Livermore Joe'S Inc.

LIVERMORE JOE'S INC 169 Livermore Joe's Inc. and Hotel Employees & Res- taurant Employees & Bartenders Union Local 50, affiliated with Hotel and Restaurant Em- ployees and Bartenders International Union. Case 32-CA-7543 31 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 21 August 1986 Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. 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,2 i The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 The Respondent excepts to the admission of oral testimony that em- ployee Sherry Clark told other employees, including discriminatee Joelan Diephuis, that co-owner Johnny Karkazis had told her the Respondent had just fired Diephuis because of her union activity The Respondent contends that this testimony is inadmissible hearsay We reject this con- tention for two reasons First, assuming arguendo that Clark's statement constitutes hearsay, "[c]ourts have long recognized that hearsay evidence is admissible before administrative agencies, if rationally probative in force and if corroborated by something more than the slightest amount of other evidence " RJR Communications, 248 NLRB 920, 921 (1980) See also Passaic Daily News v NLRB, 736 F 2d 1543, 1554 fn 15 (D C Cir 1984) As in RJR Communications, we do not rely on Clark's statement alone since the suddenness of Diephuts' discharge, its timing, and the spu- rious reasons given for the discharge were sufficient to establish that the Respondent engaged in unlawful conduct Clark's alleged hearsay state- ment, which found support in the testimony of four other witnesses, merely corroborates the other evidence of the Respondent's unlawful conduct Second, in a handwritten statement prepared at the behest of the Union approximately 4 days after Diephuis was fired, Clark herself corroborated the alleged hearsay testimony She stated that "I had asked Johnny Karkazis why Joelan was fired He took me to the woman's bath- room so no one else could hear what he had to say, saying to me that [Diephuis] had approached [employee] Debra Wales of Union interest that we don't need that kind of stuff in their restaurant " At the hearing, the Respondent did not object to the introduction into the record of this statement nor did it file exceptions based on the alleged hearsay character of the exhibit Its failure to so object and to assign the grounds for the objection constitutes a waiver to the document's admission into evidence See Fed Rules of Evidence Rule 103(a)(1), Alvin J Bart & Co, 236 NLRB 242, 243 (1978), Passaic Daily News v NLRB, supra At the hear- ing, Clark attempted to discredit her earlier written statement by testify- ing that because she was drinking the night Diephuis was discharged, her recollection regarding her conversation with Johnny Karkazis was foggy She did remember, however, that Karkazis told her that the Union was not the reason for Diephuis' discharge The judge noted that Clark's written version was given at a point in time much closer to the discharge and conclusions,3 to modify his remedy,4 and to adopt the recommended Order.5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Livermore Joe's Inc., Livermore, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. than her oral testimony about the same event and that at trial she stated that the written version was accurate Moreover, there is credited testi- mony that 2 weeks after submitting her statement to the Union, Clark re- quested that it be returned to her because she feared that she would lose her job if it was used in a proceeding challenging Diephuis' discharge In the event that the statement was used, Clark stated that she would claim that she was too drunk to remember anything that was told to her on the night Diephuis was terminated In light of these circumstances, it was clearly permissible for the judge to credit Clark's written version over that of her oral testimony Alvin J Bart, supra at 243-244 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on or after I January 1987 will be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 5 As part of the remedy the General Counsel seeks an order that will include a visitatorial clause authorizing the Board, for compliance pur- poses, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order We have concluded that under the circum- stances of this case such a clause is not warranted Patricia Milowicki, Esq., for the General Counsel. John P. Corley and Michael Lynn, Esqs., of Pleasanton, California, for the Respondent William A. Sokol, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Charg- ing Party. DECISION STATEMENT OF THE CASE ROGER B HOLMES, Administrative Law Judge. The Charging Party, Hotel Employees & Restaurant Employ- ees & Bartenders Union Local 50, affiliated with Hotel and Restaurant Employees and Bartenders International Union, filed the unfair labor practice charge in this case on 2 October 1985. I usually will refer in this decision to the Charging Party as the Union. The Regional Director of Region 32 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board, issued the complaint in this proceeding on 18 November 1985 The General Counsel alleged that the Respondent, Livermore Joe's Inc., had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. In summa- ry, the General Counsel alleged that because Joelan Die- phuis had joined or assisted the Union or engaged in other protected concerted activities the Respondent ter- minated her about 26 September 1985, and since that date has failed and refused to reinstate Diephuis to her former position of employment. 285 NLRB No. 24 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent filed an answer to the General Coun- sel's complaint and denied that it had engaged in the al- leged unfair labor practices. I usually will refer in this decision to the Respondent as the restaurant. I heard the evidence in this case at the hearing, which was held on 5, 10, and 11 February 1986 at Oakland, California. The time for filing posthearing briefs was set for 18 March 1986. I have read and considered the briefs, which were filed by counsel for the General Counsel and for the Respondent. FINDINGS OF FACT 1. JURISDICTION The Respondent is a California corporation and oper- ates a restaurant and cocktail lounge in Livermore, Cali- fornia. During the 12 months preceding the issuance of the General Counsel's complaint, the restaurant had gross revenues in excess of $500,000, and the restaurant purchased and received goods or services valued in excess of $5000, which originated outside the State of California. Based on the pleadings and the evidence pre- sented in this case, I find that the restaurant has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Based on the pleadings and the evidence presented in this case, I find that the Union has been at all times ma- terial a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Employment of Diephuis at the Restaurant The findings of fact in this section and throughout the entire decision are based on certain credited portions of the testimony given by the witnesses and documentary evidence. In making credibility resolutions in this pro- ceeding, I have relied primarily on the demeanor of the witnesses while they were testifying. I observed the wit- nesses as they gave their answers to questions both on direct examination and cross-examination. I noted their expressions and their manner of speaking. Some Wit- nesses spoke in a convincing manner, which indicated to me that they had personal knowledge of the facts about what they were testifying, and that they were relating those facts accurately. Thus, the perception of the wit- nesses, their memory of the past events, and their ability to relate those past events accurately on the witness stand were considered in making credibility resolutions. While the demeanor of the witnesses was the primary factor in making credibility resolutions, I also gave con- sideration to the consistency of the witnesses' accounts of events; the probability of their versions of events; and the matters brought out on the record by the attorneys that might indicate a bias or interest on the part of the witnesses in the outcome of this litigation. In addition, 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 that testimony. The court held in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." The three owners of the restaurant are: James Karka- zis, John Karkazis, and George Karkazis. The allegation in the General Counsel's complaint regarding a Gregory Karkazis is an error. The first names of the three broth- ers will be given with their last name in this decision in order to distinguish references made to each one of them. The restaurant is located in the Granada shopping center in Livermore, California. The size of the restau- rant is about 3000 square feet. There are approximately 40 tables and booths in the restaurant. The three owners of the restaurant perform the cooking in the kitchen. At the time of the hearing the restaurant employed nine waitresses, three hostesses, three bartenders, and three dishwashers. The nephew of James Karkazis assisted them in the kitchen work at the time of the hearing.' Prior to her employment at the Respondent's restau- rant, Joelan Diephuis had about 5 years' experience as a waitress in another restaurant. In addition, she had about a year and a half experience as a cocktail waitress and bartender.? Al Meadows had been a steady customer at the restau- rant for about 6 years. He also had made two large signs that were placed outside of the restaurant. Meadows asked the owners of the restaurant to please give his girl- friend, Diephuis, a job because she needed a job and needed money. John Karkazis informed Meadows that the restaurant had all the waitresses that were needed at that time, but John Karkazis promised Meadows that they would give Meadows' girlfriend a job. Meadows continued to make similar requests to the owners of the restaurant for about 3 months. As a result of the forego- ing, the owners hired Diephuis as a favor to Meadows.3 Diephuis worked as a waitress at the restaurant from the last week of June 1985 until she was terminated on Wednesday, 25 September 1985. She was assigned to work as a waitress on the evening shift, which began at 5 p.m. When Diephuis began working at the restaurant, she filled out a piece of paper with her name, address, telephone number, and the place where she had worked previously. Diephuis did not move during the time that she was employed at the restaurant. In addition, she did not change her telephone number during the time of her employment by the restaurant. She observed that there was a list in the office at the restaurant that contained the names of the waitresses and their telephone numbers. About July 1985 Diephuis added another telephone number beside her name on the list. That additional tele- phone number was Meadows' telephone number. Mead- I The foregoing is based on a credited portion of the testimony of James Karkazis 8 The foregoing is based on a credited portion of the testimony of Die- phuis 3 The foregoing is based on credited portions of the testimony of John Karkazis and James Karkazis. LIVERMORE JOE'S INC. 171 ows had a 24-hour answering service to receive mes- sages.4 Respondent's Exhibits I through 12 are copies of Die- phuis' timecards for the weekly payroll periods ending 30 June through 15 September 1985. General Counsel's Exhibit 13 is a copy of Diephuls'.timecard for the pay- roll] period, which ended on 22 September 1985. All the payroll periods ended on a Sunday. The restaurant is closed on Monday. Tuesday was Diephuis' day off from work. Diephuis was assigned to work on the night shift, but on some occasions she also worked on the day shift for other waitresses. The timecards of Diephuis showed that she had signed in at her scheduled starting time of 5 p.m. or even earlier on every day that she had worked on the night shift. On those occasions when she signed in earlier than' 5 p.m., Diephuis had come to the restaurant early in order to eat a meal before her shift began or relax for a few minutes. When a customer came into the restaurant before 5 p.m. on those occasions, she signed in early and waited on the customer. During the payroll period ending 30 June 1985, Die- phuis worked all five of her scheduled workdays, Wednesday through Sunday. During,the payroll period ending 7 July 1985, Die- phuis worked all four of her scheduled workdays that week: Wednesday, Friday, Saturday, and Sunday. The restaurant was closed on Thursday, 4 July. During the payroll period ending 14 July 1985, Die- phuis worked all five of her scheduled workdays, Wednesday through Sunday. ]During the payroll period ending 21 July 1985, Die- phuis worked four of her five scheduled workdays, Wednesday, Thursday, Friday, and Sunday. She was absent on Saturday. During the payroll period ending 28 July 1985, Die- phuis worked all five of her scheduled workdays, Wednesday through Sunday. In addition, Diephuis worked the day shift on Sunday for another waitress. Thus, she worked two shifts on that Sunday, both the day and the night shifts. During the payroll period ending 4 August 1985, Die- phuis worked all five of her scheduled workdays, Wednesday through Sunday. During the payroll period ending 11 August 1985, Die- phuis worked four of her five scheduled workdays, Wednesday through Saturday. She was absent on Sunday. During the payroll period ending 18 August 1985, Die- phuis worked all five of her scheduled workdays. In ad- dition, Diephuis worked the night shift on Tuesday of that week for another waitress. Thus, she worked 6 days at the restaurant that week. During the payroll period ending 25 August 1985, Die- phuis worked all five of her scheduled workdays. In ad- dition, she worked both the day shift and the night shift on Tuesday and the day shift on Saturday for other wait- resses. Thus, she worked 6 days and eight shifts that week. " The foregoing is based on a credited portion of the testimony of Die- phurs. -During the payroll period ending 1 September 1985, Diephuis worked four of her five scheduled workdays, Wednesday, Thursday, Saturday, and Sunday. She was absent on Friday. She worked the day shift on Tuesday for another waitress . Thus, she worked a total of 5 days and five shifts that week. During the payroll period ending 8 September 1985, Diephuis worked all five of her scheduled workdays. During the payroll period ending 15 September 1985, Diephuis worked three of her five scheduled workdays, Wednesday, Thursday, and Friday. She was absent on Saturday and Sunday. During the payroll period ending 22 September 1985, Diephuis worked four of her five scheduled workdays, Wednesday, Thursday, Friday, and Sunday. She was absent on Saturday. Of the 13 weeks Diephuis worked at the restaurant, she worked all of her scheduled workdays during, 8 of those 13 weeks. She was absent on 6 scheduled work- days during those 13 weeks. However, she also worked six extra shifts for other waitresses.5 On the six occasions that Diephuis was absent from work at the restaurant, she had made prior arrangements with other waitresses to cover her shifts. The waitresses at the restaurant had a system whereby they posted a note at the waitress station to indicate that the waitress wanted to be absent from work on a certain shift. If an- other waitress was willing to cover that shift, the other waitress so indicated. That system was'used frequently by the waitresses. During the time that Diephuis worked at the restaurant, she saw at least one or two such slips posted at the waitress station every week that Diephuis worked there. On the first occasion that Diephuis wanted to be absent from work, she notified the owners a week in ad- vance. The owners told Diephuis that they did not want to be bothered. They told her that she should just tell them the day before she was going to be absent, and that as long as Diephuis' shift was covered, there was no problem. Subsequently, Diephuis did give the owners 1 day's notice before she was to be absent . Diephuis also confirmed with the waitress who had agreed to cover her shift that the other waitress would do so. None of the owners of the restaurant ever said any- thing to Diephuis about the fact that she had taken time off from work. They did not tell her that they did not want to have her take the weekend off, or that it was inappropriate for her to take the weekend off. Diephuis acknowledged at the hearing that she owned a racing car, that her boyfriend was building a racing car, and 5 The findings in the foregoing paragraphs are based on a credited por- tion of the testimony of Diephuls and documentary evidence. I found the documentary evidence to be more accurate and more reliable than the recollections of the witnesses with regard to the times that Diephuls was absent from work. I also found the records to be more reliable than the testimony about Diephuls being late in reporting to work. For example, Diephuis believed that on one occasion she had been 15 minutes late in reporting to work James Karkazis also testified that Diephuls was late in reporting to work, and that he had spoken to her regarding that The records do not show that Diephuis was late in reporting to work. Ac- cordingly, I have relied on the documentary evidence, rather than the testimony to the contrary 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that her father also had a racing car. However, the owners of the restaurant did not ask Diephuis why she was taking the time off from work, nor did they ever tell her that there had to be a special reason for a waitress to be absent from work. 6 Millie Thompson, who was formerly a waitress at the restaurant, spoke with James Karkazis on the first occa- sion that Thompson had wanted some time off from work. James Karkazis told Thompson that she was to work the matter out with one of the other waitresses. Thereafter, Thompson followed the procedure described above by Diephuis with regard to arranging with an- other waitress to work Thompson's scheduled shifts. Thompson said that the same procedure was followed when she worked the scheduled shifts of other waitresses at their requests. General Counsel's Exhibits 5 through 12 are copies of certain timecards of Thompson while she was employed by the restaurant. Those timecards in- dicate that she was absent from work on several occa- sions and that she worked for other waitresses also on several occasions.? Sherry Clark, who is a waitress currently employed at the restaurant, said that she had taken three vacations from work during 1985.8 Traci Black, who formerly was employed as a hostess at the restaurant, made arrangements with the other two hostesses to cover her scheduled work shifts when Black was going to be absent from work. In a similar manner, Black worked the scheduled shifts of the other two host- esses when she was requested to do so. Black never told any of the owners of the restaurant in advance that she was going to take a certain day off from work. The owners of the restaurant never told Black that she should check with them before she took time off from work.9 John Karkazis related only one occasion when Die- phuis had asked him if she could leave work early that evening. He did not testify as to when that event had oc- curred. John Karkazis granted Diephuis' request to leave work early by telling her that she could leave at 8 p.m. if business was slow. Diephuis told John Karkazis on that occasion that she had a race car, and that she wanted to go to the races in Fremont. At 8 p.m. the restaurant was very busy. John Karkazis told Diephuis that he realized that he had promised to give her time off that evening, but that the restaurant was packed. He told Diephuis that there was a party of 15 persons, a party of 12 per- 8 The foregoing paragraphs are based on a credited portion of the tes- timony of Diephuis. Based on the criteria for resolving the credibility of the witnesses as set forth at the beginning of this section, I have not cred- ited the testimony to the contrary by James Karkazis In his version, Die- phuis was absent from work on 3 or 4 weekends during the 13 weeks that Diephuis worked at the restaurant According to his account, James Kar- kazis asked Diephuis why she was taking off from work on weekends, that the other waitresses first came to him to ask his pernussion in ad- vance if they could have someone else cover their shift for them, that such requests for time off and to have other waitresses cover their sched- uled shifts were granted for reasons such as someone getting married, someone dying, someone having a baby, or an emergency ° The foregoing is based on a credited portion of the testimony of Thompson and documentary evidence 8 The foregoing is based on a credited portion of the testimony of Clark e The foregoing is based on a credited portion of the testimony of Black. sons, a party of 5 persons, and a party of 6 persons. John Karkazis said that Diephuis took care of one of those parties, and then she changed her clothes and told John Karkazis that she wanted to leave work. He asked her to remain, and she did so for awhile. However, later that evening she left work and went to the races in Fre- mont.1 ° Regarding her job performance, Diephuis said that she was never warned in any way about her job performance by any of the owners while she was a waitress at the res- taurant. None of the owners ever told Diephuis that she was not doing her work properly. Diephuis said that she had received compliments from John Karkazis about her work. John Karkazis told her at the end of the shift that she had done a good job. She received such a compli- ment on more than one occasion. Sometimes the owners asked if she would like to have a drink or could they buy her a drink after the end of the shift. Diephuis con- sidered those comments to be compliments." James Karkazis acknowledged at the hearing that prior to the day that Diephuls was terminated he had never told Die- phuis that she was in danger of being fired for any reason. The only thing that James Karkazis told Die- phuis was that she had to cooperate with the other wait- resses because he did not want to get complaints from them. James Karkazis told her that he wanted coopera- tion so that everybody would work like a family at the restaurant. 112 Regarding Diephuis' eating meals at the restaurant, Diephuis said that the waitresses were permitted to eat at the restaurant. Diephuis ate either before her shift began or after her shift had ended. The only occasions on which the waitresses ate during the shift were when the owners made something special. Then the owners invited all the waitresses to share in that. None of three owners ever told Diephuis that she was eating when she should have been waiting on customers.13 Dolly Stephen Die- mert said that she and the other waitresses sometimes ate at the restaurant before their shift began. The owners had told the waitresses that they could do so before their shift began at 5 p.m. Diemart was currently employed as a waitress at the restaurant at the time that she testified. She had worked for the restaurant off and on for be- tween 8 and 10 years.14 Regarding Diephuis' performance of what is known as "side work" at the restaurant, Diephuis said that she was never told by the owners of the restaurant that she was not performing the side work properly. "Side work" ba- 10 The foregoing is based on a credited portion of the testimony of John Karkazis 11 The foregoing is based on a credited portion of the testimony of Diephuis 12 The foregoing is based on a credited portion of the testimony of James Karkazis. Based on the criteria set forth at the outset of this sec- tion, I have not credited the other testimony of James Karkazis and John Karkazis that they had problems with the job performance of Diephuis from the very beginning of her employment at the restaurant, that they spoke with her boyfriend, Meadows, about her job performance, and that they retained Diephuis as an employee only as a favor to Meadows 13 The foregoing is based on a credited portion of the testimony of Diephuis. 14 The foregoing is based on a credited portion of the testimony of Diemart LIVERMORE JOE'S INC. 173 sically consists of. filling salt and pepper shakers; clean- ing the tables; putting vinegar on the tables; making sure that everything was clean; putting the catsup bottles to- gether; stocking napkins; and stocking coffee and making sure that there were enough coffee filters. The only one who told Diephuis that she had not performed her side work properly was waitress Sherry Clark. Clark did that by leaving a note addressed to Diephuis.15 Clark ac- knowledged at the hearing that she had left a lot of notes for waitresses on the night shift regarding their failure to perform the "side work." Clark estimated at the hearing that she had left such notes for the waitresses about three times a week. Clark has been leaving such notes ad- dressed to other waitresses for years. Clark said that sometimes the night-shift waitresses also left notes ad- dressed to the day-shift waitresses.16 Diemert said at the hearing that Clark had a habit of writing such notes fre- quently. Diemert testified that she had told Clark that if Clark was going to continue to write notes to the night- shift -waitresses, then the night-shift waitresses were going to play Clark's "little game" and write notes to the day-shift waitresses. Diemert characterized the foregoing practice as being a merry-go-round.' 7 Angel Barsotti, who was currently employed as a bartender at the res- taurant at the time of the hearing, said that she had heard waitresses on the day shift talk about the night- shift waitresses not performing their "side work."18 Regarding the occasion when two customers left the restaurant, Diephuis recalled that the customers came in the restaurant about 6 or 7 p.m. She immediately went to wait on them after they had come into the restaurant. The hostess seated the customers, and the hostess gave them menus and water. Diephuis then asked them if they had decided what they wanted to order. They asked her, "Why you don't have pancakes on your menu, do you?" Diephuis replied that the restaurant did not serve pan- cakes, and that she was sorry. The customers told Die- phuis that they really were in the mood for pancakes for dinner. The customers then left the restaurant. Diephuis estimated at the trial that the customers, were in the res- taurant for between 2 minutes and less; than 5 minutes. John Karkazis approached Diephuis and asked her why the customers had left. Diephuis replied that the customers, wanted pancakes, and that they were in the mood for pancakes. John Karkazis did not say anything further to Diephuis regarding the matter. Instead, John Karkazis went about his work in the kitchen. John Kar- kazis did not tell Diephuis that they were longtime regu- lar customers, nor did he indicate to her that there was any problem with those customers going elsewhere to have pancakes. Diephuis denied that she called John 15 The foregoing is based on a credited portion of the testimony of Diephuis. Based on the credibility criteria mentioned at the outset of this section, I have not credited testimony to the contrary by James Karkazis and John Karkazis to the effect that they had spoken to Diephuis on sev- eral occasions about her failure to perform "side work." 16 The foregoing is based on a credited portion of the testimony of Clark. 17 The foregoing is based on a credited portion of the testimony of Diemert. 18 The foregoing is based on a credited portion of the testimony of Barsotti. Karkazis an SOB on that occasion or on any other occa- sion.19 With regard to misplacing a dinner check, Diephuis said there was one occasion when she momentarily could not locate a dinner check. That occasion was on a Friday night when the restaurant was busy. Diephuis gave an order to the bartender on duty, Darlene Contos. Diephuis then looked for the dinner check, but she could not find it. Diephuis told Contos that she would be right back, and that she had to get her dinner checks at the waitress station. Diephuis went to the waitress station, which was about 20 feet away, and went back to the bar. Diephuis then gave the dinner check to Contos to ring up for the drinks. Contos had not completed her task of making the drinks by the time Diephuis had returned to the bar, so Diephuis had to wait 1 or 2 minutes before Contos gave her the drinks. Diephuis said that this event had occurred about 5 or 6 weeks before she was termi- nated. On all other occasions Diephuis kept the dinner checks in her pocket.2 ° Regarding complaints from customers, no customer of the restaurant complained to Diephuis about her service. None of the owners of the restaurant ever told Diephuis that there were any customer complaints about her.21 B. The Union Organizing Activities Millie Thompson worked as a waitress at the restau- rant from 20 January until 29 August 1985. Thompson .is the one who contacted the Union regarding organizing the employees at the restaurant. She contacted the Union on 5 August 1985. She spoke with Peggy Turner, who is the secretary-treasurer of the Union. On 12 August 1985 Thompson met with Turner at a restaurant known as the Rancher, which is located in Livermore, California. At that time Turner gave Thompson pamphlets and union cards.22 19 The foregoing paragraphs are based on a credited portion of the tes- timony of Diephuis I have considered the different version given by John Karkazis, but I have not credited it based on the criteria mentioned previously In his version John Karkazis said that he told Diephuis that he knew those customers and that they had come into the restaurant every Wednesday for dinner for 1 or 2 years, and that the customers knew what the restaurant had on the menu. In his version, John Karkazis said that Diephuis called him a SOB, and that Diephuis called him that "all of the time." 20 The foregoing is based on a credited portion of the testimony of Diephuis. Based on the criteria mentioned previously, I have not credited the testimony of bartender Contos that Diephuis had a problem with losing her dinner checks on every shift that Diephuis worked with Contos and that Contos had to waste her own time looking for Diephuis' droner checks, which Diephuis told Contos she had given to her. 2i The foregoing is based on a credited portion of the testimony of Diephuis No customer of the restaurant testified at the hearing in this proceeding. The testimony of certain witnesses at the hearing with regard to their having heard customer complaints was not received in evidence for the truth of the matter asserted by the out-of-court declarants. Fur- thermore, in light of Diephuis' testimony, I found the testimony of Bar- sotti, Clark, Contos, Diemert, and James Karkazis regarding customer complaints to be exaggerated and not to be relied on. 22 The foregoing is based on a credited portion of the testimony of Thompson. Regarding all the persons who testified at the hearing, I have considered the matters brought out on the record by the attorneys that might affect the credibility of the witnesses. Regarding Thompson, she acknowledged at the hearing that she was upset with John Karkazis be- cause he had removed Thompson from working on the night shift in Continued 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Joe Regacho is a business representative of the Union. In September 1985 Turner informed Regacho that there was interest in organizing a union among the restaurant's employees. Turner also informed Regacho that the person to contact was Millie Thompson. Regacho then telephoned Thompson and asked if he could set up a meeting at Thompson's house for anyone who might be interested in forming a union at the restaurant. The meet- ing was then scheduled to be held on 25 September 1985 at Thompson's house.23 Thompson also contacted certain employees of the res- taurant after their working hours and talked to them about organizing a union at the restaurant. One of the employees whom Thompson contacted was Diephuis. Thompson expressed her views to Diephuis regarding the benefits of a union and how the Union would help the employees get a better working environment at the restaurant. As a result, Diephuis signed a union card at Thompson's house on 3 September 1985. In addition, Diephuis' spoke to about a half dozen employees at the restaurant. Diephuis told the employees to call Thomp- son, and Diephuis told them that Thompson wanted to speak to them. Diephuis did not mention the word "union" to the employees at work. Diephuis did not dis- cuss the Union with management, and management did not discuss the Union with her.24 Another employee whom Thompson contacted was Traci Black. Thompson asked Black to sign a union card. Black did so. Thompson also asked Black to hand out a couple of union cards to people whom Thompson had been unable to contact.25 Another employee of the restaurant who was contact- ed by Thompson was Deanna Dice Studley. Thompson telephoned Studley on the day before the union meeting was to be held, and Thompson invited her to attend the union meeting at Thompson's house. In addition, Studley had signed a union card sometime prior to the union meeting. Studley was still employed as a waitress at the restaurant at the time of the hearing in this proceeding.26 order to give that shift to waitress Debra Wales That had occurred on a Wednesday before her last day of work at the restaurant on Friday, 29 August 1985 Previously, Thompson had informed John Karkazis that she was going to be taking classes to study for a real estate examination Therefore, John Karkazis told Thompson that since he was going to lose Thompson anyway, he wanted to keep Wales at work at the restaurant Thompson also acknowledged at the hearing that she had not reported her tips accurately on her weekly timecards She understood that she was to report 8 percent of the total amount of the food bill that she served each week However , Thompson explained that she did not know what that amount was Therefore, she placed an inaccurate figure on her weekly payroll timecard as the amount of her tips She also acknowl- edged that she did so in order to placate other waitresses Nevertheless, Thompson maintained an accurate record of her tips at her home, and she reported that accurate amount of her tips on her joint income tax return that she filed with her husband While I have considered the fore- going, based on the credibility criteria mentioned earlier in this section, I have credited Thompson's account as set forth above and also in other respects, which will be specified in this decision 23 The foregoing is based on a credited portion of the testimony of Regacho 24 The foregoing is based on a credited portion of the testimony of Diephuis and Thompson 25 The foregoing is based on a credited portion of the testimony of Black and Thompson 2e The foregoing is based on a credited portion of the testimony of Studley Thompson also invited bartender Darlene Contos to attend the union meeting to be held at Thompson's house. Contos told Thompson that Contos was not inter- ested. Thompson urged Contos to think about it, and Thompson gave Contos directions to Thompson's house. Thompson also gave Contos Thompson's telephone number. On the day of the union meeting Thompson again telephoned Contos that morning and once again that afternoon. Thompson asked Contos to come to Thompson's house because they needed more support. Contos again told Thompson that she was not interested. Thompson told Contos that Contos did not have to put her name to anything, but dust to listen. Thompson also told Contos that they were going to have a few drinks, some wine, and that the meeting was going to be fun. Contos told Thompson that she had to go to work at 5 p.m. Thompson replied that Contos could go to work at the restaurant from Thompson's house. Once again Contos told Thompson that she was not interested.27 In addition to the foregoing matters, Thompson asked Diephuis to assist Thompson in telephoning other em- ployees and talking with them about the Union. Diephuis went to Thompson's house where Thompson initiated telephone calls to employees of the restaurant. One of the employees who was telephoned about 3 or 4 days prior to the union meeting on 25 September 1985 was waitress Debra Wales. Thompson spoke first with Wales regarding the union organizing activities and urged Wales to sign a union card so that they would have the right to have an election. Diephuis was present while Thompson spoke on the telephone with Wales. Thomp- son then handed the telephone to Diephuis who then spoke with Wales about the Union. Wales informed Die- phuis that Wales already was in the Union. They also talked about a union representative named Jamie Rodri- guez whom they both knew. Wales told Diephuis that she was for the Union. Diephuis asked Wales if she would sign a union card. Wales replied that she would have to speak to her husband before she did anything. Diephuis then passed the telephone back to Thompson who continued her conversation with Wales over the telephone. During that part of the conversation, Thomp- son gave Wales directions to Thompson's house. Wales informed Thompson that Wales wanted to come to the union meeting 28 The union meeting was held on Wednesday, 25 Sep- tember 1985, from about 2:30 to 4:30 p.m. at Thompson's house. Present at the meeting were Traci Black, Jan Blair, Sherry Clark, Stacy Conrad, Joelan Diephuis, Dan Dotey, Karen Schriber, Deanna Dice Studley, and Jo Williamson. The foregoing persons were employees of the restaurant at that time. Thompson also attended the meeting, but she was a former employee of the restau- 27 The foregoing is based on a credited portion of the testimony of Contos I have considered the different version given by Thompson wherein Thompson said that Contos told her that Contos was interested in the Union and that Contos would be at the union meeting Based on the credibility criteria set forth previously in sec A of this decision, I have credited Contos' version 28 The foregoing is based on a credited portion of the testimony of Diephuis and Thompson LIVERMORE JOE'S INC. rant at that time. Also present were two union represent- atives: Joe Regacho and Jamie Madrid.29 Regacho began the meeting by telling the employees about their rights under the law. He also talked about some of the things that might be covered by a union contract such as benefits, wages, and working conditions. Regacho also told the employees that he would answer any questions that the employees had. There was discus- sion among the employees at the meeting regarding ben- efits, wages, working conditions, grievances, and what they viewed to be harassment. Union authorization cards were distributed at the meeting. Four or five employees of the restaurant signed union cards at the meeting.30 During the meeting Diephuis asked Regacho questions about how Diephuis could become a shop steward at the restaurant. Diephuis also told those present at the meet- ing that if the Union did go through she would be the shop steward. Diephuis also told the group that previ- ously she had signed a union card. She encouraged the other employees at the meeting to sign union cards.31 During the meeting Clark spoke in favor of having union representation of the employees at the restaurant. Clark also signed a union authorization card. General Counsel's Exhibit 2 is a copy of the union authorization card that Clark signed at the union meeting.32 During the meeting Studley asked that the union card that she had signed previously, be returned to her. She said that she did not want to have anything to do with the Union because she was treated fine at the restaurant; that if she wanted to work in a union house, she would go to work, at a Sizzler; that she did not need the Union because her husband had medical benefits; and she could not get involved because her husband's parents were friends with the owners of the restaurant.33 During the meeting Thompson served the persons present 750 milliliter bottles of white wine, Coca-Cola, orange juice, and coffee. Thompson also kept some beer in the refrigerator for her, husband. Some of the persons at the meeting, including Black and the two union repre- sentatives, did not drink any wine.34 After the union meeting was over, Clark went and got a pizza and a bottle of wine. Clark then returned to Thompson's house where she ate the pizza with Thomp- son and Thompson's husband. Clark and Thompson drank wine while Thompson's husband drank beer. Sometime between 7 and 8 p.m. Clark left Thompson's 29 The foregoing is based on credited portions of the testimony of Black, Clark, Diephuis, Regacho, and Thompson. 80 The foregoing is based on credited portions of the testimony of Black, Diephuis, and Regacho. 31 The foregoing is based on credited portions of the testimony of Black, Diephuis, Regacho, and Thompson. 32 The foregoing is based on credited portions of the testimony of Black, Clark, Diephuis, Regacho, and Thompson and documentary evi- dence. as The foregoing is based on credited portions of the testimony of Black, Diephuis, and Studley. 34 The foregoing is based on credited portions of the testimony of Black, Diephuis, Regacho, and Thompson. Based on the criteria men- tioned at the outset of sec. A, I have not credited testimony to the con- trary by Clark and Studley. In Studley's version, there were 2 gallons of wine served and "jungle juice," which is a mixture of rum and fruit ,juice. In Clark's version, there was a half gallon of wine served and another bottle of wine as well as still another bottle of champagne. 175 house. In the opinion of Thompson, Clark was not drunk at that time. Clark drove her own car from Thompson's house. Clark was by herself. Thompson was not con- cerned about Clark's driving her car that evening be- cause, in Thompson's opinion, Clark was not drunk.35 C. The Events During the Evening of 25 September 1985 at the Restaurant` After Clark left Thompson's house, she went to the restaurant. She did not recall what time she had left Thompson's house, but it was still daylight.36 Barsotti saw Clark at the restaurant sometime between 6:30 and 7:30 p.m. Barsotti had worked until 5 p.m. as the bartender at the restaurant. Between 5 p.m. and the time that Barsotti saw Clark, Barsotti drank two Scotch and sodas. Barsotti remained at the restaurant until about 10 p.m. even though she was not on duty. Barsotti said that Clark ordered a Tuaca and orange juice, which she said is an alcoholic drink, when Clark first came in the restaurant that evening. Barsotti did not make that drink for Clark because Barsotti was not on duty at that time. Barsotti did not observe Clark order any other drinks that evening.37 Contos was the only bartender on duty after 5 p.m. at the restaurant. When Contos is on- duty, she does not allow anyone else behind the bar. ontos did not recall making a drink for Clark that evening at the restaurant. Nevertheless, she saw Clark with a drink in her hand. Clark told Contos that the drink was a Tuaca and orange juice.38 Wales was on duty from 5 to 10 p.m. as a waitress at the restaurant. Although Contos did not recall making the Tuaca and orange juice for Clark, Wales said that she saw Contos do so. While Barsotti did not observe Clark ordering any other drinks that evening, Wales heard a man order a Bailey's on-the-rocks at the bar, and then Wales saw the man hand in the drink to Clark who drank it. That occurred about 10 minutes to 9 p.m. after Clark had eaten a halibut, rice, and vegetable dinner. During her dinner, Clark drank some wine.39 Black had a conversation with Barsotti that evening. Barsotti asked Black what Millie Thompson was trying to pull with the union stuff. Barsotti told Black that Thompson was not going to get away with it because Contos and Studley were against it. During the evening 36 The foregoing is based on a credited portion of the testimony of Thompson Based on the criteria set forth at the outset of sec. A, I have not credited the versions of Clark and Studley. 36 The foregoing is based on a credited portion of the testimony of Clark. 87 The foregoing is based on a credited portion of the testimony of Barsotti. I'll The foregoing is based on a credited portion of the testimony of Contos. 39 The foregoing is based on a credited portion of the testimony of Wales. Wales said that the wine was a bottle of white Zinfandel. Howev- er, Diephuis said that wine was served at the restaurant only by the glass, half a carafe, or a full carafe during the time that Diephms worked at the restaurant The types of wine available to customers at the restaurant were rose, Chablis, and Burgundy. I find Diephuis' testimony to be cred- ible that, the restaurant did not serve wine by the bottle during the time of her employment. Thus, I find that Clark drank some wine in some form of a container, but not a bottle of white Zinfandel. 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Black observed Barsotti talking with the owners of the restaurant. That occurred about 9 p m. and prior to the time that Diephuis was fired. Black was not close enough to hear what was being said between Barsotti and the owners.40 David Burchfield is not an employee of the restaurant. He came to the restaurant to pick up his girlfriend, Traci Black. Barsotti, Contos, and Wales said that Burchfield drank mai-tais and beer at the breaktable that evening.4 i Diephuis was informed by James Karkazis that she was terminated from employment at the restaurant. Die- phuis had two conversations with James Karkazis re- garding the reasons for her termination. The first such conversation took place at 10 p.m., which was the end of her work shift that evening. Diephuis spoke with James Karkazis in the office. No one else was present during their conversation. James Karkazis gave Diephuis the following reasons for her termination during their first conversation: (1) business was slow; (2) money was tight and they were cutting costs; (3) James Karkazis' family was coming from Greece, and they were going to live with him; (4) in order to support his family, James Kar- kazis wanted his wife to work in the restaurant as a wait- ress and to take Diephuis' place. During the second con- versation between James Karkazis and Diephuis that evening, James Karkazis added a fifth reason. That con- versation will be covered later in this section. During their first conversation Diephuis asked James Karkazis why she was being fired when she was not the last employee who had been hired at the restaurant. James Karkazis told her that his wife was going to take Diephuis' place. James Karkazis gave Diephuis her final paycheck that evening. The paycheck was for her work on that one day only, 25 September 1985. General Coun- sel's Exhibit 4 is a copy of the stub to Diephuis' final paycheck. The paycheck stub is dated 25 September 1985. Diephuis stated at the hearing that she had not noticed any decrease in the restaurant's business during the time that she was employed there.42 40 The foregoing is based on a credited portion of the testimony of Black Based on the criteria set forth at the outset of sec A, I have not credited Barsotti's denial of having the foregoing conversation with Black In this connection , I have considered and found credible Black's testimony that she is under the legal age for dunking alcoholic beverages that she did not drink any alcoholic beverages that evening at the restau- rant and that on prior occasions she did not drink alcoholic beverages at the Dublin Bowl where her friend is a bartender Thus, I have not cred- ited the testimony of Barsotti and Wales to the contrary 41 The foregoing is based on credited portions of the testimony of Bar- sotti, Contos, and Wales Based on the criteria set forth in sec A, I have not credited Burchfield 's account to the contrary that he did not have any alcoholic beverages to drink that evening 42 The foregoing paragraphs are based on credited portions of the tes- timony of Diephuis and documentary evidence In this connection, I have considered the fact that Diephuis at first said that she had been terminat- ed on 26 September 1985, rather than 25 September 1985 However, her subsequent testimony corrected the date of her termination to be 25 Sep- tember 1985 Based on the criteria set forth at the outset of sec A, I have not credited the testimony of James Karkazis regarding his version of his first conversation with Diephuis In his version, James Karkazis asserted that he told Diephufs that she was terminated because of customer com- plaints, complaints from other waitresses about Diephuis' failure to per- form side work, that Diephuis was coming in late to work , that Diephuis was taking too many weekends off from work , and that Diephuis ate a meal right away when she reported to work After her conversation with James Karkazis in the office, Diephuis went to the breaktable in the restaurant. Present at the breaktable were: Clark, Black, Burchfield, and Wales. Diephuis told the persons at the breaktable that it had been nice working with them, and that she had just been fired. Clark asked Diephuis why she had been fired. Diephuis replied that she did not know. Clark said that she was going to find out why Diephuis had been fired. Clark then left the breaktable.43 After Clark had left the breaktable, Diephuis told the other persons that James Karkazis had told her that Diephuis was being replaced by James Karkazis' wife in order to cut down on costs.44 Clark approached John Karkazis, and together they went to the back of the restaurant where the restrooms are. At the time that she testified at the hearing, Clark acknowledged that she did not remember accurately what had been said during her conversation with John Karkazis. Clark stated: "All this is quite a fog to me, too, because I had been drinking and I don't remember exact- ly the words that were said." Nevertheless, Clark gave a version of her conversation with John Karkazis. In that version Clark said that John Karkazis told her that Die- phufs was fired because of customer complaints and be- cause of her failure to perform side work. Clark said that she asked John Karkazis about the Union, and that John Karkazis had replied no, but that they were not going to have the Union in the kitchen area. That version given by Clark at the hearing was not supported by Clark's own handwritten statement of what John Karkazis had told her on that occasion. General Counsel's Exhibit 3 is a copy of Clark's statement. The circumstances sur- rounding her writing of that statement sometime after the termination of Diephuis will be described in sec. D. Clark admitted at the hearing that she had attempted to be as accurate as possible when she wrote the state- ment. Clark also admitted at the hearing that she thought that the statement was accurate. The General Counsel's Exhibit 3 states: I had asked Johnny Karkazis why Joelan was fired. He took me to the woman's bathroom so no one else could hear what he had to say, saying to me that Joelan had approached Debra Wales of Union interest that we don't need that kind of stuff in their restaurant. Coming out of the restroom I told ev- eryone in the vicinity what he said. Jimmy was there saying What? What? What? Johnny saying he'll never tell me another thing again. Waitress: Sherry Clark Employed 10 years. As will be shown in section D, Clark subsequently tried to have her statement returned, and she expressed the fear of losing her job She did not claim that the statement was inaccurate. When Thompson informed 49 The foregoing is based on a credited portion of the testimony of Diephuis 44 The foregoing is based on a credited portion of the testimony of Black LIVERMORE JOE'S INC Clark thatithe statement had already been turned in to the Union, Clark told Thompson that Clark would dust claim that she was drunk and did not know what she was doing I have given consideration to the lay opinions of cer- tain witnesses as to the levels of sobriety or intoxication of Clark on 25 September 1985. However, I consider Clark's own actions as being a more reliable and more objective indicator of her own state of sobriety or intoxi- cation shortly after 10 p.m. on 25 September 1985 when Clark spoke with John Karkazis regarding Diephuis' ter- mination and then spoke to the persons at the breaktable. Thus, Clark's actions, after Diephuis had informed the persons at the breaktable that Diephuis had been fired, indicate that Clark was not so impaired at that point in time by her consumption of alcoholic beverages that she was unable to understand what was being said, to make a decision of her own volition, and physically to move about. I find that Clark was able to understand and to com- prehend what Diephuis told the persons at the breaktable about Diephuis' being fired. That is shown by Clark's promptly asking Diephuis why Diephuis had been fired. Then Clark made her own decision to find out why Die- phuis had been fired. Clark next took immediate action to find out by questioning John Karkazis regarding the matter. Physically, Clark was able to walk from the breaktable to the restroom area and to return to the breaktable. There she gave an account of what John Karkazis had told her. Later on, Clark was able to recall that event and to write her own statement of what had occurred. In these circumstances, I find credible what Clark reported to the persons at the breaktable regarding what John Karkazis had just told Clark. I find that the statements made by John Karkazis to Clark regarding Diephuis' termination were admissions. Finally, I find that Clark's own handwritten statement (G.C. Exh. 3) re- flects accurately what John Karkazis told Clark on that occasion. The statement was written by Clark at a point in time much closer to the event than was the time that she testified at the hearing. Clark admitted at the hearing that she tried to be as accurate as possible in writing the statement, and Clark admitted at the hearing that the statement was accurate. In these circumstances, I base the findings of fact as to what John Karkazis admitted to Clark regarding Diephuis' termination to be set forth in Clark's statement (G.C. Exh. 3). While Clark's earlier statement was not sworn, I find that it is a reliable basis for making such findings in view of her acknowledgment that the statement was accurate. See Alvin J. Bart Co., 236 NLRB 242 (1978). In view of the foregoing, and based on the credibility criteria set forth in section A, I have not credited the tes- timony of John Karkazis to the effect that he told Clark that he had fired Diephuis because Diephuis did not per- form the job right and that Diephuis always was late to work. On the same basis, I also do not credit John Kar- kazis' statement at the hearing that he did not know which employees were involved with the Union, and that Diephuis was not fired because of union activity. Following the conversation between Clark and John Karkazis, Clark returned to the area of the breaktable. 177 John Karkazis was standing behind Clark at the time. Clark turned to Diephuis and asked Diephuis if she wanted to know why Diephuis had been fired Diephuis replied yes. Clark then stated that Diephuis was fired be- cause John Karkazis had said that Diephuis was involved in the Union, and that they did not want any of that crap around here Clark also said that John Karkazis had told her that Debra Wales had told John Karkazis that Die- phuis was involved in the Union. John Karkazis told Clark that he would never tell Clark anything again and for Clark not to ever ask him to tell her anything again or to do anything for her again. James Karkazis then approached and pulled on the arm of John Karkazis. James Karkazis said something to John Karkazis in the Greek language. John Karkazis turned to Clark and called her a SOB. John Karkazis also told Clark that they had never done anything to hurt her, and that Clark was lying. Clark asked John Karkazis how he could say that when John Karkazis had just told her the foregoing in the bathroom. James Kar- kazis again pulled on the arm of John Karkazis and di- rected him towards the bar. James Karkazis spoke to John Karkazis in the Greek language.45 Diephuis then left the breaktable and walked over to where James Karkazis was. Diephuis asked James Karka- zis why he was firing her, and she asked if James Karka- zis wanted to tell her the truth. James Karkazis told Die- phuis that he was bunging his wife in to replace Die- phuis. Diephuis commented that was what James Karka- zis had told her before. James Karkazis then said that Diephuis was taking too much time off from work for racing and taking off on the weekends. Diephuis replied that there had never been a problem with that, and that James Karkazis had never said anything to Diephuis re- garding that. Diephuis told James Karkazis that she always had had her shift covered, and as far as Diephuis knew, there had not been any problem. Diephuis asked James Karkazis why he had not told her this before. James Karkazis replied that he had to bring his wife in to replace Diephuis, and that he was sorry. Diephuis asked James Karkazis why he could not look her in the eye and tell her why she had been fired. James Karkazis then walked away from Diephuis.46 Wales and John Karkazis gave two differing versions of conversations between them at the restaurant that evening after Clark had spoken to the persons at the breaktable. Wales stated that she asked James Karkazis whether she was going to be fired, and that James Kar- kazis told her that she should not worry about her job 45 The foregoing is based on a credited portion of the testimony of Diephuis Clark admitted at the hearing that when she returned to the breaktable area she told the other persons that Diephuis had been fired because of the union meeting Clark said that John Karkazis responded, but Clark did not remember at the hearing what John Karkazis had said However, Clark did recall that John Karkazis told her on that occasion that he would never tell her anything Diephuis ' testimony regarding the foregoing event finds support in the testimony of Black, Burchfield, and Wales Their accounts are slightly different, but not inconsistent as to what Clark told the persons at the breaktable I found Diephuis' account to be the most believable one based on the criteria set forth previously in sec A 4e The foregoing is based on a credited portion of the testimony of Diephuis 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because Wales was doing her job properly. Wales said that she did talk to John Karkazis, but she did not be- lieve they talked about anything regarding the restau- rant. Wales believed that she simply asked John Karkazis how his wife was. In John Karkazis' version, Wales came to him, rather than James Karkazis, and asked him whether they were going to fire her. John Karkazis said that he told Wales that there was no way that he was going to fire Wales. In light of the foregoing, I find that Wales did have such a conversation in which she asked if she was going to be terminated by the restaurant and she was told that she was not going to be fired. Howev- er, I find that Wales is in error in stating that her con- versation was with James Karkazis. Instead, I find that her conversation was with John Karkazis. Both Wales and John Karkazis said that following their conversation John Karkazis went to the area of the breaktable where he told the persons there that, if they wanted to join the Union, to go ahead and join, but the kitchen would have to stay out of the Union. Both Black and Diephuis denied that John Karkazis made those statements to the persons at the breaktable. Based on the criteria set forth at the outset of section A, I found the testimony of Black and Diephuis to be credible, and I have accepted their testimony on this point D. Other Events Later in the evening of 25 September 1985 after Die- phuis had been terminated, Diephuis telephoned Thomp- son. Diephuis told Thompson that she had just been fired by James Karkazis Diephuis told Thompson that the reason James Karkazis told her was that he was going through a financial crisis, and James Karkazis said that he needed his wife to start waiting on tables because he was bringing his family over from Greece. Diephuis also told Thompson that Clark had said that John Karkazis had told Clark in confidence that the reason Diephuis was fired was because Diephuis was involved with the union activities, and John Karkazis said he would not stand for that. Thompson told Diephuis that Thompson would get in touch with Regacho that night. Thompson said that she had his personal home telephone number, and that Rega- cho wanted to know if anyone was fired at the restau- rant. Thompson then telephoned Regacho and informed him of what had happened. Regacho told Thompson that he wanted to talk with Diephuis in the morning; that he would be in touch with Diephuis; and that he would then get back to Thompson. A day or so later Regacho contacted Thompson. Re- gacho asked Thompson to get a statement from Clark re- garding what had happened the night of 25 September 1985. Either that same day or the next morning Thompson telephoned Clark. Thompson told Clark that Regacho had asked Thompson to get a statement from Clark, and that it would help Diephuis because Clark was aware of the true reason why Diephuis was fired. Clark told Thompson that John Karkazis had pulled her into the bathroom, and that he told her that he would not stand for anybody to be involved with the Union at the restau- rant . Thompson then asked Clark if she could write a statement about what had happened and what John Kar- kazis had told her. Clark told Thompson that she would be glad to do so. They agreed to meet one morning before Clark was scheduled to go to work. Thompson was supposed to stop by Clark's house and pick up the statement from Clark. About 3 or 4 days after their telephone conversation, Thompson went to Clark's house about 8:15 a.m. Clark was getting ready to go to work at that time. Clark wrote the statement while Thompson was at Clark's house. Clark then gave the statement to Thompson. Thompson identified General Counsel's Exhibit 3 as being the handwritten statement, that Clark gave to her on that occasion. Thompson described Clark's condition at that time as being fresh and getting ready to go to work. About 2 weeks after Clark had given the statement to Thompson, Clark telephoned Thompson. Clark told Thompson that she was afraid of losing her job, and that Clark wanted to remain anonymous. Clark said that she wanted her statement back. Thompson told Clark that Thompson no longer had the statement, and that Thomp- son had turned it over to the union business agent. Clark said that she was afraid that if the statement was used, she could lose her job immediately. Thompson told Clark to get in touch with Regacho. Clark replied that it did not matter, that if they were going to use her state- ment, and her name was going to be used, Clark would just claim that she was drunk, and that she did not know what she was doing on the night that Diephuis was fired.47 Regacho identified General Counsel's Exhibit 3 as the statement which had been given to him by Thompson. He kept Clark's statement in his files until he submitted that statement to the NLRB in connection with the filing of the unfair labor practice charge in this case. About 7 or 8 days after Thompson gave Clark's state- ment to Regacho, Regacho received a telephone call from Clark. Clark asked Regacho under what conditions her statement might be used. Regacho informed Clark that her statement would be used only if it was absolute- ly necessary, and if the case went to trial. Clark did not ask Regacho to return her statement to her. Clark did not tell Regacho that what Clark had written in her statement was inaccurate.48 The wife of James Karkazis did not work at the res- taurant after Diephuis was fired. During the 3 years prior to the hearing in this proceeding in February 1986, the wife of James Karkazis had not worked at the restau- rant. Prior to that time James Karkazis' wife had worked at the restaurant for many years as a cashier or hostess. She also had helped in the kitchen, and she had cleaned tables. 4 s 47 The findings in the foregoing paragraphs are based on credited por- tions of the testimony of Thompson 48 The findings in the foregoing paragraphs are based on credited por- tions of the testimony of Regacho 49 The foregoing is based on a credited portion of the testimony of James Karkazis LIVERMORE JOE'S INC Eileen Delatorre was currently employed by the res- taurant at the time of the hearing in this proceeding. She had been employed at the restaurant on two previous oc- casions. The first time was for a little over a year, and the second time was for about 9 months. She then left the employment of the restaurant in November 1984. Sometime in August 1985 Delatorre telephoned James Karkazis to inquire about a job at the restaurant. Dela- torre explained to James Karkazis that she and her hus- band were transferring back to Livermore from Santa Rosa, California. James Karkazis told Delatorre that he did not have any shifts open, but he told her to keep calling him and to keep in touch. Thereafter, Delatorre telephoned James Karkazis about every week or 10 days until about the second week in September 1985. During the week of 16 September 1985 James Karkazis told De- latorre to call him back on Sunday, 22 September 1985, to see if anything was going to be available. On Sunday, 22 September 1985, Delatorre again telephoned James Karkazis about 1:30 p.m. During that conversation Dela- torre again asked James Karkazis if he was going to have anything coming open. James Karkazis told Delatorre that he thought he might possibly, and that Delatorre should call him in about a week. James Karkazis telephoned Delatorre on Wednesday, 25 September 1985, about 9:30 p.m. During that conver- sation James Karkazis told Delatorre that he had a shift open, and if Delatorre would like it, Delatorre could start to work on Friday night, 27 September 1985. At the hearing Delatorre said that there was no reason she could not have started work on Thursday night, 26 September 1985, but she did not ask James Karkazis any questions because she was just glad that he had called her. Delatorre said that her regular days off on the shifts she worked were Monday and Tuesday. She did not know whose shift she had taken.so I have considered the testimony of James Karkazis and John Karkazis regarding the time when the decision was made by the owners of the restaurant to terminate Die- phuis. James Karkazis said that the decision to fire Die- phuis was made about a week prior to her termination on 25 September 1985. John Karkazis testified at one point that the decision to terminate Diephuis was made on Sunday 22 September 1985, and then he said at another point that the decision was made on Saturday, 21 Sep- tember 1985. He attributed the delay in terminating Die- phuis from either Saturday or Sunday to Wednesday, 25 September 1985, to a problem in getting Diephuis' pay- check drawn. The wife of John Karkazis is the book- keeper for the restaurant, and she is the one who pre- pares the paychecks. John Karkazis acknowledged at the hearing that his wife was at home on Saturday, 21 Sep- tember 1985, but he did not ask his wife to make out Diephuis' paycheck on Saturday. He also acknowledged at the hearing that his wife was home on Sunday until 4 p.m. when she left to do some shopping. However, he acknowledged that he did not ask his wife to prepare Diephuis' paycheck on Sunday. The restaurant is closed on Monday. On Tuesday John Karkazis' wife prepared 50 The findings in the foregoing paragraphs are based on credited por- tions of the testimony of Delatorre 179 all the payroll checks for all the employees of the restau- rant including Diephuis. It was not until after 8 p in. on Wednesday, 25 September 1985, that John Karkazis tele- phoned his wife and asked her to prepare a final pay- check for Diephuis. In light of the foregoing admissions, I do not credit the assertions of James Karkazis and John Karkazis that the decision to terminate Diephuis was made prior to the evening of 25 September 1985. I also do not credit their assertion that they waited until Wednesday night to have her final paycheck prepared because they did not know how many hours she would work at the restaurant on Wednesday. E. Conclusions I conclude that the evidence showed that Diephuis had engaged in union activities before her termination. She had signed a union card; talked with Wales regard- ing the Union; attended the union meeting at Thomp- son's house; encouraged other employees at the union meeting to sign union cards; and stated at the union meeting that she wanted to be the union shop steward. The timing of her termination on the same date that she attended the first union meeting of the restaurant's em- ployees is a significant factor to be considered under the circumstances of this case. Thus, the union meeting was held during the afternoon of 25 September 1985, and the decision to terminate her was not made until that evening when the wife of John Karkazis was called to prepare Diephuis' final paycheck. The evidence revealed that Delatorre was not called until about 9:30 p.m. that day, which was just a half hour before Diephuis was ter- minated at the end of her shift at 10 p.m. Delatorre was the one who began working on Friday, 27 September 1985, on the night shifts which Diephuis previously had worked. See the Board's decision in Mississippi Chemical Corp., 280 NLRB 413, 421 (1986), and Duroyd Mfg., 276 NLRB 144 (1985), where timing was one of the several factors considered in those cases. The evidence showed that, when Clark asked John Karkazis why Diephuis had been terminated, John Kar- kazis replied that Diephuis had approached Wales re- garding the Union, and that they did not need that kind of stuff in their restaurant I conclude that the foregoing statements were admissions made by John Karkazis just a few minutes after Diephuis had been terminated I con- clude that those admissions established the employer's knowledge of part of Diephuis' union activities and also established the true motivation for the termination of Diephuis that evening. The admissions also show that the restaurant was hostile to the attempt to organize a union at the restaurant. I recognize the fact that there is evi- dence of no other unfair labor practices or independent evidence of animus. In Stockton Kenworth Co., 221 NLRB 800, 807 (1975), it was held, "The ultimate ques- tion is what was the reason for the discharge, and the presence or absence of other antiunion actions is an aid to answering the question, not an answer in itself." In Kenco Plastics Co., 260 NLRB 1420 (1982), it was held, "In finding a prohibited motive for a disciplinary action, independent evidence of animus is relevant but is not an essential element of proof." 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on the foregoing and the more detailed findings of fact set forth in the preceding sections, I conclude that the General Counsel has established a prima facie case that Diephuis was terminated by the restaurant on 25 September 1985 because of her union activities in vio- lation of Section 8(a)(1) and (3) of the Act. In its decision in Hunter Douglas, Inc., 277 NLRB 1179 (1985), the Board held- The Board held in Wright Line, 251 NLRB 1083 (1980), enfd. 622 899 (1st Cir. 1981), cert. denied. 455 U.S. 989, that once the General Counsel makes a prima facie showing that protected conduct was a motivating factor in an employer's action against an employee, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protected conduct. The employer cannot carry this burden merely by showing that it also had a legitimate reason for the action, but must "persuade" that the action would have taken place absent the protected conduct "by a preponderance of the evidence," Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). If an employer fails to satisfy its burden of persuasion, a violation of the Act may be found. Bronco Wine Co., 256 NLRB 53 (1981). never warned by the owners about performing side work. She received a note from Clark regarding that, but the evidence revealed that Clark had a proclivity for writing such notes to night-shift waitresses, and that Clark had left such notes about three times a week for years. Thus, Clark's notes were a common occurrence. The two customers who left the restaurant wanted to eat pancakes, which were not on the restaurant's dinner menu. Thus, Diephuis was not at fault in that situation. No customers ever complained to Diephuis regarding her, nor did any of the owners of the restaurant tell Die- phuis that any of the restaurant's customers had com- plained about her. The incident about a misplaced dinner check occurred only once, and Diephuis took that dinner check from her waitress station back to the bar before bartender Contos had finished making the drinks. After considering the foregoing, and the more detailed findings of fact set forth in the preceding sections, I con- clude that the restaurant has asserted pretextual reasons for terminating Diephuis, and thus, the restaurant has failed to meet its burden under Wright Line. See Cedar Falls Health Care Center, 276 NLRB 1300 (1985); Beverly Enterprises, 272 NLRB 17 fn. 2 (1984); Frank Black Me- chanical Services, 271 NLRB 1302 fn. 2 (1984); and Lime- stone Apparel Corp., 255 NLRB 722 (1981). CONCLUSIONS OF LAW James Karkazis gave Diephuis five reasons for her ter- mination at the time he informed her that she was dis- charged. In summary, they were: (1) business was slow; (2) money was tight and they were cutting costs; (3) James Karkazis' family was coming from Greece and they were going to live with him; (4) in order to support his family James Karkazis wanted his wife to work in the restaurant as a waitress and to take Diephuis' place; and (5) Diephuis was taking weekends off from work. The record in this proceeding does not support the first four reasons given to Diephuis by James Karkazis at the time he terminated her. Regarding the fourth reason, the evidence contradicted that reason because the wife of James Karkazis had not gone to work as a waitress at the restaurant after Diephuis was fired. With regard to the fifth reason, the evidence showed that Diephuis had worked all of her scheduled workdays during 8 of the 13 weeks she was employed at the restau- rant. She was absent on 6 days during her employment, but she had followed the practice at the restaurant to ar- range for other waitresses to cover her scheduled shifts. The evidence showed that other waitresses and hostess Black also had taken time off from work, and that Die- phuis had worked the shifts of other waitresses on six oc- casions. Diephuis was never warned regarding her having waitresses work her shifts for her, nor was Die- phuis ever warned about any aspect of her job perform- ance while she was employed at the restaurant. With regarding to the other matters brought out at the hearing concerning her job performance, the evidence showed that Diephuis ate meals before her shift began or after her shift had ended, except on those special occa- sions when the owners invited the waitresses to eat something special that they had cooked. Diephuis was 1. The Respondent is an employer engaged in com- merce within the meaning of Section 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. 3. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by discharging Joelan Diephuis on 25 September 1985 because she had engaged in union activities. 4. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, I shall recom- mend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take affirmative action designed to effectuate the policies of the Act. I shall recommend to the Board that the Respondent be ordered to offer Joelan Diephuis immediate and full reinstatement to her former job or, if her job no longer exists, to a substantially equivalent position of employ- ment, without the loss of her seniority or any other rights and privileges. I shall further recommend to the Board that the Re- spondent be ordered to make whole Joelan Diephuis for any loss of earnings and other benefits resulting from the discrimination against her. Backpay is to be computed in accordance with the Board's decision in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's LIVERMORE JOE'S INC. 181 decisions in Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel Corp., 231 NLRB 651 (1977); and Olympic Medical Corp., 250 NLRB 146 (1980). In accordance with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the Order The General Counsel has requested that a visitatorial clause be included in the Order in this case. I conclude that the General Counsel has not presented evidence in this proceeding, which established that such a visitatorial clause was necessary under the circumstances of this case. Accordingly, I hereby deny the General Counsel's request. See Cherokee Heating Co., 278 NLRB 399 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" 1 ORDER The Respondent, Livermore Joe's Inc., Livermore, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging an employee because the employee had engaged in union activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Joelan Diephuis immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Livermore, California restaurant copies of the attached notice marked "Appendix."52 Copies of 51 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 52 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 " the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge an employee because the em- ployee has engaged in union activities on behalf of Hotel Employees & Restaurant Employees & Bartenders Union Local 50, affiliated with Hotel and Restaurant Employ- ees and Bartenders International Union, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Joelan Diephuis immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify her that we have removed from our files any reference to her discharge and that the dis- charge will not be used against her in any way. LIVERMORE JOE'S INC.