Cafe La Salle

CAFE LA SALLE La Salle Investment Co., Ltd., d/b/a Cafe La Salle and Hotel, Restaurant Employees & Bartenders Union, Local 49, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL- CIO Ronald Curtis, d/b/a Personal Financial Manage- ment Services and Hotel, Restaurant Employees & Bartenders Union, Local 49, Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO Old Sacramento Investors, Ltd. and Hotel, Restau- rant Employees & Bartenders Union, Local 49, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO. Cases 20- CA-19327, 20-RM-2548, 20-CA-19554, and 20-CA-19556 18 June 1986 DECISION, ORDER, AND DIRECTION By MEMBERS DENNIS, BABSON, AND STEPHENS On 25 October 1985 Administrative Law Judge Roger B. Holmes issued the attached decision. Re- spondent Cafe La Salle filed exceptions and a sup- porting brief, the General Counsel filed cross-ex- ceptions and a supporting brief, and Respondent Cafe La Salle filed an answering brief to the Gen- eral Counsel's cross-exceptions. 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 exceptions and briefs and has decided to affirm the judge's rulings, findings, and concusions as modified. I The judge found that Respondent Cafe La Salle did not violate Section 8(a)(1) of the Act when its night manager and maitre d' Michael Cardozo questioned employees Karl Holzmann, Nedra i With regard to Case 20-RM-2548, we adopt the judge's recommen- dation that the election be set aside In finding objectionable conduct by Respondent Cafe La Salle, the judge relied on two unfair labor practices committed during the critical period, which began on 2 October 1984- an 8(a)(l) grant of benefits and an 8(a)(4) failure to prepare a letter of recommendation for employee Palmer Contrary to the judge, however, we do not rely on the latter incident The challenge to Palmer's ballot was sustained, she was therefore not an eligible voter in the election There is no evidence that any other employee learned of the Respond- ent's misconduct before voting in the election Thus, we conclude that the incident was too mammal to have interfered with the conduct of a free and fair election. See General Felt Industries, 269 NLRB 474 fn 1 (1984), Metz Metallurgical Corp., 270 NLRB 889 (1984). Although, for reasons set forth below, we find an additional 8(a)(1) violation, we do not find it to be objectionable conduct with respect to the election because the General Counsel has failed to demonstrate that the unlawful interro- gation occurred during the critical period. We also adopt pro forma, in the absence of exceptions, the judge's rec- ommendations that the challenge to the ballot of Kevin Nichols be sus- tamed and that the challenge to the ballot of Paul Sturges be overruled 379 Hughes, Daniel Szydlowski, and David Watson. We disagree for the reasons set forth below. Following a demand for recognition based on authorization cards, the Union began picketing at Respondent Cafe La Salle's facility 28 September 1984. Three or four days later, Night Manager and Maitre d' Michael Cardozo met with Holzmann, Hughes, Szydlowski, and Watson and asked them why they wanted to join the Union.2 Cardozo told the employees he felt they had gone to "extreme" lengths, they could come to him with their prob- lems, and asked them what their grievances were.3 The employees suggested specific changes be made at the restaurant. The judge, relying on Rossmore House,4 found the Respondent's conduct did not violate Section 8(a)(1) because the questioning was similar to that found permissible there5 and because the employ- ees to whom Cardozo spoke were open and active union adherents.6 We need not decide whether en- gaging in picketing is sufficient to make an employ- ee an open and active union adherent within the meaning of Rossmore House.7 The record shows that of the four employees only Szydlowski and Hughes had engaged in picketing. There is no evi- dence to support the judge's finding that Holzmann and Watson were open union adherents. In addi- tion, unlike the situation in Rossmore House, the questioning here occurred in the context of other employer unfair labor practices. Under these cir- cumstances, we find that Cardozo's questioning reasonably tended to interfere with, restrain, and coerce employees in exercising rights guaranteed by the Act in violation of Section 8(a)(1). We shall amend the judge's Conclusions of Law and his recommended Order to reflect our finding of this additional violation, and shall issue a new notice to employees. AMENDED CONCLUSIONS OF LAW Insert the following as paragraph 3 and renum- ber the subsequent paragraphs. 2 It is unclear where the encounter took place , but Cardozo stated it was "not in a formal session in the office " a The judge recommended dismissing an 8(aXl ) allegation that Re- spondent Cafe La Salle solicited employee grievances , concluding that it had a past practice of asking employees to submit grievances and suggest- ed remedies, and then informally discussing the suggestions. No party filed exceptions 4 269 NLRB 1176 (1984), affd . sub nom. Hotel & Restaurant Employees Local 11 Y NLRB, 760 F 2d 1006 (9th Cir 1985). ° See id. at 1176 ° See id at 1177-1178 ' The record shows that, in addition to picketing, Szydlowski and Hughes met with the Respondent's managing general partner Ronald Curtis to discuss their grievances and request union recognition. The judge did not rely on this evidence in finding that Szydlowski and Hughes were open and active union adherents The other two employees, Watson and Holzmann, did not participate in the meeting with Curtis. 280 NLRB No. 43 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "3. Respondent Cafe La Salle has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act by coercively interrogating employees about their union support and activi- ties." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, La Salle Investment Co., Ltd., d/b/a Cafe La Salle, Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs. "(a) Coercively interrogating employees about their union support or activities." 2. Substitute the attached notice for that of the administrative law judge. DIRECTION The Respondent, La Salle Investment Co., Ltd., d/b/a Cafe La Salle, engaged in objectionable con- duct which would warrant setting aside the 31 Oc- tober 1984 election. IT IS DIRECTED that the Regional Director shall, within 10 days from the date of this Decision, Order, and Direction, open and count the ballots of Paul Sturges and Joe Vona III, and serve on the parties a revised tally of ballots. If the revised tally shows that the Union has received a majority of the valid ballots cast, a certification of representa- tive shall issue. If the revised tally shows that the Union has not received a majority of the valid ballots cast, a second election by secret ballot shall be held among the employees in the unit found appropriate. The Regional Director shall direct and supervise the election, subject to the Board's Rules and Reg- ulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or tem- porarily laid off. Also eligible are employees en- gaged in an economic strike that began less than 12 months before the election date and who retained their employee status during the eligibility period and their replacements. Those in the military serv- ice may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Hotel, Restaurant Employees & Bartenders Union, Local 49, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT grant you benefits in order to dis- suade you from seeking representation by Hotel, Restaurant Employees & Bartenders Union, Local 49, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO or any other labor organization. WE WILL NOT refuse to write a letter of recom- mendation for any of you because an unfair labor practice charge involving you has been filed against us. 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. LA SALLE INVESTMENT CO., LTD., D/B/A CAFE LA SALLE Lucile L. Rosen and Marcie Berman, Esqs., for the Gener- al Counsel. Archie G. Parker (Roland & Parker), of Sacramento, Cali- fornia, for the Respondent. John H. Cohenour (Davis, Cowell & Bowe), of Sacramen- to, California, for the Charging Party. Joseph A. McLaughlin, International representative, for the Charging Party at the hearing. CAFE LA SALLE 381 DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The original unfair labor practice charge in Case 20-CA- 19327 was filed on 26 October 1984 by Hotel , Restaurant Employees & Bartenders Union, Local 49, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (the Union). The first amended unfair labor practice charge in Case 20-CA-19327 was filed on 19 December 1984 by the Union. On 28 December 1984 the General Counsel issued a complaint and notice of hearing in Case 20-CA-19327 against La Salle Investment Co., Ltd., d/b/a Cafe La Salle (Respondent Cafe La Salle). The General Counsel alleged that Respondent Cafe La Salle had engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. Respondent Cafe La Salle filed an answer to the General Counsel's complaint and denies that it has committed the alleged unfair labor practices. Respondent Cafe La Salle affirmatively alleges that the underlying unfair labor practice charges are in- sufficient to support the factual allegations of the Gener- al Counsel's complaint. The unfair labor practice charge in Case 20-CA-19554 was filed on 25 March 1985 by the Union. The unfair labor practice charge in Case 20-CA-19556 also was filed on 25 March 1985 by the Union. On 17 April 1985 the General Counsel issued an order consolidating cases, amended consolidated complaint and notice of hearing in Cases 20-CA-19327, 20-CA-19556, and 20-CA-19554 against Respondent Cafe La Salle, Old Sacramento Investors, Ltd., and Ronald Curtis, d/b/a Personal Financial Management Services . The latter two Respondents usually will be referred to as Respondent Old Sacremento and Respondent PFMS, respectively. The General Counsel alleges that the three Respondents were joint employers, and that they had engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. The three Respondents filed an answer to the General Counsel's amended con- solidated complaint and deny that they have engaged in the alleged unfair labor practices. The Respondents af- firmatively allege that the underlying charges in each case were insufficient to support the factual allegations of the General Counsel's amended consolidated com- plaint. I shall consider the affirmative defense of the three Respondents at the outset of this decision. If that defense has merit, then the General Counsel's amended consoli- dated complaint should be dismissed on procedural grounds without reaching the merits of the allegations. The Board held in Texas Industries, 139 NLRB 365, 366- 367 (1962): It is well established that a charge is not a plead- ing, but merely serves to initiate a Board investiga- tion to determine whether a complaint shall be issued . Subject only to the requirement that there must be some relationship between the allegations in the complaint and the language of the charge, it is the function of the complaint, and not the charge, to serve notice upon a respondent of the particular conduct alleged to be violative of the Act. Where, as here, the charge alleges, in general language, that Section 8(a)(1), as well as 8(a)(3), have been violat- ed, without particularizing the conduct alleged to be violative of Section 8(a)(1), the charge is suffi- cient to support the specific allegations in the com- plaint of Section 8(a)(1) conduct during the 6-month period preceding the service of the original charge, and subsequent thereto. We therefore find that the charge was adequate to support the entire com- plaint. 2 2 NL R B V. Raymond Pearson, Inc., 243 F 2d 456 (C A 5), Triboro Carting Corporation, 117 NLRB 775 The amended unfair labor practice charge in Case 20- CA-19327 alleges that Respondent Cafe La Salle violat- ed Section 8(a)(1), (3), and (4) of the Act. It specifically alleges the discriminatory termination of Robert Payne Baker and the refusal to issue a letter of recommendation to Donna Palmer because she had filed unfair labor prac- tice charges with NLRB. It generally alleges without specification that Respondent Cafe La Salle has engaged in conduct that interferes with, restrains, and coerces, employees in the exercise of the rights guaranteed them by Section 7 of the Act. The unfair labor practice charges in Cases 20-CA-19554 and 20-CA-19556 specifi- cally alleges the discriminatory termination of Baker by Respondent PFMS and Respondent Old Sacramento, re- spectively. All the unfair labor practice charges filed by the Union contained the printed general allegation: "By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act." I conclude that there is a relationship between the alle- gations in the unfair labor practice charges and the alle- gations in the General Counsel's amended consolidated complaint, and that the charges are sufficient to support the specific allegations contained in the General Coun- sel's amended consolidated complaint. Texas Industries, above. Accordingly, I find that the affirmative defense of the Respondents does not have merit. For the same rea- sons, I conclude that the Respondents' motion to dismiss paragraph 10(c) of the General Counsel's amended con- solidated complaint on the basis that no unfair labor practice charge had been filed with regard to that allega- tion lacks merit. The hearing in this proceeding was held on 2 and 3 May 1985 at Sacramento, California. The time for filling posthearing briefs was extended to 14 June 1985. The General Counsel and the attorney for the Respondents filed briefs. The General Counsel also filed a posthearing motion to correct the transcript of hearing. The Respondents did not oppose that motion. Accordingly, the General Coun- sel's motion is granted. On 20 June 1985 the General Counsel filed a motion to strike a portion of the Respondents' brief and a motion to augment the record. The latter motion, in the alterna- tive, requested that the hearing be reopened for the sub- 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mission of additional testimony and documentary evi- dence. I issued on the same date an Order to Show Cause why the General Counsel 's motions should not be granted. On 24 June 1985 the Respondents filed a re- sponse to motions to augment record and to strike a por- tion of the Respondents' brief. I issued on 19 July 1985 an order which denied both of the General Counsel's motions. Section 102.26 of the Board's Rules and Regula- tions provides that such motions and rulings become a part of the record in this proceeding. Therefore, it is not necessary to reiterate those matters here. The General Counsel urged for the first time in her posthearing brief that 11 statements be found to be viola- tions of Section 8(a)(1) of the Act even though the Gen- eral Counsel had not alleged those matters in the Gener- al Counsel's amended consolidated complaint. Those matters are described at pages 22 through 28 of the Gen- eral Counsel's posthearing brief. The General Counsel urged that the statements were closely related to the alle- gations which were contained in the amended consolidat- ed complaint, and that those matters had been fully liti- gated at the hearing. In addition , the General Counsel sought to change the allegation in paragraph 11(c) of the amended consolidated complaint by substituting "prom- ised benefits" for "granted benefits" in that allegation. This is reflected at page 25, footnote 28, of the General Counsel's posthearing brief. The Board has held that the granting of the General Counsel's motion to amend her complaint at the hearing, but after the close of her case-in-chief, did not deny a re- spondent "the barest minimum of due process ." Howev- er, the Board said that was not treating the respondent in that case "in a 'just' manner as our regulations require." Seward International, 270 NLRB 1034 (1984). The Board further held in that case (at 1034): Finally,4 permitting the General Counsel to intro- duce a new allegation after the close of her case, near the end of the hearing, does not serve the in- terests of judicial economy or orderly adjudication. 4 In considering the just nature of amendments at trial , we also look to whether the General Counsel has given opposing parties any informal pretrial notice concerning the pendency of potential amendments. Such notice may vitiate the due process concerns raised by unexpected trial amendments. The General Counsel had the opportunity in this pro- ceeding to amend the complaint prior to the hearing, as was done when the amended consolidated complaint was issued. The General Counsel also had the opportunity in this proceeding to add or to delete allegations after the hearing had opened, as was done with regard to para- graph 10(c) and paragraphs 13(a) and (b). Section 102.15 of the Board's Rules and Regulations requires, in part, that the General Counsel's complaint shall contain: a clear and concise description of the acts which are claimed to constitute unfair labor prac- tices, including, where known, the approximate dates and places of such acts and the names of re- spondent's agents or other representatives by whom committed. The Respondents did not receive such notice on these matters, as required by the Board's Rules and Regula- tions quoted above, until after all the evidence had been taken, the hearing had closed, and posthearing briefs had been filed. Thus, the General Counsel's request to find 11 additional violations of Section 8(a)(1) of the Act and to change the allegation in paragraph 11(c) of the amended consolidated complaint was raised even later than the General Counsel's amendment in Seward International, above, which was made at the hearing in that case, but after the close of the General Counsel's case-in-chief. In these circumstances, I find that the Respondents were not given notice in a timely manner regarding these additional matters, that the additional matters were not fully litigated in the circumstances noted above, and that changing the allegations of paragraph 11(c) would be a substantive change which also is untimely at this posth- earing stage of the proceeding. Accordingly, I shall not rule on whether these additional matters constitute unfair labor practices in violation of Section 8(a)(1) of the Act, and I will consider the evidence presented regarding paragraph 11(c) as that matter was alleged in the Gener- al Counsel's amended consolidated complaint. On 2 October 1984 Respondent Cafe La Salle filed the petition in Case 20-RM-2548. On 19 October 1984 the Acting Regional Director for Region 20 of the National Labor Relations Board approved a Stipulation for Certi- fication Upon Consent Election which Respondent Cafe La Salle and the Union had signed. The payroll period for eligibility was the period ending on 7 October 1984. Board agents conducted the election on 31 October 1984 between 3 and 4 p.m. The appropriate collective- bargain- ing unit description was: All regular full-time and part-time employees of the Employer, including dishwashers, waiters, busper- sons, bartenders, cocktail waitresses, prep cooks, cooks, chefs, host and hostesses; excluding office clerical employees, casual employees, guards and supervisors as defined in the Act. There were 13 eligible voters who cast ballots for the Union, and 13 eligible voters cast ballots against the Union. There were four challenged ballots which could affect the election results. The Union timely filed objec- tions to the election. On 29 January 1985 the Acting Regional Director for Region 20 of the National Labor Relations Board issued a Report on Objections and Challenged Ballots, Order Consolidating Cases and Notice of Hearing. The Acting Regional Director recommended to the Board that a hearing be held regarding Objections 1 and 2 filed by the Union and regarding the challenges to the ballots of Kevin Nichols and Paul Sturges. He further recommend- ed to the Board that the challenge to the ballot of Donna Palmer be sustained. The Union withdrew its challenge to the ballot of Joe Vona III. Therefore, the Acting Re- gional Director recommended to the Board that Vona's ballot be opened and counted after the final disposition of the eligibility status of Nichols and Sturges. The Acting Regional Director consolidated the representation CAFE LA SALLE case proceeding with the hearing which was scheduled to be held in Case 20-CA-19327. No party filed exceptions to the Acting Regional Di- rector's report. Accordingly, the Board in Washington, D.C., adopted the Acting Regional Director's recom- mendation in the Board's Order dated 19 February 1985. FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION Respondent Cafe La Salle is a limited partnership which operates a restaurant in Sacramento, Claifornia. During the 12 months preceding the issuance of the Gen- eral Counsel's amended consolidated complaint, Re- spondent Cafe La Salle had gross revenues in excess of $500,000, and it purchased and received products, goods, and materials valued in excess of $5000 from outside the State of California. It was admitted at the hearing that Respondent Cafe La Salle has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent Old Sacramento is a limited partnership which owns and operates a commercial building located at 1028 Second Street in Sacramento, California. During the 12 months preceding the issuance of the General Counsel's amended consolidated complaint , Respondent Old Sacramento had gross revenues in excess of $100,000 of which in excess of $25,000 was derived from Re- spondent Cafe La Salle. I find that Respondent Old Sac- ramento has been at all times material an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Mistletoe Operating Co., 122 NLRB 1534 (1959). Respondent PFMS has been at all times material a sole proprietorship which provides investment counseling services and has an office and place of business in Sacra- mento, California. Those facts were admitted in the pleadings . The General Counsel did not allege that Re- spondent PFMS was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION It was admitted at the hearing that the Charging Party has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE WITNESSES AND CREDIBILITY RESOLUTIONS Eleven persons were called to testify as witnesses at the hearing in this proceeding . I will identify them in al- phabetical order by their last names. Robert Baker is an employee of Respondent Cafe La Salle, and he also is an alleged discriminatee in this proceeding. Michael James Cardozo is the maitre d' and night manager of Respond- ent Cafe La Salle. Joey Dane Cline is a former employee of Respondent Cafe La Salle. Ronald Curtis is the man- aging general partner of Respondent Cafe La Salle and Respondent Old Sacramento . He also is the sole proprie- tor of Respondent PFMS. Karl Holzmann is a waiter at Respondent Cafe La Salle. Nedra Hughes is a waitress at Respondent Cafe La Salle. JoAnne Leppien is the con- 383 troller of Respondent Cafe La Salle, the building manag- er for Respondent Old Sacramento, and the bookeeper and office manager of Respondent PFMS . Joseph A. McLaughlin is a representative of the Hotel and Restau- rant Employees and Bartenders International Union, AFL-CIO. Donna B. Palmer is an alleged discriminatee in this proceeding. Paul Edward Andrew Sturges is the manager of Respondent Cafe La Salle . Daniel Szyd- lowski is a waiter at Respondent Cafe La Salle. I have considered the demeanor of the witnesses as they related their testimony on the stand in making the findings of fact in this decision. I also have given consid- eration to the occupations of the witnesses, the positions which they have held , and their identification with one of the parties in this proceeding . I also have considered the probability of the testimony of each witness in light of other testimony, undisputed facts, and documentary evidence. In making the findings of fact , I have been guided by the holding that it is common that a trier of fact will believe some of the testimony of a witness, but not necessarily believe all of it. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950). I have given consideration to the arguments made by the General Counsel and the arguments made by the Re- spondent with regard to the testimony given by Baker. For example, at footnote 8 on pages 12 and 13 of the General Counsel's posthearing brief, the General Counsel urged: "Baker, in his testimony, had a difficult time sort- ing out which statements were made at each of the vari- ous conversations he had with Leppien." Later in the same footnote, the Genaral Counsel further urged: In spite of Baker's confusion, he did not deviate from his statement that Leppien told him his Union involvement had fueled his discharge. While Baker did easily become confused and exhibited somewhat limited comprehension, nothing about his testimony suggested that he was not telling the truth to the best of his ability. At page 27 of the Respondents' posthearing brief, the attorney for the Respondents urged: As to Baker's own testimony at the hearing, there can be very little credit to it. The plethora of incon- sistent statements and admissions on cross-examina- tion showed that he had tried to memorize his testi- mony on direct examination but he wilted when he did not get questions for which he had practiced the answers. After observing Baker relate his versions of the events on the witness stand, I find on the basis of his demeanor while testifying that his versions should not be credited. I found his preception of the events, his memory of the events, and his ability to relate those past events on the stand were such that I should not accept his accounts as being credible, accurate, and reliable . Transcript 195-198 illustrate the confusion regarding the events he was testi- fying about at that point and a lack of an accurate recol- lection. He did not testify convincingly about other 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD events. I find that I cannot rely on his accounts of the events in making the findings of fact in this decision. In evaluating the credibility and reliability of the testi- mony given by Leppien, I have given consideration to the fact that she acknowledged that there was an error in her prehearing affidavit. In her earlier statement, Lep- pien had stated that Baker had not worked after the day he had reported to her the loss of the building keys. At the hearing, Leppien corrected her version of that event, and she acknowledged that she had made an error in her earlier affidavit. I find that the foregoing does not war- rant disbelieving Leppien's testimony in this proceeding. Leppien appeared to be a knowledgeable person, and she testified in a convincing manner. Therefore, I have based many of the findings of fact on credited portions of her account. McLaughlin's testimony regarding his conversations with Baker and with Attorney Parker on 2 October 1984 were not convincing. At first, McLaughlin said that Baker said that Leppien said that Baker was terminated because of his union activity and his having access to records that could be used for the Union. However, McLaughlin acknowledged that he could not quote the words which Baker had told him were used by Leppien. He also acknowledged that it was his characterization that Leppien had told Baker he was terminated because of his union activity, rather than the words Baker had at- tributed to Leppien. McLaughlin related on direct examination two conver- sations with Parker regarding Baker's termination, which conversations had taken place outside the restaurant on 2 October 1984 while McLaughlin was picketing. Howev- er, McLaughlin gave an entirely different version on cross-examination, which directly contradicted his earlier account. An attempt was made on redirect examination to rehabilitate his testimony, in part, at least concerning his version of his second conversation with Parker that day. I found that testimony to be unpersuasive, and I have not credited either version of his conversation with Parker. With regard to the allegations set forth in paragraph 12(b)(1) and (2) of the General Counsel' s amended con- solidated complaint, I have set forth the findings of fact and conclusions in section VII of the decision. Cline, Curtis, Hughes, and Szydlowski gave testimony regard- ing that event. Cline's account was longer and more de- tailed than the others, but Curtis and Szydlowski also re- membered specific things that were said during that con- versation. Hughes' testimony at the hearing was very brief and only covered five pages of the trascript. Her account did not cover a substantial number of things which the other participants were able to remember and to relate on the witness stand. Therefore, I have not relied on her brief account in making the findings of fact in section VII of the decision. Instead, I have relied on the credited portions of the testimony on Cline, Curtis, and Szydlowski. I find that Sturges knew more about what he actually did at work and what his actual authority was during the relevant time period than did others who testified at the hearing. I find his testimony regarding his own duties and authority to be more accurate and more reliable than the testimony of others, such as Cline, Palmer, and Szyd- lowski. IV. BACKGROUND As noted in the previous section, Curtis is the manag- ing general partner of Respondent Cafe La Salle and Re- spondent Old Sacramento. He also is the sole proprietor of Respondent PFMS. Curtis has organized or managed approximately 16 different entities. Originally, there were three general partners in Re- spondent Cafe La Salle. One of those general partners had died sometime prior to September 1984. Another general partner had moved his office from 1028 Second Street in Sacramento to San Francisco in June or July 1984. Thus, during September and October 1984, Curtis was the only general partner with offices at the location of Respondent Cafe La Salle. However, Curtis was not involved in the day-to-day operations of the restaurant, and Curtis did not exercise any direct-line supervision over the employees of Respondent Cafe La Salle. In- stead, Curtis received accounting reports from Leppien and other reports from the general manager of the res- taurant. Curtis had hired Axel Hochkoeppler as the gen- eral manager of the restaurant. Hochkoeppler served in that capacity until the middle of October 1984. At that time Curtis selected Florence Inouye as the temporary general manager of the restaurant to replace Hoch- koeppler. Curtis generally met with the general manager of the restaurant once a week. Curtis estimated that the general manager made 95 percent of the decisions re- garding the restaurant, and the general manager consult- ed with Curtis regarding other decisions. General Counsel's Exhibit 4 is a list of the names of all the partners and the percentage of the ownership of each partner in Respondent Cafe La Salle. There are 17 limit- ed partners in the restaurant. Curtis explained at the hearing the difference between a general partner as dis- tinguished from a limited partner. He stated: "The gener- al partner has operational responsibility as well a liability for a partnership, while a limited partner is limited in his operational responsibility as well as liability." General Counsel's Exhibit 3 is a copy of the partnership agree- ment pertaining to Respondent Cafe La Salle. Until about 30 days prior to the hearing in this pro- ceeding, Respondent Cafe La Salle also owned another restaurant which was known as Restaurant La Salle. That restaurant was located at 943 Howe Avenue, Sacra- mento. With regard to Respondent Cafe La Salle, Leppien was responsible for seeing that the bills were paid, that the accounting person did her job, and that the cashiers performed their job. During September and October 1984, Leppien was involved with the hiring and firing of cashiers who worked for Respondent Cafe La Salle. Leppien had approval of cashiers who were hired by the head cashier. She described the duties of the cashiers as being: to see that the waiters filled out the checks prop- erly, to collect the customers' money, to authorize charge sales, and to balance the cash on a daily basis. The procedure used at the restaurant was for the waiter CAFE LA SALLE to collect the money from the customers and to take that money and the check to the cashiers. Leppien had a private office located on the third floor of the building located at 1028 Second Street, Sacramen- to. Leppien reported to Curtis. Respondent Cafe La Salle has paid rent for its use of the second floor at 1028 Second Street to Respondent Old Sacramento. At the time of the hearing, the employees of Respond- ent Cafe La Salle performed the maintenance work at the restaurant. In the past, there had been individuals who contracted to perform that work. Respondent Old Sacramento was formed as a limited partnership to develop a three building complex located at 1028 Second Street in Sacramento by rehabilitating the buildings, renting space in the buildings, and manag- ing the buildings. While 1028 Second Street is usually re- ferred to as a building, it is actually a three-building complex comprising the Bank Exchange Building, the Union Hotel, and the Union Hotel Annex. On the ground floor are located a number of commercial busi- nesses. On the second floor is located the restaurant which is known as Cafe La Salle. On the third floor are located offices for Curtis, Leppien, Cardozo, the chef of Respondent Cafe La Salle, the daytime manager of Re- spondent Cafe La Salle, and various other offices of enti- ties which Curtis has organized or managed, and an un- related company. There are three general partners in Respondent Old Sacramento, and there are 30 limited partners. General Counsel's Exhibit 5 contains a list of the names of the partners in Respondent Old Sacramento and their per- centage of ownership in that partnership. General Coun- sel's Exhibit 6 is a copy of the limited partnership agree- ment relating to Respondent Old Sacramento. With regard to Respondent Old Sacramento, Leppien dealt with the tenants in the building, saw to it that the tenants were billed and that those bills were paid, took care of the financial matters of Respondent Old Sacra- mento, saw to it that the building was maintained proper- ly and repair work done, and contracted for those latter purposes. Curtis testified: To start with, we integrated earlier Old Sacramento Investment Limited as a limited partnership that owns the building, and it contracts for services for repair, for property management, for leasing as well as maintenance . . . . And so the contracts are nor- mally to maintain, clean and keep up to good repair this building. While Respondent Old Sacramento has contracted for services, Curtis said that Respondent Old Sacramento has never had any employees since its inception. With regard to Respondent PFMS, Leppien super- vised the secretarial staff and took care of financial mat- ters for that entity. In that position, she also reported to Curtis Leppien received her paycheck from Respondent PFMS. She said that Respondent PFMS billed Respond- ent Cafe La Salle and Respondent Old Sacramento for the work which Leppien performed for those entities. A computer is located on the third floor of 1028 Second Street. That computer is operated 90 percent of 385 the time by Charles Armstrong, who is employed by Re- spondent PFMS. Respondent PFMS has utilized the computer through an affiliated corporation which is known as Personal Financial Management, Inc. That is a separate entity from Respondent PFMS. Ed Astone also uses the computer on the third floor of the building. Astone is both self-employed and also is employed by California Historic Properties, of which Curtis is a principal. Respondent Cafe La Salle and Re- spondent Old Sacramento do not use that computer. Property Management Company is another sole pro- pietorship of Curtis. It is a separate entity from Respond- ent PFMS. That entity is headed by Leppien. It was formed to contract for janitorial work, collect rents, and make sure that tenants' needs are cared for. Respondents' Exhibit 4 lists the partnerships which were organized by Personal Financial Management, Inc. That corporation is an investment advisory company registered with the SEC.' Joey Cline made the initial contact with the Union with regard to the possibility of organizing the employ- ees of Respondent Cafe La Salle. That contact took place in mid-September 1984. About 3 days later, Cline arranged for Union Representative McLaughlin to meet with about 10 employees of the restaurant. About a week after Cline had contacted the Union, McLaughlin be- lieved that the Union had a majority of the restaurant employees signed to authorization cards. McLaughlin prepared a letter which requested recognition of the Union by Respondent Cafe La Salle, and he prepared a letter listing the names of the employees. McLaughlin went to the restaurant to see Curtis, but Curtis was not there so he spoke with General Manager Axel Hoch- koeppler and Maitre d' and Night Manager Michael Car- dozo. Those three persons conversed for about 15 min- utes in an office on the third floor. McLaughlin request- ed that Hochkoeppler read the materials which McLaughlin had brought with him. McLaughlin asked Hochkoeppler if the employees named on the list were actually employees of the restaurant. Hochkoeppler had questions about some of the names on the list. One per- son's name was misspelled, and one of the waitresses was leaving the restaurant in a day or two. Hochkoeppler told McLaughlin that Hochkoeppler would have to check with Curtis. McLaughlin returned to the offices of the restaurant on 28 September 1984. He was accompanied on that visit by Cline. They spoke with JoAnne Leppien. McLaugh- lin asked where Curtis was, and Leppien told him that Curtis was out of town. Leppien said that she knew why then were there, and that "we are not going to sign any- thing." About 5 minutes later, the Union began picketing the restaurant with about a dozen pickets. Thereafter, the picketing continued for 4 or 5 days. Attorney Archie G. Parker, who represented all three Respondents in this proceeding, contacted McLaughlin regarding the picketing at the restaurant. Parker and ' The foregoing paragraphs in this section are based on the credited testimony of Curtis and Leppien as well as documentary evidence. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McLaughlin had several conversations regarding the picketing. As a result, the Union agreed to limit the number of pickets to three persons at each of the two doors to the restaurant, and the Union agreed to try to tone down the pickets to avoid being noisy. 2 Curtis issued a memo dated 1 October 1984 to employ- ees of Respondent Cafe La Salle. The memo was stapled to employees' timecards. General Counsel's Exhibit 2 is a copy of that memo. The memo stated: Long before there was a demand for Union rep- resentation, many of you had been asked by me, personally, to reduce your grievances to writing, list your suggested remedies and then make an ap- pointment to discuss them with me. To my knowl- edge, nobody has ever been denied an appointment, nor have they been penalized for talking to me. Now that we are set at this point, I would like to suggest that the best way to a speedy resolution would be to have the Union petition for a vote at the earliest possible date. I have already requested that the Union petition for a vote but it is up to you to insist on it. The sooner we can have a vote and determine what the wishes of the majority at Cafe La Salle are, the sooner we can move to the next stage of action. I'm sure that all of you would like to see business return to normal as soon as possible. Please feel free to come and talk to me or to send a spokesperson to talk to me if you would like to discuss this subject. The foregoing is based on the credited testimony of Cline and documentary evidence. Sometime after the picketing of the restaurant had started and before the election, Cardozo had a conversa- tion with employee Robin Suzuki . Suzuki initiated the conversation with Cardozo that evening. She told Car- dozo that she found the atmosphere at the restaurant to be very difficult for her to continue working there, that her parents had money, that she had almost finished with school, that she did not need the pain of putting up with the pressure, that she had mentioned quitting on more than one occasion, that she had been upset that night, that she had mentioned before that there had been prob- lems, that she was not a sympathizer of the Union, and that she was particularly distressed and had had an alter- cation of sorts with Cline on the cook line. Someone else told Cardozo that Cline wanted to see him in the kitchen. Cardozo went into the kitchen and asked Cline what the problem was. Cline told Cardozo that Suzuki "had called him some four-letter word and he demanded an apology." Cardozo then left to talk with Suzuki. He returned and spoke with Cline. Cardozo said that Suzuki did not apologize to Cline, so Cardozo "tried to apologize for her." Nothing was resolved, but Cardozo felt that the matter "pretty much dropped at this point."3 2 The foregoing is based on the credited testimony of McLaughlin 8 The foregoing paragraphs are based on the credited testimony of Cardozo. The three Respondents in this proceeding have not had any contracts with any labor organization.' V. THE INDEPENDENT 8 (A) (1) ALLEGATIONS PERTAINING TO JOANNE LEPPIEN A. Allegations The General Counsel alleges the following in para- graph 10 of the amended consolidated complaint: 10. On or about September 27, 1984, Respond- ents, acting through JoAnne Leppien, at the restau- rant- (a) Interrogated employees about their union ac- tivities. (b) Informed employees that it would be futile for them to obtain union representation. (c) On or about 10/26/84, Respondents granted benefits in the form of entertainment to employees in order to dissuade them from seeking union repre- sentation. B. Facts Leppien denied that she asked anyone about their union activities, and she could not recall ever telling any employee prior to the election that it would be futile for them to obtain union representation. As indicated in sec- tion 3 of this decision, I have not credited Baker's testi- mony to the contrary. The management of Respondent Cafe La Salle held a meeting on Friday, 26 October 1984, for unit employees. The meeting took place at the restaurant . Leppien gave a speech at the meeting. Cline tape-recorded what was said during the meeting . Cline placed the tape recorder in plane view on the table in front of him. He recorded the entire meeting, and he later gave the tape cassette to McLaughlin.5 After Leppien had completed her prepared speech, she announced to the employees that Respondent Cafe La Salle had decided to participate in a promotional pro- gram prepared by Entertainment 85. She told the em- ployees that the waiters would receive complimentary coupon booklets. One of the buspersons asked her if the buspersons would receive the complimentary coupons. Leppien replied that there probably would not be enough coupons to give them to the buspersons . Leppien passed around a sample coupon booklet, but she did not distribute the coupon booklets to the employees at the meeting. Leppien explained at the hearing that Respondent Cafe La Salle had been a participant previously in promotion- al coupon programs like Capital Express . According to Szydlowski, the earlier promotional programs had been available to customers of the restaurant, but they had not been available to waiters. According to Cline, the wait- ers at the restaurant had not been happy with previous programs such as Capital Express because the average The foregoing is based on the credited testimony of Curtis The foregoing is based on the credited testimony of Cline. The tape recording was not offered into evidence at the hearing in this proceeding. CAFE LA SALLE ticket per table was lower when such coupons had been utilized by customers and, as a result, the waiters' tips also were lower. Leppien said at the hearing that one of the features of the Entertainment 85 program was to provide compli- mentary copies of the coupon booklets to the waiter staff and to the managers. She said at the hearing that Enter- tainment 85 had asked her to provide them with a list of the names of up to 20 persons who would receive such complimentary coupon books from Entertainment 85. Respondents' Exhibit 3 is a copy of the form filled out by Leppien on 1 November 1984 to request those com- plimentary coupon books. The coupon books were not distributed to the employees until after the election. Szydlowski described the coupon booklets as containing discount coupons in the catagories of: (1) fine dining; (2) hotels; (3) fast food establishments; (4) sports events; and (5) amusement parks.6 C. Conclusions I conclude that there is no credible testimony to sup- port the allegations of paragraphs 10(a) and (b) of the General Counsel's amended consolidated complaint. Ac- cordingly, I recommend that those allegations be dis- missed. I conclude that the evidence supports the allegations set forth in paragraph 10(c) of the General Counsel's amended consolidated complaint. I found significant the timing of the grant of new benefits to waiters and wait- resses who comprised part of the unit. The new benefits were announced to the employees on 26 October 1984 just a few days prior to the election on 31 October 1984. Unlike past promotions which benefited customers and lessened the tips of waiters, the waiters and the waitress- es in this instance would receive the discount coupons and thus benefit directly from them. I recognize the fact that the coupon booklets were not delivered until after the election had been held, but, nevertheless, the employ- ees were informed of their new benefit just a few days before the election. The Board held in its decision in Waco, Inc., 273 NLRB 746, 748 (1984): Union animus is an element in 8(a)(3) cases, but gen- erally is not an element in 8(a)(1) cases. "It is too well settled to brook dispute that the test of inter- ference, restraint, and coercion under Section 8(a)(1) of the Act does not depend on an employer's motive nor on the successful effect of the coercion. Rather, the illegality of an employer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employees rights under the Act." t a Ac- cordingly, the absence of union animus on the part of the Respondent, assuming this to be shown by the record, would be irrelevant to the issue of 6 The foregoing paragraphs are based on portions of the credited testi- mony of Cline, Leppien, and Szydlowski, as well as R. Exh. 3 The foregoing paragraphs are based on the credited testimony of Cardozo. I found that Cardozo had a better recollection of his conversa- tion than did Holzmann and Szydlowski Accordingly, I have based the findings of fact on Cardozo's account 387 whether the Respondent violated Section 8(a)(1), and it was error for the judge to rely on this factor. 12 Daniel Construction Co., [264 NLRB 569 (1982)]. After considering the foregoing, I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by granting benefits to employees to dissuade employees from seek- ing union representation. Arrow Elastic Corp., 230 NLRB 110 (1977). VI. THE INDEPENDENT 8(A)(1) ALLEGATIONS PERTAINING TO MICHAEL CARDOZO A. Allegations The General Counsel alleges in paragraph 11 of the amended consolidated complaint: 11. On or about September 28, 1984, Respond- ents, acting through Michael Cardozo, at the restau- rant: (a) Interrogated employees about their union ac- tivities and sentiments. (b) Solicited grievances from employees. (c) Granted benefits to employees in order to dis- suade them from seeking union representation. B. Facts During the time that the picketing was taking place at the restaurant, Cardozo spoke with employees Karl Holzmann, Nedra Hughes, Daniel Szydlowski, and David Watson. Cardozo estimated that his conversation will them took place about 3 or 4 days after the picket- ing had started. Cardozo acknowledged at the hearing that he had asked the employees why they wanted to join the Union. He described his conversation with them as being "in passing." He explained that he meant by that terminolo- gy, "We were not in a formal session in the office." Cardozo also acknowledged at the hearing that he felt it was an extreme length for the employees to go to in joining the Union. Cardozo explained that he felt he had been close to the staff, that previously he had been a waiter with a number of the night-shift waiters, and that he preferred that the waiters approach him. Cardozo further acknowledged that he told the em- ployees that they could come to him with their prob- lems. He acknowledged that he asked them what their grievances were. Cardozo stated at the hearing that the employees replied with some of the things that they would like to see changed. A couple of weeks later, Cardozo made similar re- marks to still another employee. He did not recall at the hearing who the employee was, but he said possibly his conversation was with the waiter on the night shift. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cardozo said at the hearing that he had been told by higher management not to ask anybody what their union sympathies were, and he had been told to be careful.? C. Conclusions Under the Board's Rossmore House decision,8 I con- clude that the evidence does not support the allegations in paragraph 11(a) of the General Counsel's amended consolidated complaint. Among other things, the Board held in Rossmore House at 1178: Nor do we find any violation regarding the second incident when the Respondent's owner asked Harvey why he wanted a union and whether the Union charged a fee.21 21 Unlike our dissenting colleague, we find Tsay's parting state- ment to Harvey that he "would talk to the manager about it" did not alter the noncoercive context of the conversation and was not, under the circumstances, an implied threat or promise of benefit. The question asked by the respondent's owner of the employee in the Rossmore House case is similar to the one Cardozo asked the employees in this case, that is, why they wanted to join the Union. Like employee Harvey in the Rossmore House case, the employees in this case had openly declared their union support. The employees had engaged in the Union's picketing of the restaurant. The Board also held in Rossmore House at footnote 20 on page 1178: Some factors which may be considered in analyzing alleged interrogations are: (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. See Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). These and other relevant factors are not to be mechanically applied in each case. Rather, they represent some areas of inquiry that may be considered in applying the Blue Flash test of whether under all the circumstances the in- terrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act. Considering the factors mentioned above in the Ross- more House decision and the similarity of the questioning in the second incident of the Rosmore House decision de- scribed above, I conclude that Cardozo's questioning of the employees under the circumstances described in the findings of fact did not restrain, coerce, or interfere with their rights guaranteed in the Act. Accordingly, I recom- mend that the allegations in paragraph 11(a) of the Gen- eral Counsel's amended consolidated complaint be dis- missed. ' The foregoing paragraphs are based on the credited testimony of Cardozo. I found that Cardozo had a better recollection of his conversa- tion than did Holzmann and Szydlowski Accordingly, I have based the findings of fact on Cardozo's account 8 269 NLRB 1176 (1984) Applying the Board's holding in Ace Hardware Corp.,' I conclude that the evidence does not support the allega- tions in paragraph 11(b) of the General Counsel's amend- ed consolidated complaint. In the Ace Hardware decision, the Board held (at 1174): The Board has long held that the essence of the violation in solicitation of grievances is not the so- licitation itself but the inference that the employer will redress problems.3 Crucial to a conclusion of implied redress is a finding that the employer inter- fered with, restrained, and/or coerced employees in their union activities, which is manifested by such factors as change in past practice, announcement of new policy, and timing and context of such change.4 2 Giovanni's, 259 NLRB 233 (1981); see Uarco, Inc, 216 NLRB 1(1974), 4 Granite City Journal, 262 NLRB 1153 (1982); Burger King, 258 NLRB 1293 (1981), NLRB v. Berger Transfer & Storage, 678 F.2d 679 (7th Cir. 1982). As shown in General Counsel's Exhibit 2, Respondent Cafe La Salle had had a past practice of soliciting griev- ances from its employees, asking them for their suggest- ed remedies, and discussing those grievances with the employees. Thus, Cardozo 's statement to the employees did not change a past practice or announce a new com- pany policy. Cardozo did not promise to remedy any of the employees' problems at that time, and I find that the evidence is insufficient to justify an inference that he promised to redress their grievances. University of Rich- mond, 274 NLRB 1204 (1985). See also the Board's deci- sions in Mariposa Press, 273 NLRB 528 (1984); and Butler Shoes New York, 263 NLRB 1031 (1982). In view of the foregoing, I recommend that the allegations in paragraph 11(b) of the General Counsel's amended consolidated complaint be dismissed. I conclude that there is no credible evidence to sup- port the allegations of paragraph 11(c) of the General Counsel's amended consolidated complaint and, there- fore, I recommend that that allegation also be dismissed. VII. THE INDEPENDENT 8(A)( 1) ALLEGATIONS PERTAINING TO RONALD CURTIS A. Allegations The General Counsel alleges in paragraph 12 of the amended consolidated complaint: 12. Respondents, acting through Ronald Curtis: (a) On or about September 29, 1984, at the res- taurant, informed employees that they had been ter- minated because of their union activity. (b) On an unknown date in October, 1984, at the restaurant: (1) Informed employees that it would be futile for them to obtain union representation. 9 271 NLRB 1174 (1984) CAFE LA SALLE (2) Threatened to close the Cafe La Salle restau- rant if employees chose to be represented by the Union. B. Facts Curtis denied telling Baker or any employee at any time in 1984 that the employee had been terminated be- cause of union activities. As described in section 3 of this decision, I have not credited Baker's testimony to the contrary. Cline, Hughes, and Szydlowski met with Curtis in his office during the period of time that the Union was pick- eting the restaurant . Cline recalled that it was after he had received a copy of General Counsel's Exhibit 2, which is dated 1 October 1984.10 Cline told Union Representative McLaughlin that Cline and a couple of other employees would like to meet with Curtis if Curtis was willing to meet with them. Cline told McLaughlin that he and the other em- ployees would like to discuss some things with Curtis without either McLaughlin or Attorney Parker being present. Cline acknowledged at the hearing that he had described the meeting as being "a confidential meeting" in his prehearing affidavit. (See R. Exh. 2, p. 2.) At the hearing, Cline explained what he had meant by that ter- minology in his statement. Cline said that it meant that there would be no legal representatives present at the meeting . At the hearing, Cline did not recall that it was stated at the meeting that the meeting was to be "off-the- record." Cline said there was no agreement made that the matters discussed at the meeting would not be dis- cussed with other people in the future.'' Szydlowski stated that there was no promise by the employees to keep confidential the matters which were discussed at the meeting. To the contrary, he said that information from the discussion at the meeting was to be conveyed by the employees to other employees to deter- mine whether the picketing of the restaurant should cease.' 2 Curtis received a message from his secretary, Cheryl Uber, that some employees desired to meet with him. Curtis asked her who they were, and she replied that she only knew that Cline wanted to meet, but there would be others. Curtis then consulted with Attorney Parker about the advisability of having such a meeting with the employees. Attorney Parker contacted McLaughlin to ask if he approved of an "off-the-record" meeting with the employees. Parker then told Curtis that McLaughlin had approved. Curtis told Uber to contact Cline for a meeting at 3 p.m. that day. 13 Cline estimated that the meeting with Curtis lasted for 1-1/2 to 2 hours. A number of subjects were discussed during that length of time. The account of each witness differed in some respects from the accounts of the other witnesses. As indicated in section 3 of this decision, I have relied on portions of the accounts of Cline, Curtis, and Szydlowski, rather than Hughes' brief testimony. As 10 The foregoing is based on the credited testimony of Cline 11 The foregoing is based on the credited testimony of Cline 12 The foregoing is based on the credited testimony of Szydlowski 13 The foregoing is based on the testimony of Curtis 389 indicated above, the General Counsel has made only two allegations in her amended consolidated complaint re- garding what was said at this meeting. Therefore, I will focus on those two allegations. Curtis told the employees that he could not do any bargaining with them, that he could not make any prom- ises, and that he could not say everything he would like to say because of legal restrictions.14 In summary, the subjects discussed at the meeting in- cluded: Why the employees had sought to organize a union at the restaurant; the problems they had experi- enced with General Manager Hochkoeppler in present- ing grievances to him in the past; the employees' desire to have a formal and unbiased grievance procedure at the restaurant; the food that the restaurant served to its employees; the limited availability of the Employer's medical plan based on the number of hours worked by an employee; the competitive scheduling policy intro- duced by Hochkoeppler which rewarded waiters and waitresses with additional working shifts for selling cus- tomers certain "incentive items"; the terminations of Robert Baker and Monica Cisneros; the employees' desire for a seniority system which Curtis told them was ridiculous and should not be instituted; Cline's belief that the restaurant would attract additional customers from the state capitol if the restaurant had a union contract; Curtis' belief that to the Union the employees were just another name and number on a monthly dues payment; Curtis' belief that the restaurant was like a family busi- ness; and Curtis' belief that employees already had some things like advance pay which they could not get from the Union.15 Szydlowski recalled that he said something to the effect that it was not all bad, and at least their checks were on time. Szydlowski testified that he was "making a little joke." Szydlowski said that Curtis replied with "something like so far," and that Curtis said he had to pull money out of his personal bank account in order to meet the payroll.16 Curtis denied the he told the employees that he might have to close the restaurant because of more incurred costs. Curtis testified that he told the employees: " I said that if ever the restaurant were not to be a profitable, at least a break even operation, that it would likely be sold." Curtis said that he did not make the foregoing statement in connection with union representation at the restaurant.' 7 Curtis told the employees that a petition for an elec- tion had been prepared, and that his attorney was going to submit it to get an election. The employees asked Curtis if he would enter into bargaining at that time. Curtis said no, not at that time, that he wanted a vote by the employees, and that if a majority of the employees voted for the Union, he would enter into negotiations. 18 14 The foregoing is based on the credited testimony of Szydlowski. 15 The foregoing findings are based on a composite of the credited tes- timony of Cline , Curtis, and Szydlowski. iB The foregoing is based on the credited testimony of Szydlowski 17 The foregoing is based on the credited testimony of Curtis, rather than Cline's assertion that Curtis told them "any more incurred costs could close the restaurant " 18 The foregoing is based on the credited testimony of Curtis. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cline recalled at the hearing that Curtis "said that we would negotiate if we won the election."19 Curtis asked the employees to end the picketing. He said that the picketing was ridiculous, and that it was only hurting the employees. Curtis said that they should decide to go to an election as soon as possible . The em- ployees replied that they would discuss it with the other employees, and if that was what everybody wanted, they would go for an election and drop the picketing.20 After the meeting with Curtis, Cline met with other employees of the restaurant. As a result, they decided to cease picketing the restaurant at that time.21 C. Conclusions I conclude that there is no credible evidence to sup- port the allegations in paragraph 12(a) of the General Counsel's amended consolidated complaint. Accordingly, I recommend that the allegation in paragraph 12(a) be dismissed. With regard to the meeting of the three employees with Curtis, I conclude that there was no agreement be- tween the employees and Curtis to not disclose to others what was said during the meeting. As Szydlowski point- ed out, the employees were expected to convey what was said at the meeting to the other employees to deter- mine whether the picketing should cease. Curtis and McLaughlin apparently had an understanding that the meeting would be "off-the-record," but that was not the understanding of the employees . In a different context, the Board found an "off-the-record" conversation be- tween an employer's labor relations manager and a union representative to constitute notice to the union of con- templated changes by the employer even though the labor relations manager had told the union representative that their conversation was "off-the-record." Globe- Union, Inc., 222 NLRB 1081 (1976). I conclude that there is no basis in this case for refusing to consider the evidence disclosed at the hearing regarding the meeting in question. With regard to the allegation in paragraph 12(b)(1), I conclude that the credited evidence does not support that allegation. I conclude that Curtis did not inform em- ployees, either expressly or impliedly, that it would be futile for them to obtain union representation. Instead, Curtis told the employees that he would enter into nego- tiations with the Union if a majority of the employees voted for the Union. Thus, Curtis' comments regarding some of the employees' desires, such as for a seniority system and a more liberal medical plan for example, have to be considered in the context of his affirmative state- ment that he would negotiate with the Union if the Union won an election. Accordingly, I recommend that the allegation in paragraph 12(b)(1) be dismissed. With regard to the allegation in paragraph 12(b)(2), I conclude that the credited evidence does not support that allegation. Curtis' statement regarding what would likely result in the restaurant being sold was linked to the profitability of the restaurant, rather than the selection of 19 The foregoing is based on the credited testimony of Cline 20 The foregoing is based on the credited testimony of Cline. 21 The foregoing is based on the credited testimony of Cline a union to represent the employees . In those circum- stances, I conclude that Curtis did not make a threat to close the restaurant if the employees chose to be repre- sented by the Union. Accordingly, I recommend that the allegation in paragraph 12(b)(2) be dismissed. VIII. THE 8 (A) (1) AND (3) ALLEGATIONS PERTAINING TO ROBERT BAKER A. Allegations The General Counsel alleges in paragraph 15: 15. (a) On or about September 28, 1984, Re- spondents discharged Old Sacramento employee Robert Payne Baker. (b) Respondents engaged in the conduct de- scribed above in subparagraph 15(a) because the employee named therein joined , supported, or assist- ed the Union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. B. Facts Baker has continued to be an employee of Respondent Cafe La Salle at all times material. His employment as a dishwasher, busperson, and later on a cook by Respond- ent Cafe La Salle is not the subject of the General Coun- sel's allegation regarding Baker . Instead, the General Counsel's allegation pertains to the termination of janito- rial work by Baker. As noted above, the General Coun- sel alleges that Baker also was an employee of Respond- ent Old Sacramento, and the General Counsel alleges that Baker was discharged discriminatorily from his jani- torial job. The General Counsel also alleges that all three Respondents were joint employers. The Respondents urged that Baker was an independent contractor, rather than an employee, and that Baker was an independent contractor of an entity not named in the General Coun- sel's amended consolidated complaint. Leppien is employed by Respondent PFMS, which has billed Respondent Cafe La Salle and Respondent Old Sacramento for the services which she has performed for those entities. One of her services for Respondent Old Sacramento was to see to it that the building complex at 1028 Second Street was maintained . In that connection, she has contracted for the performance of janitorial work. 22 I find that Leppien was acting as a agent of Re- spondent Old Sacramento in contracting for the janitorial work at that building. Curtis indicated in his testimony that another entity known as Property Management Company was responsi- ble for performing the janitorial work, collecting rents, and seeing to it that the tenants' needs were met at 1028 Second Street. Curtis said he was the sole proprietor of Property Management Company, which was a separate entity from his sole proprietorship, Respondent PFMS. 22 The foregoing is based on the credited testimony of Leppien CAFE LA SALLE Curtis said that Leppien headed Property Management Company. 2 a Leppien did not mention Property Management Com- pany in her testimony at the hearing. As indicated above, based on Leppien's testimony, I find that Leppien was acting as an agent of Respondent Old Sacramento in contracting for janitorial services to clean and maintain the 1028 Second Street building complex. Curtis said it was a commonly accepted practice in the building industry for owners of buildings to have inde- pendent contractors perform janitorial services.24 In early 1984, Baker expressed an interest in doing janitorial work at the building. Leppien told him that she would talk with him in the event that she needed some- one for that job. Sometime later in 1984, Leppien told Baker that Paul Getz was going to quit doing the janito- rial work. Leppien told Baker that he would have an op- portunity to be trained in janitorial work by someone like Getz who really knew the job. Leppien also told Baker on that occasion that if he worked out, then Baker could perform the janitorial work. Leppien told Baker that she hired people to work in- dependently as contractors to perform janitorial services in the building; that if he wanted to do that job, he would be paid a flat rate; that he would be working under a contract; that he would be responsible for his own tax situation; that due to the intense need for sup- plies, they would take care of those; that Baker would be responsible to accomplish the cleaning of the building as described on a list; and that Baker would do the cleaning on his own time so long as the cleaning was not done during business hours. Leppien previously had given to Getz a cleaning list of the things to be done. It was her understanding that Getz, in turn, gave that list to Baker. Getz worked with Baker for a few days to show him what needed to be done. Thereafter, Baker was left on his own to perform the janitorial services. Leppien said that Baker's working hours were left up to him just so long as he did not do janitorial work during business hours. Leppien also said that Baker could have hired somebody to perform some of the janitorial work for him. She said that he could have contracted with someone if he did not want to per- form all the work. Leppien gave Baker the telephone number of a plumber for Baker to contact if there was a serious plumbing problem. Baker was not the only person who performed janito- rial work at the building. Up to three persons were per- forming that work. Leppien explained that the building had to be maintained 7 days a week, so one person would perform maintenance work for 4 or 5 days a week, and another person would perform maintenance work 2 or 3 days a week. She explained that two persons worked on Mondays when there was more cleaning work than usual to be done. On one occasion, Leppien asked Baker about his opin- ion of William Kietle, who sometimes worked perform- ing janitorial services 1 day a week with Baker. At the hearing, Leppien explained that Kietle had cancer and 391 had been very ill. She said he had undergone chemother- apy treatments. Leppien asked Baker on that occasion if Baker had observed Kietle's work when Baker had worked with Kietle. She asked if Kietle's health was good enough for Kietle to continue doing the janitorial work. Late in the summer of 1984, Curtis and Leppien began discussing the job performance of Baker. Curtis told Leppien of things he found which were not satisfactory. Leppien told Curtis that she would discuss those things with Baker. She also told Curtis that Baker would do his work better and that he would do the things he had for- gotten to do. Leppien spoke with Baker on many occa- sions, and she told him that people were not happy with his performance of the maintenance work. Leppien fur- ther told Baker that she was going to have to get some- body else if Baker could not do the job better. One day Baker asked Leppien for keys to the building. Baker explained to her that he had lost his building keys a couple of days before, and that he had been using someone else's keys. Leppien told Baker that she did not know what she was going to do about it right then, but she was not going to issue Baker any more keys to the building. Leppien told Baker that he would have to come in during regular business hours when the building was open. Leppien also told Baker that he could contin- ue to do the work until she decided what to do about his having lost the building keys. She told Baker that she would have to talk with Curtis to see what Curtis thought she should do about it. For the next couple of days, Baker performed his jani- torial work when the building was open. During that time, he used Leppien's key to open the janitor's room. Leppien spoke with Curtis regarding Baker, and she informed Curtis that Baker had lost the keys to the build- ing. Leppien said that the loss of the keys was careless and "just the last straw." When Baker next came to get Leppien's key to the janitor's room, Leppien told him that they could not use his services anymore. Leppien told Baker that she had been defending Baker's work to Curtis for awhile, but his loss of the building keys was indefensible, and that was it. She said that there was no mention of union activities during their conversation. Sometime later Baker returned to Leppien's office and complained to her about how terrible it was that they had let him go. Leppien told Baker on that occasion that he had hurt her feelings by seeing her every day, but never mentioning to her that there were any problems going on. Leppien acknowledged at the hearing that she had seen Baker on the picket line. She stated that she had said hello to him on those occasions. The locks to the building were not changed after Baker lost the building keys. Leppien explained at the hearing that she had told the security force to be at the building more frequently and to observe things there. However, she said that nothing had happened, so Lep- pien felt that nobody who had the keys was going to use them. 23 The foregoing is based on the credited testimony of Curtis. 24 The foregoing is based on the credited testimony of Curtis 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions The Board held in Pierre's Vending Co., 274 NLRB 1219 (1985): The Board applies the common law right-of-con- trol test in determining whether individuals are em- ployees or independent contractors. In Twin City Freight, 221 NLRB 1219, 1220 (1975), the Board held: .. an employer-employee relationship exists when the employer reserves not only the right to control the result to be achieved, but also the means to be used in attaining the result. On the other hand, where the employer had reserved only the right to control the ends to be achieved, an independent contractor relationship exists. . . . In order to determine the nature of the relationship, the Board analyzes the facts pre- sented in the particular case, balances them, and arrives at a result. The Board further held in Pierre's Vending at 1220 footnote 7: "The fact that the Respondent did not with- hold state or Federal taxes, although not determinative, is nonetheless relevant to a determination of independent contractor status." The Board held in Air Transit, 271 NLRB 1108, 1110 (1984): Section 2(3) excludes independent contractors from coverage by the National Labor Relations Act. A determination of independent contractor status is governed by normal agency principles,' 3 most importantly the "right of control" test the Board set forth in News Syndicate Co., 164 NLRB 422, 423-424 (1967): Where the one for whom the services are per- formed retains the right to control the manner and means by which the result is to be accom- plished, the relationship is one of employment; while, on the other hand, where control is re- served only as to the result sought, the relation- ship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. 13 NLRB v. United Insurance Co., 390 U S 254 (1960). I conclude that Baker was an independent contractor of Respondent Old Sacramento in performing the janito- rial work at the building located at 1028 Second Street. I find that the credited evidence showed that Respondent Old Sacramento retained only the right to control the result of Baker's work , and that Respondent Old Sacra- mento did not retain the right to control the means used by Baker in obtaining that result. In this connection, Re- spondent Old Sacramento provided Baker with a list of the cleaning work to be done, but it was left up to Baker how he would perform that work. The only restriction with regard to his working hours was that the janitorial work was to be performed outside normal business hours at the building. Otherwise, the evidence showed that Baker had the right to perform the janitorial work when- ever he chose to do so. The evidence further showed that Baker was paid a flat rate for the janitorial work, and that Baker could subcontract any or all the janitorial work if he chose to do so. State and Federal taxes were not withheld from the money paid to Baker. I conclude that the fact that Respondent Old Sacramento furnished the cleaning supplies to Baker for the janitorial work does not outweigh the foregoing factors which together establish that Baker was an independent contractor rather than an employee of Respondent Old Sacramento. The General Counsel urged an alternative theory in her posthearing brief under the Board's holding in Senftner Volkswagen, 273 NLRB 1410 (1984). The Gener- al Counsel urged that even if Baker were found to be an independent contractor, the termination of his services as an independent contractor was so related to his status as an employee of Respondent Cafe La Salle that there was a violation of Section 8(a)(l) and (3) of the Act. I con- clude that the General Counsel's alternative theory of a violation does not have merit. I conclude that the cred- ited evidence set forth above in the findings of fact estab- lished that Baker's loss of the keys to the building was the factor which resulted in the termination of his janito- rial services. I conclude from Leppien's credited testimo- ny that Baker's loss of the building keys was "the last straw." While there had been some dissatisfaction ex- pressed earlier with regard to Baker's performance of his janitorial services, Leppien's testimony made it clear that it was the loss of the building keys which precipitated the termination of the verbal contract for Baker's janito- rial services. In these circumstances, I conclude that a prima facie case of a violation of Section 8(a)(1) and (3) of the Act has not been established, and that the Board's holding in Senftner Volkswagen is not applicable here. The General Counsel alleges that all three Respond- ents were joint employers of the employees of Respond- ent Cafe La Salle and Respondent Old Sacramento. (See pars. 9(a) and (b) of the General Counsel's amended con- solidated complaint.) To determine that issue I must con- sider whether the three Respondents each "possessed suf- ficient control over the work of the employees to qualify as a joint employer" with the other Respondents. Boise v. Greyhound Corp., 376 U.S. 473, 481 (1964). The United States Court of Appeals for the Third Cir- cuit has set forth the distinction between the "joint em- ployer" concept and the "single employer" concept where the criteria of Radio Union Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255 (1965), is to be applied. The Court pointed out that the Radio Union factors to be considered in a "single employer" concept are: (1) func- tional intergration of operations; (2) centralized control of labor relations; (3) common management ; and (4) common ownership. Those "single employer" concept criteria are different from the "joint employer" concept test. The Third Curcuit held in NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir. 1982): The "joint employer" and "single employer" concepts are distinct. Admittedly, there has been a blurring of these concepts at times by some courts CAFE LA SALLE and by the Board. However, as the Supreme Court itself has recognized, the two concepts approach the issue of "who is the employer" from two differ- ent viewpoints. As such, different standards are re- quired for each-that enunciated in Radio Union v. Broadcast Service of Mobile, Inc., supra, to apply in the "single employer" context and that set out in Borie v. Greyhound Corp., supra, to apply in the "joint employer" context. The Third Circuit concluded in the Browning-Ferris case at 1124: We hold therefore that in the context of this case, the Board chose the correct standard-the "joint employer" standard-to apply to its analysis of the facts of this case : where two or more employers exert significant control over the same employees- where from the evidence it can be shown that they share or co-determine those matters governing es- sential terms and condition of employment-they constitute "joint employers" within the meaning of the NLRA. Applying the "joint employer" criteria set forth above, I conclude that the evidence does not establish that the three Respondents are joint employers. Instead, I con- clude that the evidence revealed that Curtis was not in- volved in the day-to-day operations of Respondent Cafe La Salle The evidence showed that the general manager made 95 percent of the decisions with regard to the res- taurant, and he only consulted Curtis regarding the re- mainder. In addition, the evidence showed that Leppien was only involved with the cashiers at the restaurant, as distinguished from the other employees. Furthermore, the evidence revealed that Respondent Old Sacramento did not have any employees at any time. Respondent Old Sacramento had independent contractors to perform the janitorial work at the building which it owned, and Lep- pien worked as a consultant apparently under contract between Respondent Old Sacramento and Respondent PFMS which billed Respondent Old Sacramento for the services she performed. The employees of Respondent PFMS were bookkeeping and clerical employees, and the evidence did not show that Curtis exercised control over the work of those employees. Accordingly, I con- clude that the evidence does not establish that the three Respondents have shared or codetermined matters gov- erning the essential terms and conditions of employment of the employees in question. IX. THE 8(A)(1) AND (4) ALLEGATIONS PERTAINING TO DONNA PALMER A. Allegations The General Counsel alleges in paragraph 14 of the amended consolidated complaint: 14. (a) On or about October 30, 1984, Respond- ents refused to give Cafe La Salle employee Donna Palmer a letter of recommendation (b) Respondents engaged in the conduct de- scribed above in subparagraph 14(a) because the 393 employee named therein filed charges with the Na- tional Labor Relations Board. B. Facts At the outset of this section, it should be noted that Respondent Cafe La Salle's layoff or termination of Donna Palmer on 23 October 1984 was not alleged in the General Counsel's amended consolidated complaint to have been for discriminatory reasons. Thus, there was no issue raised in this proceeding whether her layoff or termination was an unfair labor practice in violation of the Act. Instead, the issue regarding Palmer, as framed by the pleadings, was whether Respondent Cafe La Salle refused about 30 October 1984 to give her a letter of rec- ommendation because she had filed charges with the Na- tional Labor Relations Board. Palmer was hired by Respondent Cafe La Salle in February 1984. She had several interviews with Alex Stiles, who was the day manager at the restaurant at that time, and Rick Uhlinger, who was the cook. She was hired as a waitress in the restaurant, but she also re- ceived training as a hostess, cashier, cocktail waitress, and busperson. Stiles told Palmer that being trained in different positions would make her job much more secure, that there was a great need for a person who was able to do several jobs, and that it would be much more advantageous to her to be trained in several different sit- uations. The balcony or terrace area at the restaurant was not open at the time that Palmer was hired. She worked as a "floater" throughout the restaurant during the early part of her employment. Palmer worked 5 days a week and close to 30 hours during the week. When Respondent Cafe La Salle opened the balcony toward the end of April 1984, Palmer was assigned to work there. She was told at the time that she would also work in other jobs at the restaurant when she was needed to fill in for someone who was absent. Palmer was aware that the balcony area of the restaurant would close sometime in the fall of the year. At the hearing, Palmer could not recall the specific conversations she had with Stiles, or the exact words that Stiles used, but she formed the belief based on her conversation with him that she would be employed at the restaurant after the balcony closed in the fall. Palmer described herself as being an active supporter of the Union. She participated in the picketing of the res- taurant during the 5 days that the picketing took place.25 Cardozo acknowledged at the hearing that he had seen Palmer on the Union's picket line at the restaurant. Car- dozo said, "She was a little more vocal than some of the others." Cardozo acknowledged at the hearing that he had characterized in his prehearing affidavit Palmer's role on the Union's picket line as being the cheerleader who was leading the chanting.26 Palmer and Gail Chapman were called into the office about a week prior to the time they were laid off. Also 2s The foregoing paragraphs are based on the credited testimony of Palmer 26 The foregoing is based on the credited testimony of Cardozo 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present in the office on that occasion were Hoch- koeppler, Cardozo, and Sturges. Palmer said that she and Chapman were informed at that time that they were going to be retained to work part time on the cocktail shift and used whenever possible in the restaurant. Palmer said that they were also told that they would be rehired in the future. Palmer and Chapman were laid off from work about a week later in October 1984 when the balcony area of the restaurant was closed. Cori Acosta, who also had worked as a waitress on the balcony, was not laid off from work. Palmer said at the hearing that Acosta was a supporter of the Union. Palmer also said that she had more seniority than either Acosta or Chapman.27 Lep- pien said that Acosta had worked in the restaurant dining room as well as the balcony area of the restaurant during the summer of 1984. Leppien said that Acosta had more finesse than either Palmer or Chapman.28 Both Holzmann and Hughes said at the hearing that the res- taurant's practice in the past had been to lay off the wait- resses who had worked on the balcony when the balco- ny closed.29 Cardozo told Palmer and Chapman at the time of their layoff that he had no problems in writing a letter of rec- ommendation for both of them. Cardozo told them to write a draft of a letter of recommendation, and he would be glad to write such a letter for each one. Car- dozo also told them that there was no room for Palmer and Chapman to continue working in the restaurant. He told them that the reason for their layoff was the season- al closing of the balcony.30 Cardozo said at the hearing that Palmer had asked him for a letter of recommenda- tion at the time of her layoff from work. Cardozo said that he had agreed to sign a letter of recommendation for Palmer if she would write up something for him to review and to sign.31 Palmer said at the hearing she had received only one warning notice while she was employed at the restau- rant. That warning notice was for being late to work. Palmer said that she had no idea of her having any disci- plinary problems at the restaurant, and she said that she was told by management that they felt that she had not developed her skills for work inside the restaurant as much as management had hoped she would do.32 Palmer subsequently telephoned Cardozo a couple of times to arrange for a meeting with him to write a letter of recommendation. Cardozo and Palmer agreed that it would be easy for them to meet when Palmer came to the restaurant to vote in the election on 31 October 1984. Cardozo and Palmer met on that date in the early after- noon at a table on the balcony off from the bar. Their meeting took place before Palmer voted. Cardozo and Palmer began writing a rough draft of a letter of recom- mendation for Palmer. Cardozo then was called away from the table. When Cardozo returned, he told Palmer 24 The foregoing is based on the credited testimony of Palmer. 2s The foregoing is based on the credited testimony of Leppien 29 The foregoing is based on the credited testimony of Holzmann and Hughes so The foregoing is based on the credited testimony of Palmer 91 The foregoing is based on the credited testimony of Cardozo 12 The foregoing is based on the credited testimony of Palmer that he had been told that he could not write a letter of recommendation for her. Palmer did not recall at the hearing the specific term used by Cardozo for not writ- ing her a letter of recommendation , but she said : "It was labor problem, labor grudge, labor claim, something like that, labor problem." Cardozo told Palmer that he had spoken with someone in the office upstairs, but he did not say specifically with whom he had spoken. Cardozo appeared to be upset in Palmer's opinion. Palmer said that he told her that when he made a promise or when he asked a favor, he wanted to carry through on it. Palmer did not receive a letter of recommendation at that time.33 The Union had filed the unfair labor practice charge in Case 20-CA-19327 on 26 October 1984. On 29 October 1984 Region 20 of the National Labor Relations Board mailed a copy of that charge to Respondent Cafe La Salle. The Postal Service's return receipt card shows 31 October 1984 as the date of delivery to Respondent Cafe La Salle. Palmer was one of four persons named in that unfair labor practice charge as allegedly having been dis- criminatorily laid off or terminated by Respondent Cafe La Salle. (See G.C. Exhs. 1(d) and (e).)34 Cardozo acknowledged at the hearing that he had told Palmer on that occasion that he could not give her a letter of recommendation because Cardozo had been in- structed by Leppien not to do so. He also acknowledged at the hearing that "part of it" was Palmer's involvement in an NLRB "suit."35 Leppien also acknowledged at the hearing that the Board's unfair labor practice charge was discussed by Leppien and Cardozo in connection with Palmer's re- quest for a letter of recommendation. Leppien stated at the hearing: [W]e discussed that fact that Donna had . . . filed an unfair labor practices charge against us. We did discuss that, and that the nature of the charge was that, at that point, that my understanding of the charge was that we had let her go because of her Union activity and not because of her performance not being good enough to transfer her to the dining room. And, I told Michael that it didn't seem feasi- ble to recommend someone when we were alleging that we had let her go because, well in fact we had let her go because of her poor performance. And, so, in that regard, we, discussed the unfair labor, you know, suit.36 Palmer voted later that afternoon in the election by challenged ballot because her name was not on the eligi- bility list. The Regional Director subsequently found in his report that Palmer had been discharged on 21 Octo- ber 1984, and that the Union had withdrawn the portion of the unfair labor practice charge in Case 20-CA-19327 relating to Palmer's termination. The Regional Director concluded that Palmer was not an eligible voter, and he 33 The foregoing is based on the credited testimony of Palmer 34 The foregoing is based on the documentary evidence indicated 28 The foregoing is based on the credited testimony of Cardozo. 3 8 The foregoing is based on the credited testimony of Leppien CAFE LA SALLE 395 recommended that the challenge to her ballot be sus- tained. (See G.C. Exh. (k), p. 2.) The Board in Washing- ton, D.C., adopted the Regional Director 's recommenda- tions. (See G.C. Exh. 1(n).)31 Palmer subsequently received a letter of recommenda- tion during the first week in January 1985. A copy of that letter dated 3 January 1985 was received as General Counsel's Exhibit 7. It stated: Donna Palmer was employed by Cafe La Salle from February 3, 1984 until October 23, 1984. Donna was hired as a Terrace Waitress with the un- derstanding that she would work as a hostess till the terrace season began. Our terrace was officially closed on October 23 whereupon Donna was let go with the understand- ing that we would certainly consider her for similar employment in 1985. The attorneys discussed at the hearing the circum- stances pertaining to General Counsel's Exhibit 7 at tran- script pages 229-236. The General Counsel does not seek as a remedy that the Respondent be required to write an- other letter of recommendation for Palmer if the 8(a)(1) and (4) allegations involving Palmer have merit. C. Conclusions I conclude that the evidence establishes that the reason that Cardozo did not give a letter of recommendation to Palmer on 31 October 1984 was that the Union had filed an unfair labor practice charge against Respondent Cafe La Salle that alleges, among other things, that Respond- ent Cafe La Salle had laid off or terminated Palmer for discriminatory reasons. Cardozo and Leppien were candid at the hearing in admitting that the Union's unfair labor practice charge was discussed in connection with giving Palmer a letter of recommendation. In addition, the events noted above in the findings of fact revealed that until 31 October 1984 Cardozo had agreed to give Palmer such a letter of recommendation. As noted above, the unfair labor practice charge was delivered to Respondent Cafe La Salle on 31 October 1984. The unfair labor practice charge was filed by the Union rather than by Palmer. Therefore, Palmer did not file the charge with the Board as alleged in paragraph 14(b) of the General Counsel's amended consolidated complaint. The General Counsel did not allege, nor did the evidence show, that Palmer had given testimony under the Act as of 31 October 1984. Nevertheless, I conclude that the refusal of Respondent Cafe La Salle on 31 October 1984 to give Palmer a letter of recommenda- tion violated Section 8(a)(4) as well as Section 8(a)(1) of the Act. The reason for that conclusion is the Supreme Court's opinion in NLRB v. AA Electric Co., 405 U.S. 117 (1972). The Court held in the AA Electric case at 124: "The approach to Section 8(a)(4) generally has been a liberal one in order fully to effectuate the section's re- medial purpose." The Court also held at 122: 37 The foregoing is based on the documentary evidence indicated The Act's reference in § 8(a)(4) to an employee who "has filed charges or given testimony" could be read strictly and confined in its reach to formal charges and formal testimony . It can also be read more broadly. On textual analysis alone, the pres- ence of the preceding words "to discharge or other- wise discriminate" reveals, we think, particularly by the word "otherwise," an intent on the part of Con- gress to afford broad rather than narrow protection to the employee . This would be consistent with § 8(a)(4)'s purpose and objective hereinabove de- scribed. The Court further held at 123 and 124 in the AA Elec- tric case: This interpretation, in our view, also squares with the practicalities of appropriate agency action. An employee who participates in a Board investigation .may not be called formally to testify or may be dis- charged before any hearing at which he could testi- fy. His contribution might be merely cumulative or the case may be settled or dismissed before hearing. Which employees receive statutory protection should not turn on the vagaries of the selection process or other events that have no relation to the need for protection. It would make less than com- plete sense to protect the employee because he par- ticipates in the formal inception of the process (by filing a charge) or in the final, formal presentation, but not to protect his participation in the important developmental stages that fall between these two points in time . This would be unequal and inconsist- ent protection and is not the protection needed to preserve the integrity of the Board process in its en- tirety. I conclude from the Supreme Court's holding in the AA Electric case that Palmer was entitled to the protec- tion of Section 8(a)(4) of the Act under the facts of this case. X. THE CHALLENGE TO THE BALLOT OF KEVIN NICHOLS A. Facts Kevin Nichols was the night chef at Respondent Cafe La Salle at the times material . He supervised the kitchen staff at the restaurant. Cline said that Nichols was his im- mediate supervisor in the kitchen. Cline said that Nichols was the one who had recommended that Cline be as- signed to the night shift. Cline said that Nicholas also was the one who had recommended the termination of employee Robert Rowland.SB Palmer said that she had been told to do what Nichols told her to do. Palmer considered Nichols to be a part of management.39 se The foregoing is based on the credited testimony of Cline 89 The foregoing is based on the credited testimony of Palmer. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Szydlowski wanted to work on the night shift at the restaurant. Szydlowski approached Cardozo and asked if he could work on the night shift. Cardozo replied that he would think about it. Szydlowski later again asked Cardozo about working on the night shift. Cardozo re- plied at that time that Nichols did not want Szydlowski to work on the night shift. Szydlowski asked why. Car- dozo said that Szydlowski would have to talk to Nichols. Szydlowski then spoke with Nichols, who told Szyd- lowski that it was all right with him for Szydlowski to work on the night shift. Szydlowski informed Cardozo of what Nichols had said. Szydlowski then worked with Nichols for a few months prior to the election. Szyd- lowski said at the hearing that if Nichols wanted some- thing to be done, Szydlowski did it. He recalled that Nichols told the maitre d' on one occasion that the maitre d' was seating too many customers , and not to do that. Szydlowski also recalled at the hearing that on a couple of occasions Nichols had called Szydlowski "a name." Szydlowski reported that fact to Cardozo, who told Szydlowski to bear with it, and that there was noth- ing Cardozo could do about it.40 B. Conclusions It is recognized that it is not necessary that a person possess all the statutory authority set forth in Section 2(11) of the Act because that section is to be read in the disjunctive. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949); Arizona Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971); Big Rivers Electric Corp., 266 NLRB 380, 382 (1983). Nichols did not testify at the hearing in this proceeding, but based on the credited testimony of the employees named above in the findings of fact, I conclude that the evidence showed that Nichols supervised and responsibly directed the employees on the night shift in the kitchen at the restaurant. Nichols' recommendation regarding the assignment of Szydlowski to the night shift was an effec- tive recommendation and, thus, Nichols' action in that regard meets still another one of the criteria set forth in Section 2(11) of the Act. Accordingly, I find that Nich- ols was a supervisor of Respondent Cafe La Salle at the times material in the representation proceeding . There- fore, I recommend to the Board that the challenge to the ballot cast by Nichols be sustained. XI. THE CHALLENGE TO THE BALLOT OF PAUL STURGES A. Facts Paul Sturges began his employment with Respondent Cafe La Salle in November 1982. His first job was to order the wine, liquor, and beer for the restaurant. Sturges also performed some maintenance and repair work at the restaurant. Sturges began acting as a host sometime in July or August 1984 when Alex Stiles left the restaurant. Sturges had served as a host prior to that time only during lunchtime and only under the supervision of a manager. Hochkoeppler changed the method by which Sturges was paid in either August or September 1984 . Sturges had been paid at the rate of $6 an hour. He had usually worked over 40 hours a week, but Sturges had not re- ceived overtime pay. Hochkoeppler put Sturges on a salary basis, and Sturges was paid $250 a week. Hochkoeppler told employees at a meeting that there was a vacancy in the manager's position after Stiles had left the restaurant. Hochkoeppler told them that there were not enough managers to cover all of the day and night shifts 7 days a week. Hochkoeppler said, therefore, that Sturges would come in by himself on certain days and cover some of the shifts as a host. Sturges worked Monday through Saturday during the week before 7 October 1984, which was the pay period for determinig eligibility to vote in the election. Sturges reported to work at the restaurant about 8 a.m. He stocked the wine cages so that there would be sufficient wine for the 120 wines on the restaurant's wine list. At lunchtime, Sturges set up the board and he examined the schedule which Cardozo had made out previously. Sturges assigned the waiters to their station. He ex- plained at the hearing, "[T]he early ones get the first sta- tions and so on." Sturges worked under Hochkoeppler as a host on Mondays, Tuesdays, Thursdays, and Fridays. Hochkoeppler did not work on Wednesday, so Sturges worked as a host by himself. Sturges met after lunch with purveyors of wine, liquor, and beer. Sturges estimated at the hearing that there were approximately 100 such salesmen. Sturges sometimes worked on Sunday nights during October 1984 at the restaurant. On those occasions he acted as a host. Sturges greeted customers , seated the customers, talked with them and tried to make them feel comfortable, wrote a ticket for the waiter at the table, and gave the ticket to the waiter. Sturges said that a bar- tender usually closed the restaurant on Sunday nights, but Sturges did so once or twice. Sturges said that there was no change in his duties be- tween 7 October and the election on 31 October 1984. Sturges said that he had no authority to hire or fire em- ployees, or to effectively recommend the hiring or firing of an employee. Sturges recalled at the hearing that on one occasion while he was acting as a host at the restaurant that Palmer placed a dish of escargots on the table and the dish exploded. Sturges said that the contents of the dish spilled on the customer, the table, and Palmer. Sturges told the customer that he would get him another dish of escargots. Sturges did not consider that to be giving a complimentary meal to a customer, but instead to be re- placing a dish which had been improperly prepared. Sturges was not given the title of day manager or night manager prior to the election on 31 October 1984. Sturges was given the title of day manager and he was given additional authority in December 1984. At that time, Sturges began scheduling employees for work, and he was given the authority to hire and fire. His salary 40 The foregoing is based on the credited testimony of Szydlowski CAFE LA SALLE was increased from $1100 a month to $1400 a month in February 1985.41 B. Conclusion I conclude that the credited evidence showed that Sturges was not a supervisor within the meaning of Sec- tion 2(11) of the Act at the times material to the repre- sentation proceeding. He later attained supervisory au- thority, but that was in December 1984, which was after the election. I conclude from his description of his duties as a host at the restaurant that Sturges did not possess or exercise true supervisory authority over employees. With regard to his assignment of waiters to their stations at lunch, Sturges followed the schedule which Cardozo had made out earlier. He made the assignment mechanically based on "the early ones get the first stations and so on." Thus, I conclude that Sturges was not exercising inde- pendent judgment in making those assignments of sta- tions. I have considered the fact that Sturges was com- pensated on the basis of a salary prior to the election, rather than on an hourly wage basis. However, I con- clude that the method of his compensation by itself does not establish supervisory authority. In view of the fore- going, I conclude that Sturges was an eligible voter at all times material to the representation proceeding. There- fore, I recommend to the Board that the challenge to the ballot of Sturges be overruled, and that Sturges' ballot be opened and counted. XII. THE UNION'S OBJECTIONS TO THE ELECTION The Union filed the following objections to the elec- tion: In an effort to dissuade employees from voting for the Union, the Employer engaged in the follow- ing objectionable conduct, some of which is the basis for Charges filed under 20-CA-1327: 1. Harassed and intimidated employees who were active in the organizing drive and picket line at the restaurant prior to the election by the discrimination against and termination of those enumerated in said charges. 2. Laid off or reduced hours of work to employ- ees supporting the Union while hiring new employ- ees or retaining less senior employees who did not support the Union. The Union had also filed an unnumbered objection to the election, but that objection was withdrawn by the Union. The Board held in Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962): Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the "laboratory conditions" for an election is considerably more restrictive than the test of con- 41 The foregoing paragraphs are based on the credited testimony of Sturges 397 duct which amounts to interference, restraint, or co- ercion which violates Section 8(a)(1). Based on my finding of a violation of Section 8(a)(1) of the Act, as described in section V of this decision, and based on my finding of a violation of Section 8(a)(1) and (4) of the Act, as described in section IX of this decision, I conclude that Respondent Cafe La Salle engaged in conduct which interfered with the "laboratory condi- tions" which the Board requires for its representation elections. Such conduct took place within the critical period relevant for considering objections to the election, i.e., between the filing of the petition and the holding of the election. The grant of benefits with regard to the en- tertainment coupons took place on 26 October 1984, which was just a few days before the election was held. Those benefits affected a substantial number of the unit because waiters and waitresses were to receive the com- plimentary entertainment coupons. The refusal to write a letter of recommendation took place on the same day of the election but before the polls had closed because Palmer cast her ballot after Cardozo's refusal to give her a letter of recommendation. While Palmer was not an eli- gible voter in the election, I should not presume that other employees did not learn of Respondent Cafe La Salle's action before they voted in the absence of evi- dence to the contrary. The above conduct was not spe- cifically alleged in the Union's objections, but I conclude that such conduct affecting the "laboratory conditions" of the election should not be ignored in this consolidated proceeding in determining whether the employees had "a free and untrammeled choice in an election." Del-Tex Optical, above. Accordingly, I recommend to the Board that the objections to the election be sustained based on the conduct described above. Charging Party's Exhibit 1 is a copy of a letter dated 12 October 1984 from Curtis to the employees of Re- spondent Cafe La Salle. Charging Party's Exhibit 2 is a copy of a letter dated 16 October 1984 with attachments from Curtis to Donna Palmer. These documents were in- troduced at transcript pages 21-22. The Charging Party has not pointed to any specific item in those letters as being a basis for its objections to the election, and I found none. I make the following recommendations to the Board with regard to Case 20-RM-2548: 1. That the challenge to the ballot of Kevin Nichols be sustained. 2. That the challenge to the ballot of Paul Sturges be overruled. 3. That the ballots of Paul Sturges and Joe Vona III be opened and counted by the Regional Director for Region 20 of the National Labor Relations Board, or his agent, and that the Regional Director issue a revised tally of ballots. 4. If the revised tally of ballots discloses that the Union has received a majority of the valid votes cast in the election, then I recommend that the Regional Direc- tor for Region 20 of the National Labor Relations Board, on behalf of the Board, issue a certification of representa- tive to the Union as the exclusive collective-bargaining representative of the employees in the unit. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. If the revised tally of ballots discloses that the Union has not received a majority of the valid votes cast in the election, then I recommend that the Regional Di- rector for Region 20 of the National Labor Relations Board, on behalf of the Board, order that the first elec- tion be set aside based on the objectionable conduct de- scribed above and that the Regional Director for Region 20 of the National Labor Relations Board direct that a second election be conducted when the Regional Direc- tor finds that it would be appropriate to hold such a second election among the employees in the unit who are currently employed at the time that the Regional Di- rector issues the notice of a second election. CONCLUSIONS OF LAW 1. Respondent Cafe La Salle is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Cafe La Salle has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by granting benefits on 26 October 1984 to em- ployees in order to dissuade employees from seeking union representation. 4. Respondent Cafe La Salle has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (4) of the Act by refusing on 31 October 1984 to write a letter of recommendation for Donna Palmer because the Union had filed an unfair labor practice charge against Respondent Cafe La Salle alleging that Respondent Cafe La Salle had laid off or terminated Palmer for discrimi- natory reasons. 5. The unfair labor practices described above affected commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent Cafe La Salle, Respondent Old Sacra- mento, and Respondent PFMS are not joint employers of employees. 7. Respondent Old Sacramento and Respondent PFMS have not engaged in the unfair labor practices as alleged in the General Counsel's amended consolidated com- plaint. THE REMEDY Because I have found that Respondent Cafe La Salle has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (4) of the Act, I shall rec- ommend to the Board that Respondent Cafe La Salle be ordered to cease and desist from engaging in such unfair labor practices and to take certain affirmative action de- signed to effectuate the policies of the Act. As indicated in section IX of this decision, the General Counsel does not seek as a remedy that Respondent Cafe La Salle be ordered to write another letter of recommen- dation for Palmer. On these findings of fact, conclusions of law, and on the entire record in this proceeding, I issue the following recommended42 ORDER The Respondent, La Salle Investment Co., Ltd., d/b/a Cafe La Salle, Scramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Granting benefits to employees in order to dissuade employees from seeking union representation by the Charging Party or any other labor organization. (b) Refusing to write a letter of recommendation for an employee because an unfair labor practice charge in- volving that employee had been filed against Respondent Cafe La Salle. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by the Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at Sacramento, California, copies of the at- tached notice marked "Appendix."43 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutice days in conspicuous places including all places where notice to employees are customarily posted. rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) 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 ORDERED that the General Counsel's amended consolidated complaint in this proceeding be dismissed concerning Respondent Old Sacramento and Respondent PFMS. 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. as 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."