New York Delicatessen

NEW YORK DELICATESSEN - 959 A F • 104 West Operating Corp. d/b/a New York Delica- tessen and Hotel Employees & Restaurant Em- ployees ' Union, Local •100 of New York, New York - & Vicinity AFL-CIO. Cases 2-CA= 20139-1 and 2-CA-20139-2 28 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 12 February 1985 Administrative Law' Judge Eleanor MacDonald issued the attached decision. The General Counsel filed exceptions and, a sup- porting brief; and the Respondent filed an answer- ing brief. 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, I findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an admmistra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 -NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings DECISION 'STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in New York, New York, on July 16-18, 1984. The complaint alleges that Respondent, in violation of Section 8(a)(1) and (3) of the Act, interrogat- ed and threatened its employees, imposed more onerous and less desirable working conditions, increased benefits, and discharged its employees because of their concerted activities. ' On the entire. record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Respondent in October 1984, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a New York corporation operating a deli- catessen restaurant in New York, New York, annually derives gross revenue in excess of $500,000 and pur- chases products valued in excess of $50,000 indirectly in interstate commerce. Respondent admits, and I find, that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the Union is, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The New York Delicatessen opened for business in March • 1983. In May 1983; the 104 West Operating Corp., a company controlled by Ralph Rosenblum, en- tered into a contract with L & D Restaurant-, Inc., owner of the New York Delicatessen, pursuant to which Ro- senblum promised-to buy the restaurant once he obtained a liquor license for the premises. In the meantime, Ro- senblum became manager of the Deli with full authority to determine its method of operation. The General Coun- sel and Respondent stipulated that Rosenblum had the authority, commencing July 1, 1983, to discharge the busboys and operate the restaurant without the services of busboys if he was so advised. The Union commenced its organizing campaign in October, 1983. The election, held on January. 26, 1984,. resulted in a 29-18 loss -for.the Union. The General Counsel contends that Respondent engaged in an unlawful course of conduct to defeat the Union, 'and that it fired the busboys on December 5, 1983, and a dishwasher on January 20, 1984, because they supported the Union. The General Counsel further contends that Bruce Gelfand, a waiter who was active in his support of the Union, was'given undesirable work as- signments and eventually discharged on December 12, 1983, because of his concerted activities. Respondent as- serts that Rosenblum was doubtful about retaining the busboys from the beginning and that he made a decision to operate without busboys because of the particular nature of the delicatessen business. Respondent asserts that Gelfand and the dishwasher were discharged for just cause. Respondent denies the alleged violations of Section 8(a)(1). A. Testimony of Bruce Gelfand Bruce Gelfand testified that he was employed as a waiter by Respondent in July 1983. He was interviewed and hired by Assistant Manager John Bonilla for the breakfast and lunch shift. In mid-September, Arthur Riback took over scheduling responsibilities for 1 month.' In October, General Manager Robert Traeger began scheduling employee work hours and a weekly schedule was posted near the register. About this time, Head Waiter Bernie Rothman was responsible for assign- ing work stations; these changed from breakfast to lunch to dinner. In September 1983, Gelfand- spoke to several waiters about organizing a union. In early October, he spoke to a cook named Ruben Maldonado who told him that he had been in touch with the Union and had obtained au- thorization cards. Gelfand went to the Union and spoke to two organizers who gave him some blank cards. Over the next 8 weeks, he spoke to waiters, busboys, cashiers, and hostesses about joining the Union. Gelfand spoke to about 40 employees in locations throughout the restau- I Riback is a restaurant consultant hired by Respondent to advise him concerning start up problems of the Deli - 275 NLRB No. 133 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rant; he claimed that about 15 signed cards were given to him by.employees. Gelfand stated that to his knowledge no one from management ever saw him soliciting signa- tures on union authorization cards or speaking to the workers about the Union.2 Gelfand had stated a preference for night shifts when he was hired; they suited his schedule and they were more lucrative. Bonilla told him he would have to earn a night shift by seniority. When Riback took over schedul- ing, Gelfand spoke to him about changing his shift and he was given one night shift per week. Then Gelfand was given two night shifts, two split shifts, and one lunch shift. In late October when Traeger took over scheduling, Gelfand told him that he wanted night shifts so that he could write during the day; Gelfand said that he believed he had the seniority to have a full night-shift schedule.3 When the new schedules were posted, howev- er, Gelfand was given five lunch shifts. Traeger said he knew Gelfand "was being screwed" but "that it wasn't personal. He knew that I had come through for him on several occasions and he told me that he had to do it this way. He had his reasons." Traeger offered to find Gel- fand another job if the latter "was thoroughly fed up," but he asked Gelfand "if I would work with him." Gel- fand replied that he would think about it. Around mid-October, Gelfand was permanently as- signed to the balcony station rather than to a rotating station. Because in his view, this was the least desirable station in terms of work effort required and remuneration in tips, Gelfand spoke to Rothman about the assignment. Rothman told him that he was one of the few people who 'could handle the work in that he was a good worker and did not have bad feet or a bad back. After that, Gelfand kept "hounding" Rothman about his- as- signment until the latter blew up and said he was just doing as he was told. At the end of November, Traeger informed Gelfand that a night shift was opening up. Gel- fand was then assigned to five night shifts per week. He was discharged 2 weeks later. In late November or early December, according to Gelfand, Rothman talked to Gelfand about the Union and stated that someone had told management that Gel- fand was the main union organizer.' When asked if he had ever been reprimanded by Re- spondent, Gelfand testified that in August 1983, Rosenb- lum reprimanded him for serving cold toast. That same day, Rosenblum complained that he kept a woman wait- ing too long for service. In October or November, Ro- senblum reprimanded Gelfand for serving cheese dress- ing in an improper container. Not long after that, in mid- November, Rosenblum reprimanded him for failing, to put an underliner under a bowl of soup.5 Bonilla was 2 As will be seen below , the only employee who testified that he was given a card by Gelfand was Ramon Fernandez - c : I ; - 8 Gelfand acknowledged that shift changes at the New York Deli were occasionally not made on the basis of seniority * Rothman did not testify in this proceeding and I do not regard this hearsay statement, standing alone, as having any substance or signifi- cance 5 An underliner is put under a cup or bowl when it is placed on the table before a customer present during this incident and he told Gelfand to watch his step because Rosenblum was out to get him. Gelfand testified that it was not unusual for Rosenblum to reprimand an employee. Rosenblum never corrected him for being rude or nasty to customers, according to Gelfand. On December 12, 1983, when Gelfand arrived at work, Seth Novak informed him that he was discharged. In response to Gelfand's inquiry, Novak said he was not at liberty to give Gelfand a reason but that if he needed a reason it would be that business was slow. Gelfand then sought out Rosenblum whom he found in the back of the restaurant with other employees and some custom- ers. Gelfand asked Rosenblum why he had. been fired and Rosenblum said that it was his prerogative and he did not need a reason. Gelfand asked if he was a bad worker and Rosenblum said no. Then, according to Gel- fand who testified that he was very upset, "I told-him that the people that work for him work very hard and that he treats us like animals and that I never worked for a man who had less respect for the people who work for him than him since it was not far before Christmas I asked him if he was trying to out-Scrooge Scrooge. I asked him how he slept at night treating people the way he did." On cross-examination, Gelfand denied calling Rosenb- lum "Hitler." However, after being pressed repeatedly by counsel for Respondent, Gelfand admitted that he called Rosenblum "a scumbag" and "a Nazi." He- knew that Rosenblum had been a victim of the Nazis but nev- ertheless he called him a Nazi "because I thought that that might get through to him . . . to enlighten him as to the way he treats his employees." B. Testimony of Pedro Cruz Pedro Cruz testified that he began work as a dish- washer on March 14, 1983, on the evening shift from 5 p.m. to 2 a.m. The night supervisor was Jose Manuel Ig- lesias. 6 He signed a union authorization card in October 1983 at the request of Louis Vargas and Ramon Fernan- dez. Cruz spoke to Bonilla about taking time off from work and Bonilla told him to speak to Iglesias and Traeger. It was then agreed that Cruz would be on unpaid leave from December 17 to January 15. Cruz did not return on January 15 because there was a problem with his flight, but .he called his father- in New York and asked him to advise the restaurant that he would return on January 19. On January 19, 1984, Cruz called Iglesias at the restaurant and asked if he should report to work. Iglesias told Cruz 'to come'in the next day and discuss the matter. Cruz went to the restaurant the next day at 8 p.m., and,eventually , he.spoke to Iglesias who told him that there was no more job because he had.signed for the Union..For.the reasons given in,my discussion of the tes- timony of Bonilla and-,Iglesias , I do ;not credit Cruz' tes- timony. e Iglesias is often referred to in the record as "Jose-Manuel " NEW YORK DELICATESSEN C. Testimony of Angel Vargas Former busboy Angel Vargas testified through an in- terpreter.'- He signed a card for the Union in October 1983. In November, Traeger spoke to him and Nunez in the park behind the restaurant, Traeger asked if they wanted the Union. Vargas and Nunez replied, "Yes." On cross-examination, Vargas acknowledged that he knew an allegation of illegal questioning or a threat by man- agement was required to make out an unfair labor prac- tice case against Respondent. I do not credit Vargas' tes- timony for the reasons given in my discussion of the tes- timony of Ramon Nunez. D. Testimony of Ramon Fernandez Ramon Fernandez was a busboy at the New York Deli from March 1983 . Fernandez testified that Gelfand solic- ited him to join the Union in November 1983, telling him that ,the Union would provide benefits and "we could have had our job." Fernandez thought the Union would be beneficial for the busboys because he had heard rumors that they would be fired. Some time in October, a. hostess named Barbara had told Fernandez "that we may not use any busboys because the boss was going to get nd of all of us ." Fernandez stated that this occurred before he spoke • to Gelfand about the Union. When shown his signed authorization card dated October 13, 1983, Fernandez -changed his testimony and stated that he.- heard . the rumor from Barbara , after he signed . the card. Fernandez distributed blank authorization cards to other employees in various parts of the restaurant. After the employees became involved with the Union, Jose Manuel Iglesias asked Fernandez if he had started the Union. When Fernandez replied that he had not , Manuel said, "If he knew whoever started it was going to go out the door," that is, would be fired. This conversation took place a few weeks before the busboys were `fired on De- cember 5 , 1983. For the reasons given in my discussion of Iglesias' testimony, I do not credit the 'testimony of Fernandez where it conflicts with that of Iglesias. Fur- ther, due to Fernandez ' confusion on the point, I do not credit his testimony about the rumor that the busboys would be fired. E. Testimony of Ramon Nunez Ramon Nunez was a busboy at the restaurant for 6 months until December 1983. He signed a-union authon- zation card given to him by Ramon Fernandez in Octo- ber 1983. - - ' ' ' In mid-November; 5Iglesias5 and he- were the-back during a . break. Iglesias asked if Nunez'had ' signed for the Union.' When Nunez replied' that he had signed, Igle- sias said those who'- signed 'unioii cards would probably -be fired. Nunez protested, "That's not a reason for firing an employee." Two, 'or 3--weeks ' later,'saccordriig' to Nunez, Traeger came up while' he was sitting on'a break 7 Vargas gave a sworn statement to a Board agent in English Vargas is the brother of Ramon Fernandez He is a student at a New York City public high school where all,his courses are m ,Enghsh, and he has re- sided in the U.S for 6 or 7 years. 961 with Vargas and asked them whether they. had signed a union card. They said, "Yes" and Traeger left. On cross-examination, Nunez testified that he did not report Iglesias' threats to the Union because he did not believe an employee could be fired for signing a card. Nunez' affidavit given to a Board agent states that Igle- sias told him "that any employee that tried to sign for the Union was going to be fired. . . . He didn't ask me if I had signed." The affidavit also states that "no other su- pervisor or manager talked to me" about the Union. Nunez explained the apparent contradiction with his tes- timony by saying that he could not understand the Board agent's questions in English while he was giving his statement. In fact, Nunez' statement was given in Span- ish through an interpreter and the investigator' s ques- tions were translated by the interpreter. Moreover, Nunez offered no explanation for the fact that he testi- fied that Traeger asked if he had signed a card while his affidavit directly contradicts this assertion. Based on the unexplained contradictions between Nunez' sworn testi- mony and his statement and Nunez' effort to explain these by falsely implying that the statement was given in response to questions posed in English, I shall not credit any of Nunez' testimony. Iglesias, whom I credit, denied interrogating or threatening Nunez. Finally, it appears that the testimony about Traeger was invented for the trial after Nunez gave his affidavit to the Board agent. This is the same purported incident that was testified to by Vargas. Because it appears that the incident was con- cocted, I do not credit Vargas' testimony about Traeger's question. F. Testimony of John Bonilla John Bonilla began work at the restaurant in early 1983.8 When Rosenblum took over the restaurant, he made Bonilla assistant manager. He was responsible for purchasing and food preparation and he hired and fired employees. He also acted as a host on occasions and when other managers were absent he prepared employee schedules. In September 1983, employee Ruben Maldon- ado asked- Bonilla what he thought about a union and whether it would be beneficial for him. Bonilla replied that "it's for your own good, for the benefits of the worker." Maldonado said he was going to sign up the kitchen employees. -Bonilla stated that Traeger assigned waiters to their stations. After Bernie Rothman was made head waiter, he assigned waiters and Jose Manuel Iglesias made as- signments at night. The least desirable stations were the balcony, because of the longer distance to the downstairs kitchen, and the back of the restaurant. Bonilla also made some assignments; he used to assign stations by rotation and by seniority. He never assigned a waiter to the bal- cony on a steady, basis. Bonilla stated that he did not necessarily satisfy employee desires in scheduling shifts or stations, although he did try to take seniority into ac- count. Other managers did not necessarily u_se' seniority as a guide. 8 Bonilla testified on behalf of the General Counsel At the time of the instant trial, he had been discharged by Rosenblum 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On'direct'examination, Bonilla testified that in October or November 1983 he. was approached by Jose. Manuel Iglesias about 2:30 p.m.;Iglesias showed him a list of'em- ployees and he told Bonilla, "these-are the dishwashers that have to go . . •. we-know that they have joined the union and we can't'allow'that." Manuel idded, "'Beside's whoever we bring iii'-will work for- less money." On cross-examination'by counsel for Respondent, Bonilla' re- called that Pedro Cruz and Ramon (or Jose) Sbriel were on the list, but he could not recall the other names'on the list. He knew that a dishwasher named ' Orlando Mos- quito had been fired and he thought two or three dis-' washers had been let go but he could not recall who they were. He was unable to'recall'how many dishwash- ers were employed at the time. One or 2 days after Bonilla spoke to • Iglesias, Traeger asked Bonilla if he knew .that the' employees were trying to organize the 'restaurant. Bonilla said he had heard about it from Iglesias who had, mentioned that the dish- washers would be fired. Traeger said, !`[W..]e'd .have to get rid of the dishwashers.": ' . I do not credit Bonilla's story that Iglesias had. a list of dishwashers to. be fired because they had joined the. Union. Bonilla could not recall_ most_of the names on the: list. He mentioned Cruz, who testified herein, and Soriel, who - did, not..I note that there has, been, no showing .by the General Counsel of ithe, circumstances of Soriel's de-, parture from Respondent's, employ., Further, the, list of dishwashers submitted by,the General .Counsel does not contain the name of the one other dishwasher named, by. Bonilla, Orlando ,Mosquito. There is -noproof at all that any dishwashers besides Crui was'actually .discharged by Respondent at any , time,-relevant, to this: proceeding. , Be- cause of Bonilla's failure to recall "details ',of the dish- washer list = incident and because there is no proof that any -dishwashers besides Cruz were' fired, I'-do, not be- lieve that 'Traeger told Bonilla"' that the 'dishwash'ers would be fired. In November; Bernie- Rothman told'Bonilla 'that'he had "blown 'the whistle 'on -the 'employees and. had' spoken='to Rosenblum "about it."•' Bonilla'"asked "who' told you about it" and Rotliman'replied tliat 'it--was' Mike Kirchoffer: I note that the' word-"Unionor -`-`organiz- ing" is, not used in this' conversation and'it'is-so 'vague that I do not rely on' it. - • • - - ' - .' ': On direct examination, Bonilla' testified that in Novem= ber 1983 'he was speaking' to :Traeger and Rosenblum when one'of tliem'said they were going--to-get rid-of the busboys :because ""they-:were' no,:good- andj'besides they, have • all -joined .the '-Union." Before ..this c conversation; Bonilla had' never- heard; of: a plan. to,:operate,without, busboys. On_ cross-examination,t :Bonilla ; acknowledged that he;might, have-, heard that Rosenblum wished-.to,op; erate without busboys long. before,,the.;Union• began;orga- nizing; however, he. could not: recall .when. . that,,might` , have; been. .0n redirect questioning by, the ,General. Coun- sel, Bonilla stated, that, until the day.. thei.busboys were discharged , in- December .1993 R osenblum.:had.; never made any definite statement as towhen. the `busboys would be fired. When asked, what Rosenblum had been saying about the busboys, Bonilla replied, `,`That ,they were no good." When asked whether Rosenblum -said why they were no good, Bonilla testified, "He didn't get into specifics." Bonilla added that Rosenblum, "was always saying [that they were no good], to Bobby [Traeger] or to myself." I-note that this testimony is in sharp contrast to Bonilla's earlier testimony on this very subject that the busboys were no good because of, their union activity. Further, on-re-crass-examination, Bonilla acknowledged that Rosenblum was against the busboys from the beginning. I do not credit Bonilla's testimony that Rosenblum said he was going to fire the busboys be- cause they had joined the Union . Bonilla's own testimo- ny shows that getting rid of the busboy method of oper- ation was a longstanding project of Rosenblum's. Fur- ther, Bonilla's testimony on cross-examination consider- ably modified his assertions on direct. Bonilla - testified tha although he had often discussed the merits of various employees with Rosenblum or Traeger, neither of them had criticized Gelfand's per- formance before the latter's discharge. Bonilla never re- ceived a customer complaint about Gelfand. He wit- nesses . an incident in November when Rosenblum repri- manded,Gelfand for serving.a cup of soup without an underliner . Later, Bonilla called- Gelfand aside and told him to be careful because Rosenblum 'wanted- to get rid. of him. Bonilla explained that he had earlier heard Ro- senblum and Traeger -discussing the fact that Gelfand would be discharged -because he was an ` organizer. As will be seen below,, I find that Rosenblum and Traeger credibly. denied this assertion and I . do not credit 'Bonil- la's testimony. On cross-examination Bonilla stated that he had fired a waiter, at the New. York Deli for being rude to a custom- er. The practice was to give. two -warnings 'before dis- charging the employee. - ' - -Bonilla, testified that Pedro' Cruz, a dishwasher, in- formed •him• that he wanted. to- take'a few weeks off to return to his .native Santo Domingo to be married. Bon- illa spoke to Traeger and' Cruz was given time off. When Cruz was due •to-return;' his father called Bonilla, and said that Cruz could not' get'a flight out of-Santo Domingo and -would • therefore be a few days -late returning to his job. Bonilla told Traeger that Cruz would be -late, and Traeger said it was not a problem. Bonilla stated that he never told the Board agent who took his affidavit about Cruz -even though he gave two statements and he was asked :about' Cruz' by the Board agent. 1 ,-do not credit Bonilla's'testimony' about Cruz. Since Bonilla was asked about' Cruz' whenhe"gave his sworn, statements to the Board"and='did "iiot mention the' events= he- testified to later; `the'suspicion'is'strong,that the 'testimony was fabri- cated .for the'trial'. "Bonilla':`testified ttliat"Rosenblum"did' not' permit em: es to eat'' ploye of d'ri'nk orange juice; milk,'or canned soda: 'Two 'or 3 'ays before the election, Rosenb- lum told -B hilla"that the employees could eat anything they' wanted: On 'cross-examination, - Bonilla adamantly main tainedthat'the charge had'taken• place right before the election. - Bonilla testified that Rosenblum discharged him be- cause he was not satisfied with•=tiis' work: he `was too soft - on the employees and he procrastinated. On cross-exami- NEW, YORK DELICATESSEN nation, Bonilla recalled that before he was fired there was a "blowup" in the kitchen and Rosenblum was "harsh" and "nasty" and shouted at him in front of other employees. Bonilla was hurt and upset, but he denied that he was angry on that occasion; he also denied that he was angry over his discharge several weeks later. About 9 days after his discharge, Bonilla went to the Board' Office to give a statement at the instance of some employees at the restaurant. G. Testimony of Ralph Rosenblum Ralph Rosenblum testified that he has been in the res- taurant business about 29 years. He owns five other res- taurants in New York City. During the period relevant to this case, Rosenblum spent 16 hours per day at the New York Deli. The restaurant seats about 350 people, including the balcony. There are kitchens on the balcony, the main floor, and in the basement. The balcony is used mainly for lunch. Most food preparation takes place in the base- ment kitchen. Waiters pick up most of the food they serve from the main floor kitchen or counter. Employees eat meals in the back of the restaurant where there are normally empty tables. The Deli is open from 6 to 1 a.m. daily. Employees work three shifts.9 Robert Traeger was night manager of the Deli until August or September when he was made general manag- er in order to relieve Rosenblum of some of the burdens at the Deli. Traeger worked from 11 a.m. until 9 p.m. Rosenblum's son-in-law, Seth Novak, was brought into the business in July 1983 as a manager with somewhat less authority than Traeger; ' his hours were 6 • a.m. to 5 p.m. Bernie Rothman, the headwaiter, helped with the scheduling of employees at their stations. Rothman had no authority to hire and fire. Rosenblum testified that a high turnover is normal in the delicatessen -restaurant business, especially when a business is first established. He stated that employee: pref- erences as to shifts and hours were honored if practica- ble for the - operation of the business; assignments were generally made by seniority if there were competing em- ployee requests. Rosenblum left all authority for schedul- ing in the hands of Traeger. About September 1983 at Rothman's suggestion service stations were rotated in an effort to be fair to the various employees. Rosenblum stated that the balcony was not considered a good station because it handled only the overflow at lunch. Only four of the main floor ,stations were considered_ good. In, No- vember 1983, 2 to 4 -waiters and waitresses worked .the breakfast shift, 12 to 15 worked at lunch, and -9 ,worked at dinner. After: dinner, only ;four waiters, or waitresses remained until closing. Generally, there was one busboy. for every two waiters. At breakfast there were. three dishwashers, and there were six at lunch and four or five at dinner., A total -of five or six • hosts and hostesses worked each day.seating patrons in the restaurant. , , On November 15;,.1983, Rosenblum received a mail- gram from the Union stating that it represenied'a majori- B There seems to be a great variety in the hours worked by the various employees some work breakfast and lunch, some work ,lunch and dinner, " and some work lunch of dinner only 963 ty of his employees and requesting negotiations. A few weeks before this, Traeger had mentioned that there were "rumors about a union. Rosenblum was not "delight- ed" but he knew he could not help it. The first complaint Rosenblum had about Gelfand was a couple-of months before he was discharged. A custom- er told him the service was not too good and said that Gelfand was rude or nasty. Rosenblum confronted Gel- fand on that occasion and Gelfand said it would not happen again Rosenblum also mentioned the incident to Traeger and Novak. The second complaint occurred 4 to 6 weeks later when customers complained that Gelfand was rushing them. Rosenblum told Novak and Traeger that he had had another complaint about Gelfand. Novak and Traeger thought Gelfand was a good waiter; he was on the ball and took care of people. Rosenblum could not recall discussing Gelfand with John Bonilla. Rosenb- lum testified that he discharged Gelfand after receiving the third customer complaint relating to his work when a couple walking out volunterred to Rosenblum that Gel- fand was "rude and he was very pushy." Rosenblum asked them for details but the couple would not furnish any. The next day, Rosenblum told Traeger and Novak that Gelfand had to go because there were too many complaints about him: Rosenblum felt that Gelfand may also have offended other customers who had not both- ered to complain- about him. Rosenblum could not recall whether he had told either of the managers about the previous complaints concerning' Gelfand. Whenever, pos- sible, Rosenblum tries to investigate customer com- plaints. At the relevant time, Rosenblum received cus- tomer complaints about employees about once every 7 to 10 days. Rosenblum did not want a confrontation with Gelfand on this occasion so he waited and spoke to his managers the next day or 2 days later. Rosenblum stated that he was not aware-that Gelfand was soliciting signatures on union authorization cards. According to Rosenblum he did not state correctly all his reasons for discharging Gelfand in his submission to the unemployment. insurance office because he did not want to waste time.supporting his decision. He preferred to give lack. of, work as a reason and permit Gelfand to collect unemployment compensation. Employees who worked 6 hours or more were given two free meals-by Respondent. Other employees got one free meal. When Rosenblum first came to the restaurant, he saw people eating roast beef for breakfast and he pro- mulgated a rule that breakfast had to consist of eggs and that -lunch should consist of inexpensive items excluding shrimp,' corned beef, pastrami, and steak. After the elec- tion;'employees asked that he be-more lenient and Ro- senblum'agreed with the exception' that, roast beef and corned beef were not permitted at breakfast. Rosenblum discussed the union campaign with Bonilla after he received the mailgram. However, he never asked Bonilla about the sympathies of individual employees. He .also discussed the Union with Novak and Traeger, and he hired a consultant named John Russell who advised him-not to interfere with the employees and to conduct his' business as usual. ' ' "' 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The busboys cleared and set tables, served water, brought condiments, and carried dishes to the dishwash- er Rosenblum did not think they improved the service and in July 1983 he discussed operating - the restaurant without busboys with , Bonilla, Traeger, and Novak. Bon- illa and Novak thought it best to retain the busboys. Ro- senblum could , not recall what Traeger 's-reaction was. The 10 busboys were discharged on December 5, 1983. Rosenblum testified that although he was operating the restaurant from June 1983 and had the authority to dis- pense with the services of the busboys from that `time forward, he did not do so because he had not yet taken title to the restaurant . Until the first week of December 1983, when he took title to the restaurant there was a possibility that Rosenberg would return the restaurant to the sellers and, if he had to do that, he wanted the -res- taurant to be in the same condition and with the busboys still employed. Rosenblum testified that he owns five other restau- rants, one is a pub and' one is full-sized restaurant; none of these restaurants employ busboys. Rosenblum stated that his reason for firing the busboys had nothing to do with the Union. Rosenblum did ,not know who Pedro Cruz was until he saw him at the in- stant trial, and he had nothing to do with 'his discharge. Rosenblum did not instruct any of his managers to fire the dishwashers and.to his knowledge no group of dish- washers was fired. H. Testimony of Robert Traeger Robert Traeger was general manager of the New.York Deli from June 1983. 'His hours were from 9 a .m to 9 'or 10 p.m., 6 days per week . He hired , and -fired -employees, scheduled shifts, • and sometimes assigned waiters to sta- tions. In addition , he saw to - the : effective , operation. of the restaurant . Traeger could.'not recall when he, learned of the Union's organizing campaign. He recalled that .Ro- senblum told him the Union wanted an. election and, he remembered seeing the, union ; .agent in . the _ restaurant. Traeger could not recall whether or,not,he spoke,to any ,employees about .the Union . He • recalled., discussing ,the union campaign with other managers .,including, Seth Novak, Riback, and perhaps Bonilla. Traeger was not working the day . Gelfand was dis- charged . He learned about the discharge . the next day when he reported to work, but he was not.toldythe reason for the 'action . Although Gelfand -was an, efficient waiter, Traeger was not, sutpri.sed:that I he had.been f red: "In the restaurant business firing waiters is not t something that's surprising. Something ,can" happen '-on the spur, of the moment and someone can be fired." According to Traeger, he tried - to. make the.schedulhng process efficient ; to some degree he accommodated iem- ployee ,'preferences and took seniority, into account.. In most -cases he would try to satisfy employee wishes as to scheduling working hours ., In. November 1983; Traeger changed Gelfand's hours so that he worked lunches only. The restaurant was not in "the'test'financial 'state",and Traeger cut everyone's"hours to":give all "a' chance' 'to work. He told Gelfand that as- soon as a regular schedule opened up he would give it to Gelfand . Traeger knew that Gelfand wanted to work nights:' He acknowledged that an employee named Montana had less seniority than Gelfand ' but had been given five dinner shits per week. Traeger could not recall his specific reasons for making that assginment. A major problem , according to Traeger, was insuring - adequate service in the balcony at' lunch- time. The balcony is a difficult location because it re- quires stair climbing by waiters and it requires a particu- larly efficient waiter ' Other waiters such ' as Herick and Montana could not perform as well as'Gelfand did. Gel- fand's hours were cut:drastically when he was assigned to lunches (to about 24 or 21 hours per week) Traeger had 'asked Gelfand 's - cooperation in-working the lunch hour shift and Gelfand had agreed . Traeger believed this was the most efficient use of the personnel available to him. A majority, but not all, of the waiters were rotated among the stations at the restaurant . For a number of weeks Gelfand was assigned only to the balcony where he complained that ` he would make less money there, Traeger asked him to wait until a regular full-time shift opened ' up Traeger kept his promise and Gelfand was given an evening shift 'in November. . Traeger testified ' that he was never told to - make things difficult for Gelfand.'He did not know, that Gelfand was a leader in the union organizing campaign and he never saw him soliciting cards for the , Union. He changed Gel- fand's job assignment on his, own by virtue of his. posi- tion as general manager. Traeger had ' the power to change schedules and fire waiters without Rosenblum's concurrence. Traeger was - never told that the busboys were being fired to deter the Union 's, campaign. . When Traeger first met . Rosenblum in July, the latter said he believed - the restaurant would operate better without busboys. A that .time, Traeger . had no opinion on the subject. Discussions continued on. and off until the busboys were ,finally let go on December 5, 1983: Before .that time, according to, Traeger , attntion in the number of ,busboys.,on the staff had .been allowed to take place. When Rosenblum , took over management of the Deli, he restricted employees to eating the less expensive items on the menu . Nevertheless, Traeger sometimes allowed employees to have small protions of certain expensive items. According , to Traeger, there was a -large turnover among the dishwashers . No busboy was ever offered a job, as a dishwasher . When the busboys were discharged December, none of them asked for. a job as a dish- e washer.. Traeger testified, that- in. experience, customers. con- .'. stantly 'complained ' about , waiters.; He ' usually- checked the complaints, with the - employees -and told , them to im- prove:: He:,personallywould not fire ,a. waiter for" three :.minor infractions but he might,: impose a discharge. for failing'to obey, an order.; :. .::.... . : . . 'Traeger., was. no longer :empjoyed,iby Respondent at .the -.time . of the ' instant ' trial. and-thus-had - no :reason -to -shade his. testimony.: His. demeanor-on' the ,stand' was forthright 'and gave the impression 'of being unbiased and I shall credit his testimony. I note that Traeger's recol- -lection was not-always exact; however, I do not deem t' ;this significant `in view of the-,fact that' he- has left the NEW YORK DELICATESSEN 965 New York Deli and its concerns are no longer foremost in his mind. I. Testimony of Seth Novak Seth Novak is assistant manager of the New York Deli. He buys supplies, helps supervise on the floor, and helps' behind the counter-if needed. His hours are 6:30 a.m. to 4 p.m. He learned of the union campiagn when the mailgram was received. He recalled a meeting' with labor- consultant Russell where he was-told not to talk about the Umon'and to carry on as usual. At this meet- ing, the managers were warned against-soliciting, interro- gating employees, and the like. Novak recalled that soon after Rosenblum began to manage the restaurant, he started talking about operating without busboys. Novak thought busboys were neces- sary. The discussion went on week after week and Novak was not surprised when the busboys were dis- charged. Novak has worked for Rosenblum at his other coffeeshops: None of them has busboys; however, they are all much smaller than the New, York Deli. Rosen- blum's nondelicatessen restaurants, are larger and have more elaborate menus; nevertheless, they do not employ busboys: Novak fired Gelfand at Rosenblum's instructions. Ro- senblum told him that he had a complaint from a' couple and that he was not happy with his services. •Gelfand was arrogantto customers and insubordinate. Novak did not give Gelfand a reason for the discharge. Novak could not recall telling Rosenblum that Gelfand was a good waiter. He did have that opinion,' however. Novak has fired waiters on his own authority. 'He re- called one discharge for insubordination. As noted above, Novak is Rosenblum's son-in-law and would thus be' expected to be in sympathy with Rosenb- lum's interests. However, Novak impressed me as a truthful witness. I did not note that- he had any tendency to shade his testimony; for instance, • he readily testified that he thought Gelfand was a good waiter. I shall credit Novak's testimony. J Testimony of Arthur Riback - Arthur Riback is a general restaurant consultant who has been in the restaurant business for many years. He was retained by Rosenblum when he first took over the New York Deli. Riback's assignment was to become in- volved in the entire operation and to help it run better. Riback testified that from the beginning of his time as a consultant in August 1983 he believed the Deli, should operate without busboys because • they were unsuited to the delicatessen business. The New York- Deli serves pa- trons who order, 'for the 'most part, a -sandwich and; a beverage. There was "no .use of tablecloths, and patrons are not given water; bread, and butter on being <seated; therefore,- the busboys have none of these tasks toper- form. Further, ,the typical patron does not order a- dinner of several courses and so the busboys do not have nu- merous courses to clear. Riback worked at the. restaurant full time for 3 weeks observing deliveries, service, and the dining room- schedules. He advised Rosenblum from the beginning that busboys were not suited-to his method of operation, and he continued to harp on this issue throughout his association with the New York Deli. Ro- senblum never told Riback why he waited so long to dis- charge the busboys. Riback testified that whether or not a restaurant served liquor was irrelevant to the question whether busboys were beneficial to the efficiency and profitability of the business., • . Riback testified that he had no idea that the instant trial had anything to do with" a union. He was only told that. it was related to the firing of the busboys. Riback was a forthright witness and I credit his testi- mony fully. K. Testimony of Jose Manuel Iglesias Jose Manuel Iglesias is night manager of the New York Deli. 10 He is responsible "for the counter and the kitchen. Iglesias testified that he never spoke to Ramon Fer- nandez' about the Union, that he never asked him who started the Union, and that he never threatened that he would fire the person who started the Union. He also denied speaking to Ramon Nunez about the Union or whethe'r' he had signed a card. Iglesias stated that Traeger had told him that if he ever heard employees talking about the Union "please -keep away." He understood that he was not supposed to talk to the employees'about the Union. Iglesias testified that Pedro Cruz had asked for 3 weeks off to.return to the Dominican Republic for his wedding. Cruz did not return on time and, according to Iglesias, he returned almost 2 weeks late. Bonilla never told Iglesias that' anyone had called on Cruz' behalf to say that Cruz' return was delayed. When Cruz did come back, he told Iglesias that he had missed his flight but that he'-wanted' his job back. Iglesias replied that they had taken-another employee after having waited 4 weeks for Cruz to return to: work. Iglesias stated that Bonilla never asked' him what happened to Cruz, and Bonilla never told him that Cruz had a valid excuse for return- ing later than-expected. I credit the testimony of Iglesias, Cruz' immediate supervisor, that Cruz was discharged fot overstaying his leave. Iglesias testified that he never' had a list of dishwashers to be fired and that he never showed such a list to Bon- 'illa. The only dishwashers he fired were Cruz and a day- time dishwasher who left his job early- contrary to Igle- sias' instruction. When asked if he had ever discussed the 'Union with any employees, Iglesias testified that two il- legal immigrants from Ecuador employed at the' restau- rant had asked him what the Union could do 'about get- ting them green ca ids, but he referred' them' to the union business agent for _information. Iglesias impressed me as a -forthright 'witness - who testified consistently under a strong cross-examination I`shall credit his testimony. L. Discussion and-Conclusions I do not,find,that the "General_Counsel has shown that Gelfand; was, assigned. to the lunchtime balcony duty in retaliation for his union activities. There is no proof that 'o The parties stipulated that Iglesias is a supervisor under the Act 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was aware of Gelfand's support for • the Union. Traeger testified plausibly that during the, startup period of the restaurant, he increased the efficiency of the enterprise by assigning Gelfand, one-of his quickest waiters, to the balcony. Moreover, by-Gelfand's own tes- timony, Traeger soon gave Gelfand the desirable, night shift he had been asking for; thus, the undesirable' shift and duty station lasted only a very few weeks. Gelfand's own testimony confirms Traeger's testimony as.to the reasons for assigning him to lunch sift and balcony, sta- tion. According to Gelfand, headwaiter Rothman told him that he was one of the few people who could-handle the work because he did not have bad feet or a bad back. Nor do I find that the General Counsel has shown that Gelfand was discharged in retaliation for his union ac- tivities. Although Gelfand' testified that he-solicited at least 15 union authorization cards and spoke to about 40 employees about the Union, only 1 employee actually testified that he gave a signed card to Gelfand, no other cards were introduced into evidence and no credible wit- ness testified that he observed Gelfand engaging in orga- nizational activity throughout the restaurant. Thus, it is not shown by the record in this case that Gelfand en- gaged in any more union activity than any other employ- ee in the restaurant. There is no basis for finding that Gelfand was more active than other employees who sup- ported the Union, and I have no reason to suppose that he was a chief organizer on Respondent's- premises. Indeed, Rosenblum credibly testified that he had no indi- cation that Gelfand was helping to organize the Union at the New York Deli. Gelfand admitted that he had been reprimanded by Rosenblum on several occasions. I ob- served that Gelfand's demeanor was arrogant; this is in accord with Rosenblum's recollection that Gelfand had been rude to customers on a number of occasions. It was clear from the testimony of all the witnessess taken to- gether that the restaurant business is volatile and ever changing. The unrebutted testimony was that each man- ager who had the authority to fire a waiter would apply hii own standards and would make a decision on the spot if he was so advised. Further, there was a turnover of waiters and it was not unusual for a waiter to be f red without discussion among the managers . This testimony is consistent with Rosenblum's actions; he received a complaint aobut Gelfand and he determined to fire him. It is not remarkable that in a new enterprise which de- pends as much on the good will of its patrons as does a restaurant, a waiter owuld be discharged as a result of repeated customer complaints. Further, Gelfand testified that Rosenblum had repri- manded him on several occasions, including twice in No- vember for improper procedures and once keeping a cus- tomer waiting too long. This is consistent with Rosenb- lum's testimony. The picture that emerges from "a consid- eration of all the credible testimony, taken together, is that Gelfand, after 5 months of work at the Deli, was fi- nally given the shift assignment he wanted by Traeger and that this occurred in the normal course of events. Rosenblum took no part in scheduling shifts or assigning stations and he did not instruct any of his managers to discriminate against Gelfand. During those same 5 months, however, Rosenblum had • had occasion to be dissatisfied with Gelfand even though he was an efficient waiter generally and, after receiving a number of com- plaints from patrons about Gelfand in November and December, he determined to discharge him. To avoid a confrontation,. he asked another manager to tell Gelfand he was fired and he gave as his reason lack of work. I am not persuaded by the evidence before me that Ro- senblum had identified Gelfand as a union supporter or organizer and I cannot find that Gelfand was fired for union. activity. In this connection, the General Counsel relies on the small plant doctrine and cites Class Watch Strap Co., 267 NLRB 276 (1983); A to Z Portion Meats, 238 NLRB 643 (1978); and-Wiese Plow Welding Co., 123 NLRB 616 (1959). In Class Watch, there were 22 em- ployees, the only 2 discharges in the unit were of em- ployees who had signed cards for the Union, 1 employee was discharged on the very day he signed a card for the Union, and the employer engaged in other violations of the Act. In Wiese Plow, there were 13 employees in the unit, the employer. knew of 1 discriminatee's former union acitivity, the discharge took place immediately after union activity became apparent, only.2 men who were active in the- union were simultaneously discharged and the employer's customary warnings prior to dis- charge were not given. In A to Z Portion, there were 16 employees, the employer committed- other unfair labor practices linking the discrimmatee with the .union, the discriminatee was the union spearhead at the plant, and the discriminatee was discharged on the day he success- fully solicited a fellow employee to- join the union. By contrast, Respondent employs 46 employees, there was no showing that Gelfand was more active than other em- ployees in organizing for the Union, the Employer com- mitted no other unfair labor practices, there is no proof that during the several months of the union campaign only union supporters were fired, and there is proof that employees were often discharged on the spot without a warning--and that this is common in the type of restau- rant business engaged in by Respondent. Further the timing of Gelfand's discharge is not significant. If Re- spondent had fired Gelfand because he was signing up other employees it would have done so when he was ac- tively engaged in soliciting cards in October. Gelfand ad- mitted he was reprimanded in October and November; these occasions would surely have been seized on by Ro- senblum if he had been looking' for an excuse to dis- charge Gelfand. Had he been seeking a pretext, Gelfand would not have been given the desirable shifts that Gel- fand had been asking for over a period of several months. With respect to the discharge of the busboys,_I credit the testimony that their discharge had been discussed for months and that the decision was based on a belief that the nature of the delicatessen operation was not suited to combined busboy and waiter service. I note that Re- spondent discharged 10 busboys, according to the Gener- al Counsel, but it has not been shown that more than 3 of them supported the Union. ' As discussed above, I do not credit the allegations sup- ported by the testimony of Cruz, Fernandez, Vargas, Nunez, and Bonilla. Thus, I do not find that Respondent NEW YORK DELICATESSEN 967 unlawfully discharged Cruz nor that,it interrogated and threatened its employees as alleged in the complaint. The complaint alleges that Respondent increased the categories of food that could be consumed by employees on January 23, 1984. Bonilla, whom I do not credit, was the only witness who supported this allegation. Rosenb- lum, whom I credit, testified that he liberalized the meal policy after the election in response to employee re- quests. The evidence does not show, therefore, that Re- spondent changed its food policy before the election as alleged in the complaint. 2. The Union is a labor organization within the mean- irig of Section 2(5) of the Act. 3. Respondent did not violate the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edtt ORDER. The complaint is dismissed in its entirety. CONCLUSIONS-OF LAW A. Respondent is an employer engaged in commerce If no exceptions are filed as provided by Sec 102 46 of the Board's within the meaning of Section 2(2), (6), and (7) of the -Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Act. Board and all objections to them shall be deemed waived for all pur- poses r ,