Maxi City Deli

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David's Kosher Deli, Ltd. d/b/a Maxi City Deli and Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO. Cases 2-CA-21045, 2- CA-21045-2, and 2-RC-19971 14 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 6 August 1986 Administrative Law Judge Howard Edelman issued the attached decision. The Respondent filed exceptions' and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order as modified. The Respondent disputes the finding that Anne Yeck left on 12 May because of its threat to expose Tammy Yeck's abortion. The Respondent contends that Anne's departure was at the instigation of fellow waitress Joann Stevens who, shortly before leaving the Respondent's premises with Anne, had given 2 weeks' notice. The judge stated the follow- ing: Deutch threatened to expose the facts of Tammy Yeck's abortion to everyone. Yeck began to cry and could not continue to work. Yeck told Stevens she was leaving and Stevens who had already given her two weeks notice, decided to quit with her on the spot. Regarding her departure after Deutch's threat, Anne Yeck stated the following: I hadn't decided to leave until Joann came out and saw me crying and said she couldn't work under this pressure and let's get the hell out of here and I said you're right and we left. As I was leaving, [Deutch's father] asked me if I ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Or. 1951). We have carefully examined the record and find no basis for reversing the findings 8 The judge concluded that the Respondent violated Sec 8(a)(1) of the Act by circulating an antiunion petition among its employees and requir- mg them to sign it and renounce the Union We note that the record does not show that the Respondent in fact required any employee to sign the petition. However, the circulation of the petition by the Respondent's co- owner and his request for employees' signatures is sufficient to establish a violation of Sec. 8(a)(1). would stay until they could get some help in. I was in no condition to work after that. The Respondent urges that the judge ignored Anne Yeck's testimony about Joann Stevens' role in Anne Yeck's decision to quit. We find no merit to the Respondent's claim and uphold the finding of constructive discharge. The evidence shows that prior to the above-mentioned discussion between Stevens and Anne Yeck and their departure from the Employer's premises on 12 May, the Employer had threatened Anne Yeck with exposing her daughter's abortion if Anne did not cease her union activity. It is this conduct that violated the Act and serves as the basis for the finding of a constructive discharge. That Stevens may have made the state- ment indicated above is of no consequence because it does not contradict Anne's testimony that Deutch improperly threatened her because of her activities on behalf of the Union, and that it was that threat that caused her anguish and precipitated both her decision to leave and her subsequent de- parture. With respect to the constructive discharge of Tammy Yeck, we note that the Respondent threat- ened Anne Yeck, Tammy's mother, with exposing Tammy's abortion if Anne did not cease her union activity. Although the threat was made to Anne Yeck, it was tantamount to a threat to Tammy her- self for the purpose of coercing her to either stop her mother's union activism or face public expo- sure of her abortion. In effect, Tammy Yeck was being penalized for her mother's union involvement inasmuch as she was the target of a threat designed to discourage union activity and to intimidate a union adherent. This unlawfully motivated threat had the effect of forcing Tammy to quit her job to avoid humiliation and embarrassment, a foreseeable consequence of the threat to Anne Yeck. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, David's Kosher Deli, Ltd. d/b/a Maxi City Deli, New City, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(e). "(e) Requesting or requiring its employees to sign a petition renouncing the Union or any other labor organization." 2. Substitute the attached notice for that of the administrative law judge. 282 NLRB No. 107 MAXI CITY DELI 743 APPENDIX. NOTICE To EMPLOYEES POSTED BY ORDER OF THE - NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government oftearnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. DAVID'S KOSHER DELI, LTD. D/B/A MAXI CITY DELI 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. WE WILL NOT interrogate our employees con- cerning their- membership in or activities on, behalf of Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York, and Vicinity, AFL-CIO or any other labor organiza- tion. WE WILL NOT threaten our employees not to recognize or bargain with the Union, if duly select- ed by our employees as their collective-bargaining representative. WE WILL NOT threaten our employees with a re- duction of working benefits, including eating and smoking privileges, if they select the Union or any other labor organization as their collective-bargain- ing representative. WE WILL NOT threaten our employees with a re- duction of working hours if they- select the Union or any other organization as their collective-bar- gaining representative. WE WILL NOT promise our employees improved benefits in their working conditions, including med- ical coverage and increased wages, to coerce them from selecting the Union or any other labor organi- zation as their collective-bargaining representative. WE WILL NOT request or require our employees to sign a petition to renounce the Union or any other labor organization. WE WILL NOT discharge and thereafter refuse to reinstate our employees because of their member- ship in or activities on behalf of the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Anne and Tammy-Yeck immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their -seniority or any other rights or privileges previously en- joyed and WE WILL make them whole for any loss Leonard Grumback Esq., for the General Counsel. Jack Schloss, Esq. (Krause & Schloss), for the Respondent. Harold Ickes, Esq. (Suozzi, English & Klein, P. C.), for the Union. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on November 18 through 21, 1985, at New York, New York. On May 13 and 16, 1985, the Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO (the Union), filed unfair labor practice, charges, in the above-captioned cases, against David's Kosher Deli, Ltd. d/b/a Maxi City Deli (Respondent). On June 27, 1985, an order consolidating cases and a consolidated complaint issued alleging violations of Sec- tion 8(a)(1) and (3) of the Act. On May 7, 1985, the Union filed a representation peti- tion in the above-captioned cases. On June 28, an elec- tion was conducted pursuant to a Stipulation for Certifi- cation Upon Consent Election. On July 5, the Union filed timely objections to the election. On August 9 these objections were consolidated for hearing with the unfair labor practice complaint. During the course of the hearing the Union moved to withdraw Objections 1 through 8, 14, and 15 and to amend objections by deleting employee Joann Stevens. This motion was granted, Consequently; the objections parallel the allegations set forth in the complaint. Briefs were filed by the General Counsel and Re- spondent. On my consideration of the entire record, the briefs, and my observation of the demeanor of the wit- nesses, I make the following FINDINGS OF FACT Respondent is a New York corporation engaged in-the operation of a restaurant in New City, New' York. Based on a projection of its operations,' Respondent admits it will annually derive gross revenues in excess of $500,000 and will annually purchase goods and products valued in excess of $50,000 directly from points outside the, State of New York. Respondent admits, and I fmd, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the'Act. Respondent further admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Dennis Deutch and his father Morris purchased Re- spondent's restaurant and commenced operation in De- 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cember 1984. Prior to that, Dennis Deutch had worked as a counterman at a nearby restaurant for over 10 years. Anne Yeck and her daughter Tammy Yeck had worked at this restaurant with Dennis as waitresses for the same period of time. New City is a rather small and tightly knit community where everybody knows each other. Over the years, the Yecks and the Deutchs became close friends in both a business and social relationship. Addi- tionally, as waitresses, over the years, the Yecks built up a rather large following of customers who frequented the restaurant where they worked. The employees at this restaurant were represented by the Union, and Anne Yeck was their shop steward. In January 1985, shortly after the Deutchs began oper- ation of their new restaurant, they hired the Yecks as waitresses, partly because of their friendship, and partly because of the large number of customers the Yecks would bring to Respondent's restaurant. The customers at both restaurants were primarily local residents. At the time of the Yecks hire, Respondent's employees were not represented by'any labor organization, nor was Respond- ent, as a result, of his purchase of the restaurant, under any obligation to recognize any labor organization. Within a short time after the Yecks were hired, Anne Yeck became disenchanted with their working condi- tions. At the old restaurant employees received $2.95 an hour whereas Respondent paid them $2.30 an hour. Mo- veover, at their prior place of employment employees re- ceived medical benefits, whereas no medical coverage was provided by Respondent. As a result of this dispari- ty in medical benefits and wages, friction developed be- tween Anne Yeck and the Deutchs as she continued to push them for medical coverage and/or wage increases without success. Sometime around the end of March 1985 Tammy Yeck, a single woman, became pregnant and decided to have an abortion. Because of their still close relationship, she discussed her situation with the Deutchs who were very sympathetic and solicitous. Tammy Yeck decided to have an abortion "in early April and because she could not afford to pay or it, Dennis Deutch loaned her $400 to cover the cost of the operation. Tammy had made it clear, and the, Deutchs understood, that her abortion was a very personal and confidential matter., The only people who were informed about Tammy Yeck's abortion, from the end of March through May 12 (Tammy Yeck's last day of work for Respondent), were Tammy's immediate family, including Tammy's mother, Anne, a close personal family friend not employed by Respondent, and Victoria Vislocky, a waitress employed by Respondent with whom Tammy had become friendly. Tammy Yeck denied she informed Vislocky about her abortion. Vislocky testified that Tammy had informed her. I credit Vislocky. I was generally impressed with Vislocky's demeanor. Her testimony concerning her con- versation with Tammy, in which Tammy told her she had an abortion, was very detailed and not the type of testimony that is easily fabricated, notwithstanding cer- tain minor errors of fact. Moreover, Vislocky was about the same age as Tammy and had a similar lifestyle. It is understandable that Tammy might discuss this problem with Vislocky. Sometime around mid-April, Anne Yeck had a conver- sation with Dennis Deutch, in which she told him that if something were not done about providing her with medi- cal coverage she would quit in 2 weeks. The health in- surance was not provided but Anne Yeck did not quit. Dennis Deutch admitted that he did not believe she was giving actual notice of an intention to quit. Indeed, about this same period of time, Anne Yeck took steps to obtain medical coverage; she contacted the Union. Between mid-April and May 1, Anne Yeck met with a union representative and began soliciting employees on behalf of the Union and distributing union literature at the restaurant. Dennis Deutch admitted he was informed about this activity by various employees and was uspset and angry over their activities. He admitted he was just getting started in his business and it would be a heavy financial burden to have to bargain with the Union. He was angry that Anne Yeck, a close friend, who he had brought in to work for him, was responsible for attempt- ing to organize his restaurant on behalf of the Union. On May 1 about 15 employees met at Anne Yeck's home. Representatives from the Union were present and about 13 employees signed union cards. At this time Re- spondent employed about 34 employees on various shifts. On May 9, the Union filed the instant representation pe- tition, which was received by Respondent on May 10. , Anne Yeck credibly testified that on the evening of April 30, Dennis Deutch called her at home. He told her he knew about the Union and the union meeting sched- uled to take place at her home. He asked her to stop with this union "bullshit" and promised to improve bene- fits and give the employees more money. He, told her there would never be a union at his restaurant. Deutch testified he called Anne Yeck in connection with a nonwork-related accident' suffered by Tammy in which her back was injured. Anne then complained that if Tammy were in the Union she would have medical coverage. Deutch told her that the union coverage was not good. At this point, he asked her what was going on with the Union. Yeck asked him what he meant. Deutch replied he knew about her union activity and then asked if she was having a union meeting at her home on May 1. Yeck said yes. I credit Anne Yeck's testimony. I was generally im- pressed with her demeanor. She answered questions put to her on both cross- and direct examination in a detailed and forthright manner. Moreover, her testimony, relating to this and other conversations, was in part corroborated by other General Counsel witnesses, and at other times by admissions by Dennis Deutch. I do not find Dennis Deutch to be a credible witness. I was unimpressed with his demeanor. He was often eva- sive in his response to questions put to him on cross-ex- amination. He was obviously angry and hostile toward Anne Yeck, which was clearly evident to me by the tone of his voice when he testified concerning conversations with her. He was often inconsistent in connection with his feelings concerning the Union's organization. He fre- quently testified that he had no animosity toward the Yecks or to recognizing and bargaining with the Union should they be selected by the majority of his employees. MAXI CITY DELI Yet, at other times, his testimony, not to mention the corroborative testimony of General Counsel witnesses, establishes an intense animosity toward the Union . In this respect, and merely as a few examples, he admitted that with his business just getting started, it would be a heavy financial burden on him to bargain with the Union and he was very angry at Anne Yeck because of her organi- zational activities on behalf of the Union . He admitted, as described above, and below, unlawfully interrogating Anne Yeck concerning her union activities. He also ad- mitted, as described below, circulating an antiunion peti- tion among his employees . Additionally, as set forth below, his testimony relating to the events immediately preceding Anne Yeck's leaving Respondent 's facility on May 12 are patently unbelievable. Deutch admitted that during his April 30 conversation with Yeck he asked her what was going on with the Union, and if she was having a union meeting at her home. I find such questions to constitute unlawful inter- rogation in violation of Section 8(a)(1). The facts sur- rounding this interrogation are distinguishable from those in Rossmore, House, 269 NLRB 1176 (1984), in that the interrogation in the instant case was accompanied by both threats and promises. I also find Deutch's statement that there would never be a union at his restaurant to be a threat that Respond- ent would not recognize and bargain with the Union in violation of Section 8(a)(1) of the Act. I further find Deutch's promise to improve medical benefits and to give the employees more money violative of Section 8(a)(1) of the Act. Yeck credibly testified on May 2, during work, that Dennis Deutch passed by and told her she had to "get this Union shit out of her head,- that this wasn 't a Union house and it was never going to be a Union house." Deutch did not specifically deny this conversation. Such statement is an obvious threat that Respondent will not recognize and bargain with the Union . I find it violative of Section 8(a)(1). On May 3 Dennis Deutch called Tammy Yeck at home. She had suffered a nonwork-related injury to her back. Dennis asked her how she felt. Tammy Yeck then credibly testified Dennis stated, "I want to talk to you about the Union shit. I can 't afford this Union, I'm strapped, I've got everything I have in the business." Tammy replied she needed medical benefits provided by the Union, and related the cost of her medical expenses for her back injury, which were not covered by medical insurance. Deutch then told her if the Union got in he would make it tough on the employees. He stated that there would be no smoking and that the employees would be eating tuna fish sandwiches and hot dogs. (At this time it is undisputed the employees were permitted to smoke and could eat anything on the menu but veal and steak.) Then Dennis stated, "I'm not for this Union, there's never been a union in this place and there ain't going to be a union now, as long as I'm the owner." Dennis then asked her to help him and promised he would make it worth her while. Deuth testified he called Tammy to see how she was feeling. During their conversation she stated if she were still in the Union she would have had medical coverage. 745 Deutch told her that the Union's coverage was so poor that he had to obtain supplemental coverage . He testified that he then told her working conditions were better at his restaurant than at the restaurant where they all for- merly worked. In this regard he pointed out that at the old restaurant the employees were required to eat hot dogs'and tuna fish sandwiches, while at his restaurant the employees could eat almost anything. I credit Tammy Yeck's testimony . I was generally im- pressed" with her overall demeanor. She was generally responsive and forthright in answering questions on both cross- and direct examination and I believe her to be a truthful witness notwithstanding that, "contrary to her testimony discussed above and below, I believe she con- fided in ,Victoria Vislocky about the details of her abor- tion. As set forth above, I have concluded Dennis Deutch is simply not a credible witness. Therefore, I conclude that Deutch's threat to make it tough on employees, eliminating smoking privileges and restricting eating privileges constitutes an unlawful threat to make working conditions more onerous and to reduce job benefits in violation of Section 8(a)(1). I further find Deutch's statement about never having a union in his res- taurant to be another threat not to recognize and bargain with the Union in violation of Section 8(a)(1). I also find Deutch's statement that if Tammy Yeck helped him (keep out the Union), he would make it worth her while to be an unlawful promise of benefits in violation of Section 8(a)(1). Sometime during the first week in May , Joann Stevens credibly testified that while she was eating her lunch at Respondent's restaurant, Dennis Deutch passed by and stated that if the Union came in the employees would be eating tuna fish sandwiches and hot dogs. Deutch did not specifically deny this conversation. Moreover, Stevens' testimony is corroborated in part by that of Tammy Yeck. I find this statement to be an unlawful threat to reduce job benefits in violation of Section 8(a)(1). Michael Lieber, a busboy employed by Respondent, credibly testified that sometime during the first weekin May, Dennis Deutch told him that if he joined the Union he would cut his work hours from 4 days a week to 1 day a week. Lieber had attended the May 1 union meet- ing at Anne Yeck's home and was friendly with the Yecks. Deutch was aware of this. Deutch does not deny this conversation. I find this statement to be an unlawful threat to reduce working hours in violation of Section 8(a)(1). It is admitted by Dennis Deutch that during the first week in May, Morris Deutch circulated an antiunion pe- tition among the employees, which he asked them to sign. The petition stated specifically that the undersigned employees did not want the Union to represent them. Deutch obtained 15 to 20 signatures in this manner. I conclude Respondent violated Section 8(a)(1) by such conduct. RAI Research Corp., 257 NLRB 918 (1981). Tammy Yeck credibly testified that on May 11 while working at the restaurant, Dennis' Deutch stated to her, "It won't have any reflection on you, if I throw your 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mother's ass out of here." Deutch does not deny this statement. May 12 was Mother's Day, a holiday where restau- rants are exceptionally busy and a waitress can expect to make a lot of money in gratuities. Anne Yeck credibly testified that on May 12 she and fellow waitresses, Joann Stevens, who had worked with Yeck for the past year and with whom Yeck was friend- ly, arrived at the restaurant to work. Because it was Mother's Day, they had expectations of making good money. On her arrival she saw Dennis Deutch and greet- ed him in a perfunctory manner. Deutch angrily com- plained to her about her greeting and left. A few minutes later he returned, still angry and told her to "get this union bullshit out of my head." The restaurant was not a union house and would never be one. Thereafter, Dennis Deutch and Joann Stevens had a discussion about Stevens' shift schedules, which was not resolved. As a result of this, Stevens gave Deutch 2 weeks' notice. Deutch, who had left Stevens, was fairly angry. Anne Yeck testified that he then walked up to her and asked her why she did not quit. Yeck replied that Deutch would have to fire her. At this point, Deutch threatened to expose the facts of Tammy Yeck's abortion to every- one. Yeck began to cry and could not continue to work. Yeck told Stevens she was leaving, and Stevens, who had already given 2 weeks' notice, decided to quit with Yeck. After leaving the restaurant, Yeck, who customarily rode to work with Stevens, went home with Stevens. When they got home Yeck told her daughter, Tammy, of her conversations with Deutch that day and of Deutch's threat to expose her abortion. Tammy Yeck had been scheduled to work a later shift but, in view of Deutch's threat, decided to quit. Deutch testified that when Anne Yeck walked into the restaurant on May 12 he said good morning and she mumbled some greeting in return. In a few minutes Deutch confronted her and asked what was "bugging" her. She said nothing was wrong. Deutch admits he then told her, "I'm tired of everything. You're disrupting my whole staff lately. It's affecting my business. I'm tired of it, alright? You have to have the Union? I'm tired of hearing about your bitching and your complaining that you don't want to do this and you don't want to do that. And, listening to the stuff about the Union, listening to the stuff about the health insurance." Yeck then replied, "If you don't like the way it is fire me, I'm not going to quit." Deutch then left Yeck and met with Stevens. He admits, as a result of their failure to agree on schedules that Stevens would be satisfied with, she gave him 2 weeks' notice. Deutch then incredibly testified that a few minutes after his conversation with Stevens, Yeck, out of the blue, told him she and Stevens were quitting and they left. Deutch specifically denied ever threatening to expose Tammy Yeck's abortion or that Yeck was crying as she left. For the reasons set forth above, I credit Anne Yeck's testimony and discredit the testimony of Deutch, except that testimony relating to his conversation with Yeck, in which he rails at Yeck's activity on behalf of the Union and admits that Yeck told him she had no intention of quitting. This credible testimony is totally inconsistent with his subsequent incredible testimony that just a few minutes later she announced for no apparent reason that she was quitting. It is also inconsistent with Yeck's char- acter. Yeck was no quitter. She had worked at her prior restaurant, a union house, over 10 years where she was a shop steward. She had come over to Deutch's restaurant and, when she became dissatisfied with her working con- ditions, she did what came naturally to her, she began to organize the house. This activity is simply inconsistent with Deutch's testimony that Yeck simply quit and that he did not threaten to expose her daughter's abortion as a means of forcing her to quit. Respondent contends that the Yecks could not have quit because of an alleged threat on May 12 to expose Tammy Yeck's abortion because her abortion at this time was common knowledge in the restaurant. Respondent's evidence does not support this contention. While I cred- ited Respondent's witness Victoria Vislocky's testimony that Tammy Yeck confided in her, I concluded that, be- cause of their relatively close relationship and similar lifestyle, such a confidence would not be unusual. More- over, Vislocky testified that Neck indicated to her that their conversation was confidential and that she did not tell anyone about it. Angela Russo, a waitress employed by Respondent, testified that she first learned about they abortion at least a month after the Yecks quit: Dennis Deutch testified to the same effect. Bonnie Taylor, a waitress employed by Respondent and called by Respondent- as a witness, testi- fied initially that the abortion was common knowledge while the Yecks were still employed. However, on cross- examination she admitted she was uncertain, and that she might have acquired her knowledge of the abortion well after the Yecks left. Accordingly, I conclude that at the time the Yecks left Respondent's restaurant, the Yecks intended that Tammy Yeck's abortion be kept confidential and that only those intimates described above were aware of the abortion. It certainly was not common knowledge. The legal issue remaining is whether the Yecks were constructively discharged. The Board has held that two elements must be estab- lished to prove a constructive discharge. a. The burden imposed on the employee must cause, and be intended to cause, a change in work- ing conditions so difficult or unpleasant that the em- ployee is forced to resign. b. It must be established that the burden so im- posed was imposed because of the employee's union activities. See Algreco Sportswear Co., 271 NLRB 499, 500 (1984); Keller Mfg. Co., 237 NLRB 712, 722-723 (1978). The Board has held that when an employer engages in conduct designed to inflict mental or emotional stress on an employee with the intention that such employee will be forced to quit and such conduct is motivated by the MAXI CITY DELI employee's union activity, a constructive discharge 'is found when the employee succumbs to this pressure. Thus, in Great Southern Construction, 266 NLRB 364, 374-375 (1983), the Board found constructive discharges when the employer created an intolerable employment situation for two union adherents with the intent of forc- ing them to quit. By subjecting them to close surveil- lance and threatening to file conspiracy charges against them, the Employer imposed conditions that it reason- ably should have foreseen would induce the employees to quit. In Fluter Bros., 227 NLRB 921, 936-937 (1977), the Board found a constructive discharge where the employ- er badgered a high-strung emotional employee because of her union activities until she resigned. The employer played "on her fragile nervous system in the hope of provoking her to do precisely what she did-offer her resignation" and thereby achieved her "emotional surren- der." In the instant case, it is obvious that Dennis Deutch wanted to get rid of Anne 'Peck. He felt he could not afford to, and did not want to deal with the Union and he was aware that Anne Yeck was solely responsible for the union organization in his restaurant. His statement to Tammy 'Yeck on May 11 about throwing Anne Yeck's "ass out [ofl here" and diatribe on May 12 directed to her union activities moments before he threatened to expose her daughter's abortion establish his desire to be rid of Anne. Yeck because of her union activities. The timing of these statements also 'establishes that the threat to reveal Tammy Yeck's abortion was the sole reason for the threat. Dennis Deutch wanted to be rid of Anne Yeck and her union activities. She would not quit. She had told him so moments before. I conclude that, in des- peration, Deutch made his threat, hoping that it would force her to quit, notwithstanding her stated intention to stick it out and continue her union activity. He was suc- cessful. She quit. Moreover, when Tammy Yeck was in- formed of Deutch's threat she also quit. Both Anne and Tammy Yeck credibly testified that they quit because of the humiliation and emotional impact they felt would follow when the threat was carried out, That such threat is capable of producing deep humilia- tion and a strong ' emotional impact is evident by the nature of the threatened disclosure. The subject of abor- tion is one of the most, if not the most, volatile and sensi- tive single issue splitting our society today. Opponents of abortion regard those who perform abortions and those 'who have abortions as "child killers" or "murderers." Clearly the threat of revealing that Tammy Yeck had an abortion would be expected to have the most profound emotional impact on both Anne and Tammy Yeck. Accordingly, I conclude that Anne and Tammy Yeck were constructively discharged by Respondent in viola- tion of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 747 `3. 'By interrogating its employees concerning their membership in^ or activities on behalf of the Union, Re- spondent has-violated Section 8(a)(1) of the Act. 4. By threatening its employees that Respondent would not recognize or bargain with the Union if duly selected by a majority of the employees, Respondent vio- lated Section 8(a)(1) of the Act. 5. By threatening its employees with a reduction of work benefits, including eating and smoking privileges, if they selected the Union as their collective-bargaining re- presentive, Respondent violated Section 8(a)(1) of the Act. 6. By threatening its employees. with a reduction of working hours if they selected the Union as their collec- tive-bargaining representative, Respondent violated Sec- tion 8(a)(1) of the Act. 7. By circulating an antiunion petition among its em- ployees and requiring them - to sign it and renounce the Union, Respondent violated Section 8(a)(I) of the Act. 8. By promising employees improvements in their working conditions, including medical coverage ' and in- creased wages, if they ceased their membership in or ac- tivities on behalf of the Union, Respondent violated Sec- tion 8(a)(1) of the Act. 9. By constructively discharging Anne and Tammy Yeck because of their membership in or activities on behalf of the Union, Respondent has violated Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in various unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. I found that Respondent discriminatorily, constructive- ly discharged Anne and Tammy Yeck. I shall, therefore, recommend that Respondent offer to them full and im- mediate reinstatement to their former jobs, or if those jobs are no longer available, to substantially equivalent positions of employment, without prejudice to their se- niority or other rights and privileges previously enjoyed. I shall also recommend that Respondent make whole Anne and Tammy Yeck for any loss of earnings suffered by reason of the discrimination against them. Backpay for the above employees shall be computed in accordance with the formula approved in F. W. Wool- worth Co., 90 NLRB 289 (1950), plus' interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend that Respondent remove from its records any reference to their unlawful discharges, and to provide written notice of such removal to those employees, and to inform them that Respondent's unlaw- ful conduct will not be used as a basis for further person- nel actions concerning them. Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ' If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Continued 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, David's Kosher Deli, Ltd. d/b/a Maxi City Deli, New City, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their mem- bership in or activities on behalf of Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO or any other labor organization. (b) Threatening its employees not to recognize or bar- gain with the Union if duly selected by its employees as their collective-bargaining representative. (c) Threatening its employees with a reduction of working benefits, including eating and smoking privi- leges, if they select the Union or any other labor organi- zation as their collective-bargaining representative. (d) Threatening its employees with a reduction of working hours, if they select the Union or any other labor organization as their collective-bargaining repre- sentative. (e) Threatening to require its employees to sign a peti- tion renouncing the Union or any other labor organiza- tion. (f) Promising its employees improved benefits in their working conditions, including medical coverage and in- creased wages, to coerce them from selecting the Union or any other labor organization as their collective-bar- gaining representative. (g) Discharging and thereafter refusing to reinstate its employees because of their membership in or activities on behalf of the Union or any other labor organization. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- 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. resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Anne and Tammy Yeck full and immedi- ate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of em- ployment, without prejudice to their seniority or to other rights and privileges previously enjoyed. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in New City, New York, copies of the attached notice marked "Appen- dix."2 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the election held on June 28 be set aside and that a new election be con- ducted. 2 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."