Bonanza Sirloin Pit

310 DECISIONS OF-NATIONAL- LABOR RELATIONS BOARD ' Bonanza ' Sirloin Pit and Food Store Employees Union, Local 347, United Food and Commercial Workers International Union, AFL-CIO and 'Scotty, Burnes. Cases 9-CA-18769, 9-CA- 19025, 9-CA-19167,_ 9-CA-19934, _and 9-CA- 19110-1 . 29 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On .17 September 1984- -Administrative Law Judge Bruce- C. Nasdor issued the attached deci- sion. The Respondent filed exceptions without a supporting brief. The General Counsel filed -limited exceptions and abrief. The • Board has considered- the decision and ,the record in light- of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this .,Decision and Order. Section 102.46(b) of the Board's Rules and Regu- lations_ sets forth the- minimum requirements with which exceptions to an administrative law judge's decision must comply in order to • merit consider- ation by the Board. A party excepting- to the find- ings of an administrative law judge must set. forth with specificity those-portions of the. judge's deci- sion to which it excepts, -and support the conten- tions with legal or record citations or appropriate ,argument.. , - - . -1 The Respondent's,- exceptions- are inadequate as they constitute virtually a wholesale listing of each and every finding, conclusion, and recommendation of the judge. The Respondent failed' to submit' a supporting brief or any other document alleging with any 'degree of particularity what error, mis- take, or oversight the ,fudge committed or on what grounds the- findings should be overturned. Conse- quently, the Respondent' ;would have, the:-Board engage ' in its own attempts to determine what if any problems, errors, or irregularities are possibly presented by the judge's decision. We have consist- ently refused to do this. Fiesta Printing Co., 268 NLRB 660 (1984); Ditch Witch, Inc., 248' NLRB 452 (1980); AitOo Painting Corp., 238 NLRB 366 (1978). - As the Respondent's exceptions fail to put in issue any findings of the'judge,'we reject them.' i The General Counsel filed limited exceptions to the judge's failure to include in his enumerated conclusions of law his findings that the Re- spondent unlawfully implemented anew work schedule and reduced em- ployee work hours in violation of Sec 8(a)(3) of the Act We shall modify the fudge's conclusions of law to correct this apparent inadvert- ency. and accordingly shall modify the Order to provide a remedy for this violation AMENDED CONCLUSION OF LAW Insert the following as paragraph 22, and renum- ber the remaining paragraph. "22. By implementing a new work schedule and reducing the work hours of employees in retalia- tion for their union activity, the Respondent has violated Section -8(a)(1) and (3) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below 'and orders that the Re- spondent, Bonanza Sirloin Pit, Madison, West Vir- ginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Insert the following as paragraph 1(t) and re- letter the subsequent paragraphs. "(t) Implementing' new ,work schedules and re- •ducing the work hours of employees in retaliation for union activity." 2. Insert the following as paragraph 2(b) and.re- letter-the subsequent paragraphs. - - "(b) Make whole any employees for any loss of pay they may have suffered by reason of the dis- criminatory implementation of a new work- sched- ule and reduction of work hours, with interest as provided in . the section above entitled `The Remedy."' _ MEMBER HUNTER, concurring. - - - I- agree with the result reached by my colleagues in that I would adopt the judge's findings, conclu- sions, and recommended Order as modified.to, cor- rect an inadvertent error; however, I do so on the basis that the judge's findings are legally correct and supported by the record. Contrary to my col- leagues, I would not reject the Respondent's excep- tions because I disagree with my colleagues' con- clusion that the exceptions do not put in issue any of the judge's findings. The Respondent's excep- tions designate specific sections of the judge's deci- sion which are excepted to, and I would not reject them merely because they do not set out any factu- al basis or legal argument for reversing the judge. While, under Section 102.46(b), the Board may dis- regard such exceptions, I think the better course is to consider them because the Respondent has suffi- ciently alerted the Board to those sections of the judge's decision claimed to be erroneous.' In these ' I note my colleagues' failure to pro forma adopt the judge's findings in the absence of exceptions In my view such a pro forma adoption would be legally insupportable since the Respondent clearly has excepted to specific. portions of the fudge's decision 275 NLRB No. 54 BONANZA'SIRLOIN PIT 311 circumstances I would not reject exceptions based on a mere technical noncompliance with the Rules and Regulations. - The cases relied on by my colleagues in rejecting the Respondent's exceptions are readily distinguish- able from the instant case. Thus, in Fiesta Printing Co., supra, the respondent's "exceptions" did not place in issue any of the judge's findings but con- sisted only of an attempt to recant the testimony-of its two principal witnesses and to introduce new evidence. In Ditch Witch, Inc., supra, the respond- ent submitted as "exceptions" only its brief earlier submitted to the judge along with a cover letter, which nowhere set out any stated exceptions to any portion of the judge's decision. Likewise, in Aitoo Painting Corp., supra, the respondent's "ex- ceptions" consisted of a mere, paragraph taking ex- ception to the judge's entire decision. As 'noted, I would accept the Respondent's ex-. ceptions because they 'sufficiently alert the-Board to those sections of the judge's decision claimed to be erroneous. Accordingly, I have evaluated the excepted-to findings of the judge, and I am satisfied that they are legally sound and supported by the record. Therefore, I would adopt the judge's find- ings, conclusions, and recommended Order as modified. DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge. This case was tried at Charleston, West Virginia, -on Novem- ber 7, 8, and 9, 1983. Based on charges filed by the Union and Scotty Burnes,' an individual, an order con- solidating "cases, third consolidated amended complaint, and notice of hearing was issued on September 6, 1983, and alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's brief,2 I make the following FINDINGS OF FACT I JURISDICTION At all times material herein, Respondent, a West Vir- ginia corporation with an office and place of business in Madison, West Virginia, has been engaged in the oper- ation of a public restaurant selling food and beverages. During the past 12 months, a representative period, Respondent,'in the course and conduct of its business op- erations, derived gross revenues in excess of $500,000. During the same period Respondent, in the course and conduct of its business operations, purchased and re- ceived at its West Virginia facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of West Virginia. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION The Union is now, and has been at - all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events Because of the magnitude of the.8(a)(1) allegations en- compassed in the complaint, for the purposes of clarity and streamlining, I have keyed the paragraphs of the complaint to the testimony. On September 23, 1982,3 Barry L. Elswick, owner of the restaurant and president of the corporation, received a letter from the Union stating that his employees desired to organize and set up a collective-bargaining relation- ship with Respondent. Elswick- approached an employee, Mary Lou Wyatt near the cash register and referred to' his 'employees as "whores" who were trying to form a union. He re- marked that he had been good to those "whores." (Par. 5(a)(i).) Elswick then stated to Wyatt that he would burn the restaurant before he would accept a union. (Par. 5(a)(ii).) Either later that day or the next day Elswick called Wyatt nothing but "scum and a piece of shit," and then told her that if it took him $10,000 he would get rid of-her. (Par: (5)(a)(iii).) Approximately 3 days later, John Harmon, an employ- ee, was late reporting to work, and entered Elswick's office to explain his lateness. Elswick responded that it would probably be a lot harder on a lot of other people in the store and stated that he planned "to get rid of" Wyatt, Smith, and Foster. Elswick also stated during this conversation that if the employees selected the Union as their collective-bargaining representative he planned to reduce their wages below the Federal minimum. (Par. 5(b)(i), (iii), and (iv).) On September 26, while on -her break, Sheila Sanders was approached outside of the restaurant by Elswick, who stated that "four people could not start a union and keep it going." Elswick then threatened to fire Deen Ann Smith, Martha Adams, Wyatt, and "another mf." The witness was reluctant-to use the words but rather preferred to use the initials "mf" although she testified that Elswick did not use initials. During this conversa- tion Elswick also threatened to close his business by burning "the mf place to. the ground and that he was a winner." (Pars. 5(b)(i) and (ii):) About September 27, employee Wyatt. apparently passed out at work and hit her head on the floor. On September 28, Elswick approached her, called her a "piece of shit," and told her he wished that she had "busted her fucking skull." Elswick then told Wyatt that I Name appears as amended at the hearing 2 Respondent did not file a brief in this matter 3 All dates are in 1982 unless otherwise indicated 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he knew she had organized 30 people for the Union. She responded to Elswick that he should prove -it .and he stated that when he found out about her union activities ..your ass is gone from Bonanza." '(Pars. 5(d)(i), (u), (iii), and (iv).) On September 30, Elswick told Wyatt that he had just given her a $1-per-hour raise, she was a supervisor and thus could not be involved with the Union. (Par. 5(c)(i) ) .On November 3, the Union and Respondent executed a Stipulation for Certification Upon. Consent Election setting forth that the election was to be held on Novem- ber 30. On November 18, Elswick met with employees Martha Adams and Ruby Journell at a Shoney's restau- rant in Kanawha City, West Virginia. These employees worked the breakfast shift ,at Respondent's facility , Els- . wick stated to them- that if the Union got in he would lock the doors, and if the Union did not get in he would change the breakfast to a buffet, which, would-require the services of only two employees. (Par. 5(e)(i).) During the same conversation Elswick stated that he knew the Union -would lose. the election because he had "paid, enough people off." (Par. 5(e)(ii)) - The next day, Elswick told Martha Adams not' to wear union buttons at work. (Par.-5(f).) On several occasions Elswick accused Deen Ann Smith of stealing pro company, votes and referred to her. as a "fox turned loose in a chicken coop." He also ques- tioned her concerning the number of prounion votes she, had secured.' Elswick on one occasion pulled a list of em- ployees from his pocket, checking the names of those he admittedly had paid for' votes. He then pulled money out of his pocket and offered Smith money for her vote. (Par 5(g).)• . Approximately 3 'days prior to the election, Elswick gave Rex Pauley a' "Christmas gift" of $250, -making the statement, "[Y]ou might just do something for me some- time." (Par. 5(h)(i) ) Later that same day at a crew meeting held at the res- taurant, Elswick stated he would "close the doors" of the restaurantvif the employee selected the Union as their, collective-bargaining representative. (Par. 5(h)(ii)). Els- wick also stated that if the Union won the election he would not bargain or sign a-contract. (Par. 5(h)(iii).) Two- days prior to the election, Elswick called em- ployee Ruby Journell, told her he was going to visit her that day, and requested specifically that her husband, an unemployed 'coal -miner, be present. Elswick arrived at her house accompanied by -Bruce Duty; her husband's s'upervisor'at the mine prior to his layoff Elswick stated to the Journells that selecting the Union would be futile and spoke of the success of his campaign: He told Jour- nell's husband that in January he intended to open new mines and he would probably be hiring. (Par. 5(i).) On the evening of November 29, the day before the election, a -union meeting was scheduled at Deen Ann Smith's house Elswick was aware of this and arranged a party at the restaurant during the same time At this party he told employees that-he had planted-two or three spies at the union meeting. During the same evening Els- wick threatened Pauley with discharge if•he did not stay at the restaurant in attendance at the party. (Par. 5(j)(i) and (n) ) On November 29, earlier in the day, Elswick ap- proached Martha Adams and Ruby Journell in the ban- quet room of the restaurant. and asked them how they were going to vote in the election. Adams responded that she was going to vote for the Union Elswick fol- lowed Adams out to her car and continued to 'ask her if she was not going to vote for him. She maintained that she was going to vote for the Union. (Par. 50)(iii) ) Approximately a week prior to the- election, Elswick showed Scotty Burns a list containing the names of Re- spondent's employees, and o told Burns to check the names of those employees he thought would support Els- wick in the election. (Par. 50)(iv).) At the election, during the balloting, Elswick sat in a booth facing the polling area and maintained and checked a list of employees as they entered-to vote. (Par. 5(k)(i).) Moreover, when Pauley appeared at the restau- rant to vote, Elswick took him, to his office, closed the door, and stated to Pauley, "[Y]ou'll vote for me." (Par. 5(k)(ii) ) On November 30, a majority of the employees cast their ballots in favor of the Union. On December 2, Els- wick told employees he would close the restaurant, make offices out of it, and open a new restaurant at the Moun- taineer. (Par. 5(1).) Several days after the election and during the penden- cy of charges, Elswick answered a telephone call from a Board agent to Pauley. Later Elswick threatened to fire Pauley and beat him, "I'll stomp you," if Pauley did not tell Elswick what the Board agent wanted (Par. 5(m).) At a later time Elswick confronted Pauley in a ban- quet room in the restaurant and asked him if he had talked to "that woman" yet. Pauley responded affirma- tively and Elswick stated, "[Y]ou tell her the truth?" Again Pauley - responded affirmatively and Elswick stated, "[Y]ou'd better because I'll see you over in the courtroom if you don't tell her the truth." The woman referred to was the Board agent who was in the process of investigating this case (Par. 5(n).) In July 1983, while Burns was in Elswick's office, Els- wick told him that the best thing for him' to do was to drop out of the Labor Board hearing. He told Burns he would hate for him to make a fool of himself and he would hate to drag Burns' parents into it. According to the testimony of Burns, Elswick was referring to parties Burns had at his 'house. Burns is 21 years old. (Par. 5(o)(i).) During the same meeting between Burns and Elswick in Elswick's office, Burris asked Elswick why he fired him and Evelyn Foster4 and not the rest of the employ- ees who were involved with the Union. Elswick re- sponded that he had not forgotten what any of the em- ployees had done and he had about nine more to get rid of (Par 5(o)(n) ) 4 Evelyn Foster was an admitted supervisory employee BONANZA SIRLOIN PIT B Respondent's Actions 1 Reduction of the number of scheduled working hours - " Testimony, reflects that immediately after the election Elswick reduced the complement of employees from three to two on weekdays, and four to three on week- ends. Further testimony reveals that business had not slowed down. Respondent was unable to produce timecards for the critical period. Respondent's Exhibit 12 contains inaccu- racies. During the campaign Elswick had threatened to restructure the breakfast shift by making it-a buffet serv= ice. 2. Imposing' more onerous work conditions In the beginning of June 1983 , Respondent posted a new set of work rules containing rules such as prohibit- ing the consumption of soft dunks, requiring the wearing of a-hat, prohibiting off-duty employees from being on the premises, refusing to permit off-duty employees to assist in kitchen cleanup , and requiring doctor's excuses for all absences . (See G.C Exh. 2.) Respondent was unable to offer any basis for the imposition of these rules. 3. The discharge of Burns Approximately 1 month, prior to the representation case hearing on November 5, Elswick" called Burns into his office and asked his support in opposing the Union. Burns was told by Elswick that the Union would not help the employees and to think about Elswick's proposi- tion. Burns replied, "I didn't have to ' think about it, I would stick with the Union." Elswick responded by tell- ing Burns to get the hell out of his office. At the repre- sentation hearing, Burns associated with the union repre- sentatives. Elswick was present at this hearing. Three weeks after the election, on December 21, Els- wick called Burns on the telephone and told him he was terminated. The basis for the termination according to Elswick was that he had somebody to replace Burns. Later, Elswick gave Burns a letter (see G.C. Exh. 9) stat- ing' that Burns had "totally lost his ability to effectively supervise the employees in the store." At the time of the termination, Elswick did not give Burns any additional reasons for his termination. 4. The warnings and discharge of Deen Ann Smith Smith was quite openly active on behalf of the Union during the organizational campaign. She attended all of the union meetings, and volunteered' her home for four or five union meetings. On November 29; the. eve of the election, she held 'the meeting at her home which con- flicted with Elswick's employee party., Elswick on several occasions accused • Smith of court- ing union support away from Respondent. On two occa- sions Elswick threatened to fire Smith 'because of her union activities. During approximately the same period of" time as Smith's discharge, Elswick referred to her, and other union adherents stating he still had "nine more to get rid of." 313 On May 26, 1983, Smith received a written warning for not wearing a hat. There is no evidence that such a rule had been uniformly enforced. Moreover, Smith was hatless for approximately 1 minute and had not yet begun to perform her duties at her work station. On the next day, May 27, 1983, Smith was issued an- other warning for allegedly cursing. Smith denied the in- cident, although there is testimony from employees that obscenities and vulgarities were spoken in all areas of the restaurant both before and after the alleged incident on May 27. Elswick and Manager Wyatt testified that Smith had a his of being rude to customers. Elswick testified that he warned Smith after three such incidents. Smith testi- fied that the incidents did not occur and she was never warned by Elswick regarding such incidents. Supervisor Foster testified that she was unaware of any such inci- dents or warnings A customer, Ruth Scott, testified that she made it clear to Wyatt she did not want to fill out a complaint card and agreed to do so only after Wyatt spent 30 min- utes with her at Scott's workplace in an effort to con- vince her to fill out the complaint card Wyatt testified that Scott wanted to fill out the complaint card. Scott testified that Wyatt assured her that Smith would not lose her job. Wyatt denied such assurances. 5. Supervisory status of Burns, Wyatt, and Adams a. Burns - Respondent contends that Burns was a supervisor within the meaning of the Act and accordingly was not discharged in violation of Section 8(a)(3) of the Act. The General Counsel takes the position that Burns was an employee rather than a• supervisor. Elswick testified that he made Burns an assistant manager on September 18. Later in his testimony he answered that it could have been August or September. Elswick then suggested that Burns was being trained as an assistant manager in March 1982 Burns and several employees' testified regarding any supervisory indicia Burns may or may not 'have pos- sessed.. Burns testified that after being characterized as an assistant manager, and the record is not clear as to exact- ly when this occurred, his duties did not change. He was still expected to cook, mop floors, clean up, and take garbage out. He continued to wear the same uniform as other employees, which differed from the striped shirts worn by the managerial staff. - Employees testified that Burns sometimes made out the work schedule. He testified that he made the sched- ule out only after consultation with the admitted manag- er and supervisor, Foster. Moreover, according to Burns the scheduling was routine and always subject to alter- ation by Foster - Employees testified that any reassignments Burns made were as to requests for taking coffee to the customers or," when the volume of business necessitated, he would ask employees to perform busing tables and carrying dinners to customers Occasionally, Burns would ask employee Harmon to leave his dishwashing functions and bus 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tables. Harmon testified that busing tables was one of his normal duties. - Burns testified that there were a group of employees who.were regularly scheduled to work set hours and to close the restaurant Burns from time ,to time allowed-the high school students who were not scheduled to work a particular shift to leave prior to closing . In. doing this Burns did not select the employees he would permit to leave early, rather he asked for volunteers . He testified that there was no occasion when he actually had to choose among those wanting to leave -early and ' request an employee to remain : There were -times when Burns had to call employees in to work when there was a shortage . Burns testified that he ' had a list of employees and he simply -began at the top of the list and -if unable to reach the employee or the employee could not come in he simply went to the next employee on the list . If Burns was unable to- secure any employee from the list he brought this to,: the attention of the . store manager, Foster..- On one occasion only Burns told an employee to leave the restaurant after the 'employee refused to help him mop floors.' The employee apparently had finished her assigned work,' there was no other work for her to do, and she was not required to mop floors .' There is no evi-' dence that Burns' disciplined this employee or any other employee. Nor is there any evidence that he' effectively recommended discipline. One employee testified that if Burns' instructions were not followed nothing was done about it by Burns. Burns did not hire, fire, or, give or 'recommend raises. Respond- ent introduced an exhibit, Respondent's Exhibit 7,'a'job application, which simply reflects that the applicant 'fur- nished three names, among them the name of Burns, as a personal character reference. Although Burns was • present when the , restaurant closed, he-Aid not have the keys, to the- +restaurant;.. the actual locking up was left to an individual named Marvin Smell. Moreover, Smell was present at all times when Burns was working . Burns perceived himself subordinate to Smell. He was also subordinate to Supervisors Hol- brook and Foster during most of_ his . shifts. . Employee Harmon testified that during his .shifts both Burns and Holbrook were present b.. Adams ''In defense of certain 8(a)(1) allegitions ,ias testified'to by Martha Adams,'Respondent contehds`that Adams"was a supervisor as defined in the Act. The record reflects- that ` Adams' initialed employee timecards and helped `to prepare the breakfast ' schedule. She testified that 'although `she assisted 'in' preparation of the schedule , it was always submitted to' Manager Foster for approval. Furthermore, the breakfast''schedule con- sisted of a'standard 4 a'.iii. to 11 a.in .' shift for four em- ployees on weekends and three employees on weekdays. Adams testified that she only initialed the timecards when directed to do so by Foster or after Foster granted permission. , , c. Wyatt Respondent contends that Wyatt was a supervisor within the meaning of the Act in defense of certain 8(a)(1) allegations. Elswick himself testified that Wyatt did not become a manager until after the ' discharge of admitted- Supervisor and Manager Foster. Prior to that, Foster and Halstead managed the store. -The General Counsel concedes that Wyatt became a supervisor after the discharge of Foster. Wyatt testified that she had authority but she 'just did not exercise it and that the Union told her that.she was not a supervisor Respondent did not proffer any evi- dence probative of her supervisory status. C. Conclusions and Analysis . 1. Independent 8(a)(1) allegations Although Elswick and his - attorney were present throughout the hearing and heard-witness after 'witness testify that he engaged, in a variable potpourri of flagrant violations of Section 8(a)(1) of the Act, Elswick'neither denied them or-put forth any defense. I therefore con- clude' that Elswick'•s conduct was in violation of Section 8(a)(l)', of• the Act as pleaded in • each and every para- graph of the-third consolidated amended complaint. •2. Reduction of the number of scheduled working hours- As set forth earlier, ' Elswick,unlawfully tlireatened'to shorten the ' working hours and ' in fact ' implemented the threat. The exhibif which Respondent offered into evi- dence, Respondent's Exhibit 12; to' buttress its defense contained inaccuracies -and was incomplete. I therefore find and conclude that the. implementation ' of the new schedule was a violation 'of Section 8(a)(3) of the Act I agree' with the General Counsel's analysis that the liabil- ity for,this'violation. should-`be left for resolution at the compliance stage.- 3. = Imposing more onerous working conditions It is' undisputed that in the beginning of June 1983 ' Re- spondent posted 'a new set of work rules. Respondent did not repudiate the contention that these rules were but an- other 'vehicle to discriminate against' its `employees for engaging in union activity. Considered in the context of Respondent's continued display of antiunion - animus, I can only conclude -that'this is another violation of Sec- tion 8(a)(1) and `(3)' of the -Act. r; .} 4.'The discharge of Burns '''. i . Suffice it toj say thata all of•the elements are present. Respondent's antiunion animus coupled ;with the, knowl- .edge,of Burns' prounion sympathies :triggered,his: termi- nation The • General , Counsel ..has established a. prima -facie, case' in.. conformance with tlie, Board's decision. inin Wright Line, 25.1,NLRB, 1083 (1980),. However,, Respond- ent has failed to meet its burden to show S that the. dis- - charge would have occurred absent the union activity. Rather, Respondent has offered a series of,shifting rea- sons for the discharge, which surfaced after the terming; BONANZA SIRLOIN PIT 315 tion, all of which are without corroboration. I therefore find that Respondent's discharge of Burns was pretextual and Respondent would not have terminated him but for his union and protected concerted activity. Accordingly, I conclude that by the discharge of Burns, Respondent engaged in violations of Section 8(a)(1) and (3) of the Act. 5. The warnings and discharge of Deen Ann Smith Throughout the union campaign and thereafter, Smith continued to be the object of Elswick' s antiunion venom. She attended the union meetings and offered her home for several of the meetings, including the one which was held concurrently with Elswick's employee party. Els- wick was abusive to Smith and threatened to fire her be- cause of her union activities. Smith's warnings were for trivia and more of the same pattern of harassment. The evidence is clear that vulgarity was used by employees 'in all areas of the restaurant before and after the alleged incident. There is no question in my mind but that Smith was set up for' the discharge as a result • of Elswick's avowed hostility and antiunion animus Ruth Scott, • a social worker, had no reason or motive to fabricate her testimony. I found her to be a credible witness who ap- peared to regret having perhaps played some part in the termination of Smith. Conversely, Wyatt's testimony and demeanor evidenced in stark contrast a proclivity to color, distort, and concoct. I conclude that Wyatt is' not a witness worthy of credibility. Based on the preponder- ance of the evidence I find and conclude that the warn- ings and the ultimate discharge of Smith were in viola- tion of Section 8(a)(1) and (3) of the Act• and based solely on her union and concerted activities. 6. Supervisory status of Burns, Wyatt, and Adams I resolve any conflicts in the testimony in favor of Burns as it relates to his supervisory status and to his ter- mination. He was candid and exacting in his testimony. In my opinion he made a sincere effort to relate the facts as he remembered them. By contrast, Elswick in particular attempted to tailor his testimony in an effort to characterize Burns as a su- pervisor. The record is clear that Elswick had limited contact with the employees or the business. I wondered as the hearing progressed who if anyone, "was minding the store." Burns credibly testified that when he was characterized as an assistant manager his duties did not change. He still cooked, cleaned, mopped floors, and took out the garbage. Essentially, none of his - reassign- ments demonstrates the use of independent judgment. Ba- sically his work was of a routine nature and unskilled. He had very limited authority' and did not exercise :any independent judgment. There is no' evidence that Burns disciplined employees or made any effective recommen- dations with respect to'hiring, firing, or granting raises. I conclude that Burns was a rank-and-file employee rather than a supervior within the meaning of the Act. In my view Adams was an employee rather than a su- pervisor on the breakfast shift. Although she testified that she assisted in preparation of the schedule, it was always submitted to Foster, the manager, for Foster's ap- proval. Moreover, the schedule as such was a routine sit- uation in that it did not fluctuate. With respect to Wyatt, the General Counsel concedes that after Foster's discharge Wyatt became a supervisor. Prior to the discharge there is a dearth of evidence dem- onstrating her supervisory authority. Her testimony that she had authority and did not use it and that the Union told her she was not a supervisor is hardly probative of anything. Therefore I reject- Respondent's defense that the 8(a)(1) conduct was directed to Wyatt as a superviso- ry employee. Rather, I conclude that Wyatt was a rank- and-file employee prior to the termination of Foster. CONCLUSIONS OF LAW 1. Bonanza Sirloin Pit is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Food Store Employees Union, Local 347, United Food and Commercial Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By insulting employees and making derogatory re- marks to an employee concerning that employee's co- workers who are attempting to organize a union,- Re- spondent has engaged in conduct which is violative of Section 8(a)(1) of the Act. 4. By threatening to close its facility or set fire to it if Respondent's employees continued in their attempts to organize, Respondent violated Section 8(a)(1) of the Act. 5. By threatening employees with discharge because of their union' activities, Respondent violated Section 8(a)(1) of the Act. • 6. By threatening employees that Respondent would reduce their wages if they selected the Union as their collective-bargaining representative, Respondent has vio- lated Section 8(a)(1) of the Act. 7. By telling an employee that she would receive a raise in order to discourage her union activities, Re- spondent has violated Section 8(a)(1) of the Act. 8 By creating the impression of surveillance, Respond- ent has violated Section 8(a)(1) of the Act. 9. By threatening to reduce the employee complement if the employees selected the Union as their collective- bargaining representative, Respondent has violated Sec- tion 8(a)(1) of the Act. 10. By telling employees that their support for the Union was futile because Respondent had bribed other employees who were to vote in the impending Board representation election, Respondent has violated Section 8(a)(1) of the Act. 11. By coercively interrogating employees concerning their union sympathies and the union identities and sym- pathies of their coworkers, Respondent violated Section 8(a)(1) of the Act. 12. By bribing an employee with a monetary gift to obtain the employee's support pending the Board's repre- sentation election, Respondent violated Section 8(a)(1) of the Act. 13. By threatening employees that it would refuse to bargain and force the employees to strike, Respondent violated Section 8(a)(1) of the Act 316 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD 14. By attempting to secure an employee's support in the pending Board election by the implied .offer- of a. job to the employee's husband, Respondent violated Section 8(a)(1) of the Act.' " - 15. By maintaining a list of Respondent's employees who appeared to vote in the Board-conducted represen- tation election, Respondent violated Section 8(a)(1) ' of the Act. - 16. By coercively interrogating an employee concern- ing how the employee intended to vote in the Board election, Respondent violated Section 8(a)(1) of the Act. 17. By threatening employees that Respondent would move its restaurant. operation to another location, Re- spondent violated Section 8(a)(1) of the Act. 18. By interrogating an employee concerning a state- ment he had given to an agent of the National Labor Re- lations Board, threatening an employee with discharge for' cooperating -with a Board agent, and threatening an employee with reprisals if he participated in a trial held by the National Labor Relations Board, Respondent en- gaged in conduct violative of Section 8(a)(1) of the Act. 19. By changing working conditions in retaliation for employees' support -of the Union, Respondent violated Section 8(a)(1) of the Act 20. By changing working conditions and enforcing work rules in, retaliation for union activity, Respondent violated-Section 8(a)(1) of the Act. 21. By discriminating in regard to the tenure of em- ployment of.Burns.and Smith because of their concerted and union activity, - Respondent has violated Section 8(a)(1) and (3) of the Act. 22. The aforesaid unfair labor practices, affect com- merce within the meaning of Section 2(6) and (7) of the Act.' THE REMEDY: Having found that 'Respondent has engaged' in'. unfair labor practices within the meaning of'Section 8(a)(1) and (3) of the Act, I shall recommend that'it be ordered to cease and desist therefrom and to take certain- affirmative action designed to effectuate the policies of the Act. ' I shall recommend that Respondent . be ordered to offer Burns and Smith immediate 'and full reinstatement to their former or substantially equivalent, positions with- out prejudice to their seniority or other righlts' and'privi- leges. In addition, Respondent shall make 'these employ- ees whole. for any, losses they , may have giiffered by reason of the discrimination against them by payment to them of a sum of.money equal to_that, which, they would normally have earned. from the. date of their discharges, less net earnings, during that period. Backpay. shall be computed according to F. W. Woolworth,:Co., 90 NLRB =289 (1950), with interest computed; in the manner pre scribed in . Florida Steel Corp., 231 -. NLRB . 651 (.1977) (See generally Isis Plumbing Co , 138 NLRB-716 (1962).) I further recommend that Respondent be required to rescind the work rules it unlawfully promulgated. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- -ed5 ORDER The Respondent Bonanza Sirloin Pit, Madison, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Insulting employees and making 'derogatory re- marks concerning employees' coworkers who are at- tempting to organize a union. . (b) Threatening to close its facility or set-fire to it if employees continue their attempts to organize. (c) Threatening employees with discharge because of their -union activities. . (d) Threatening employees that Respondent would reduce their wages if they selected the -Union as their collective-bargaining representative - (e) Telling.an employee that she would receive a raise -in order to discourage her union activities. (f) Creating the impression of surveillance. (g) Threatening to reduce the employee complement if the employees selected the Union as their collective-bar- gaining representative. (h) Telling -employees that their support for the Union was, futile; because Respondent had bribed other employ- ees who were to vote in an impending Board representa- tion election. . (i) Coercively interrogating employees concerning their union sympathies and the-union identities, and sym- pathies of-their coworkers. - 0) Bribing employees with monetary gifts to obtain the employees' support pending a Board representation election. (k) Threatening employees that it would refuse to bar- gain and force the employees to strike. (1) Attempting to' secure an employee's support in the pending Board election,by the implied offer of a job to the employee's husband. (m) Maintaining a list of Respondent's employees who appeared to vote in the Board-conducted representation election. (n) Coercively interrogating an employee concerning -how the employee intended to vote in the Board elec- tion. (o) Threatening employees that Respondent would move its restaurant operation to another location. (p) Interrogating an employee concerning a statement he had given to an agent of the Board and threatening an employee with discharge or reprisal for cooperating with a,Board agent and participating in 'a National Labor Re- lations Board trial' - (q) Changing working conditions in 'retaliation for em- ployees' support of the Union. - (r) Changing working conditions and enforcing work rules in retaliation for union activity.: ` t 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules. be adopted'by the Board and all objections to them shall be deemed waived for all pur- poses , BONANZA SIRLOIN PIT (s) Discriminating against Scotty Burns and Deen Ann Smith because of their concerted union activity.'- (t) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectute the policies of the Act. (a) Offer Scotty Burns and Deen Ann Smith immedi- ate and full reinstatement to their former positions or, if such positions no longer exist, to their substantially equivalent positions, without prejudice to their seniority or any other rights or privileges, previously enjoyed, and make them whole for any loss of pay they may have suf- fered by reason of the discrimination against them, with interest, as provided in the section above entitled "The Remedy." (b) Rescind the work rules it unlawfully promulgated (c) Remove from its files any references to the dis- charges of the employees and notify them in writing that this has- been done and that evidence of their unlawful discharges shall not be used as a basis for future person- nel actions against them. (d) Post at its facility, copies of the notice marked "Appendix."s Copies of said notice on forms provided by the Regional Director for Region 9, shall, after being signed by Respondent's authorized representative, be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports,.and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps `the Re- spondent has taken to comply. 6 If this Order is'enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX , , NOTICE TO EMPLOYEES POSTED BY ORDER OF THE , NATIONAL LABOR; RELATIONS BOARD. An Agency of the United States Government WE WILL NOT insult'employees and make derogatory remarks to an employee concerning that employee's co- workers who are attempting to organize a union. 317 WE WILL NOT threaten to close our facility or set fire to it if employees continue- their attempts to organize, - ' WE WILL-NOT threaten employees with discharge be- cause of their union activities. . WE WILL NOT threaten, employees--that we,-would reduce their wages if they selected the Union as their collective-bargaining representative WE WILL NOT tell employees that they will receive a raise in order to discourage their union activities - WE WILL NOT create the impression of surveillance. WE WILL NOT reduce the employee complement if the employees select the Union as their collective-bargaining representative. WE WILL NOT tell employees that their support for the Union was futile because we had bribed other employees who were to vote in an impending Board representation election. WE WILL NOT coercively interrogate employees con- cerning their union sympathies and the Union identities and sympathies of their coworkers WE WILL NOT bribe employees with monetary gifts to obtain employees' support pending the Board's represen- tation election. WE WILL NOT threaten employees that we will refuse to bargain and force the employees to strike. WE WILL NOT attempt to secure an employee's sup- port ,in any pending election by offering a job to the em- ployee's husband. WE WILL NOT maintian a list of our employees who appeared to vote in the'Board-conducted representation election. WE WILL NOT coercively interrogate an employee concerning how the employee intended to vote in the Board election. WE WILL NOT threaten employees that we would move our restaurant operation to another location. WE WILL NOT interrogate employees concerning state- ments given to an agent of the National Labor Relations Board,nor threaten employees with discharge or•reprisal for cooperating, with a Board agent or participating in a trial held by the National Labor Relations Board WE WILL NOT change- working conditions in retalia- tion for employees' support of the Union. , WE,WILL NOT change working'conditions and enforce work rules in retaliation for union activity. . WE WILL NOT,discriminate in regard to the tenure of employment of Scotty Burns and Deen Ann Smith be- cau a of their concerted or union activity. WE WILL NOT in any other manner interfere with, re- strain; or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act ''All 'of our employees are free to become, remain, or refrain -from becoming members of any union. WE WILL offer Scotty Burns and Deen Ann Smith im- mediate and full reinstatement to their former positions or to substantially equivalent positions without prejudice to their- seniority or 'other rights and privileges, and com- pensate them,for any loss' of pay suffered by reason of their layoffs or discharges, with interest. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL also compensate any.employee for any mon- them in writing that this has been done and that evi- etary losses suffered by virtue of our having reduced the dence of their unlawful discharges will not be used as a number of employees assigned to the breakfast shift. basis for future personnel actions against them. WE WILL remove from our files any references to the discharges of the above-named empl'oyees' and notify BONANZA SIRLOIN PIT