as the bargaining representa- tive of Respondent's employees in an appropriate bargain- ing unit 20, the Union made several requests of Respondent to meet and bargain for a contract. Apparently at the request of Respondent, the Union sent Respondent a copy of its initial bargaining demands. Two or three dates for bargaining negotiations were set, apparently through the efforts of a Federal mediator brought into the matter by the Union. Respondent has not met any of the dates set for negotiations and has refused to negotiate with the Union. Nyari testified that Respondent's present counsel, then newly hired to replace prior counsel, advised him that he "wouldn't handle" [the negotiations then set] because he had not had sufficient opportunity to prepare, and thereafter advised Nyari not to bargain with the Union because of asserted "mass picketing" and then because the Union assertedly had more than three pickets on the picket line in violation of the Union's agreement to an injunction limiting picketing to three picketers at a time. 2. The picketing The employees began picketing Chez Odette on Febru- ary 16, apparently close to the point where the driveway leading to the restaurant intersects a main road. Respon- dent's witnesses indicated in their testimony that this was a dangerous place to picket because it tended to obstruct cars turning off the highway, but there is no evidence that Respondent made objections to the place of picketing at the time, or suggested another place, or that Respondent sought to have this corrected in the injunction proceedings which it instituted. Prior to the issuance of the injunction, on March I i, it is admitted that from time to time as many as six to eight pickets were on the picket line at one time. Nyari claims that there were as many as 8 to 10, asserting that the pickets "paraded back and forth, blocking our entrance," and that "we had pickets constantly ... we had as high as, they were walking across, 8 to 10, they had lunch boxes, they had lawn chairs, they were sitting there having a good old time; they brought their grandchildren; they were parading in front of the cars; they stood in front of people's cars." As a result of the picketing, some customers and delivery vehicles were turned away. However, the restau- rant continued to operate, deliveries were obtained, with facility, but excluding all other employees, guards and supervisors as defined in the Act." 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some difficulty, nonstriking and new employees continued to cross the picket line and come to work, and some customers continued to patronize the restaurant. Nyari and Finch referred to at least one customer or group of customers whom they described as being frightened at the experience of crossing the picket line. Nyari and Finch also referred to certain statements made to them by customers and others about conduct of pickets. These are hearsay as to the conduct alleged and have been given no weight as to the truth of the contents of the statements, but have been fully considered as statements received by these witnesses. Striking employees called as witnesses by General Counsel admitted picketing across the driveway to Respon- dent's restaurant, but denied deliberately or intentionally obstructing the passage of vehicles seeking ingress or egress. They testified that immediately prior to the injunction they were directed by the Union to limit the number of pickets to three and thereafter did so. These witnesses stated that at times when the pickets changed shifts, however, there were more than three pickets in the vicinity of the picket line as the shift changed. On the other hand, Respondent's witnesses testified to occasions on which there were more than three pickets in the vicinity of the picket line.2' These witnesses asserted generally that the circumstances of the picketing with respect to obstruc- tion of vehicles and turning away cars and trucks were much the same after the injunction as before. Respondent called the police and the sheriff's office on several occasions, but no arrests of pickets was made. Though there is some reference to an amendment to the injunction, it appears that no picket has been found in contempt of the injunction. Respondent's witnesses referred to the following inci- dents assertedly occurring on or about the picket line: (I) Victor Vega, Respondent's head chef, testified that, on the evening of February 16, as he was leaving work, he stopped his car at the end of Respondent's driveway briefly, preparatory to entering the main road. At that point, Vega says, the pickets started calling him names and "banged on the car." On cross-examination, he identified the pickets as John Owens and Peter Cruice. He states that John Owens said, after a vulgar reference to Vega, "we're going to get you." Vega drove on. Vega asserts that thereafter, as the days went by, he and the pickets became friendly and engaged in conversation, and he did small favors for them. Notwithstanding this, Vega says that in April, when he indicated to Cruice that if he had to he would give an affidavit against the pickets, Cruice replied, "Well, it's all right, we've got your number. We're going to get you." Vega states that he responded, "Pete, don't say anything. Just do whatever you want to do, but don't say anything," and told Cruice that "I just work for a living and I'm going to continue." John Owens denied pounding on Vega's car or speaking to him as he crossed the picket line. Cruice denied seeing anyone pound on Vega's car and states that he said only something to the effect of "Thanks a lot, Victor, for going 21 From Nyari's testimony it would appear that these occasions included instances when "the ones who went off duty would stand there and would talk and they would have little powwows." It is also noted that Nyan and Finch in their testimony at times seemed to include persons completely across the road from the picket line, even those sitting in their cars, as exceeding the permissible number of pickets. in to work." Both Cruice and Sallie Potts assert that, on the evening of February 16, Nyari closely preceded Vega across the line, to assist him in leaving. Potts states that she called Vega a "fink," and other pickets "hollered back and forth to each other." She says she was close to Vega's car and saw no one touch it. Peter Cruice also denies that any picket touched Vega's car. While I have some concern about the reliability of Vega's testimony generally,22 I believe it unnecessary for the most part to determine his credibility in respect to the above incidents. With respect to the alleged "banging" on Vega's car, other than the pejorative description there is no other indication of what occurred. There is no claim of actual damage. Assuming that it occurred, the incident would appear to have been momentary. As to the two alleged threats, I find that Vega was mistaken in attributing a threat on February 14 to Owens. I credit his testimony concerning the statement made by Cruice. In considering Vega's testimony as a whole, he does not seem to have been seriously affrighted by his experiences at the picket line, though he was clearly concerned and upset at crossing the picket line on the evening of February 16. However, he thereafter resumed quite friendly relations with the pickets, while crossing the picket line apparently on each workday, and by his retort to Cruice indicated that he rather thought the latter's threatening language was not serious. In fact, nothing further happened to Vega, not even a repetition of the asserted banging on his car. (2) Lorraine Jackson, a waitress who did not walk out with the others and who worked during the strike, recalled an incident "in the first few days" of the strike, lasting less than a minute, in which "people walked in front of my car," and she was momentarily stopped. John Owens shouted, "How do you feel, Lorraine?" Jackson says this made her feel "very bad." She states, however, that the pickets made no threat to her. Owens denied saying anything to Jackson. I find it unnecessary to resolve the conflict. (3) There was much testimony concerning an incident in which John Owens fell in the driveway as Nyari was pulling his car into the drive leading to the restaurant. Nyari states that, on an occasion when he turned into the driveway going to the restaurant, Owens and Cruice "and some others were parading in front of the driveway, just kind of crawling going by; and when I pulled in with my car they stopped; I slammed on the brakes and stopped the car; I didn't slam them on, I was only going real slow pulling in; and [Owens] faked a fall right in front of the car. And, at this point he got up and hollered ... ,'He hit me, he hit me; I'm suing, I'm suing;' and [Owens and Cruice] started pounding on my car . . . and they all started screaming obscenities." Nyari identified Sallie Jean Potts as being there at the time. When Owens got off the ground, Nyari proceeded up the drive to the restaurant. Both Owens and Cruice recall that Nyari was driving too fast in the circumstances, and that his brakes screeched as he jammed them on. Owens states that the car thereupon 22 For example, he testified at some length about the contents of rules in notices assertedly posted in the restaurant, addressed to the waiters and waitresses and certainly written in English, though he admitted he could not read English and the notices were not of concern to him. 146 NYARI ODETrE, INC. "drifted" into him and he fell, Owens and Cruice assert that Owens questioned whether Nyari was crazy and was trying to kill him. Both Cruice and Owens testified that Nyari made an offensive gesture to Owens. Nyari asserted that, on another occasion, Owens made a similar gesture to him.2 3 Sallie Potts denied that she was present when John Owens fell before Nyari's car. I believe that Nyari was indeed traveling too fast in the circumstances and had to slam on his brakes (as he himself initially testified), and his vehicle did come into contact with Owens on this occasion. The extent to which this impelled Owens to the ground is not important. The incident was over quickly and Nyari was not substantially impeded. I credit Owens and Cruice that Nyari sped very quickly into the parking area after Owens got up and upbraided Nyari for hitting him. It is therefore apparent that the alleged "pounding" on Nyari's car could have been momentary, in response to the incident. It is not alleged that any damage occurred. (4) Ann Pappas, a member of Respondent's manage- ment, testified that upon arrival at the drive leading to the restaurant, on March 5, she observed a car being turned away by eight pickets (four union men and John Owens, Cruice, Sallie Jean, and Michele Owens). She states that she was blocked from entering by the pickets and as she started "inching" her way into the driveway, John Owens stood in front of her car and would not move, that when she continued Owens fell in front of her car, "[a]nd everybody started pounding on my car and cursing and swearing," and that Owens then got up and banged on the window on the driver's side of her car. Pappas continued on, parked her car, and went into the restaurant where she called the police. Manager Finch stated that he saw Pappas inching her way into the driveway and saw Owens "dramatically in slow motion" fall to the ground in front of the car. John Owens was not asked about the incident. Cruice testified that Pappas "swiped" his leg on one occasion "because she generally came into the driveway very quickly. Very seldom did she slow up or put a turn signal on." (5) On the same day as the above, Pappas says that she noted that a young man employed by Respondent to direct traffic into the restaurant was not doing so, so she went outside to wave traffic in. She stated that Cruice and John Owens crowded her, preventing her from waving cars into the restaurant, so that she pushed them aside, whereupon she asserts Cruice said he would "punch [her] in the mouth." Nyari came up soon thereafter and Pappas went into the restaurant with him. Cruice states that on this occasion he was walking the picket line one day when Pappas pushed him, telling him that he had to "[h]urry up," that he "just got to keep moving, can't stop or anything." Cruice says he told Pappas that, if she pushed him again, he was "going to slap you in the eye," to which he states Pappas replied that he was "lucky you're alive." Later, on this occasion, or another, Nyari approached Cruice and referred to him by a vulgar epithet as "trash" and a "cheap bum." 23 Owens stated that, on the first day of the picketing, Nyari shook his fist at Owens and indicated that he wanted to fight Owens. In a subsequent (6) Respondent's witnesses also stated that various cars, trucks, and on one occasion a bus were turned away by pickets walking or standing in front of the vehicle and talking to the driver. However, such conversations between pickets and drivers as the witnesses heard were in the nature of persuasion of the driver not to come into the restaurant. On one occasion, according to Nyari, he was able to persuade a busload of union members (who had arranged to have dinner at Chez Odette) to cross the picket line and come into the restaurant. (7) Manager Finch testified that on one occasion when he was attempting to take pictures of the picket line, "I was confronted by John Owens who was carrying a picket sign.... As I turned to walk down back toward the restaurant, he followed me down perhaps fifteen yards; he said, 'Finch, we are going to jump some night in the alley and beat your head in,' and I turned, I just looked at him; I didn't think enough of it to lower myself to say anything in rebuttal." Nyari asserted that, in the course of several vulgar obscenities, John Owens also told him, "You'll get yours, you .... " Nyari claimed that the pickets had "cards" which said "Nyari, you'll get yours." He also objected to instances of levity on the picket line, in which the pickets kicked up their legs, stuck their tongues out, and the like, which he referred to as "funnies." John Owens did not deny the statements attributed to him by Nyari or Finch set forth in this subsection. 3. Conclusions Respondent argues that it was justified in refusing to bargain with the Union because, it asserts, (1) "fifteen [employees] in a unit of approximately twenty four" quit Respondent's employment 7 days after the election, and the replacements hired thereafter do not want to be represented by the Union; (2) the employees "engaged in mass picketing"; (3) the employees "threatened and coerced their replacements and those who did not quit"; and (4) the employees "violated the terms of a state court injunction." However, as has been found, the employees involved did not voluntarily sever their employment with Respondent, but were discharged for engaging in an unfair labor practice strike in protest of Respondent's activities which were violative of the Act. In these circumstances, they remained employees of Respondent within the meaning of the Act. Respondent concedes that the Supreme Court in Ray Brooks v. N.LR.B., 348 U.S. 96 (1954), confirmed the Board's position that an employer is normally obligated to bargain with a certified union for a year following certification "absent unusual circumstances," but argues that such unusual circumstances obtain here. I find this argument to be without merit. The fact that the striking employees may have been replaced during the period following their designation of the Union as their bargaining representative (I find it unnecessary to pass upon this issue) would not in the incident involving Ann Pappas. a management employee. Cruice testified that Nyari invited him to fight. Nyan denies both of these incidents. 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances of this case provide support for Respon- dent's refusal to bargain with the Union. See, e.g., N.L.R.B. v. Alva Allen Industries, Inc., 369 F.2d 310, 320 (C.A. 8, 1966) "[T]he permanent replacement of economic strikers is not an 'unusual circumstance' that would justify a refusal to bargain in good faith with the Union during the certification year." 24 The evidence in this case would justify the finding that the employees on occasion momentarily obstructed the ingress, and perhaps the egress, of vehicles attempting to enter and leave the Respondent's premises by picketing across the road leading to Respondent's restaurant. There is no evidence that any person was actually prevented by improper means from coming in or leaving. There is no probative evidence that any customer or supplier was unlawfully induced not to trade with Respondent. In fact, the restaurant continued to operate. Customers, employees, and suppliers did cross the picket line. To this extent, the evidence submitted is compatible with the normal incidents attendant upon the maintenance of a picket line. In addition, there was evidence of use of some foul language by the pickets and on occasion by management; there were claims that the pickets momentarily pounded or banged on vehicles driven by employee Vega, and management personnel Nyari and Pappas, each on a single occasion, but no claim that this resulted in any damage to property; and evidence that pickets said to Vega, "We're going to get you," on two occasions; told Nyari that "you'll get yours;" and said to Finch that pickets would jump him in an alley some night and "beat [his] head in." One picket, who was pushed by Pappas, offered to hit her if she did that again. Up to the time of the hearing, about 4 months after the beginning of the strike, so far as this record shows, no one has been assaulted or hurt. Respondent relies heavily to support its refusal to bargain on the allegation that, after March 11, the pickets violated a state court injunction limiting pickets to three. As previously noted, I find this contention without merit. What Respondent is asking me to do here is determine whether the injunction was violated. This is not the proper forum to determine that matter. That issue should have been presented to the state court, but Respondent did not do that. Indeed, since the injunction was not offered in evidence, and I am unaware of its specific terms, I am in no position to determine whether the injunction was in fact violated. For example, Respondent has proved that more than three pickets were in the vicinity of Respondent's restaurant on occasions after March I , but not necessarily that more than three pickets were parading across the road leading to Respondent's restaurant at any one time, and certainly has not shown that persons desiring to enter Respondent's premises were actually prevented from entering or leaving by the massing of pickets numbering more than three. Whether or not this constituted a violation of the injunction is a matter for the state court. On the basis of the above, and the record as a whole, and giving due consideration to the fact that the strike and 14 Globe Automatic Sprinkler Company of Pennsylvania v. N.L.R.B., 199 F.2d 64 (C.A. 3. 1952). relied on by Respondent is readily distinguishable. In that case the court noted that the employer had actually bargained in good faith for almost a year, and the Union's loss of representative status was not attributable in any way to activities of the employer, which is not the picketing were caused and prolonged by Respondent's own unfair labor practices, I find that the picket line incidents set forth did not rise to a level which justified Respondent in refusing to recognize and bargain with the Union. See, e.g., Daniel A. Donovan, et. al., d/b/a New Fairview Hall Convalascent Home, 206 NLRB 688 (1973), and cases cited. See also N.L.R.B. v. Ramona's Mexican Food Products, Inc., 531 F.2d 390 (C.A. 9, 1975). Indeed, by refusing to bargain with the Union in the circumstances Respondent rejected the very device which the law commands as the proper procedure for settlement of disputes such as occurred here and thereby aggravated the situation about which it now complains. Upon consideration of the above and the entire record, I find that Respondent, by refusing to bargain with the Union and instituting unilateral changes in employee working conditions after the employees had selected the Union as their bargaining representative, violated Section 8(a)(5) and (I) of the Act. F. Supervisory Status of Helen Orlando I. The facts At times material herein, Respondent employed approxi- mately 18 employees including Helen Orlando in a unit which included kitchen help. The acknowledged supervi- sors over this unit were Nyari, the owner, Finch, the manager, and Ann Pappas, a hostess-supervisor, who- Nyari stated-"goes around making sure that the people who are supposed to be doing their work do their work," and who reports any delinquencies observed. The record is not clear whether Victor Vega, the head chef, has supervisory authority over the kitchen help. Helen Orlando was employed by Odette as head waitress when Odette operated Chez Odette. According to Nyari this was based on the "experience that she had gathered over the years," and the facts that "she knew everybody in the area" and was aware of persons available to work. Orlando was continued in this position after Nyari took over the operation of the restaurant. Although Orlando appears to have been quite active in the union organizational campaign at the restaurant, served as an observer for the Union at the election, and voted in the election, Respondent raised no issue as to her asserted supervisory status at the time. The matter was first raised, it appears as a matter of happenstance, during the course of the hearing in this matter. In support of Respondent's position that Orlando was a supervisor over the waiters and waitresses, Nyari testified, "Helen virtually ran the restaurant. Helen had full authority to do all the hiring of the staff, with the exception of the kitchen," and "she ran that whole restaurant. Whatever she said was the law and she was like a dictator in the place." Nyari asserted that Orlando "was in charge of the hiring, firing and training of the waiters, waitresses and bus help, doing all the scheduling." With respect to the situation here. In any event, Globe was decided before the Supreme Court's decision in Brooks and has been distinguished by other courts on that basis. See Kenneth B. McLean, d/b/a Ken's Building Supplies v. N. L R.B., 333 F.2d 84, 88-89 (C.A. 6, 1964); N.LR.B. v. Holly-General Company, Division of Siegler Corporation, 305 F.2d 670. 672-674 (C.A 9. 1962). 148 NYARI ODETTE, INC. weekly scheduling of work, Nyari agreed that this was for the most part repetitive and unvarying (though he says he desired more change). Orlando was paid an extra amount for preparing this schedule each week. However, this perquisite was taken away from her before the election (as part of Respondent's economy moves, Nyari says) and Manager Finch was thereafter designated to prepare the schedules. Nyari agreed that Orlando was assigned to a work station as were the other waiters and waitresses and worked a full schedule as a waitress but, Nyari says, "was supposed to spend her time training people, making sure that the work was done, checking on phones, in addition to being a waitress." However, aside from an extra stipend for making out schedules (which ceased before the election), Orlando received the same wages and benefits as the other waiters and waitresses.2 5 The record shows that, during the period after Nyari took over the operation of Chez Odette, two or three new employees were hired: Peter Cruice, whom Nyari hired and brought into the restaurant (Nyari insists he had to persuade Orlando to give him a trial), and John Owens, the bartender who was also hired by Nyari. In addition, Melissa Owens was apparently recommended by Orlando for hire and was employed. Nyari also testified that certain temporary summer help was employed by Orlando. About the time Nyari began operating the restaruant, Sallie Jean Potts, who had previously been employed as a bus girl by Odette, was promoted by the then manager of the restaurant to waitress on the recommendation of Orlando that Sallie Jean Potts was familiar with the restaurant and there was need for a waitress. Orlando agreed that, when training was required, she trained new waiters and waitresses, but asserted that this had not been required since Nyari took over. Orlando also agreed that she made recommendations as to the hire or discharge of employees, but denied that she could take such action without the authorization of management. She testified that her recommendations were "sometimes" followed. Nyari's testimony is to the contrary, as indicated above. I credit Orlando. There is no specific evidence as to any action taken by Orlando with respect to discipline of employees or action affecting any other working condition of the employees. After Respondent took scheduling duties away from Orlando, she worked only as a waitress, with no other responsibilities. After that time it appears that she played no role in the hiring, discharge, scheduling, or discipline of employees. 2. Conclusions This issue, which was raised and much litigated by Respondent, is not discussed in its brief. It has nevertheless been considered at length because it affects Helen Orlando's asserted rights under the Act. The facts stated above and the record as a whole strongly indicate that prior to the time Orlando was relieved of her 25 I do not credit Nyari's testimony that Orlando would have participat- ed in the profit-sharing plan which he was setting up for management people, if there had been a profit, and that Orlando knew this. 26 I have also considered Nyari's claim that Orlando hired two summer duties of making out working schedules (prior to the election) she may have been a working leader, but she was not a supervisor within the meaning of the Act. The facts are convincing that, after she was relieved of her sched- uling duties, and certainly by February 14, Orlando was not a supervisor, and was not considered a statutory supervisor. In the first instance, I am unwilling to rely on Nyari's testimony which strongly impressed me as emotional, exaggerated, and overblown. Thus his claim that Orlando ran-or virtually ran-the restaurant and that what she said "was the law" does not comport with the fact that the Respondent previously did not claim that she was a supervisor during the representation proceeding, nor dispute Orlando's eligibility to vote in the election or act as an observer for the Union. Nor does it comport with the fact that Respondent had three active supervisors, Nyari, Finch, and Pappas, on the premises to oversee the operations of the restaurant and supervise the fewer than 18 waiters and waitresses employed, a ratio of supervisors to unit employees that tends to militate against the need for a fourth supervisor over the waiters and waitresses. Respondent does seem to have relied to a considerable extent on Orlando's knowledge of the labor pool in the area of employment of personnel. However, even so, it appears that her recommendations were not necessarily followed. Indeed, the record indicates that Orlando had limited occasion to perform this service for Respondent. Of three new full-time employees hired only one was recommended by Orlando, the others were hired by Nyari. One bus girl recommended by Orlando was made a waitress.2 6 There is no credible evidence that Orlando played any significant role in the discharge of employees. She had no part in the termination of the two unit employees referred to in the record (Lee and Besson). There is further no evidence that Orlando was involved in specific instances of discipline or direction of employees in their work which might have been expected of a first-line supervisor. She did make up working schedules which the record shows were largely routine. Finally, Orlando worked full time as a waitress for Respondent, was paid the same as other waitresses (except for $25 weekly for preparing the schedules), and had the same benefits. These considerations, and the entire record, are convinc- ing that Orlando, at the most, was a working group leader prior to the time before the election when she was advised that she would no longer be making up work schedules. After that time, Orlando had no duties or responsibilities which distinguished her from the other waitresses. In any event, it is inconceivable that Respondent, after accusing her of theft on February 7 and asking for her resignation, should claim that she acted for Respondent as a supervisor thereafter. For the reasons stated I find that, at times material herein, Helen Orlando was not a supervisor within the meaning of Section 2(1 1) of the Act. seasonal helpers. Because of my lack of confidence in his testimony and lack of supporting detail, I do not give this much weight. I assume she played part in the employment of such help, but I am not sure what it might have been. 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act and was, at all material times, and continues to be the exclusive representative of Respondent's employees in the appropriate unit set forth below for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. The bargaining unit set forth and described herein- above in footnote 20 constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing to bargain in good faith with the Union in the above-described unit, and by unilaterally changing the working conditions of its employees in that unit without affording the Union an adequate opportunity to bargain with it concerning such changes, Respondent has engaged, and is engaging in, unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 5. By changing its work rules, and making them more stringent and less permissive, and by otherwise harassing its employees, in retaliation against its employees' selection of the Union as their exclusive bargaining representative, Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 6. By laying off or terminating Charlotte Besson on February 14, 1976, because of her support for the Union, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 7. By discharging, on February 14, 1976, employees in the appropriate unit, including Helen Orlando, Anthony Orlando, Virginia Owens, Michele Owens, Marie Deem, Maia Deem, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem, Judith Ott, John Owens, and Peter Cruice, who were engaged in a concerted work stoppage caused by Respondent's unfair labor practices, Respondent interfered with, restrained, and coerced its employees in the exercise of rights protected by the Act, and prolonged the said unfair labor practice strike, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent did not engage in interrogation of employees concerning their union activities as alleged. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(aX)(1), (3), and (5) of the Act, it will be recommended that Respon- dent cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that Respondent unlawfully terminat- ed or laid off Charlotte Besson on February 14, 1976, but offered to reinstate her as of May 29, 1976, which offer she refused, electing to join the strike of the other employees until their dispute with Respondent had been settled. It will therefore be recommended that Respondent make Char- lotte Besson whole for any loss of pay or other benefits she may have suffered from the date of the discrimination against her to May 29, 1976, less her net earnings during that period, in accordance with the Board's formula as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It is established Board policy not to provide backpay for strikers, even though they may have been discharged by their employer in violation of the Act. See Kellstone, Inc., 206 NLRB 156 (1973); Astro Electronics, Inc., supra. It will therefore be recommended that Respondent offer to each striking employee, including Charlotte Besson, upon his or her unconditional application for reinstatement, immediate and full reinstatement to the striking employee's former job or, if such job no longer exists, to a substantially equivalent position without prejudice to his or her seniority or other rights and privileges, dismissing if necessary any employee hired since 6 p.m., February 14, 1976, to replace such striking employee. If, after such dismissal, there are not sufficient positions available for all the strikers, Respon- dent shall place their names on a preferential hiring list for employment in suitable new openings in preference to new applicants. Respondent shall also make whole those employees entitled to reinstatement for any loss of earnings they may have suffered as a result of Respondent's failure to reinstate them upon application, as aforesaid, by payment to each of them of a sum of money equal to that which each would have earned as wages and benefits from the date of his or her unconditional application to return to work to the date of Respondent's offer of reinstatement, less his or her net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. See, e.g., Astro Electronics, Inc., supra at 573-574. I find that none of the striking employees are disqualified from reinstatement. Indeed, Respondent does not argue in its brief that any should be disqualified. Only serious misconduct actually engaged in by a striking employee is disqualifying; an employee may not be disqualified for the misconduct of others in which he did not participate or for which he is not in some way personally responsible. See Coronet Casuals, Inc., 207 NLRB 304 (1973), and cases cited at 321. In respect to this issue I have given particular attention to the threat made to Finch by John Owens and to Vega by Cruice. This sort of activity is not to be condoned. However, on occasion, such statements by strikers may be regarded as part of the rhetoric of the picket line, where, as here, they are isolated statements in a protracted strike, apparently not taken seriously by the person threatened, and there is an absence of concomitant violence reinforcing the threat. I have also fully considered the allegations that Helen Orlando and Tony Orlando engaged in misconduct in the course of their employment which might disqualify them. However, as has been found, Respondent did not discharge them when the alleged misconduct is said to have occurred, and Respondent accused them of wrongdoing only as a 150 NYARI ODETTE, INC. part of its campaign of retaliation against the employees for selecting the Union as their bargaining representative. In the circumstances, I do not believe that they should be disqualified from reinstatement. No affirmative provision will be recommended for the rescission of Respondent's changes from past practice found violative of Section 8(aX1) of the Act. These were found to be unlawful because they were made in retaliation against employee selection of the Union as their bargaining representative and constituted unilateral action in deroga- tion of the right of the employees to be represented by the Union in respect to their working conditions. It will be recommended that Respondent cease and desist from such practices and bargain in good faith with the Union concerning working conditions of employees and changes in such conditions. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 26 The Respondent, Nyari Odette, Inc., New Hope, Penn- sylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating privileges theretofore granted its em- ployees in reprisal for their union or other protected concerted activities. (b) Instituting changes in working conditions in reprisal for and in order to discourage union membership or activities or support of a labor organization. (c) In any other manner harassing its employees in reprisal for their union activities or other protected concerted activities. (d) Discriminating against employees by layoff, dis- charge, or in any other manner because its employees joined, aided, or supported a labor organization, or engaged in other protected concerted activities. (e) Refusing to bargain collectively in good faith with Local 274, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, herein the Union, as the exclusive bargaining representative of the employees in the appropriate unit set forth in footnote 20 hereinabove with respect to rates of pay, wages, hours of employment, or other conditions of employment, or with respect to any changes in such conditions of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 21 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. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the appropriate unit set forth above with respect to rates of pay, wages, hours of employment, and other terms or conditions of employment, and, if an agreement is reached, embody such understanding in a signed agreement. (b) Regard and treat with the Union from the date good- faith bargaining commences and for 12 months thereafter as if the Union had been certified on the date that such bargaining began. (c) Make Charlotte Besson whole for any loss of pay or benefits which she may have suffered as a result of the discrimination against her in the manner set forth in the Remedy section of this Decision. (d) Upon their unconditional application, offer to the employees who have participated in the strike which began on February 14, 1976, including Charlotte Besson, Helen Orlando, Anthony Orlando, Virginia Owens, Michele Owens, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem, Peter Cruice, Maia Deem, Marie Deem, John Owens, and Judith Ott, immediate and full reinstatement and make them whole in the manner set forth in the Remedy section of this Decision. (e) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, per- sonnel records, and all other records necessary in the effectuation of this recommended Order. (f) Post at its place of business at New Hope, Pennsylva- nia, copies of the attached notice marked "Appendix." 2 7 Copies of said notice, on forms provided by Regional Director for Region 1, after being duly signed by an authorized representative of Respondent, 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. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed as to any alleged violation of the Act not found hereinabove in this Decision. 27 In the event 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." 151