Mediterranean Lounge

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mediterranean Diner, Inc., t/a Bay Diner. Inc., and New Bay Diner, Inc., t/a Mediterranean Lounge and Local 54, Hotel and Restuarant Employees and Bartenders International Union, AFL-CIO New Bay Diner, Inc., t/a/ Mediterranean Lounge and Local 54, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO Cases 4-CA-9831, 4-CA-9849, 4-CA-10147, 4-CA-10153, 4-CA-10190, and 4-CA-12747 28 April 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 18 May 1983 Administrative Law Judge Frank H. Itkin issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,' findings, and conclusions, as modified below, and to adopt the recommended Order. The judge found New Bay to be a successor to Mediterranean Diner, Inc., t/a Bay Diner (Bay Diner); that New Bay purchased Bay Diner with full knowledge of the unfair labor practice pro- ceedings pending against Bay Diner;2 that based on an extension of the certification year Local 54, Hotel and Restaurant and Bartenders International Union, AFL-CIO (the Union), enjoyed an irrebut- table presumption of majority status when it re- newed its bargaining demand on 14 January 1982; and that New Bay's refusal to bargain following the demand violated Section 8(a)(5) and (1) of the Act. Our only disagreement with the judge's findings rests in his extension of the certification year. We find an extension of the certification year unwar- ranted in this case given that Bay Diner met with the Union on three occasions during the certifica- ' The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We note that a successor employer has the burden of showing that it lacks knowledge of its predecessor's unfair labor practices and that here New Bay Diner, Inc, t/a Mediterranean Lounge (New Bay) has failed to meet this burden Navajo Freight Lines, 254 NLRB 1272 (1981) tion year, Bay Diner was never charged with an overall refusal to bargain, and New Bay's acquisi- tion of Bay Diner and its refusal to bargain with the Union followed expiration of the initial certifi- cation year. See Cellar Restaurant, 262 NLRB 796 (1982); Eastern Maine Medical Center, 253 NLRB 224, 248 fn . 32 (1980); American Rubber & Plastics Corp., 200 NLRB 867, 876-879 (1972). Having found that the certification year should not be ex- tended, we find that the Union did not enjoy the irrebuttable presumption of majority status which was in effect during the certification year when it demanded bargaining on 14 January 1982. Nonetheless, we find that New Bay's refusal to bargain was unlawful. As the Board stated in Cel- anese Corp. of America, 95 NLRB 664, 673 (1951): "In a context of illegal antiunion activities , or other conduct by the employer aimed at causing disaffec- tion from the union" an employer is foreclosed from raising the majority issue even after the certi- fication year has expired. This is so because serious unremedied unfair labor practices possess an inher- ent tendency to undermine the union's majority status and substantially diminish the likelihood of a bargaining relationship succeeding . In such circum- stances, the employer is obligated to bargain with the Union for a reasonable period once the adverse effects of its unfair labor practices have been dissi- pated, so that the bargaining relationship is given a fair chance to bear fruit . Frank Bros. Co. v. NLRB, 321 U.S. 702 (1944). In this case, Bay Diner, both before and during the certification year, committed numerous unfair labor practices (unilateral changes in working con- ditions, interrogations, threats, promises to grant and withhold benefits, surveillance, and discrimina- tory discharges) which were of such a character as to affect the Union's status and to cause employee disaffection. Because of these unremedied unfair labor practices, Bay Diner, at the time of the New Bay takeover, was foreclosed from challenging the Union's majority status and remained obligated to bargain with the Union. Because New Bay stands in the shoes of Bay Diner vis-a-vis the Union, the same obligation to bargain devolved upon New Bay, a successor em- ploying all of Bay Diner's employees and having full knowledge of Bay Diner's unremedied unfair labor practices. See Harley-Davidson Transportation Co., 273 NLRB 1531 (1985 ); Southern Moldings, Inc., 219 NLRB 119 (1975). Likewise, the remedial provisions of the Board's Order3 against Bay Diner 3 Bay Diner, 250 NLRB 187 (1980), enfd by consent judgment No 81- 1552 (3d Cir July 6, 1981) 279 NLRB No. 77 BAY DINER apply to New Bay.' Based on the principles of Cel- anese, any challenge to the Union's majority status would be fatally tainted until the unfair labor prac- tices have been remedied and New Bay has bar- gained for a reasonable period thereafter.5 On 2 October 1981, 4 months after the Board's Order was enforced by the Third Circuit, New Bay offered the discriminatees reinstatement (which they declined), and the Board's notice to employees was posted at New Bay's facility.6 Even assuming New Bay's actions were sufficient to dispel the lingering effects of the earlier unfair labor practices, 7 the bargaining relationship was thereafter entitled to a reasonable period, following the expiration of the posting period, during which it might have an opportunity, for the first time, to bear fruit through good-faith bargaining.8 On 14 January 1982, during what we find was a reasona- ble period for bargaining, the Union demanded bar- gaining as the representative of New Bay's employ- ees. Despite its then-current obligation to bargain with the Union, New Bay ignored the Union's bar- gaining demand. This conduct violated Section 8(a)(5) and (1) of the Act. Accordingly, we adopt the judge's recommended Order directing New Bay to bargain with the Union, on request and, if an agreement is reached, to embody the agreement in a signed contract.9 ORDER The National Labor Relations Board adopts that the recommended Order of the administrative law judge and orders that the Respondents, Mediterra- nean Diner, Inc., t/a Bay Diner, Inc., and New Bay Diner, Inc., t/a Mediterranean Lounge, Phila- delphia, Pennsylvania, their officers, agents, succes- sors, and assigns, shall take the actions set forth in the Order. 4 These provisions obligate New Bay to offer reinstatement to and make whole discnmmatees Philip Ferguson and Mickey Fairfield; to bar- gain with the Union regarding changes in employees' terms and condi- tions of employment, and to post appropriate notices to employees indi- cating its commitment to comply with the Board's Order Ponn Distribut- ing, 232 NLRB 312 (1977) Id at 315 The notice designates Bay Diner rather than New Bay as the em- ployer, thereby putting into question whether New Bay had any intention of fully complying with the Board's remedial Order We note that New Bay has never complied with the remedial provi- sions of the Board 's Order requiring that it bargain with the Union con- cerning changes in the employees terms and conditions of employment and that it make the discriminatees whole 8 The posting of a remedial notice for the entire 60-day period is nec- essary as a means of dispelling and dissipating "the unwholesome effects" of a respondent's unfair labor practices Chet Monez Ford, 241 NLRB 349, 351 (1979) 9 Because New Bay could not challenge the Union's majority status at the time the Union demanded and New Bay refused to bargain , we find it unnecessary to reach the merits of New Bay's contention that , at that time, it had reasonable grounds to doubt the Union 's majority status 539 Bruce Conley, Esq., for the General Counsel. Paul Lewis, Esq., for Respondent New Bay Diner, Inc., t/a Mediterranean Lounge. Warren Borish, Esq., for the Charging Party Union. SUPPLEMENTAL DECISION FRANK H . ITKIN, Administrative Law Judge . On June 26, 1980, the National Labor Relations Board issued its Decision and Order in Cases 4-CA-9831, 4-CA-9849, 4- CA-10147, 4-CA-10153, and 4-CA-10190 (250 NLRB 187), directing Respondent Employer Mediterranean Diner, Inc., t/a Bay Diner (Bay Diner), to make whole employees Philip Ferguson and Mickey Fairfield for any loss of pay which they may have sustained as a result of the Employer's unfair labor practices against them, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. On July 6, 1981, the United States Court of Appeals for the Third Circuit entered a consent judg- ment enforcing in full the Board 's Order (No. 81-1552). Thereafter, on October 30, 1981 , a backpay specification and notice of hearing issued in the above cases , alleging the amounts of backpay due to the two discriminatees. The specification further alleged that Respondent New Bay Diner, Inc., t/a Mediterranean Lounge (New Bay Diner), is a successor of Respondent Bay Diner; that both Employers have an obligation to comply with the Board's Order; and that both Employers are jointly and severally liable for the backpay due to the two discrimin- atees. I On or about December 1, 1981, Respondent Employer Bay Diner filed its answer to the backpay specification, admitting and denying various allegations . In addition, Respondent Employer New Bay Diner filed its separate answer to the backpay specification , admitting and deny- ing various allegations , and alleging, inter alia: Respondent admits to its continuing the employer entity and ... being a successor of Respondent Mediterranean Diner. Thereafter, on March 11, 1982, the Union filed an unfair labor practice charge in Case 4-CA-12747 against Respondent Employer New Bay Diner The Regional Director, on July 29, 1982, issued a complaint alleging, inter alia, that since on or about January 14, 1982, Re- spondent Employer New Bay Diner has failed and re- fused to bargain collectively with the Union, in violation of Section 8(a)(1) and (5) of the Act. The Regional Di- rector, on September 1, 1982, ordered the backpay and unfair labor practice proceedings consolidated for pur- poses of hearing and decision. The Regional Director, in addition to consolidating the above proceedings on September 1, 1982, also issued amendments to paragraphs 2, 5, and 6 of the backpay specification. (See G.C. Exh. 1(r).) Counsel for Respond- ent Employer New Bay, on or about September 28, 1982, filed an answer to the amended backpay specifica- tion, asserting: i The specification , as discussed below , was amended before and during the backpay hearing 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's [previous] answer to the backpay specification is deleted in its entirety and the follow- ing . . . is substituted ... . Counsel for Respondent Employer New Bay Diner, in this amended answer, responding to paragraph one of the initial backpay specification, denied that "Respondent New Bay Diner has been engaged in the same business operations of its predecessor . . . ; New Bay is a wholly separate business enterprise." Counsel did not deny or admit the remaining allegations of the specification per- taining to successorship allegations , as cited supra. (See G.C. Exh. 1(v).) On December 1 and 2, 1982, a hearing was conducted at Philadelphia, Pennsylvania, in the above consolidated proceedings. On the entire record, including my observa- tion of the demeanor of the witnesses , and after due con- sideration of the briefs filed by counsel, I make the fol- lowing2 FINDINGS OF FACT I. THE BACKPAY PROCEEDING A. Motion to Strike and for Partial Summary Judgment On December 1, 1982, the General Counsel filed a motion to strike the answer of Respondent Employer Bay Diner and for a partial summary judgment against Bay Diner. (See G.C. Exh. 1(x) and Tr. pp. 22-35, 37- 39, 50-51.) The motion was granted as to Respondent Employer Bay Diner with respect to paragraphs 2(a), 2(b), 2(c), 3(a), and 3(b) of the specification, as amended. I therefore fmd and conclude that Respondent Employer Bay Diner's liability for backpay due to discriminatee Philip Ferguson commenced on December 16, 1978, and continued until October 5, 1981, when he declined an offer of reinstatement; Bay Diner's liability for backpay to discriminatee Mickey Fairfield commenced on April 23, 1979, and continued until October 5, 1981, when she declined an offer of reinstatement ; and, further, Fairfield was unavailable for work for 4 weeks during the fourth quarter of 1980 due to illness. I also find and conclude, with respect to Respondent Employer Bay Diner, that discriminatees Ferguson and Fairfield would have worked the "usual 40 hour week," as alleged, during each week of their respective backpay periods and that Ferguson's wage rates during the pertinent backpay peri- ods are as alleged in paragraph 3(b) of the specification. (Ibid.)s 2 Respondent Bay Diner did not enter an appearance at the hearings However, its "principal owner," James Chnstakos, was present under subpoena 6 Counsel for Respondent Employer New Bay, although denying, inter alia, liability as a successor , does not dispute the backpay period for Fer- guson, as alleged (Tr p 25), "the wage rate used in calculating backpay due Mr Ferguson for the first quarter of 1979", the unavailabil- ity of Fairfield for work due to illness, as alleged (Tr p 26), and the rate of pay for Fairfield, as alleged (Tr pp 28-29) Counsel for New Bay ex- plained, with respect to Ferguson (Tr pp 37-39), "We don't have any problem with the computation of the Board " B. The Backpay Due Philip Ferguson As noted supra, I granted the General Counsel's motion to strike and for partial summary judgment against Respondent Employer Bay Diner with respect to paragraphs 2(a), 2(b), 2(c), 3(a) and 3(b) of the specifica- tion, as amended. It is undisputed that Ferguson's back- pay period began on December 16, 1978, and continued until October 5, 1981; that his gross backpay for the fourth quarter of 1978 was $354.40 with no net interim earnings; that his gross backpay for the first quarter of 1979 was $2433.60 with net interim earnings of $616.32; and that his net backpay is $2171.68, as alleged in the amended specification.4 C. The Backpay Due Mickey Fairfield As stated, I granted the General Counsel's motion to strike and for partial summary judgment against Re- spondent Employer Bay Diner with respect to para- graphs 2(a), 2(b), 2(c), 3(a), and 3(b) of the specification, as amended . In addition, Fairfield testified that she worked 40 hours a week while employed by Respondent Bay Diner. And, it is undisputed, except as discussed below, that her backpay period began on April 23, 1979, and continued until October 5, 1981, when she declined an offer of reinstatement . Her hourly earnings during the pertinent backpay periods are alleged to be equal to the legal minimum wage .5 The amended specification admits certain interim earnings for Fairfield commencing during the second quarter of 1979 and ending during the fourth quarter of 1981, claiming a total net backpay due in the amount of $5867.45. Respondent Employer Bay Diner did not appear at this proceeding. Further, Respondent Employer New Bay presented no evidence controverting the above, except with respect to its limited contention that "any backpay liability New Bay might have to Fair- field was cut off when she left its employment in Octo- ber 1980" (Br. pp. 8-9, 20-23, Tr. pp. 38-39). The evi- dence pertaining to this contention is summarized below. Fairfield testified that during October 1980, she ob- served a "newspaper ad" by Respondent Employer New Bay Diner for a waitress, and "I decided to go . .. since I couldn't find anything else anywhere else." She went to the Employer's premises, filled out a job application, and spoke with owner Tino Nicholas.6 Fairfield recalled: "I made out an application, he [Nicholas] hired me and told me I could start that night." Fairfield further testi- fied: I came to work, I believe, it was a Friday night I worked all night the first night .. . [A]nother waitress working there . . . told me, "you come in tomorrow night," that was the very next night, and I did. And I proceeded to work [the second night.] . . . Well, I was to come in the next day as far as I was concerned , but my name still 4 Also see the credible and uncontroverted testimony of Compliance Officer Donald Spooner (Tr pp 71-74, G C Exh 8 and Tr p 85) 6 Also see the credible and uncontroverted testimony of Compliance Officer Spooner in support of these allegations (Tr pp 71-73) e Tino Nicholas, whose testimony is discussed below, is president and part-owner of New Bay Diner BAY DINER wasn't on the schedule. I called and I asked for Tino. It was in the afternoon, I believe, and I was told, it was slow . . . and that they ,didn't need me right then and they would call me. And I didn't- never get a message of being called and I never an- swered the phone [receiving such a] a call myself. Tino Nicholas testified that he interviewed Mickey Fairfield at the New Bay Diner during October 1980, and he hired her "to work that evening ." He testified in part as follows: Q. Specifically, after you told her to report for work on the Friday, I think that time card shows that she was employed, did you tell her to come in the next day? A. Yes, I told her by the next day a schedule would have been made; usually the schedule that we make is not week to week basis but a permanent schedule. Q. All right. Did you in fact make up a perma- nent schedule the next day? A. Yes, sir. Q. Did you post that schedule? A. Yes, sir. Q. And Mickey Fairfield's name appeared on it? A. Yes, sir. Q. Ms. Fairfield, according to the time cards, worked subsequent to that first Friday, did she not? A. Well, the first Friday she wasn't on the sched- ule, but the next day she came to work, it was on the permanent schedule. Q. And she reported for work after that second day, didn't she? After that second day of work? A. Saturday she came in. Monday she didn't come in, and I never found out [why.] Q. Was she scheduled to work that day? A. Yes, sir. Q. When did she next report for work? A. Then she came in on Tuesday. Q. Was that according to the schedule? A. Yes, sir. Q. When did she work thereafter? A. She had days off, was Wednesday and Thurs- day. So, even as you can see on the cards, she did [not] come in Wednesday and Thursday, but she came in on Friday , it was again on the schedule. So, actually, she missed one day that she-from what I found out that she was sick. Q. How did you find out that she was sick? A. She called me on the phone. Q. When did she call you on the phone? A. Oh, I think couple days after the 8th or 9th day, she called me on the phone and she says, she wasn't making enough money because it was winter time, and she wasn't feeling too well, she was kind of sick and she wasn't going to continue. Q. All right. Do you recall how long it was after her last day at work that she made that call to you? A. About couple days. Q. Had she missed any days that she had been scheduled to work? 541 A. Yes. Q. Did you at any time ever instruct Ms. Fair- field not to report for work? A. No. Q. Did you ever tell her that you would call her when she was needed? A. No. Everybody-I want to say here, every- body in our permanent schedule, it is on a five days-five day week schedule. And we don't have absolutely nobody on call. The schedule, referred to above, was unavailable at the hearing . Timecards purportedly punched by Fair- field, with her signature, were received in evidence. (See R. Exhs. 2(a) and (b).) These two cards purport to show that Fairfield in fact worked more than 2 days as claimed by her; they also show that the third and fourth days of work were for substantially less than full shifts .7 Further, Nicholas testified on cross-examination in part as follows: Q. Mr. Nicholas, you testified about a conversa- tion with Mickey Fairfield after she had not been coming in to work, you called her up and had a conversation with her? A. No, she called me up. Q. She called you up. And you said , she ex- plained to you that she wasn 't feeling well and she wasn't making enough money and things of that nature? A. Yes. Q. And said she wasn't going to continue to come in to work at New Bay Diner? A. Yes. Q. Did you give an affidavit to the [N.L.R.B.]- to Mr. Spooner-did you give a statement to him? Do you recall? A. A statement? Concerning what? Q. I show you a document marked as General Counsel's Exhibit 15 and ask if you recognize this document? And in particular I direct you to the last page and ask you if that is your signature? Mr. Nicholas, do you recognize that document? A. I'm trying to read this. Q. When you gave this statement you swore that what you said in here was the truth? A. Well, if I remember correctly, Mr. Cozamanis was there, and he read this and I signed it. Q. Did you read this statement? A. I don't remember reading it, but Mr. Coza- manis was there. I may read it superficially, but Mr. Cozamanis was there and says-he was my legal ad- visor-and I thought some of this language here was legal language, and I-it's a different language altogether, I asked him to read to see, if there was any controversy and I signed it. T Fairfield, although identifying her signature on the two cards, could not recall punching the cards on the days indicated. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. All right. Directing your attention to the second paragraph on page two? Q. "After she worked a couple of days, she stopped reporting for work. I called a number on her job application a couple of times to find out what the story was, but there was never any answer." That's what you said in this affidavit? A. Yes. Q. There's no reference in there to any conversa- tion that she had with you on the telephone, is there? A. This is when I called. Doesn't say anything here about when she call. Q. Well, you don't make any reference in there about her calling you up, do you? A. I didn't make any reference, because here was saying what I did. This is when she called me and had the conversation on the telephone, when she called me. I think this was what I did. I wasn't sup- posed to write down what she did. D. The Evidence Pertaining to New Bay's Liability as a Successor Employer Counsel for Respondent contends in the backpay case that "New Bay has no obligation to remedy the Section 8(a)(3) violations set forth in the backpay specification," and "New Bay cannot be charged with having knowl- edge of the unfair labor practice proceedings which were pending at the time it bought the diner and restaurant- lounge and assumed control" (Br. pp . 19-20). The evi- dence pertaining to this and related contentions is sum- marized below. On March 6, 1979, following a Board-conducted elec- tion, the Union was certified as bargaining agent of the following unit of Respondent Employer Bay Diner's em- ployees: All full-time and regular part-time employees, in- cluding waiters, waitresses, bartenders, cooks, dish- washers, cashiers, hostesses, and maintenance em- ployees employed by Respondent [Bay Diner] at 11 MacArthur Boulevard, Somers Point, New Jersey, but excluding all guards and supervisors as defined in the Act. The Union filed unfair labor practice charges against Respondent Employer Bay Diner on December 18 and 26, 1978, and April 27, May 9, and June 13, 1979. And, on June 22, 1979, a complaint issued against Respondent Employer Bay Diner alleging violations of Section 8(a)(l), (3), and (5) of the Act. Hearings were conducted on this complaint before an administrative law judge on July 11, 12, and 13, 1979. Thereafter, on February 25, 1980, the administrative law judge in the above pending unfair labor practice cases issued his decision finding violations of Section 8(a)(l), (3), and (5) of the Act, as alleged. Respondent Employer Bay Diner filed timely exceptions to this deci- sion. Then, on or about March 17, 1980, a series of inte- grated documents were executed ultimately culminating in the sale of the personal and real property composing the restaurant and cocktail lounge facility at 11 MacAr- thur Boulevard to Respondent Employer New Bay Diner. (See G.C. Exh. 4.) Tino Nicholas, president of Respondent Employer New Bay Diner, acknowledged that he had participated in the above sale and transfer; that he had signed the purchase agreement (G.C. Exh. 4); that the sellers de- scribed in the agreement were James Christakos and George Patrianakos, holders of the outstanding shares of stock in Bay Diner; that the purchasers described in the agreement were Tino Nicholas, George Christakos, Steven Raftopaulos, and Leandro Vlastaris; and that, fol- lowing closing of the sale and title transfer, "the oper- ation continued without interruption"-"the complement of waiters and waitresses and kitchen people . . . were the same employees that had been working for" Bay Diner. Nicholas also recalled that Respondent Employer New Bay Diner "actually" commenced operating the business on or about May 8, 1980; that New Bay Diner had "purchased all of the inventory ... furnishings . . . equipment . . . building and real estate," "and it was ba- sically the same type of operation that was going on before; it was a restaurant cocktail lounge ... ... Nicho- las added : "Everybody remained the same," including the "supervisors" and "head chef." Nicholas agreed that one of the purchasers named with him in the contract G.C. Exh. 4, George Christakos, was also the "manager in the previous restaurant." According to Nicholas, George Christakos, as a part-owner of the "new busi- ness," "was supposed to get a one-sixth" ownership in- terest subject to certain conditions.9 Nicholas further testified in part as follows: Q. Mr. Nicholas, would you describe for us, please, how you came to purchase the restaurant and the facility that you're now operating as New Bay Diner? A. Yes, sir. Q. How did that come about? A. Well, a good friend of mine that happens to be Mr. Lee Vlastaris. Q. When did these negotiations start? A. Somewhere I think around January or maybe even before that of 1980. Q. Okay. Did Mr. Vlastaris contact you? A. Yes. Q. And he asked you to participate with him? A. Well, we discussed the court case, and we de- cided it would be if, that we had a lease buy option, if we get a good offer from Jimmy Christakos to buy out the place. Q. Did you receive a good offer or proposal from Mr. Christakos? A. Yeah. Nicholas noted that George Christakos is also a cousin of James Christakos, a principal stockholder in Bay Diner and, as the record shows, George Chnstakos was a witness in the prior unfair labor practice cases. 9 Nicholas further noted that he had signed the initial verified answer in this backpay proceeding, which was prepared by an attorney, wherein New Bay Diner "admits to it continuing the employer entity being a successor " Cf G C Exhs 10) and 1(v) BAY DINER Q. And who did that-Mr. Jimmy Christakos- A. Mr. Jimmy Christakos went to Lee and told him that he had an offer that he couldn't refuse. Q. During the course of those discussions, was there any mention made of Local 54, the Union in- volved in this case, or any discussions about Unions? A. No. Q. Was there-did the subject ever come up? A. Yes. Q. All right, how did it come up? A. There was a problem with the Local 54, with the Union, but it was nothing to worry about, his lawyer had taken care of the case. Q. All right, who said that? A. George Christakos. Q. When did he say that? A. Sometimes before we bought the place. Q. Did Mr. [James] Christakos ever mention to you that there were two people that had been dis- charged, and ordered to be reinstated by the Na- tional Labor Relations Board? A. No, sir. Q. Did Mr. Christakos say anything to you about Mediterranean Diner being charged with failing to bargain, in any respect with Local 54? A. No, but what-his lawyer was taking care of it. Elsewhere, Nicholas testified: Q. But you were aware that there were court proceedings going on, some type of trial going on involving the Union and Mediterranean Diner before the purchase? A. Everything was so vague, and we had an ap- pointment with our lawyer, and our lawyer says: "it's nothing to worry about, this is the agreement that you are legally bounded," and that was good enough for us. Nicholas observed that the contract (G.C. Exh. 4) had a "clause . .. with . . . $50,000 in an escrow account for any problems that . . . would arise . . . ." Leandro Vlastans, a participant in the above purchase, testified in part as follows: Q. Before you embarked on the discussions with Mr. Christakos, were you aware that there were any court proceedings? A. Yes. Q. -involving Mediterranean Diner? A. Well, afterwards as we were going into the deal-I mean, having conversations about the deal- Q. Well, let's confine-excuse me, let's confine ourselves before you got into conversations? A. Oh, I see. I knew that- Q. Were you aware-you were aware of a prob- lem, but were you aware that there were proceed- 543 ings before the National Labor Relations Board in- volving Mediterranean Diner? A. I don't know how technical answer-I don't know really how much I knew. I don't know-I knew there were problems, and they had problem with the Union and courts, yes, that was the word. Q. Did you know specifically what the court problems were? A. No. .... As a matter of fact we made an effort so our attorney, he put down in the closing that the pre-existing situation with the Union, it was not our responsibility and it was finished, so we were not-we weren't have to concern about it. Whatever the problem it was. The problem was kind of employees. I don't know exactly what it was. But it was a kind of a problem with the em- ployees. And that wasn't our concern any longer since it was finished, and since it was down in the papers with our lawyers, where he put it down so that we are not responsible for anything afterwards. So, I didn't think it was our concern after that, since we were covered legally. The testimony of Tino Nicholas and Leandro Vlas- tans, as detailed above, was at times vague, evasive, con- tradictory, and incomplete. They did not impress me as trustworthy or reliable witnesses. I do not credit and rely on their general and conclusory assertions to the effect that they were unaware of the pending unfair labor practice charges and proceedings prior to their purchase of the restaurant-lounge facility. Instead, I find here, as discussed below, that Nicholas and Vlastaris were, at all times pertinent, fully aware of the pending proceedings and purchased the facility with knowledge of the outstanding unfair labor practice charges, com- plaints and decision . Further, insofar as the testimony of Nicholas conflicts with the testimony of Mickey Fair- field, as recited above, I credit the testimony of Fairfield. Fairfield impressed me as a trustworthy and reliable wit- ness. Nicholas, on the other hand, as noted, was an in- credible and unreliable witness. In short, I find here that Fairfield did not telephone Nicholas as claimed and, in effect, state that "she wasn't going to continue." On the contrary, I find, as Fairfield credibly testified, that she was instructed by the Employer that "they didn't need [her] . . . and they would call . . .." I note, in this re- spect, that Respondent's Exhibits 2(a) and 2(b), which purport to be Fairfield's timecards, only purport to show nominal and limited hours worked for the few days fol- lowing her initial 2 days of employment. t o 10 Counsel for Respondent New Bay Diner moves to correct the tran- script He claims that the words "court case" in Nicholas' testimony should be deleted and "whole case" should be substituted at p 159, L. 21. 1 find the transcript , in this respect, to be correct and accurate And, although counsel for General Counsel has filed no opposition to this motion, he specifically relies on the transcript's use of the words "court case" in his posthearing brief (p 4 fn 4). Respondent New Bay Diner's motion, in all other respects, which is unopposed , is granted insofar as consistent with the findings made in this Decision and Supplemental De. cision 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Discussion The controlling principles in a backpay proceeding are settled. Thus, the "finding of an unfair labor practice ... is presumptive proof that some backpay is owed" (NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972), and the General Counsel's burden is limited to showing "what would not have been taken from [the employee] if the company had not contravened the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943). This allocation of the burden was expressed in NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963), as follows- [I]n a back pay proceeding the burden is upon the General Counsel to show the gross amounts of back pay due. When that has been done, however the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liabil- ity. Further, as the court explained in NLRB v. Brown & Root, supra, 311 F.2d at 452: Obviously, in many cases it is difficult for the Board to determine precisely the amount of back pay which should be awarded to an employee. In such circumstances, the Board may use as close approxi- mations as possible and may adopt formulas reason- ably designed to produce such approximations ... [W]ith respect to the formula for arriving at back pay rates or amounts which the Board may deem necessary to devise in a particular situation, [judicial] inquiry may ordinarily go no further than to be satisfied that the method selected cannot be declared to be arbitrary or unreasonable in the cir- cumstances involved. The Supreme Court has noted: "Certainty in the face of damage is essential. Certainty as to amount goes no further than to require a basis for a reasoned conclu- sion." Palmer v. Conn. Ry. Light Co., 311 U.S. 544, 651 (1941). In addition, "the cases are unanimous " that the defense of willful loss of earnings is an "affirmative defense" and the burden is on the employer to prove the defense. NLRB v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966). Moreover, although the employer may show that the employee failed to make "reasonable efforts to miti- gate [her] loss of income . . . [the employee is] held .. . only to reasonable exertions in this regard, not the high- est standard of diligence." NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422, 423 (1st Cir. 1968). "Success" is not the measure of the sufficiency of the employee's search of interim employment; the law "only requires an honest good faith effort." NLRB v. Cashman Auto Co., 233 F. 2d 832, 836 (1st Cir. 1955). And, although the General Counsel is required to present only the "gross amounts of backpay due," he goes further, pursuant to the Board's Rules and Regulations (29 C.F.R. § 102.53), and includes in the backpay specification a deduction from gross backpay all those amounts in mitigation which he discovered through, for example, social security records. The General Counsel does not thereby assume "the burden of establishing the truth in all of the information supplied or negativing matters of defense or mitigation." NLRB v. Brown & Root, supra, 311 F.2d at 454. In Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), the Supreme Court upheld the principle and ra- tionale announced earlier by the Board in Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom. U. S. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968): [O]ne who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor prac- tice charges against his predecessor should be held responsible for remedying his predecessor's unlaw- ful conduct. The court sustained the Board's remedial authority to impose "joint and several liability" in such cases." The credited and essentially undisputed evidence of record, as found supra, establishes here that the total net backpay due and owing to discriminatee Ferguson is $2171.68. Respondent Bay Diner and Respondent New Bay Diner have made no real attempt to controvert the formula and calculations as contained in the specification and explained by the Region's compliance officer or to establish facts "which would negative the existence of li- ability . . . or which would mitigate the liability." NLRB v. Brown & Root, supra. Likewise, the credited and essentially undisputed evidence of record, as found supra, establishes here that the total net backpay due and owing to discriminatee Fairfield is $5867.45. The principal issue raised with respect to Fairfield's backpay claim is the assertion of counsel for Respondent New Bay Diner that "any backpay liability New Bay might have to Fairfield was cut off when she left its em- ployment in October 1980" (Br. 20-23). Thus, counsel for Respondent New Bay Diner, citing Mastro Plastics Corp., 136 NLRB 1342, 1346 (1962), argues that "it is well established that an employer's backpay liability will be reduced by the wages a dischargee would have earned had he or she not voluntarily left a substantially equivalent job." However, as counsel notes, the testimo- ny of Fairfield and Nicholas in this respect are "flatly contradictory." And, on this entire record, I fmd the tes- timony of Fairfield to be more reliable and trustworthy than the testimony of Nicholas. Accordingly, I reject this contention as contrary to and not supported by the credible evidence of record. i i Counsel for Respondent argues (Br 19) that, in Thomas Engine Corp, 179 NLRB 1029 (1970), enfd 442 F.2d 1180 (4th Cir 1971), the "successor was held to be responsible only for the period measured from the dischargees' application for reinstatement " However, as discussed above, the joint and several liability formula, expressly approved by the Supreme Court in Golden State, is controlling here I note that Thomas Engine is a case which arose during the earlier development of the Perma Vinyl rationale And, it is factually inapposite In Thomas Engine, unlike in the instant case, the successor hired only 90 of the predecessor's ap- proximately 120 to 130 production and maintenance employees In the in- stant case, as Nicholas acknowledged, "Everybody remained the same." Also compare, Southeastern Envelope Co, 206 NLRB 933 (1973 ), and Am- Del Co, 234 NLRB 1040, 1044 (1978) BAY DINER 545 Counsel for Respondent New Bay Diner further argues (Br. 19) that "New Bay has no obligation to remedy the Section 8(a)(3) violations set forth in the backpay specification" because "New Bay is not a Perma Vinyl successor." Counsel states: "Although the principal owners of New Bay were vaguely aware that there had been a Union problem they did not know the specifics, and when they inquired of the prior owners they were assured the matter had been resolved . . . ... The evi- dence of record, as found supra, is contrary to and does not support these and related assertions. Respondent New Bay Diner is clearly a successor em- ployer. New Bay purchased all the inventory, furnish- ings, equipment and real estate from Bay Diner. And, as Nicholas acknowledged, "it was basically the same type of operation that was going on before, it was a restau- rant-cocktail lounge", "it continued"; "everybody re- mained the same"; and "one of the purchasers [George Christakos] . . . was the manager of the previous restau- rant." Moreover, as Nicholas and Vlastaris acknowl- edged, before the change in ownership, "we discussed the court case", "there was a problem with the Local 54"; "his lawyer was taking care of it"; "I knew there were problems, and they had a problem with the Union and the courts"; "the problem was kind of employees ... it was kind of a problem with employees"; "our lawyers . . put it down that we were not responsible . . . we were covered legally"; and an "escrow account for any problems that . would arise" was included in the contract executed shortly after issuance of the admin- istrative law judge's decision in the pending unfair labor practice proceeding. The Board, in Perma Vinyl, announced that [O]ne who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor prac- tice charges against his predecessor should be held responsible for remedying his predecessor's unlaw- ful conduct. and Respondent Bay Diner on one occasion during early July, on another separate occasion during August and fi- nally on another separate occasion in October 1979 In the meantime, hearings on the unfair labor practice com- plaint were held on July 11, 12, and 13, 1979, and the administrative law judge issued his decision on February 25, 1980. The administrative law judge found that Re- spondent Bay Diner had violated Section 8(a)(1), (3), and (5) of the Act by coercively interrogating its employees; threatening its employees with discharge or closing its business; promising to grant or withhold employee bene- fits; imposing more difficult working conditions and re- ducing employee benefits; discriminatorily discharging employees Ferguson and Fairfield; engaging in surveil- lance; and failing and refusing to bargain with the Union over changes in working conditions. Warren Borish, attorney for the Union, acknowledged that "there was no contact between the Union and the Employers" from October 1979, the last bargaining meet- ing, until September 1980. Borish explained- There was no contact in the formal sense of the Union meeting with the Employer, but there was contact of an extensive nature through the [NLRB], who had in fact taken on the representation of the Charging Party Union . ., and there were a number of matters that were proceeding before the Board during the interim time period. Borish further explained During that period, Mr. Glickman, the attorney for the predecessor, indicated to me that he did not think he would be able to get his client to sign any agreement, no matter what it contained or didn't contain. And, also, the unfair labor practice proceedings were continuing, and we were already well into those matters, and the Union, at my advice, decided to wait until the outcome of the unfair labor prac- tice case to see where we stood . . . The Perma Vinyl principle, as approved by the Supreme Court, is controlling here. Indeed, I find here that Re- spondent New Bay Diner, prior to purchase, had full knowledge of the pending proceedings and protected its economic interest with contractual escrow or indemnifi- cation clauses, as recommended in Perma Vinyl. I therefore find and conclude that Respondents Bay Diner and New Bay Diner are jointly and severally liable to discnminatees Ferguson and Fairfield for the amounts alleged in the amended specification. H. THE UNFAIR LABOR PRACTICE PROCEEDING As recited supra, on March 6, 1979, the Union was certified by the Board as bargaining agent for a unit of Respondent Bay Diner's employees. The Union filed unfair labor practice charges against Respondent Bay Diner on December 18 and 26, 1978, and April 27, May 9, and June 13, 1979. An unfair labor practice complaint issued against Respondent Bay Diner on June 22, 1979. Bargaining sessions were conducted between the Union There was also picketing by the Union during this period. On or about March 17, 1980, about 3 weeks after the administrative law judge had issued his decision in the pending unfair labor practice proceeding, Respondent Bay Diner entered into a contract to sell its entire busi- ness to Respondent New Bay Diner. The purchasers took over the business during May 1980; operations con- tinued without interruption; and, as counsel for Respond- ent acknowledges in his brief (p. 6), "New Bay retained all of [Bay] Diner's employees . . . " Further, as found supra, Respondent New Bay Diner purchased and took over this business with full knowledge of the pending unfair labor practice proceeding. Then, on June 26, 1980, the Board affirmed the admin- istrative law judge's decision that Respondent Bay Diner had violated Section 8(a)(1), (3), and (5) of the Act. Thereafter, on September 30, 1980, Borish, attorney for the Union, sent the following letter, certified returned re- 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceipt requested, to Bay Diner and its attorney, Glickman (G.C. Exhs. 13(a) and 13(b)): Dear Sir: This office represents Local 54 of the Hotel and Restaurant Employees and Bartenders International Union, the collective bargaining representative of your employees and in light of our continued repre- sentation of your employees and in accordance with your obligations under federal law, and particularly under the Decision and Order of the National Labor Relations Board dated June 26, 1980, this is to advise you that the Union wishes to negotiate with you for a Collective Bargaining Agreement covering your employees. The Union is available at all times to meet, and you should contact Frank Gerace or Frank Materio in order to arrange mutual dates in this regard. Borish received no response to his letter.' 2 Enforcement proceedings were later instituted against Respondent Bay Diner and, on July 6, 1981, the United States Court of Appeals for the Third Circuit entered a consent judgment against Respondent Bay Diner . Subse- quently, on October 30, 1981, the Regional Director also issued a backpay specification against Respondent Bay Diner and joined Respondent New Bay Diner. Both Em- ployers, as noted supra, filed separate answers to the specification. Finally, on January 14, 1982, Borish, as at- torney for the Union, sent a letter, certified return re- ceipt requested, to Respondent New Bay Diner, renew- ing his request for bargaining. (See G.C. Exhs. 14(a) and 14(b).) Borish again received no response to his letter. Borish, in further explaining why he waited from Sep- tember 30, 1980, to January 14, 1982, to renew his re- quest for bargaining, credibly testified: [T]he unfair labor practices were still being pursued on appeal . . . and I had again advised the client that I thought it appropriate to wait until the out- come. . . . And, . . . there was some confusion as to who in fact was the Employer during the time period. And, through discussions with Mr. Spooner, as the compliance officer, the Board was also making inquiries at that time to determine who in fact the new Employer was , and I had decided and 12 Tino Nicholas denied ever seeing Borish's letter of September 30, 1980 Nicholas testified Q Mail addressed to Bay Diner, that was the name under which Mr Christakos trades, correct'i A Yes Q Would that mail go to him, too? A Yes sir) Q If the mail was registered or certified and signed for by one of your employees, would it be opened if it were addressed to Bay Diner? A No sir Elsewhere, Nicholas acknowledged "in the past I don't open the mail, my bookkeeper open the mail, and it's up to her discretion As recited supra, I find Nicholas to be an unreliable and untrustworthy witness here I am persuaded, on this record , that Nicholas in fact re- ceived and read the certified letter of September 30, 1980 I credit instead the testimony of Borish advised my client again that we should wait and see Discussion As the Supreme Court stated in NLRB v. Burns Securi- ty Services, 406 U.S. 272, 279 (1972) It has been consistently held that a mere change of employers or of ownership in the employing indus- try is not such an `unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer. "It would be a wholly different case if the Board had determined that because [the new employer's] operational structure and practices differed from those of [the predecessor] the [particular] bargaining unit was no longer an appropriate one. "Likewise, it would be different if [the new employer] had not hired employees already represented by a union cer- tified as bargaining agent ; "But, where the bargaining unit remains unchanged and a majority of employees hired by the new employer are repre- sented by a recently certified bargaining agent, there is little basis for faulting the Board's imple- mentation of the express mandate of Section 8(a)(5) and Section 9(a) by ordering the employer to bar- gain with the incumbent union. The Supreme Court explained at 294: [T]here will be instances in which it is perfectly clear [as here] that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with [the union] before he fixes terms. In other situations, however, it may not be clear until the successor em- ployer has hired his full complement of employees that he has a duty to bargain with the union, since it will not be evident until then that the [union) rep- resents a majority of the employees in the unit... . Applying these settled principles to the facts of record here, I find and conclude, as recited in the backpay pro- ceeding supra, that Respondent New Bay Diner is clear- ly a successor employer, who continued the employing business without interruption and with the same person- nel and, further, who had full knowledge of the pending unfair labor practice proceeding prior to takeover in May 1980.13 13 Counsel for Respondent New Bay argues (Br pp 10-14) that "the critical period for assessing whether a majority of the alleged successor's bargaining unit employees had been unit employees of the previous em- ployer begins not on the date of takeover, but on the date it receives the union's bargaining demand," principally relying on General Processing Corp, 263 NLRB 86 (1982) General Processing is inapposite here That case did not involve an employer who continued without interruption the predecessor's business with the same personnel under the circumstances present here In sum, the instant case involves a situation in which the successor planned to and did retain all the unit personnel and, conse- quently, a bargaining obligation arose upon takeover Of course, as dis- Continued BAY DINER The General Counsel argues here (Br. 11-12) that the certification year commenced on or about March 6, 1979, when the Union was certified by the Board as col- lective-bargaining representative of the predecessor's unit employees; that "a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed"; and therefore where, however, the certification year is interrupted by litigation of 8(a)(5) unfair labor practice charges, the company "is obligated to bargain . .. for a rea- sonable period of time exclusive of the period during which the bargaining relationship was sus- pended by litigation of the unfair labor practices." Once the litigation is resolved . . . the certification year will be extended "to embrace that time in which the employer has engaged in the unlawful re- fusal to bargain." Cf. Straus Communications, 246 NLRB 846 (1979), and cases cited therein, affd. 625 F.2d 458 (D.C. Cir. 1980). The facts found in the instant case make it clear that both Bay Diner and New Bay Diner have engaged in no meaningful bargaining with the Union as the certified representative of the unit employees. Bay Diner, as noted, committed substantial violations of Section 8(a)(1), (3), and (5) of the Act. It is true that Bay Diner and the Union met approximately three times while the unfair labor practice proceedings were pending. However, in the context of Bay Diner's threats, coercive interroga- tion, surveillance, discriminatory discharges, refusal to bargain, and related coercive conduct, there could be no meaningful bargaining at these sessions . Bay Diner, shortly after the administrative law judge issued his deci- sion in the pending unfair labor practice case, ' sold the restaurant-lounge to Respondent New Bay Diner, who took it with full knowledge of the pending proceeding, and thereafter persisted in the predecessor's refusal to honor the outstanding certification. This conduct, under the circumstances present here, effectively deprived the Union of any fruits of its certification. Therefore, I find and conclude that the certification year should be extended, as requested by the General Counsel and, consequently, on January 14, 1982, when the Union renewed its request to bargain, there was an irrebutable presumption of the Union's majority status. (Ibid.) 14 Assuming, however, that the certification year should not be extended, as determined above, there is a rebutta- ble presumption of continued majority status. See gener- ally King Radio Corp, 208 NLRB 578, 582-583 (1974), enfd. 510 F.2d 1154 (10th Cir. 1975), and cases cited. cussed below, when a successor later claims a doubt of continued majori- ty status, faced with a renewed demand by the union to bargain, majority status, in appropriate circumstances, must be assessed at the time of such demand Also cf Ramada Inns, 171 NLRB 1060 (1968), cited by counsel for Respondent as "different but analogous " 14 The General Counsel (Br 12), states "Inasmuch as Respondent New Bay posted a notice on October 2, 1981 (G C Exh 7), extension of the certification would commence to run from December 2, 1981" (60 days later), and "the Union's request for bargaining (January 14, 1982) would fall within the extension " 547 Counsel for Respondent New Bay contends (Br. 17-18) that "New Bay had reasonable grounds for its good-faith doubt of Local 54's continued majority" when "it re- ceived [the] bargaining demand in 1982." In support of this argument, counsel for Respondent New Bay princi- pally cites (Br. 18) "no activity by Local 54" and the fact that "only three out of 22 employees at the time of the bargaining demand had been employed by" the pred- ecessor. The Board, as restated in Kuno Steel Products Corp., 252 NLRB 904 (1980), affd. 681 F 2d 1130 (2d Cir. 1982), has consistently held that an incumbent union is en- titled to a presumption of continuing majority status, and that the burden rests with a respondent to advance objective considerations on which to ground a reasonable doubt sufficient to rebut that presumption . Cut and Curl, Inc., 227 NLRB 1869, 1872 (1977). Neither mere reference to a lapse of time nor the lack of picketing is the type of indica- tor that in itself would justify a reasonable doubt that a union no longer retains majority support. Here, the passage of time, although lengthy, was due to protracted litigation in which [the union] ac- tively participated. In the instant case, inactivit^ by the Union does not justi- fy a reasonable doubt that the Union retained majority status. The Union, as Attorney Borish credibly testified, suspended efforts to meet with the Employer. There could be no meaningful bargaining until Respondent Bay Diner, and later Respondent New Bay Diner, were brought into compliance with the outstanding Board Order. This delay was in large part caused by these re- peated efforts to bring Respondent Bay Diner into com- pliance with the Act and the Board's Order and, later, to identify and bring Respondent New Bay into compli- ance. Respondent New Bay Diner, under such circum- stances, could not reasonably regard the Union's alleged inactivity as, in effect, an abandonment of the unit em- ployees. Cf. Unoco Apparel, 215 NLRB 89, 91 (1974). Further, in King Radio, supra, the Board restated that "new employees will be presumed to support a union in the same ratio as those they may replace" and, because the union maintained a majority status at the time of the certification, it must be presumed that it still maintains its majority support status absent other strong evidence which may form a rea- sonable basis for believing that the Union lost its majority status . . . . Such "strong evidence" is totally lacking here. 15 15 Counsel for the General Counsel and Respondent New Bay move the admission of the Excelsior list of employees in the earlier representa- tion case (4-RC-13427), as R Exhs 8(a) and (b) (annexed to General Counsel's brief) The motion is granted I note also the testimony of Grace Hofineister, a cashier-hostess at the restaurant working for Bay Diner and New Bay Diner, that she related earlier union activity to Nicholas long after the takeover, and Nicholas assertedly indicated "that this was the first time he was hearing about Continued 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, I find and conclude that Respondent New Bay gether with interest , computed in the manner prescribed Diner has violated Section 8(a)(5) and (1) of the Act, by in Florida Steel Corp., 231 NLRB 651 (1977). See gener- refusing on and after January 14, 1982 , to bargain with ally Isis Plumbing Co., 138 NLRB 716 (1962): the Union. CONCLUSIONS OF LAW 1. Respondent New Bay Diner is an employer engaged in commerce as alleged 2. Charging Party Union is a labor organization as al- leged. 3. Respondent violated Section 8(a)(5) and (1) of the Act by refusing, since on or about January 14, 1982, to recognize and bargain with Charging Party Union as the exclusive bargaining agent of its employees in the follow- ing appropriate unit. All full-time and regular part-time employees, in- cluding waiters, waitresses, bartenders, cooks, dish- washers, cashiers, hostesses, and maintenance em- ployees employed by Respondent at 11 MacArthur Boulevard,' Somers Point, New Jersey, but exclud- ing all guards and supervisors as defined in the Act. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY Respondent New Bay Diner will be directed to cease and desist from engaging in the conduct found unlawful herein and like or related conduct, and to post the at- tached notice. It has been found that Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing and refus- ing to recognize and bargain with the Union as the bar- gaining agent of its employees in an appropriate unit. Re- spondent will therefore be directed to bargain, on re- quest, with the Union as the exclusive bargaining agent of the employees in the above unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a signed contract. 16 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER A. The Respondents, Mediterranean Diner, Inc., t/a Bay Diner, Inc. and New Bay Diner, Inc., t/a Mediterra- nean Lounge, Philadelphia, Pennsylvania, their officers, agents, successors and assigns, are ordered, jointly and severally, to pay to each of the persons listed below the amounts set forth opposite their respective names, to- these things " Hofineister assertedly told Nicholas that she, in effect, no longer supported the Union " I find her testimony to be vague, concluso- ry, and generally unreliable In any event , her testimony, as well as the related testimony of Nicholas, fails to privilege here New Bay's refusal to bargain , for the reasons stated above " The certification year, as discussed supra, is extended to commence running from December 2, 1981 i' 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 Philip Ferguson $2171.68 Mickey Fairfield $5867.45 B. The Respondent, New Bay Diner, Inc., t/a Medi- terranean Lounge, Somers Point, New Jersey, its offi- cers, agents, successors, and assigns, is ordered to- 1. Cease and desist from (a) Refusing to recognize or bargain, on request, with Local 54, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO, as the exclusive bar- gaining agent of its employees in the following appropri- ate unit: All full-time and regular part-time employees, in- cluding waiters waitresses, bartenders, cooks, dish- washers, cashiers, hostesses, and maintenance em- ployees employed by Respondent at 11 MacArthur Boulevard, Somers Point, New Jersey, but exclud- ing all guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies and purposes of the Act. (a) On request, bargain with the Union as the exclusive bargaining representative of its employees in the above appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a signed contract (b) Post at its facility in Somers Point, New Jersey, copies of the attached notice marked "Appendix."ts Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply is 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 " BAY DINER 549 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize or bargain with, on request, Local 54 Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, as the exclu- sive bargaining representative of our employees in the following appropriate unit: All full-time and regular part-time employees, in- cluding waiters, waitresses, bartenders, cooks, dish- washers, cashiers, hostesses, and maintenance em- ployees employed by Respondent at 11 MacArthur Boulevard, Somers Point, New Jersey, but exclud- ing all guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, on request, bargain with the above Union as the exclusive bargaining representative of our employees in the above appropriate unit with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a signed contract. NEW BAY DINER, INC. T/A MEDITERRA- NEAN LOUNGE