Le Saint Jean Des Pres Restaurant

SAINT JEAN DES PRES RESTAURANT Michiel's Inc., d/b/a Le Saint Jean Des Pres Res- taurant and Hotel Employees and Restaurant Emploees Union, Local 100 of New York, New York and Vicinity, AFL-CIO and Rodica Mis- chiu. Cases 2-CA-20611, 2-CA-20611-2, 2- CA-20663, and 2-RC-19802 31 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 22 October 1985 Administrative Law Judge Steven Davis issued the attached decision.' The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, the Respondent filed a memoran- dum of law in opposition to the cross-exceptions of the General Counsel, the General Counsel filed a brief in support of parts of the administrative law judge's decision, and the Petitioner submitted to the Board the brief it previously had filed to the administrative law judge. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge's rulings, findings, and conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Michiel's Inc., d/b/a Le Saint Jean Des Pres Restaurant, New York, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(d) and re- letter the subsequent paragraph. ' In a 15 November 1985 erratum, the judge noted that the challenge to the ballot of Lissa Dannow had been withdrawn by the Union prior to the hearing The judge ordered that Dannow's ballot be opened and counted 2 Chairman Dotson notes that the Respondent did not file exceptions to the administrative law judge's conclusions that the Respondent violat- ed the Act by (1) establishing new rules requiring all waiters to work at least one lunch shift per week and discontinuing its policy of permitting employees to have a free glass of beer or wine with their meals and (2) threatening employees with discharge, plant closure, and other unspeci- fied reprisals because of their support for the Union 2 In fn 2 of his decision, the judge inadvertently refers to par 7 of the complaint, instead of par 7(a). 4 The fudge found that the Respondent violated Sec 8(a)(3) and (1) of the Act by reducing the employees' benefits by denying them free beer and wine with their lunches, a practice it had previously followed The judge inadvertently failed to include this finding in the conclusions of law, remedy, recommended Order, and notice 109 "(d) Changing its policy and denying employees free beer and wine with their lunches because the employees engaged in union activities." 2. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that Case 2-RC-19802 be, and it is, severed from this consolidated com- plaint and remanded to the Regional Director; and that the ballots of Jean De Boysson and Lissa Dannow be opened and counted by the Regional Director in accordance with the Board's Rules and Regulations and a revised tally of ballots be issued and served on the parties. In the event the Petition- er has received a majority of the valid ballots cast, the Regional Director shall issue the appropriate certification of representative. In the event the Pe- titioner has not received a majority of the valid ballots cast, it is ordered that the election conduct- ed on 12 September 1984, be set aside, and the Re- gional Director shall conduct a new election when, in his discretion, a fair and free election can be held. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against you because of your membership in or activities in behalf of Hotel Employees and Restau- rant Employees Union , Local 100 of New York, New York, and Vicinity, AFL-CIO. WE WILL NOT require you to work at least one lunch shift per week because of your union activi- ties. WE WILL NOT announce a new rule whereby we would thereafter dock your pay for being late to work or inform you that you would lose pay for being late to work to induce you not to support the Union. WE WILL NOT threaten to discharge you because of your support for the Union. WE WILL NOT threaten you with closure of our facility or with discharge because of the Union or the election. WE WILL NOT change our policy and deny you free beer and wine with their lunches because em- ployees engage in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Rodica Mischiu immediate and full reinstatement to her former job or, if that job 279 NLRB No. 17 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify Rodica Mischiu that we have removed from our files any reference to her dis- charge and that the discharge will not be used against her in any way. MICHIEL'S INC., D/B/A LE SAINT JEAN DES PRES RESTAURANT Leonard Grumbach, Esq., for the General Counsel. Stephen G. Eisenberg and Jonathan Arfa, Esq. (Bernstein & Arfa), of New York, New York, for Respondent Employer. Harold Ickes, Esq. (Suozzi, English & Klein, P. C.), of Min- eola, New York, for the Charging Party Petitioner. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge . Pursuant to a charge filed on 24 September 19841 by Hotel Em- ployees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO (Union), a complaint was issued by the Regional Director for Region 2 on 8 November in Case 2-CA-20611 against Michiel's Inc. d/b/a Le Saint Jean Des Pres Restaurant (Respondent). A further charge and a first amended charge in Case 2-CA-20611-2 were filed by the Union on 17 October and 14 November, respectively , and on 16 October a charge was filed in Case 2-CA-20663 by Rodica Mis- chiu, an individual, against Respondent. On 30 November an order consolidating cases, and consolidated complaint was issued in Cases 2-CA-20611, 2-CA-20611 -2, and 2-CA-20663. The consolidated com- plaint alleges, inter alia,2 that Respondent unlawfully (a) announced a new rule whereby it would thereafter dock the pay of its employees for being late to work; (b) in- formed an employee that he would lose pay for being 4 minutes late to work ; (c) directed its employees not to associate with other employees to preclude discussion of unionization; (d) threatened its employees with (i) dis- charge because of their support of the Union and if the Union won the Board election and , later, because of the result of the election, (ii) closure of its facility if the Union won the election and if the employees voted for the Union; and, later, (e) because of the result of the election reduced employee Daniel Elster's shift schedule; (f) assigned Elster to the "runner " position and waiter's positions without the assistance of other employees, i All dates herein are in 1984 unless otherwise set forth 2 At the hearing , the General Counsel conceded that no evidence was adduced as to par 7 of the complaint , which alleged that Respondent in- formed an employee of its desire to replace a prounion employee I shall accordingly dismiss that allegation thereby imposing more onerous and less desirable work- ing conditions on him; (g) caused employees Elster, Gil- bert Butcher, Andrew Maneval, Neil Sukoff, Isabelle Le Monnier, Mischiu, and Jean De Boysson to earn less income by hiring certain waiters, waitresses, and bartend- ers and thereby reducing the shifts of such employees; (h) scheduled employees Butcher, Maneval, Le Monnier, and Mischiu for a day off on the date of the Board elec- tion; (i) on 13 September required its employees Butcher and Mischiu to work lunch shifts; (j) reduced its employ- ees' benefits by discontinuing its policy of allowing them to drink beer or wine as part of the meals provided with- out charge to the employees ; and (k) discharged employ- ees Mischiu and Sukoff. Respondent's answer denied the material allegations of the complaint. On 18 December, the Regional Director issued an order consolidating cases and notice of hearing on objec- tions and challenges which consolidated for hearing Cases 2-CA-20611 , 2-CA-20611-2, and 2-CA-20663 on which the complaint , discussed above, was issued, and Case 2-RC-19802 which involves alleged objectionable conduct essentially as follows: (a) the discharge of Sukoff; (b) the hire of new employees which resulted in substantially reducing the hours worked by certain exist- ing employees who were active in the Union ; and (c) the destruction of the laboratory conditions necessary for the conduct of the election. The Regional Director conclud- ed that the allegations set forth in the complaint in Case 2-CA-20611 were encompassed within the objections, al- though not specifically alleged as objectionable. In addi- tion, three challenged ballots are at issue : Matilda LIff, challenged by the Union as a supervisor; Neil Sukoff, challenged by the Respondent as not being employed during the eligibility period; and Jean De Boysson, chal- lenged by the Board agent on the ground that he was not on the voter eligibility list.3 The objections and challenges were consolidated for hearing, which was held before me on five consecutive days in February 1985. On the entire record, including my observation of the demeanor of the witnesses , and after consideration of the briefs filed by the General Counsel , the Respondent, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, having its office and place of business in New York , New York, has been engaged in the operation of a restaurant selling food and beverages to the public. Annually, in the course and con- The petition was filed by the Union on 2 August , a Stipulation for Certification upon Consent Election was approved by the Regional Di- rector on 20 August, and an election was held on 12 September in a unit comprised of all full-time and regular part-time waiters, waitresses, and buspersons, bartenders , cashiers, and hostesses employed by Respondent's New York facility, excluding all other employees , and guards, profession- al employees, and supervisors as defined in the Act The election resulted in five votes for the Union , four votes against the Union , and four chal- lenged ballots One of the challenges, the ballot of Lissa Dannow, was withdrawn by the Union on 19 September SAINT JEAN DES PRES RESTAURANT duct of its business operations, Respondent derives gross revenues in excess of $500,000, and also purchases goods and supplies valued in excess of $5000 directly from sup- pliers located outside the State of New York. Respond- ent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(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 A. Background This case involves an attempt to organize the dining room employees of a restaurant. It is alleged that certain actions were taken by Respondent in response to the or- ganizing campaign. Each complaint allegation will be discussed separately. Albert Michiel, the owner of the facility, is situated in Belgium . He owns 12 restaurants in Europe, but the one at issue is the only restaurant he owns in the United States. Carolyn Van Antwerpen, the manager and admit- ted supervisor of Respondent is in overall charge of the restaurant. Bernard Truffier is the maitre d' and also an admitted supervisor. B. Reduction of Shifts Due to the Hire of Employees The complaint alleges that commencing about 12 August, Respondent unlawfully caused employees Daniel Elster, Gilbert Butcher, Andrew Maneval, Neil Sukoff, Isabelle LeMonnier, Rodica Mischiu, and Jean De Boys- son to earn less income by hiring certain waiters, wait- resses, and bartenders, thereby reducing the shifts of the original employees. The theory of the allegation is that by hiring more em- ployees than were needed, the current employees earned lees income because their shifts were reduced. The General Counsel identifies the new employees and their dates of hire as: Francois Reboyonne 13 August Jean De Boysson 15 August Redzep 16 August David Pumo 20 August Claude Defense 21 August Gaetan Bejrave 6 September and states that their hire was unwarranted based on the numbers of waiters* employed and the restaurant 's sales for the period involved. I disagree. Respondent lost the services of six waiters during the period when it was hiring the new personnel. The six workers and their last date of employment are:5 Milton Elliott 19 July Colin Campbell 28 July Kawal Mago 12 August Chin Lee 15 Augusts * The term "waiter" in this decision will include "waitresses " s The dates were obtained by noting the last tip sheet entry for the employee and checking that against the last payroll sheet record for the worker 6 Lee worked only 5 days 111 John Bourke 16 August Philip Watson 7 September? Respondent asks that I add Peter Gruen and Rodica Mischiu to the workers who were replaced by the new hires. I cannot do so because Gruen, who last worked 3 August, went on vacation and resumed work 4 Septem- ber. Similarly, Mischiu last worked 28 June, and also re- turned to work in early September. Thus, there was no specific need to replace these two workers with perma- nent employees during the summer vacation period. I thus find that no new workers were hired because of the vacations of Gruen and Mischiu. An analysis of the departures and hirings shows that on 13 August, when Reboyonne began work, three wait- ers had left in a period of slightly more than 3 weeks.8 By 16 August, two more employees had left9 and two were hired to replace them. 1 ° By 7 September, when Watson was fired, three employees were hired."" Thus, six employees left and six were hired to replace them. An examination of the payroll records12 shows that the following members of waiters and bartenders were working at the restaurant on the week ending dates set forth below, excluding Van Antwerpen, Truffier, Matil- da Liff, cashier Lillian Preux, and hostess Martine Martin. 23 June 11 30 June 10 7 July 10 14 July 10 21 July 9 28 July 9 4 August 8 11 August 8 11 August 10 18 August 11 (with the inclusion of De Boysson and Re- boyonne who were working but not yet on the payroll) 25 August" 13 (with the inclusion of Defense who was not yet on the payroll. De Boysson was listed on this payroll.) 1 September 12 7 Although Watson was fired after Bejrave was hired on 6 September, it is likely that Truffier, who discharged Watson, had intended to termi- nate him prior to 7 September and accordingly hired his friend, Bejrave on 6 September knowing that he would fire Watson the next day. 8 They were Elliott, Campbell, and Mago on 19 and 28 July and 12 August, respectively 8 They were Lee and Bourke 10 They were De Boysson and Redzep 11 They were Pumo, Defense, and Bejrave 12 I recognize that the payroll records are not precisely accurate con- cerning who worked at the restaurant because employees were not always given timecards and were therefore not placed on the payroll However, the payroll records provide a general measure of how many employees were employed at the facility and I have indicated the inclu- sion of employees at a particular week where the evidence shows he was working but did not yet receive a timecard 13 From 25 August through 20 September I have added Defense and Reboyonne, who were working at the restaurant but did not appear on the paryoll until 27 September 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 September14 13 15 September 13 22 September 12 29 September 12 6 October 13 13 October 12 20 October 11 27 October 11 3 November 8 10 November 8 Although there was some increase in the number of waiters and bartenders employed during the weeks from late June until late September , the increase was minimal. Prior to the petition being filed on 2 August, the average number of such workers from 23 June until 4 August was 9-1/2. From 11 August to the election, which en- compassed the week ending 15 September , the average was 12. The General Counsel must show a nexus between the hirings of the new employees and discrimination against the workers alleged in the complaint. He relies on the testimony of Le Monnier, which I credit, that Truffier told her that he would not hire Randy Miles, an Ameri- can, because he wanted to have a European staff because he does not trust Americans since they were more likely to favor a union. Although five of the six workers hired between 13 August and 6 September have European names15 there is no evidence that they are European or that they were hired for the purpose of increasing the number of employees on the payroll so that the current workers would have reduced earnings. In fact, Respondent's gross sales did increase in August over July's receipts and that, combined with the separation of employees, could have accounted for the hirings. 16 The complaint alleges that the current employees' shifts were reduced as a result of the hiring of the new employees. In his brief, counsel for the General Counsel retreats somewhat from that position and urges that I find a violation in the reduction in the amount of hours worked rather than the number of shifts worked. The reason is obvious. The evidence 17 simply does not show a lessening in the number of shifts worked" notwith- standing the slight increase in the number of waiters em- ployed. Regarding the hours worked, using the chart, a com- parison between the pre-13 August and post-13 August period shows that the following employees worked these 14 From 8 September through 22 October, the last day he appears on the tip sheets, I have added Bejrave, who never appeared on the payroll sheets 15 Truffier stated that he thinks David Pumo is American 16 The gross receipts for June, July, August, and September were $93,865, $75,582, $82,740, and $73,366, respectively 17 See chart for each worker I s However, the shifts of Elster show a reduction of shifts from 7 25 to 5 45 after 13 August 11 The complaint alleges that commencing about 12 August, the named employees earned less income because their shifts were reduced Gross pay includes hourly wages earned and tips reported average weekly hours, and earned the following average weekly gross pay.19 Pre 13 August Post 13 August Hours Pay Hours Pay Elster 38 9 $250.96 26 6 $223.63 Butcher 32 2 193 69 26 3 235 62 Maneval 32.7 208 70 34 8 285 75 Le Monnie 39.30 177 69 26 222 15 Mischiu 20 166 145 33 De Boysson 21 163 139 76 Thus, the evidence shows that, after 13 August, Elster worked about 12 fewer hours and earned about $27 less per week. As to Butcher and Le Monnier, although they worked fewer hours after 13 August, they earned more money. Maneval worked about 2 hours more per week and earned more money after 13 August, which could be explained by the fact that he threatened to quit if he did not receive additional shifts, and he subsequently was given more shifts. In sum, I am unable to find that the General Counsel has set forth a prima facie case of discrimination. First, it has not been shown that the hire of additional personnel was discriminatorily motivated, or that any reduction of shifts has taken place for Butcher, Maneval, LeMonnier, Mischiu, De Boysson, or Sukoff. As to Elster, a slight re- duction is seen. Moreover, Butcher, Le Monnier, and Maneval's post-13 August earnings-which is the heart of the complaint allegation-actually increased. Elster suffered a loss in shifts, hours, and earnings after 13 August but inasmuch as I cannot find that this decrease was discriminatorily motivated due to the hire of certain employees, I cannot find a violation. Wright Line, 251 NLRB 1083 (1980). Even if a prima facie case was proven, Respondent has met its burden by showing that the additional employees hired were employed as replacements for departed work- ers and that its sales actually increased in August necessi- tating additional staffing. The complaint also specifically alleges that in early August Respondent reduced Elster's shift schedule from eight shifts per week to six shifts per week. Elster testified on direct examination that he usually worked eight shifts per week However, on cross-exami- nation, on being shown his timecards from June to early September, he admitted being wrong about that. The chart shows that Elster's shifts were reduced from an av- erage of 7.25 hours per week before 13 August to 5.45 hours after that date. However, I am unable to conclude, for the reasons set forth above, that the reduction of shifts was discriminatorily motivated, especially when compared with the other employees' shifts. I accordingly will recommend dismissal of this allegation of the com- plaint. 20 Mlschm was on vacation for most of this period 21 De Boysson's hours are not available Week b June July August September October eginning 18 25 2 9 16 23 30 6 13 20 27 4 10 17 24 1 8 15 22 29 Elster (a) Shifts 7 8 8 6 6 7 8 8 8 6 6 5 7 6 6 5 3 3 5 (b) Hours" 39-1/2 36 28-1/2 39-3/4 34 40 54 42-1/2 23-3/4 26-1/2 25-1/2 33-3/4 32-1/2 31-3/4 26-3/4 16-1/2 13-1/2 19-1/4 (c) Tips and wages23 $21933 176 60 149 48 237.41 199 90 22 5 299 18 367 03 171 81 185.28 226 93 294 31 231 38 257 61 256 86 129 78 98 73 240.24 Butcher (a) 5 5 5 4 4 5 5 5 5 4 4 3 4 5 5 4 4 5 5 5 (b) 33 32-1/2 29 26 35-3/4 35 33 33-1/4 30 19-1/2 25 20-3/4 31 27-1/4 24-1/4 22 30-1/4 30-1/2 30-1/4 (c) $16698 189 38 185 15 149 10 201 01 264 25 199 55 194 14 261 50 138 83 155 75 150 76 278 16 257 85 173 04 208 99 266 70 279 09 331 68 325 09 Maneval (a) 7 6 5 3 5 5 5 3 3 4 4 5 5 5or6 6or7 7 3 4 6 7 (b) 46.00 35 30- 1/2 18 33-1 /2 38 48 12-3/4 29-3/4 39-1/2 27-1 /4 42 42-1/2 49 35-1 /4 17-1/2 28-3/4 32-1/4 38-3/4 (c) $235 . 58 197 25 156 68 94 30 203 73 270 30 232 10 70 96 203 91 245 83 19004 408 03 319 .03 328 12 26084 236.13 252 56 338 79 36006 LeMonnier (a) 7 7 4 7 4 6 5 5 5 4 5 7 6 (b) 37-1/2 20 26 36-1/4 26 32 27-1/2 36-3/4 21-1/4 28-1/2 20-1/2 22-1/4 23 27-1/4 22-1/2 18-1/2 23 36-3/4 32 (c) $219.13 110 169 60 233 19 184 10 195 20 132 . 63 366 .36 156 94 192 98 177 18 154 29 147 05 18904 207 88 173 .48 200.05 385 36 315 20 Mischiu (a) 3 3 3 2 2 (b) 29 18 18-3/4 20-3/4 18-1/4 12 12-1/4 (c) $178 15 148 30 208.06 158 76 131.89 111 20 113 79 DeBoysson (a) 4 5 3 5 4 5 3 (b) 14-3/4 20-3/4 14 24-3/4 21-1/4 27-3/4 9-1/4 (c) $10466 157.76 9090 203 16 159 94 185 .21 76.74 22 The hours worked sometimes differ between that set forth on the payroll record and the hours indicated on the time cards . I have used the hours set forth on the payroll record 23 The tips set forth as reported are 80 % of the actual tips received. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Docking Employees' Pay for Lateness The complaint alleges that about 7 August, Respond- ent (a) announced a new rule whereby it would thereaf- ter dock the pay of its employees for being late to work, and (b) informed an employee that he would lose pay for being 4 minutes late to work . Both actions were alleged- ly taken to induce the employees not to support the Union. On 6 August employee Daniel Elster , who was due at work at 6 p.m., reported at 6:04. Truffier told him that he would be docked 15 minutes pay for his 4-minute lateness and Truffier wrote "- 15 minutes" on his time- card. Truffier also told Elster that it was restaurant policy "from now on" that if an employee arrived late he would be docked 15 minutes pay. That was the first time that Elster had heard of such a policy. It does not appear that Elster was in fact docked any pay for his lateness, and he did not know of anyone at any time being docked for lateness. However, Van Antwerpen tes- tified that workers are docked if they are 1 hour late, but not 4 minutes late. It is clear that coming immediately after the filing of the petition on 2 August, the announcement of this rule change was designed to harass the employees, particular- ly Elster, for his support of the Union. The union cam- paign must have been the motivating factor behind Truf- fier's announcement to Elster that thereafter employees would be docked for lateness and that 15-minutes pay would be deducted for his being 4 minutes late, because no action had been taken prior to that time in response to employees' minor latenesses, as confirmed by Van Antwerpen. Respondent argues that inasmuch as the alleged rule was announced but not implemented (Elster was not in fact docked any pay for his lateness on 6 August), there can be no violation. I disagree. Here the new rule was effective, in the minds of the employees, when an- nounced. Although there was no evidence that the rule was enforced, it has not been rescinded, and therefore could be implemented at any time. I accordingly find that Truffier's announcement of a new rule that employees would thereafter be docked for being late to work, and his telling Elster that he would lose pay for being 4 minutes late to work violate the Act because they were done in retaliation for the Union's filing of the petition and to induce the employees not to support the Union. It was, accordingly, violative of the Act. D. Assignment of Elster to the "Runner" Position The complaint alleges that about the week of 13 August, Respondent assigned Elster to cover both a waiter's station and the "runner" position, without the assistance of other waiters , thereby imposing more oner- ous and less desirable working conditions on him, be- cause he joined the Union, and in order to discourage employees from engaging in union activities. A runner is a waiter designated on each shift by a Re- spondent official to take food from the kitchen to all the customers in the restaurant . In addition, he is assigned to a small station near the kitchen . According to Elster, Truffier would often send another waiter to the runner's station to assist at that station if he was busy . Elster stated that on 17 August his station was "pretty busy," he had very little assistance there, and he worked very hard, noting that, as a runner, he never had such little help before. As the volume of customers subsided, Truf- fier demanded that he get out of the kitchen, and threat- ened that unless he had pressing business there he should stay on the dining room floor and take care of his station or he would be fired. Truffier also said that the next time he saw Elster in the kitchen he would be discharged. Elster did not respond to these remarks. There is no evidence that Elster requested additional help for his station or that Truffier refused to provide it. When compared with the other Friday lunches in August, it appears that 17 August had the highest volume. This calculation is based on the total tip pool for each lunch. The individual sales figures for each day are not in evidence, so the total tips received are a rough but fair estimate of the total sales volume for the day. The total tips received in August are as follows:24 Date-Amount No. Working Waiters 8-3-$144 3 8-10 - $195 4 8-17 - $205 3 8-24 - $185 4 8-31 - $180 4 It thus appears that on 17 August Elster was assigned as runner on the busiest Friday in August when only three waiters were working, whereas for 3 of the 5 weeks, four waiters were employed. Accordingly, Elster was indeed working hard that day. However, the issue is whether Truffier improperly failed to assign another waiter to assist him at his station. Inasmuch as only two other waiters aside from Elster were working that day to cover an extremely busy lunch shift, Truffier permissibly did not assign another waiter to help Elster. There was no evidence that Truffier always sent a waiter to help at the runner's station, and he properly exercised his busi- ness judgment in not doing so where the other two wait- ers were needed at their stations. Indeed, if Truffier as- signed a waiter to help Elster, only one waiter would be left in the entire restaurant to take care of all the sta- tions, excluding Elster's small station. I accordingly find no violation of the Act regarding this complaint allegation. E. Direction to Employees Not to Associate with Others The complaint alleges that in mid-August, Respondent directed its employees not to associate with other em- ployees to preclude discussion of unionization. Employee Elster testified that in the past he was asked by Truffier to "look after" new waiters-by correcting their mistakes and observing them. The new workers were assigned a station near his and he would watch 24 The total tips comprise all tips paid by customers as reflected in the tip sheets A share of the total tips went to management personnel, but the individual shares received are not material SAINT JEAN DES PRES RESTAURANT them, correct their mistakes, and brief them on restaurant policies. On 17 August waitress Isabelle LeMonnier brought her friend, Randy Miles, to the restaurant as a trial waiter for 1 night. Truffier asked LeMonnier to show him around and asked that he "trail" her-assist and follow her in serving customers. Prior to the start of the shift, Miles, LeMonnier, and Elster ate dinner in the kitchen and Elster was explaining restaurant procedure to Miles. Truffier entered, apparently heard Elster, and told LeMonnier that he asked her and not Elster to train Miles. I am unable to find a violation based on these facts. Truffier did not, as alleged, direct the employees not to associate with other employees. He merely told LeMon- nier to train Miles. Although in the past Truffier had as- signed Elster to watch and coach new waiters, he was not given that task permanently. Truffier could, of course, assign a different waiter to perform that job. Le- Monnier and Elster had about the same amount of expe- rience at the restaurant'25 and because LeMonnier brought Miles in, it was understandable that Truffier would appoint her to train him. Moreover, Mischiu testified that on Laurent's first night as a waiter, she was asked by Matilda Liff, who I find to be a supervisor, to take care of his tables while he was working because he did not perform well. In addition, when Truffier interrupted Elster's conver- sation with Miles, there was no discussion of the Union ongoing at that time. I accordingly am unable to find any violation of the Act in this regard. F. Scheduling Employees for a Day Off on 12 September The complaint alleges that Respondent violated Sec- tion 8(a)(3) of the Act by scheduling employees Butcher, LeMonnier, Maneval, and Mischiu for a day off on 12 September, the date of the Board election , to induce them not to participate in the election.26 The restaurant is open 6 days per week and it is not disputed that employees were given days off during the week. The General Counsel's argument is based on the as- sumption that 3 of the 10 persons who were assigned to work that day could be expected to vote against the Union (Dannow, who was Michiel's babysitter in Bel- gium; Preux, a former roommate of Truffier; and Redzep, the bartender who was alleged to have reported a conversation by Mischiu, not involving the Union, to Truffier. He also asserts that the fact that only those three were set forth on the Excelsior list is proof that its failure to schedule other employees was unlawfully moti- vated. Of the 11 weeks between 13 June and 12 September'27 the date of the election , the employees at issue did not work on the following Wednesdays: 25 According to the tip sheets, Elster began work about 1 June, and LeMonnier started about 20 June 25 The question of whether those workers could have voted or did vote notwithstanding their not being scheduled to work that day is not at issue 27 The restaurant was closed on 4 July 115 Butcher28 8-comprising 6-13, 20, and 27; 7-11; 8- 1, 8, and 29; 9-5 LeMonnier29 2-7-25; 8-8 Maneval 6-6-13 and 20; 7-11; 8-1, Mischiu 8, and 15 Did not work on 6-6 or 13, but worked 6-20, after which took 2-month vacation, returning Tuesday, 9-4. Did not work on Wednesday, 9-5. After the election, in the 5 weeks from 19 September to 17 October, the employees did not work the following Wednesdays: Butcher 5 LeMonnier 2-9-19 and 26 Maneval 4-9-19; 10-3, 10, and 17 Mischiu 5 On this record it cannot be found that Respondent de- liberately scheduled the four employees for a day off in order to induce them not to participate in the election. There was no evidence that they were told of any reason why they were not scheduled to work 12 September. Moreover, their work pattern demonstrates that they were regularly assigned Wednesdays as a day off, prior to and after the election. Thus, prior to the election, Butcher, LeMonnier, and Maneval did not work 8, 2, and 6 of the 11 prior Wednesdays, respectively , and Mis- chiu did not work on 6 or 13 June prior to her vacation. A similar record is seen after the election. I therefore cannot find that a violation has been proven on this allegation. I note that the Board will set aside an election when the voter had no opportunity to vote because he was as- signed by the employer to be away from the plant in the normal course of his duties for the employer. Glenn McClendon Trucking Co., 255 NLRB 1304 (1981). How- ever when the employee was prevented from voting by personal activities unrelated to his job, no objectionable conduct has been found in his failure to vote. Philips In- dustries, 212 NLRB 529 (1974). Accordingly, applying that reasoning, Respondent did nothing more than sched- ule the four employees for a day off. He could not be required to employ all his workers on election day just so they would find it more convenient to vote. Inasmuch as no objectionable conduct would be found if an em- ployee fails to vote for reasons of his own, the higher standard required for finding an unfair labor practice is not established where an employer fails to schedule cer- tain employees to work on election day. I accordingly find no violation of the Act concerning this complaint allegation. G. Assignment of Lunch Shifts The complaint alleges that about 13 September, Re- spondent required employees Butcher and Mischiu to work lunch shifts. 28 Butcher was hired on 7 June 29 LeMonnier was hired and first appears on the tip sheets on 20 June 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mischiu was hired in late June 1983. Upon her hire she told Respondent Official Boumal that she was available for dinners only because she would be attending school in September. This arrangement was agreed to and Mis- chiu was not scheduled for any lunches . However, Mis- chiu volunteered to and did work lunches that summer, when Respondent was short of help, until she began school full time in September 1983. Boumal's successor, Richard Weber, honored Mischiu 's arrangement when he replaced Boumal in October 1983 and , accordingly, she did not work lunch except during vacations and school holidays. The procedure she followed was to tell Weber that she had a school day off and ask whether he wanted her to work lunch that day. In September 1984 Mischiu's school schedule required her to attend school 5 days per week . On 13 September, the day after the election , Mischiu observed that Truffier was "excited and furious" when he announced that "from now on everybody has to work lunch . . . wheth- er the union people like it or not." That day she learned that her schedule for the following week included lunch on Thursday. She told Truffier that he knew she could not work lunch. Truffier replied that he did not care. She answered that she never worked lunch when she was in school. He responded that she had to arrange her schedule so that she could be available for one lunch per week. She said that she could not do that and offered to show her school schedule . Truffier said he did not care. Thereafter, Mischiu was assigned to lunch shifts and in most cases obtained a substitute for those shifts. Truffier excused her from lunch duty if she was able to get a re- placement. Gilbert Butcher testified that on his hire in June 1984 he told Truffier that he could not work lunches because he was attending school. Truffier agreed to have him work dinners only. Occasionally, however , he would substitute for another employee for lunch if he was asked by the worker. Butcher further stated that shortly after the election Truffier told him that he must work lunch . Butcher pro- tested that he was not able to do so because of his school attendance. Truffier replied that everyone must work one lunch per week . Thereafter, Butcher worked lunch and missed school on those days . Butcher testified, and the tip sheets confirm, that in the weeks of 6 August to 24 September Butcher worked no lunches , but beginning the week of 1 October to 29 October he worked one lunch per week. Butcher quit in mid-November. Elster, LeMonnier, and Maneval testified consistently that prior to the election , employees were not required to work lunch. Elster and Maneval further stated that after the election Truffier announced that all waiters must work lunch because he wanted to stop "favoritism" and be more fair to all the workers. Van Antwerpen testified that waiters were never re- quired to work lunches and that policy has never changed . She never heard Michiel require that waiters must work lunches. 80 Truffier also implied that there was no such rule mandating that waiters work lunch, be- cause he stated that he tried to accommodate the work- ers. Lunch shifts conflicted with the school attendance of Mischiu and Butcher and may have been avoided by other waiters because the tips received in such shifts were much less than the dinner shift . Nevertheless, the evidence is clear that prior to the election , workers were not required to work lunch, and Truffier permitted Mis- chiu and Butcher to work dinners only. Only 1 day after the election, Truffier announced a change in this policy to require all waiters to work at least one lunch shift per week "whether the union people like it or not." I credit the consistent, similar testimony of Mischiu, Butcher, Elster, and Maneval that Truffier told the waiters of this change. The fact that a new policy was made is clearly demonstrated by (a) the pro- tests by Mischiu and Butcher that they could not work lunches due to their school schedules; (b) Mischiu's ef- forts to obtain substitutes for assigned lunch shifts; and (c) Butcher's record of no lunches prior to the change, and one lunch per week after the change. It is further clear that the new requirement that wait- ers work one lunch per week was motivated by antiun- ion considerations. The timing of the announcement, coming only I day after the election and accompanied by the statement that the change will be effective "whether the union people like it or not" provides strong evidence that the change was unlawfully motivated. Moreover, Truffier knew that Mischiu and Butcher did not want to work lunches and had previously accommo- dated their school schedules.31 The announcement of the requirement that waiters work at least one lunch was directed at all the employees and was clearly unlawfully motivated , as set forth above. Although it was unlawful concerning all the workers, it was of course a violation concerning Mischiu and Butch- er, who are specifically alleged in the complaint as having been discriminated against by virtue of the new shift schedule. I accordingly find and conclude that the requirement that employees work lunch shifts violated the Act. Nissen Foods, 272 NLRB 371 (1984); Together We Stand Women 's Guild, 256 NLRB 393, 397-398 (1981). H. Reduction of Benefits The complaint alleges that about 20 September Re- spondent reduced its employees' benefits by discontinu- ing its policy of allowing them to drink beer or wine as part of the meals provided without charge , because of their support for the Union and as a result of the Board election. Employees De Boysson , Elster, LeMonnier, Maneval, and Mischiu consistently testified that, prior to the elec- tion of 12 September, waiters were permitted to drink a 30 Therefore I reject Respondent's argument, that inasmuch as Michiel made schedule changes in October 1984, such changes were not unlaw- fully made 31 Truffier testified that he knew that Mlschtu and Butcher were stu- dents and that he accommodated them by not having them work lunches SAINT JEAN DES PRES RESTAURANT glass of beer or wine with their meals without charge. Shortly after the election, Truffier announced that em- ployees were no longer permitted to drink alcoholic bev- erages on the premises. Van Antwerpen testified that when she began work for Respondent in June 1983, she knew that Michiel's other restaurants prohibited the consumption of alcohol by waiters, and she believed that the same rule applied to Respondent's premises here. Nevertheless, she was aware that the waiters drank beer and wine with their meals but she did not discipline them for doing so. In June or July 1984, Michiel visited the restaurant, saw employees drinking alcohol, became angry, and apparently told Van Antwerpen that it should not be permitted. She believes that Truffier told employes to discontinue this practice, although she took no action against employees who con- tinued to drink with meals after that, because she is not "rigid" regarding this rule, and such drinking did not affect the service of customers. Based on these facts, it is readily apparent that Re- spondent withdrew a benefit from employees because of their support for the Union and because of the recently held election. Thus, the waiters have enjoyed free beer and wine with their meals for more than I year-since the opening of the restaurant, notwithstanding Manager Van Antwerpen's awareness that it was contrary to Re- spondent's policies. Even the fact that Michiel ordered a cessation of the practice in June or July 1984 did not cause her to call a stop to it. It was only immediately after the election that Truffier announced that alcohol could not be consumed on the premises. The new rule change withdrawing the benefit must therefore have been a direct reaction to the union organizing drive and the Board election. Sunbeam Corp., 211 NLRB 676 (1974). Respondent defends itself on the ground that, accord- ing to Van Antwerpen, employees continued to drink, as they had in the past, after Truffier allegedly told them the practice was discontinued. It relies on the testimony of Maneval to show that employees drank in the restau- rant after the rule change. However, Maneval stated that, although the waiters persisted in drinking, they did so secretly-not in the presence of Liff, Truffier, or Van Antwerpen. Thus, although employees may continue to dunk alcohol on the premises, the violation is in the an- nouncement of the imposition of a new rule discontinu- ing the benefit they once enjoyed. Scotch & Sirloin Res- taurant, 269 NLRB 436, 443 (1984). I accordingly find that the reduction of the employees' benefits violated Section 8(a)(1) and (3) of the Act. I. Threats to Employees The complaint alleges that Respondent, by Truffier, its admitted supervisor, (a) in mid-August, threatened its employees with discharge because of their support for the Union; (b) about 13 September, threatened its em- ployees with closure of its facility and with discharge of all the employees if the Union won the Board election; (c) also threatened its employees with unspecified repris- als because of their support for the Union; and (d) in the week following 12 September, threatened its employees 117 with closure of its facility and with discharge of all the employees because of the result of the Board election. The complaint further alleges that in September, Re- spondent, by Van Antwerpen, its admitted supervisor, threatened employees with closure of its facility if the employees voted for the Union. LeMonnier testified that on asking Truffier if he would hire her friend Miles, an American, who had tried out as a waiter, Truffier replied that he would not be hired because he wanted a European staff as he did not trust Americans because they were more likely to be for a union. He further said that he would also get rid of the Europeans if necessary. De Boysson testified that about 20 August he was told by Truffier that he would hire 20 employes so that he could fire certain workers, adding that that was his attor- ney's idea. Two days before the election Truffier told De Boysson that he did not like to be "fucked," adding that if a person has to engage in that conduct it should be consenting. Truffier then noted that "you are going to see what's going to happen." Maneval testified that shortly before the 12 September election, Manager Van Antwerpen asked him what he thought of the Union. Maneval replied that the workers might receive benefits and protection. Van Antwerpen responded that in her opinion they would not receive such improvements, and it would cost a lot of money, and, because Respondent is a small business, it might have to close the restaurant. Mischiu testified that on 13 September, the day after the election, she was in the kitchen with Chef Pascal when Truffier entered. Pascal remarked that it seemed like the Union won. Truffier responded that "they won my ass," adding that he had just spoken to Michiel and that even if the Union won, Michiel said he would close the restaurant, fire everyone, and in 2 weeks reopen under a new name with new employees. De Boysson testified that about 15 September he ap- proached Truffier and told him that he was sorry that he voted his conscience. Truffier replied that "we are going to see what is going to happen." Maneval stated that in the week following the election, Truffier announced that the vote was tied and that he would have to "go to court," adding that, at the worst, the restaurant will close if the Union wins and might reopen with other employees. Thereafter, Truffier re- peated this message two to three times that week. Truffier and Van Antwerpen denied or could not recall making the statements attributed to them. I find that the statements, set forth above, attributed to Truffier and Van Antwerpen were made, as testified to by the General Counsel's witnesses. They testified in a consistent, forthright manner as to remarks which had to have made a tremendous impression on them. In addi- tion, certain of the same comments were made to differ- ent people, which adds credence to the fact that they were uttered. I have already found that the assignment of Elster to the runner's position on 17 August, and the alleged fail- ure of Respondent to provide him with assistance did not violate the Act. The threat by Truffier at that time that 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would fire Elster if he did not stay out of the kitchen was also not violative because Truffier had a legitimate business interest in ensuring that the limited waiter staff of three would be available to service the customers during the high volume lunch shift . As the Board stated in Gerber Co., 270 NLRB 1239 (1984): Section 8(a)(1) of the Act prohibits employers from interfering with, restraining, or coercing em- ployees in the exercise of their rights of self organi- zation as guaranteed by Section 7 of the Act. In evaluating the conduct of an employer as to wheth- er it violates the Act, the issue is whether the em- ployer's conduct tended to affect the employees' freedom of choice not whether such conduct, in fact, did affect that choice. The following are clearly unlawful threats: (a) Truffier's remark to De Boysson that it was his at- torney's idea to hire 20 employees so that he could fire certain workers. Respondent argues that because there were not 20 employees affected by the Union 's petition, such a statement could not be taken seriously . I disagree. The tally of ballots show that there were 17 eligible em- ployees, which is close enough to 20 to make it clear to De Boysson that Truffier was threatening to discharge the entire work force . Although De Boysson did not be- lieve that his job was in jeopardy by virtue of this state- ment, he stated that he interpreted the remark as being a way in which Truffier could employ only those persons he wished. (b) Truffier's statement to Mischiu on 13 September and his remark to Maneval in the week after the election. He told Mischiu that even if the Union won he would close the restaurant , fire everyone, and reopen with new employees. He told Maneval essentially the same thing. (c) Van Antwerpen's statement to Maneval that since Respondent is a small business it might have to close. (d) Truffier's statement to LeMonnier that Miles would not be hired because Truffier wanted a European staff as he did not trust Americans because they were more likely to favor a union , was not an unlawful refusal to hire Miles, in the absence of a charge to that effect. Nor does the General Counsel request that I so find. However, I find, as alleged by the General Counsel, that that statement, coupled with Truffier's further remark that he would "also" get rid of the Europeans if neces- sary is an unlawful threat to discharge employees.32 (e) Truffier's statements to De Boysson that, "you are going to see what is going to happen." This was said right after Truffier mentioned that he does not like being violated. As such, the comment was a clear threat of un- specified reprisals. I accordingly find and conclude that , based on the statements of Truffier and Van Antwerpen , set forth above, unlawful threats of discharge (Gerber Co., supra); threats to close (Bronx Metal Polishing Co., 268 NLRB 887, 889 (1984)); ( Woodline, Inc., 233 NLRB 97, 100 32 I reject Respondent's argument that this allegation must fail becasue it hired David Pumo, an Amencan, about the same time It is not clear that Pumo is Amencan Truffier stated that he thought he was an Ameri- can (1977)) and threats of unspecified reprisals were made to employees. Economy Fire & Casualty Co., 264 NLRB 16, 22 (1982) ("It wouldn't be in the company's best interest to move, but no one knows what will happen because there's never been a union.") J. The Discharge of Neil Sukoff 1. Facts The General Counsel alleges that on 22 August Re- spondent discharged Sukoff because of his union activi- ties. Sukoff was interviewed by Truffier on 16 July. He ap- plied for a job as a bartender and was asked if he had bartending experience. He replied that he worked as a bartender in London but had no experience serving liquor. Truffier said he would train him. Sukoff began work on 2 August, the day the petition was filed. He was asked that night in the locker room by Elster, who identified himself as the union representative, to sign a card, and he did so. He worked for the first three nights under the supervision of the bartender, Gruen, who was leaving . He was also assisted for several nights thereafter by two other workers. After signing the card, Sukoff spoke to employees Dannow, LeMonnier, Butcher, and Lopez mostly in the kitchen about the Union . He told them that Elster spoke to him, that he joined the Union , and he asked if they were members also. On 9 August, Truffier began criticizing Sukoff's work in an angry manner, complaining about the following:33 (a) He used the wrong glass for a drink. (b) A customer requested a certain champagne and Sukoff did not know that it was kept in the re- frigerator and thus could not find it. (c) The sink clogged and overflowed-when Truffier saw this he called Sukoff an "idiot" and became insulting. (d) Truffier claimed that a customer was waiting 20 minutes for a drink. Sukoff conceded that the first three incidents occurred, but denied the last. On 15 August Sukoff spoke to Redzep behind the bar regarding the Union . Sukoff told him that he was a Union member and asked him to speak to "Union repre- sentative Elster" if he wanted to join. Redzep did not answer. That night, Truffier told Sukoff that he was a terrible bartender who knows nothing about bartending, citing the incident where the customer waited 20 minutes for a drink. Truffier told Sukoff that he would be trans- ferred to a waiter's position. Sukoff protested that he was a good bartender, but to no avail. The following three nights, 16, 17, and 18 August, Sukoff worked as a waiter, at first trailing a more experi- enced waiter, then helping the waiter and taking drink orders. He was told by Truffier what to do. On 20 33 Sukoff stated that Truffier's attitude toward him changed and that in the couple of days prior to 9 August he would correct his work in a "nice way " SAINT JEAN DES PRES RESTAURANT August a conference was held at the Board concerning the petition. On 21 and 22 August Sukoff again worked as a waiter. On 23 August he reported to work but was told by Truffier that there were too many waiters and not enough reservations and was asked to leave. The follow- ing day Sukoff reported to work and was told the same thing by Truffier. Truffier also said that he would not be needed during the next couple of days and that he should- call the next week. Sukoff called and was told that Respondent was not busy. He offered to work part time and Truffier told him to call back in 2 weeks. On 12 September, after he voted in the Board election, Sukoff again told Truffier that he was available to work part time, even in October. Truffier replied that he could not think now, adding that there would be many changes starting in October, and asked Sukoff to call him then. Sukoff did not call Truffier again. Sukoff kept his uniform in a locked locker in the res- taurant which had his lock on it. Prior to the time he re- moved his uniform and lock in October, no one had asked him to do so. Sukoff began receiving a full share of tips on his second night of work as a bartender and he continued re- ceiving a full share as a waiter. He stated that if he did not know how to make a drink he would ask cashier Preux or waiter Maneval or check his two reference books. He added that in the last 4 days he worked as a bartender he rarely had to ask others or consult the books for drink-making instructions. Truffier testified that Sukoff did not tell him that he had no experience with alcoholic beverages, and that had he known that he would not have hired him. He stated that he helped Sukoff by showing him how to make each drink and by answering his questions. He further stated that he was able to tell on Sukoffs first day that he had no experience, and that he told Sukoff during his employ that he was not a good bartender, did not know how to make drinks, and could not do anything well. Notwithstanding that Truffier realized on Sukoffs first day that he was incompetent, he gave him 1 week to im- prove as a bartender, but he did not improve. Sukoff asked for more time but Truffier refused to keep him as a bartender, and offered him a waiter's position, which he accepted. According to Truffier, many people helped train him as a waiter but he was unable to do the job. Truffier fired him at the end of the shift, telling him that he did not do a good job at the bar or in the dining room. Truffier conceded that Sukoff's timecard indicates that he worked a full dinner shift on 22 August and came in for 1 hour on 23 August and was paid for that hour. He did not recall telling Sukoff to go home because business was slow. Thereafter, Sukoff called twice and asked him if there was a job for him and Truffier said that there was not. Truffier denied firing Sukoff for his union activities and denied any knowledge of his union activities. 2. Analysis and discussion Truffier stated that he does not hire inexperienced per- sonnel, but that he gives waiters and bartenders 2 days to 119 see if they would work out. Van Antwerpen testified that inexperienced waiters are occasionally hired but are trained in the restaurant. The General Counsel argues that even if Sukoff was a poor waiter, he was not given an adequate opportunity to learn his job and improve his skills. He suggests that disparate treatment was shown by the fact that, accord- ing to Elster, new employees were assigned to a small station for weeks or even months until they improved, and that, although Sukoff was "rather inefficient," so were other new employees who were retained for weeks or months until they progressed. There is no question but that by the time Sukoff was fired on 23 August Respondent was aware that its em- ployees were engaged in union organizing . The election petition was filed on 2 August and a conference relating to the petition was held at the Board on 20 August. Thus, even apart from the small-plant doctrine urged by the General Counsel, I find that Respondent possessed knowledge of its employees' organizing activities gener- ally. However, there is no specific evidence to show that Sukoff's activities were carried out at such places and times that Respondent must have noticed them. Standard Motor Products, 265 NLRB 482, 491 (1982). Sukoff dis- cussed the Union in the kitchen and behind the bar with fellow employees. Although such conversations included Dannow, Lopez, and Redzep, I cannot find that employ- ees informed Respondent of Sukoff's union activities or were likely to have reported such matters to manage- ment. Dr. Phillip Megdal, Inc., 267 NLRB 82 (1983). I am aware that Dannow was a former babysitter of Michiel, Respondent's owner; Lopez socialized with Van Antwer- pen and Truffier; and Redzep possibly advised Truffier that Mischiu was speaking against him.34 Moreover, no antiunion comments were addressed to Sukoff by Respondent, and at the time of his discharge no animus was displayed at all by the company toward the Union. The absence of animus is evident in the fact that Respondent could have discharged Sukoff on 15 August when it became dissatisfied with his bartending. By that date, according to the General Counsel, Re- spondent was aware of all his union activities through his conversations with his coworkers whose loyalty and re- lationship to the Company would have prompted them to inform on Sukoff. The evidence reveals, however, that Respondent did not discharge him on 15 August, but gave him another opportunity to work for Respondent in the capacity of waiter and continued his full share of tips. 3 s I am, accordingly, unable to find that the General Counsel has made a prima facie showing that Sukoff's protected activity was a motivating factor in Respond- ent's decision to discharge him. Wright Line, 251 NLRB 1083 (1980).36 34 When Truffier criticized Mischiu for spreading rumors about him, which information perhaps came from Redzep, he told her that there were "informers all over the place" and that the "walls have ears" 35 No allegation has been made that Sukoff's transfer from bartender to waiter was in violation of the Act 36 I reject the Union's argument that Sukoff was laid off The General Counsel alleges that he was fired and the evidence so indicates. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If it is ultimately found that the General Counsel has established a prima facie case, it is Respondent 's burden to show that it would have taken the same action against Sukoff in the absence of his union activities . Respond- ent's defense is troublesome. Truffier's testimony that he told Sukoff that he was fired for poor work at the end of a shift was contradicted by Sukoff who stated that Truf- fier told him at the start of a shift that he should leave because business was slow. Truffier was also contradict- ed by Sukoff s timecard which indicated that he began his last shift but did not complete it, thus lending cre- dence to Sukoffs version. Moreover, no specific evi- dence of Sukoff's shortcomings as a waiter was presented by Respondent. The only testimony from Truffier was that Sukoff was unable to do the job and that many people unsuccessfully helped to train him. s v I find it unnecessary to resolve this conflict because, in finding that no prima facie case has been proven, I need not examine Respondent 's defense. K. Discharge of Rodica Mischiu 1. Facts The General Counsel alleges that Respondent dis- charged Mischiu on 15 October because of her union ac- tivities. At the time of Mischiu's hire in June 1983 she advised Manager Marion Boumal that she was available for din- ners only because she would be attending school in Sep- tember. Boumal agreed and asked how many dinner shifts she wanted and Mischiu replied that she would work as many as she was assigned. Thereafter, Mischiu worked dinners only until July when she volunteered to work lunches while she was on summer vacation from school to which she returned full time in September 1983. Richard Weber, who replaced Boumal in October 1983, observed the schedule that Mischiu requested-din- ners only, and when she was on school vacation or holi- day, she would work lunches too. In late June 1984, Mischiu and Elster spoke in the res- taurant about the problems at Respondent: too many waiters; inexperienced waiters; and Truffier and the cash- ier received a full share of tips. Elster told Mischiu that these matters would be resolved if they joined a union. Mischiu asked how that would happen, and Elster ex- plained that a union would not permit Truffier or the cashier to receive a share of tips and the workers would obtain health and dental insurance for $18 per month. Mischiu told Elster that she would join a union if doing so would solve their problems. Mischiu went on vacation in late June and on her return to work in early September 1984 was told by Elster that he had organized a union and there was to be an election on 12 September. Elster identified those workers who he believed supported the Union. Mischiu went to those employees and told them that she was happy they supported the Union, and she also spoke 39 In this connection I cannot rely on the similarly vague and conclu- sory testimony of the General Counsel's witnesses Elster and Le Monnier that other inefficient workers were allowed to remain in Respondent's employ for weeks or months until they improved about the Union with the workers who were undecided about whether to join it. In late September, Mischiu spoke with Elster, Butcher, and Redzep concerning some tip money which was al- legedly missing. After this conversation she saw Redzep speak with Truffier. A few days later Truffier accused her of spreading rumors that he and Preux were stealing tip money. Mischiu asked him if he had evidence that she was spreading rumors and asked that she be con- fronted with her accuser. Truffier refused, adding that his information is reliable because he had "informers all over the place" and that the "walls have ears." Truffier threatened that if he heard her spread rumors or if she said anything about the tips he would fire her "no matter what kind of lawsuit I'll get into with the Union." On her return from vacation, Mischiu asked Truffier, who had by then replaced Weber, for Monday night, 10 September, off because she had to register for school.98 Truffier agreed. Mischiu reported to work on Tuesday night and saw that she had been scheduled to work the night before. She asked Truffier why she had been scheduled and was told that he forgot. On 13 September, as discussed above, Truffier an- nounced the rule that all waiters must work at least one lunch per week. Mischiu immediately told Truffier that he knew that she could not work lunch. Truffier replied that he did not care. Mischiu answered that she never worked lunch when she was in school. Truffier respond- ed that she had to arrange her schedule so that she would be available for one lunch per week. Mischiu said that she could not and offered to show Truffier her schedule. He said that he did not care. Mischiu's schedule for the week of 17 September was the dinner shift on Monday, Tuesday, Thursday, and Sat- urday and the lunch shift on Thursday. On 17 September Mischiu called in sick and did not attend school. The next day, she told Truffier that she had school on Monday nights and requested and received permission from Truffier for a replacement to cover her lunch and Monday dinner shifts. Truffier approved, as long as she obtained a substitute. She asked Maneval, who agreed to work Thursday lunch for her, and he did so on 20 and 27 September and 4 October. Mischiu was also able to have LeMonnier work the Monday dinner shifts of 24 September and 1 October. On 8 October LeMonnier was again supposed to re- place Mischiu, but was told by Truffier that she need not come in because business was slow. In late September or early October, Michiel came to the restaurant. On his departure, Mischiu found that her Saturday dinner shift was eliminated. On 9 October Maneval told Mischiu he might be unable to substitute for her for the Thursday, 11 October lunch shift. On 11 October Maneval and Mischiu did not work lunch and she did not call or tell Truffier of her unavailability. That evening she arrived 40 or 50 minutes late for her dinner shift. She apologized for being late. 33 She registered that night and received a 5-day-per-week school pro- gram SAINT JEAN DES PRES RESTAURANT Truffier asked why she missed the lunch shift, and she said she spoke to Maneval . Truffier then said that it was apparent that she was having problems with her sched- ule, she did not work when assigned , and that he and Van Antwerpen had discussed the situation that morn- ing. Mischiu answered that she had been a good worker, but that all these problems began when her schedule was changed, adding that Truffier knew that she could not work Monday dinners or Thursday lunches . She asked for a change of schedule, Truffier asked why he should be "good" to her, adding that no one was good to him, and that he received letters every day saying that he was not "severe" enough with the workers-that they were "out of control." Truffier then said that that week's schedule was made by Michiel and it could not be changed. On Monday, 15 October, Mischiu was unable to obtain a substitute for her dinner shift . She called the restaurant and left a message with Dannow. At the end of her class that night at 8:30 p .m., Mischiu called Truffier and of- fered to come to work if she was needed . Truffier re- plied that Respondent also unsuccessfuly tried to get a replacement for her that night. Truffier added that he and Van Antwerpen decided that because Mischiu could not work on her assigned shifts, she was unreliable. He also said that Respondent's attorneys gave it the "green light" to fire her . Mischiu asked if she was fired and Truffier suggested that she speak to Van Antwerpen. The next day Mischiu called Van Antwerpen and asked her if she was aware that she could not work Monday dinners or Thursday lunch because of her school schedule. Van Antwerpen said that she was not aware of that but, that regardless of her school schedule, her work schedule could not be changed because it was made by Michiel. Mischiu told her that from the start of her employ Respondent accommodated her work hours with her school schedule but since 13 September she had to work lunches. Later that day Mischiu went to the restaurant and again spoke to Van Antwerpen . Mischiu offered to show her school registration form but Van Antwerpen said it was not necessary . Van Antwerpen told Mischiu that the fact that she missed three shifts in a row in the past week, 8, 11, and 15 October, meant that she was not willing to work, because she missed shifts. Mischiu said she was willing to work. Van Antwerpen repeated that she could not change the schedule which was made by Michiel, and invited Mischiu to quit if she did not like it. Mischiu refused to quit, adding that she wanted to work and was available any shift except Monday dinner and all lunches. Van Antwerpen then questioned whether her claim that she did not have to work lunch was valid be- cause she worked the lunch shift in the past . Mischiu re- plied that she only worked lunch when she volunteered to do so when she was on vacation from school , and that she had an agreement with Boumal , which was honored by Weber, Weber's replacement, and Truffier until 13 September that she could work the shifts she desired. Van Antwerpen said that she was unaware of such an agreement. Mischiu asked her, inasmuch as many waiters were not scheduled to work Monday dinner, and she had school then , why her shift could not be transferred to 121 another worker who was available to work that night. Van Antwerpen, who testified that the Monday dinner shift was usually the slowest dinner shift of the week, re- plied that the schedule was designed to work for the needs of the employees and the business . Mischiu then asked why her needs were not considered and Van Antwerpen responded that Mischiu's schedule was not compatible and interfered with the business . Mischiu again asked that she be replaced by another employee for Monday dinner shift , and Van Antwerpen said that Respondent does not need too many workers for that shift. Mischiu asked why certain employees did not work lunch or Monday dinner . Van Antwerpen then insisted that the schedule would not be changed and fired her be- cause she missed too many days and had problems with her schedule which meant that she was not willing to work and was unreliable. Van Antwerpen testified that Truffier's practice in as- signing shifts to new employees is to schedule workers when they are available to work. If they are unavailable, he tries not to assign them to the inconvenient shift. If a waiter wants to change his shift he would ask Truffier and, if the business of the restaurant permits, the change would be made. Van Antwerpen stated that , at the time of Mischiu's discharge for missing two lunches and one dinner shift, she did a "very good job" and was Respondent's most senior waitress. She knew that Mischiu was a day stu- dent but did not know whether she worked lunches during the school year. Mischiu explained her absence to Van Antwerpen on 16 October including the fact that she was a student but was told that Respondent needed reliable workers. Van Antwerpen testified that in decid- ing to fire Mischiu she considered the fact that Mischiu was a student who could not work the lunch shift, and she knew that Mischiu was absent from work on the three occasions due to her school schedule. Van Antwerpen conceded that, at her discharge inter- view, Mischiu asked that her schedule be changed be- cause she could not work on certain days . Van Antwer- pen refused to change her schedule , notwithstanding that she altered a schedule for Maneval by giving him more shifts, which possibly involved asking another worker to change shifts, because the discussion at that time con- cerned her failure to report to work when scheduled. Van Antwerpen further admitted that some employees were not required to work lunches. Truffier testified that he tried to accommodate Mischiu in October 1983 when he prepared the schedules by at- tempting to honor her request for a special schedule. He knew that Mischiu was a student and he condeded that it was possible that she told him that she could not work the lunch shift, except for school vacations during the school year, and in fact he did not schedule her for lunch in the past because of her school commitments. However, when she failed to report to work three times in early October, he told Van Antwerpen that she had not come to work and asked her to decide whether to retain Mischiu. Van Antwerpen stated that Mischiu was fired for miss- ing two lunches and one dinner , but Respondent's brief 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argues that the discharge was for being absent for two dinners and one lunch. Van Antwerpen also stated that, in prior weeks, when Mischiu noticed that the schedule required her to work lunch shifts, she would tell Van Antwerpen that she had classes and could not work. But in the 2 weeks prior to her discharge, during the period that she missed two lunches, she did not tell Van Antwerpen, when the schedule was posted , that she had classes. 2. Analysis and discussion The General Counsel's case-in-chief shows that Mis- chiu had a conversation with Elster in late June in the restaurant concerning the Union; on her return in early September she spoke in favor of the Union to several co- workers in the restaurant; in late September she was threatened with discharge by Truffier who said that if she continued to spread rumors, he would fire her re- gardless of the Union and warned her that there are in- formers and the walls have ears; and she was the subject of a threat the day after the election in which Truffier threatened to fire all the workers and close the facility due to the election results. Respondent accordingly had knowledge of Mischiu's union activity. She was an early and strong advocate of the Union who espoused its cause to other workers. Truffier impliedly told her that her ac- tivities were being monitored when she demanded to be confronted with the person who informed management that she was spreading rumors. The fact that Truffier threatened to fire her regardless of the Union lends sup- port to a finding that he believed that she was a union supporter who the Union would aid if she was fired. The other unfair labor practices found and the statements made by Truffier and Van Antwerpen clearly demon- strate its animus toward the Union. The record compels the conclusion that the scheduling of Mischiu for a Monday dinner shift and one lunch per week and the refusal to change the schedule was espe- cially onerous because of her school commitments and was effectuated to harass Mischiu by "visiting adverse economic and personal consequences upon [her] with the object of causing [her] either to abandon [her] leadership effort in the union undertaking or to accomplish [her] resignation from the work force."Perko's Inc., 236 NLRB 884, 898 (1978). In this connection I note that Van Antwerpen invited Mischiu to quit if she could not adhere to the schedule. The failure of Respondent to grant a scheduling ac- commodation to Mischiu serves to support a finding of unlawful motivation for the discharge. Respondent had accommodated her school schedule with her work schedule until the election. The institution of the new schedule requiring luncheon work and the refusal to change her Monday dinner shift forced Mischiu to make arrangments to secure other waiters to replace her for those shifts. Together We Stand Women's Guild, 256 NLRB 393, 398 (1981). According to Respondent's offi- cials, they routinely tried to accommodate employees' re- quests and it appears that they did so for Mischiu prior to the Union's advent. Release from the Monday dinner shift would have presented no hardship to Respondent because, according to Van Antwerpen, that was usually the slowest night of the week, and other employees were available. Respondent's stubborn refusal to give Mischiu a work schedule that would permit her to attend school precipitated her unlawful discharge for her failure to work the hours given her because of her activities in the Union. S.S. Kresge Co., 199 NLRB 303, 306 (1972). I accordingly fmd that Mischiu's union activities and the knowledge thereof by Respondent; the discriminato- ry institution of the requirement that all employees must work at least one lunch per week; the refusal of Re- spondent to accommodate Mischiu 's reasonable request to be relieved of working Monday dinner and Thursday lunch; the contemporaneous commission of the other unfair labor practices I have found and the timing of these events all around the election, which results evoked a hostile reaction in Respondent's officials, all lead to the conclusion that the General Counsel has made a prima facie showing that Mischiu's protected ac- tivity was a motivating factor in Respondent's decision to discharge her. Wright Line, supra. Mischiu was allegedly discharged for not appearing and not obtaining a placement for the dinner shifts of 8 and 15 October and the lunch shift of 11 October. I credit the testimony of LeMonnier that, as her replace- ment for 8 October, she called Truffier and asked if she should report to work, and Truffier told her that it was not necessary because the restaurant was slow due to Columbus Day. Thus, part of the reason for her dis- charge-the absence of 8 October-was not true. I reject Respondent's officials' testimony that they could not change the schedule which required Mischiu to work Monday dinner and Thursday lunch because (a) Michiel had set it and (b) she worked those shifts in the past. Maneval's testimony, which I credit, was that after Michiel changed the schedule to reduce his shifts he told Van Antwerpen that he would have to quit because he had too few shifts. Van Antwerpen changed the schedule and gave him two to three more shifts and he continued to work. Van Antwerpen thus was willing to make a change in Michiel's schedule for Maneval but refused to do so for Mischiu. It would have been a simple matter for Mischiu to have been switched from the Monday dinner shift because Monday night was usually Respond- ent's slowest night. In addition, although Mischiu had worked the disputed shifts in the past, she worked the lunch shift during school vacation on a voluntary basis. Of course, she regularly worked Monday dinners in the past because she requested dinner shifts only. Although she had worked these shifts prior to the schedule change, Respondent was made aware of her inability to work them immediately when the new luncheon requirement was announced, and when the new schedule, requiring the Monday dinner shift, was instituted. Thus, Respond- ent was immediately placed on notice of her schedule conflict and refused to relieve it. Nissen Foods, 272 NLRB 371 (1984). I thus conclude that Respondent has not established that it would have fired Mischiu in the absence of her union activities. Wright Line, supra. SAINT JEAN DES PRES RESTAURANT 123 III. THE REPRESENTATION CASE A. The challenged ballots 1 Matilda Liff a. Facts LIff was challenged by the Union on the ground that she is a supervisor. The Respondent denies this. Lift's job title was described by the employee wit- nesses as "hostess." The classification "hostess" was ex- pressly included, as eligible to vote, in the unit designa- tion agreed to between the parties in their election agree- ment. However, the Union argues that Liff was more than a hostess and that her duties encompassed functions performed by a supervisor, which title is of course ex- cluded from the appropriate unit. It is undisputed that Lift's main function is that of a hostess. She generally stands near the restaurant's en- trance, and greets the customers; takes them to their seats; gives them menus; takes food and bar orders; brings food and drinks to the table; takes the check with the payment to the cashier; and clears and cleans tables. She also circulates around the dining room. Liff works nine shifts per week-generally from 11 a.m. to 3 p.m. and 6 p.m. until the restaurant closes. During the dinner shifts, she is supervised by Truffier, the maitre'd, an admitted supervisor. Liff gives such in- structions to waiters as telling them to clean the tables and ashtrays; fill the customers' water glasses; arrange the tables; and change the place settings. She also reas- signs employees to stations other than their original as- signment or asks them to help at other stations, and writes and posts the station assignments. Truffier is off from work one dinner shift per week, and during his absence at night Liff is responsible for the restaurant. On those nights, she assigns stations, sends employees home early if the business is slow or if em- ployees ask to leave early, and closes and locks the res- taurant when she leaves. Waiter De Boysson testified that on one occasion he stood near the cashier waiting for a credit card to be checked when Liff approached and told him that it is not his job to stand still near the cashier, but to service the tables. On another occasion Liff told Mischiu that she should wear a different pair of shoes than the ones (not a high quality) she had on. Mischiu replied that they were comfortable, but Liff answered that they were "inappro- priate" for the restaurant. Mischiu changed her shoes. On another occasion, Liff apparently noticed Mischiu re- moving eight glasses at once from a table-putting her fingers into the glasses in order to hold them. Liff told her that Respondent was not a diner or coffeeshop and that she should not do that. Thereafter, Mischiu removed two glasses at a time. In late Sepember 1984, Mischiu saw Liff assign a new waiter to a station on his first night of work Later that night Liff told Mischiu that the waiter was "terrible," and she asked Mischiu to cover his tables. At 11 p.m., Liff told him to leave early. Mischiu never saw the waiter again . On another occasion, Mis- chiu overheard Liff tell Truffier that waitress Brigette was messy, wore dirty or yellow shirts, and was not polite to customers. Truffier said he would "see," and a few days or 1 week later Brigette was discharged. Liff, who arrives for the lunch shift about noon, whereas the waiters are required to come to work at 11:30 a.m., does not punch a timeclock. All the waiters punch a timeclock. Truffier, Van Antwerpen, and Liff do not punch a clock because, according to Van Antwerpen, they earn a salary-which is $450 per week. The waiters are paid $2.35 per hour plus a share of the tips. Liff shared in the tips, for the first month of her employ, but no longer does so. She also resides in an apartment free of charge, which is owned by Respond- ent. Van Antwerpen testified that Liff never hired, promot- ed, suspended, fired, laid off, reprimanded, or evaluated employees, and that she has no authority to do so. She conceded that Liff has the authority to ask a waiter to clean a table; obtain food from the kitchen; give water to a customer; and in Truffier's absence, assign waiters to their stations in the manner done by Truffier; and allows employees to leave before the end of their shift. In this regard she uses her own judgment concerning when they can leave, but she follows the restaurant's practice-if business is slow, and only a few customers are present, she can determine how many waiters can leave. Van Antwerpen stated that, although she does not in fact know what Liff did during the dinner shift after Van Antwerpen left the restaurant, she noted that Liff does not have the authority to tell a waiter to help out at an- other table, or to adjust improper dress. Van Antwerpen further noted that during her vacation Liff assumed her duties and signed the paychecks. Liff did not testify. b. Analysis and discussion I find that Liff is a supervisor within the meaning of the Act. Although her main duty is that of a hostess, she also exercises sufficient authority over the waiters to warrant such a finding. Thus, she gives instructions to waiters; assigns and reassigns employees to stations; rep- rimands waiters for standing idle and wearing improper dress; directs employees to leave early; and is in com- plete charge of the restaurant one shift per week in Truf- fier's absence. In the latter instance, if Liff is not consid- ered a supervisor the restaurant would have no one in authority one shift per week. A proper inference may be drawn from the fact that Liff was not happy with the performance of the new waiter and complained to Truffier about Brigette, and their nonappearance sometime thereafter, that she recom- mended their discharge to Truffier. She has in common with admitted Managers Truffier and Van Antwerpen the amount of salary and the fact that she does not punch a timeclock. In fact, her compensation by Re- spondent is greater because she resides in a rent-free apartment owned by the restaurant. Moreover, Llff's salary, which is the same as her supe- rior's, Truffier, and her benefits, including the free apart- ment, which exceed Truffier's, and the combination of which far exceeds that of the waiters, all point to a find- ing that Liff is a supervisor. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Sheraton Motor Inn, 210 NLRB 790, 792 (1974), the Board found that that restaurant's hostess, having essen- tially similar duties to that of Liff, was a supervisor, the only differences, which are insubstantial considering the other factors, being that (a) an employee was hired after having been interviewed by only a hostess and (b) the employees "report in" to the hostess after they punch in. Maremont Corp., 239 NLRB 240 (1978), relied on by Re- spondent, is inapposite. That case involves leadpersons in a plant who, by virtue of their greater skills, give in- structions and admonish employees in a routine nature. The leadperson, like the unit employees, punched a clock, were hourly paid, and spent most of their time doing routine work predetermined by their supervisors. Those factors are not present here. I shall therefore recommend, inasmuch as I find that Matilda Liff is a statutory supervisor, the challenge to her ballot be sustained, and that her ballot not be opened or counted. 2. Jean De Boysson a. Facts De Boysson was challenged by the Board agent on the ground that he was not on the eligibility list. Pursuant to the election agreement, the payroll period for eligibility to vote was the period ending 18 August. In addition the Respondent asserts that De Boysson's ballot should not be counted because he was "in train- ing" during the week ending 18 August and therefore was not a regular employee. De Boysson testified that on 13 August he was inter- viewed and hired by Truffier. He was asked to work that evening but was unavailable. He began work the next evening, 14 August, helping the other waiters, for which he received no tips and no wages. He again worked the following day, 15 August, performing the same duties and received a half share of tips. According to Truffier, he was in training for those 2 nights only. On 15 August Truffier told him that he would "work out" and that he would receive a full share of tips on 16 and 17 August, which he did, having been assigned to a station both nights.39 He did not work on 18 August, but worked three shifts the following week, on 21, 22, and 23 August, for which he received a full share of tips. Employee Elster testified that he worked with De Boysson for two shifts in the week of 13 August. Em- ployee Neil Sukoff stated that De Boysson first began work on 14 August and worked there for the next 2 or 3 nights. In his second week of employment De Boysson re- ceived a timecard, and thereafter was on the payroll and received wages until 3 October, when he quit. The timecard in evidence apparently shows that he first utilized a card on 21 August. According to Manager Van Antwerpen, employees are not necessarily given timecards upon their hire. Timecards are given to them days or even weeks after they begin work. No wages are paid to a worker who does not have a timecard because the hours worked are not recorded and thus not trans- mitted to the bookkeeper. Such an employee therefore does not appear on Respondent's payroll until he is given a timecard. However, Van Antwerpen conceded that the fact that De Boysson was not listed on Respondent's payroll records in the beginning of his employ does not mean that he was not working then. She conceded that workers could be working and receiving tips but not be listed on the payroll register. b. Analysis and discussion The Board has held that "eligibility is conferred by working during the eligibility payroll period," and that "if an employee works at any time during the payroll period, he meets this aspect of the eligibility test." Gator Products, 250 NLRB 282 (1980). The eligibility period here is the period ending 18 August. Respondent's payroll week runs from Monday to Saturday. Thus, in order for De Boysson to have been eligible to vote he must have worked at any time during that week, from Monday, 13 August, to Saturday, 18 August. The evidence is clear that De Boysson began work on 14 August, and worked on 15, 16, and 17 August. He was accordingly working during the payroll eligibility period and was employed on the date of the election. I reject Respondent's argument that De Boysson was ineligible to vote because he was in training during the week of 13 August. Truffier admitted that his training consisted of 2 nights only, 14 and 15 August, and, ac- cording to De Boysson's uncontradicted testimony, Truf- fier advised him on 15 August that he would "work out" and would thereafter receive a full share of tips. De Boysson's training period, therefore, ended on 15 August and he was no longer in training on 16 and 17 August, prior to the 18 August eligibility cutoff date. Moreover, even if De Boysson could be classified as a trainee during part of that week, such would not thereby war- rant his exclusion from the unit where, as here, he shared a sufficient community of interest with the other unit em- ployees. Johnson's Auto Spring Service, 221 NLRB 809 (1975). I shall therefore recommend that the challenge to the ballot of Jean De Boysson be overruled and that his ballot be opened and counted. 3. Neil Sukoff Because I have already found that the discharge of Sukoff prior to the election was not unlawful , I shall sus- tain the challenge to his ballot and order that it not be opened or counted. B. Objections to the Election The Union's objections are as follows: 1. On or about August 22, 1984, the employer, by its agents and representatives, terminated the em- ployment of Neil Sukoff, a waiter, because of his activities in and on behalf of the union. 39 Respondent's tip sheets confirm De Boysson's testimony SAINT JEAN DES PRES RESTAURANT 4. Beginning on or about August 12, 1984, the employer began hiring new employees as bartenders and waiters/waitresses which resulted in substantial- ly reducing the hours worked by certain existing employees who were active in and on behalf of the union. 5. By these and other acts, the employer de- stroyed the laboratory conditions necessary for the conduct of the election.40 Inasmuch as I have found that the discharge of Sukoff was not unlawful, and that the allegation concerning the hire of new employees and the reduction of hours of ex- isting workers had no merit, I will recommend that Ob- jections 1 and 4 be overrruled. The Regional Director found that the conduct set forth in the complaint in this case , although not specifi- cally alleged as objectionable, is encompassed in and within the scope of Objection 5.4 t Inasmuch as I have found violations by Respondent of Section 8(a)(1) and (3) of the Act, Objection 5 is sustained . I will recommend that, if the Union does not receive a majority of the valid votes cast, according to a revised tally after the ballot of Jean De Boysson is opened and counted, the election be set aside and the Regional Director be directed to con- duct a second election. CONCLUSIONS OF LAW 1. Respondent Michiel's Inc. d/b/a Le Saint Jean de Pres Restaurant is and at all times material herein has been an employer engaged in commerce within the meaning of the Act. 2. Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL- CIO is a labor organization within the meaning of the Act. 3. By discharging Rodica Mischiu because of her membership in and activities in behalf of the Union, Re- spondent violated Section 8(a)(3) and (1) of the Act. 4. By requiring its employees to work at least one lunch shift per week because of their union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 5. By announcing a new rule whereby Respondent would thereafter dock the pay of its employees for being late to work to induce them not to support the Union; by informing an employee that he would lose pay for being 4 minutes late to work, to induce him not to support the Union; by threatening to discharge employees and threat- ening them with unspecified reprisals because of their support for the Union; by threatening its employees with closure of its facility and with discharge of all the em- ployees if the Union won the election; by threatening its employees with closure of the facility and with discharge of all the employees because of the result of the election; and by threatening its employees with closure of its facil- ity if the employees voted for the Union, Respondent violated Section 8(a)(1) of the Act. 40 Objections 2 and 3 were withdrawn by the Union prior to the hear- ing 41 There was no evidence that special permission to appeal the Re- gional Director's finding was requested 125 6. The acts and conduct set forth above in Conclusions of Law 3, 4, and 5 constitute objectionable conduct war- ranting the setting aside , under certain circumstances, of the representation election conducted on 12 September 1984. 7. Respondent has not violated the Act in any other respect as alleged in the complaint. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist, and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Rodica Mischiu, I recommend that Respondent be or- dered to reinstate her and make her whole for any loss of earnings she may have suffered as a result of the dis- crimination against her. The amount of backpay shall be computed in the manner set forth by Isis Plumbing Co., 138 NLRB 716 (1967), as modified by Florida Steel Corp., 231 NLRB 651 (1971). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed42 ORDER The Respondent, Michiel's Inc. d/b/a Le Saint Jean de Pres Restaurant, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Hotel Employees and Res- taurant Employees Union , Local 100 of New York, New York and Vicinity, AFL-CIO, or any other union. (b) Requiring its employees to work at least one lunch shift per week because of their union activities. (c) Announcing a new rule whereby it would thereaf- ter dock the pay of its employees for being late to work or informing employees that they would lose pay for being late to work to induce them not to support the Union; threatening to discharge employees because of their support for the Union; threatening its employees with closure of its facility and with discharge of all its employees because of the Union or the election. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Rodica Mischiu immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to 42 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 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge of Rodica Mischiu and notify her in writing that this has been done and that the discharge will not be used against her in any way. (c) 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. (d) Post at its New York facility copies of the attached notice marked "Appendix."43 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices 49 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations not specifically found herein. IT IS ALSO FURTHER RECOMMENDED that Case 2-RC- 19802 be, severed from the complaint cases and that it be, remanded to the Regional Director for Region 2, and that the challenges to the ballots of Matilda Liff and Neil Sukoff which were cast in a representation election con- ducted in said case on 12 September 1984 be, sustained and those ballots not be opened or counted; and that the challenge to the ballot of Jean De Boysson, which was cast in the aforesaid election be, overruled; and that the Regional Director be, directed to open and count the challenged ballot of Jean De Boysson and to prepare and serve on the parties a revised tally of ballots. If the Petitioner receives a majority of the valid votes cast, the Regional Director shall issue a certification of representative. If the Petitioner does not receive a major- ity of the valid votes cast, according to the revised tally, IT IS FURTHER RECOMMENDED that the election held on 12 September 1984 among certain employees at Respond- ent's New York restaurant be set aside and that the Re- gional Director be directed to conduct a second election at such time as he deems that circumstances permit the free choice of a bargaining representative.