Club A And Larama Corp.

CLUB A Namer, Inc. d/b/a Club A and Larama Corporation d/b/a Club A, Joint Employers and Hotel Em- ployees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO. Case 2-CA-21452 31 August 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 8 January 1987 Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a sup- porting brief; the Respondents each filed cross-ex- ceptions and briefs in support of their cross-excep- tions and in opposition to the General Counsel's ex- ceptions; the General Counsel filed an answering brief to the Respondents' cross-exceptions; and Re- spondent Namer filed a brief in opposition to Re- spondent Larama's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and ' The General Counsel and the Respondents have excepted to some of the judge's credibility findings 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 The judge found that Canteloube, although a supervisor for Respond- ent Larama, did not act as an agent of Respondent Namer when on 14 or 15 December 1985 he allegedly informed employee Hatgidimitriou that Namer intended to retain Hatgidimitriou's services In so concluding, the judge relied on the fact that at that time Canteloube had been given a termination notice and was aware that Namer did not intend to retain his services when it assumed control of Club A on 1 January 1986 The Gen- eral Counsel has excepted, contending, inter alia, that given the joint em- ployer status of the Respondents, Canteloube's agency status as to Larama should be imputed to Namer In light of our conclusion above that Larama and Namer were not joint employers, we reject this conten- tion of the General Counsel and agree with the judge that Canteloube was not an agent of Namer The judge found that the testimony was unclear as to whether union- ization began in "mid-November or early December 1985" but that the record shows that Namer's director, Erman, decided "before the Club's employees made any attempts to seek unionization" to insist that the con- tract between Namer and Larama provide that Larama's employees be discharged The General Counsel has excepted to this finding, contending that the record establishes that discussions concerning unionization began prior to 3 December 1985, the date of the execution of the contract, and that the Respondents' decision to include a provision in the contract re- quiring Larama to discharge its employees was made with knowledge of the union activity The General Counsel has correctly stated that the record indicates that union activities commenced before the execution of the contract We find, however, that the General Counsel has failed to establish that the Respondents knew of the union activities before the de- cision was made to provide for the discharge of Larama's employees or before 3 December 1985, the date of the contract's execution In this regard, we note that the record does not establish that Larama's supervi- sor, Canteloube, was privy to any conversation concerning the Union prior to 3 December Moreover, the record does not establish where the 521 conclusions2 as modified, and to adopt the recom- mended Order as modified. On 1 January 1986 Respondent Namer began managing Club A, which was owned by Respond- ent Larama. The judge, relying solely on the con- tract executed by the Respondents on 3 December 1985, found that the Respondents were joint em- ployers from January to June 1986. Larama has ex- cepted, contending, inter alia, that the judge misap- plied the law since his joint employer finding is not supported by a showing that the two Respondents shared or codetermined the terms and conditions of employment of the employees in question. In sup- port of its contention, Larama claims that from 1 January to 15 June 1986, the period during which Respondent Namer managed Club A, Larama did not take part in decisions concerning, inter alia, hiring, salaries, health insurance, fringe benefits, leave or personal days, or work schedules. It is well settled that the question of joint em- ployer status requires an examination into whether an employer who is claimed to be a joint employer possesses sufficient control over the work of the employees to qualify as a joint employer with the actual employer. Thus, when two or more business entities share or codetermine those matters govern- ing the essential terms and conditions of employ- ment, a joint employer finding is appropriate. Emeryville Trucking, 278 NLRB 1112 (1986); TLI, Inc., 271 NLRB 798 (1984); Laerco Transportation & Warehouse, 269 NLRB 324 (1984); and NLRB v. precontract union discussions took place or that the discussions were likely to have been overheard by agents of either contracting party 2 The judge concluded that Namer unlawfully denied employment to Barroso and stated that Erman, the director of Namer, denied employ- ment to Barroso because "Erman believed that Barroso would likely engage in picket line activity and/or because he supported the Union " In adopting his conclusion, we note that during a 26 December 1985 tele- phone conversation, Bruneliere, who was working for Erman at that time, told Barroso that opening Club A on 2 January 1986 "might be a problem because supposedly the waiters were getting involved with the union They did not know if the Union was going to let them open up " In this regard, we note that, during that conversation, Bruneliere ap- peared to be acting at least as a special agent of Namer inasmuch as Erman had earlier told Barroso that "somebody" would contact him to explain Club A's new procedures and Bruneliere apparently acted upon Erman's direction in contacting Barroso in order to set up a meeting to explain to Barroso "everything that was going on " See, e g , C & W Super Markets, 231 NLRB 403, 407 (1977), enfd 581 F 2d 618 (7th Cir 1978) See also Restatement 2d, Agency 103 (1958) We further note in this regard that on 2 January 1986, the date Barroso was told by Brune- here that he would not be hired by Namer, Erman said to Barroso when Barroso requested that Erman reconsider his decision "well you know all you guys with the union I don't know why you are going after me for I don't know what is going on with the guys with the union let me discuss it with Rene Bruneliere Finally, we note that the judge inadvertently stated that the hearing was held in July 1985, rather than in July 1986, that Namer's president returned to France on 7 June 1981, rather than 7 June 1986, and that the Respondents began discussions in November 1980, rather than in 1985, concerning the sale of Club A These errors are insufficient to affect the result of our decision 285 NLRB No. 59 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982). In the instant case, the facts do not support a finding that Larama either shared or codetermined the employees' terms and conditions of employ- ment. On the contrary, the Respondents' contract provided, inter alia, that Namer would manage Club A as of 1 January 1986 and that Namer could "hire, discharge and determine the compensation of any employee, consultant or agent." The contract further required Larama to terminate its employees "on two weeks' prior notice," and it merely gave Namer the option of retaining any of Larama's em- ployees. As found by the judge, Namer's director, Erman, hired only some of Larama's former em- ployees. Most significantly, Ricardo Amaral, an owner of Larama, testified without contradiction that during the period that Namer managed the Club, Larama did not take part in any decisions concerning, inter alia, hiring, salaries, health insurance, fringe bene- fits, leave or personal days, or work schedules. Indeed, there is no evidence that Larama possessed or exercised any control over the terms and condi- tions of employment of Namer's employees. We conclude, therefore, that the General Counsel has failed to establish that Larama was a joint employ- er with Namer. Accordingly, we shall dismiss the complaint as to Respondent Larama and provide a new Order and notice.3 ORDER The Respondent, Namer, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or refusing to employ any em- ployees because of their support for a union or be- cause they engage in concerted activity for their mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. I Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) In his recommended Order, the judge granted the General Counsel's request for a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondents under the Federal Rules of Civil Procedure subject to the United States Court of Appeals enforcing this Order Under the circumstances of this case, we find it un- necessary to include such a clause Accordingly, we deny the General Counsel's request (a) Make Victor Barroso whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in this Decision and Order. (b) In the event that Club A is reopened by Re- spondent Namer, offer Victor Barroso immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. , (d) Mail to all employees who were employed at Club A in December 1985 and January 1986 copies of the attached notice marked "Appendix."4 which are to be signed by Respondent Namer's represent- atives. In the event Club A has been reopened by Respondent Namer, the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent Namer's authorized rep- resentative, shall be posted by the Respondent Namer immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Namer to ensure that the no- tices 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 Respondent has taken to comply. 4 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or refuse to employ any employees because of their support for a union or CLUB A because they engage in concerted activity for their mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make Victor Barroso whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. WE WILL , in the event that we reopen Club A, offer Victor Barroso immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantialy equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. NAMER, INC. James G. Paulson, Esq., for the General Counsel. Ernest R. Stolzer, Esq. (Rains & Pogrebin P.C.), of Mineo- la, New York, for Larama Corporation. Andrew M. Kramer, Esq. and Julie Stumpe Dressing, Esq. (Jones, Day, Reavis & Pougue), of Washington, D C., for Namer Inc. Harold Ickes, Esq. (Suozzi, English & Klein PC.), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on 14 and 15 July 1985 in New York City. The original charge was filed on 21 January 1986 against Namer, Inc. d/b/a Club A. This charge was amended on 28 March 1986 to name Larama Corpora- tion as an additional defendant. On 31 March 1986 the Regional Director issued a complaint and notice of hear- ing which was amended on 13 May 1986. The complaint as amended alleged as follows: 1. That Larama and Namer were, from 1 January 1986 joint employers in the operation of Club A. 2. That Respondents, on 2 January 1986, discharged employees Victor Barroso, Daniel Lag, and John Hatgi- dimitriou because of their activities and support for the Union. 3. That on 2 January 1986 Respondents, by Richard Erman, told an employee (Daniel Lag) that he would not be hired because he made an application for the Union. 4. That on 2 January 1986 Respondents discharged employees Guillermo Balletbo, Bob Bouchini, Rola Daviga, Rola Eve, Eugene Excellent, Jean Paul Fareri, Marc Fareri, Christian Gravino, Luam Luone, Joanne Mayor, Jousset K. Morshini, D. Narachie, David Scott, Dudley Stephenson, and Desli Verbert. i I In his brief, the General Counsel withdrew the allegation relative to Eugene Excellent because he was reemployed by the Club when it re- opened on 2 January 1986 523 5 That since 2 January, Respondents have refused to offer reinstatement to the 15 employees named in para- graph 4 for approximately five available jobs. 6 That the actions of Respondents described in para- graphs 4 and 5 were motivated by antiunion consider- ations. Based on the record as a whole,2 including my obser- vation of the demeanor of the witnesses and including my consideration of the briefs filed, I make the following FINDINGS AND CONCLUSIONS i LABOR ORGANIZATION The record establishes that the Union is an organiza- tion in which employees participate and which exists for the purpose of representing employees vis a vis their em- ployers with respect to grievances , labor disputes , wages, rates of pay, hours of employment, and conditions of em- ployment I therefore conclude that the Union is a labor organization within the meaning of Section 2 (5) of the Act. 11. JURISDICTION The enterprise in this case is a discoteque called Club A located at 330 East 60th Street in Manhattan. The Club, until 2 January 1986, was owned and operated by a New York corporation called Larama Corporation. Larama's stock was owned by a Brazilian corporation called Dulac S A. and an individual named Krisztina Reisini . The stock of Dulac is owned by Ricardo Amaral (90%), along with Reisini and Francesco Livre, all Bra- zilian citizens The officers and directors of Larama were Krisztina Reisini, president; Piere Joliviet, secretary; and Ricardo Amaral, treasurer. During the year ending December 1985, Club A had gross revenues in excess of $500,000 and it purchased wines valued in excess of $10,000 which, although bought from New York wholesalers, originated outside the State of New York. As Larama during 1985 was en- gaged in operating a retail establishment which met the Board's standards for asserting jurisdiction, I conclude that Larama is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Xenon, 250 NLRB 123 (1980), enfd. 671 F.2d 492 (2d Cir. 1981), Sie- mons Marling Service, 122 NLRB 81 (1958). For some time the Club had been losing money and by the end of 1985 Larama had a debt of about $3 million. At some point, probably in November 1980, Amaral, on behalf of Larama, began discussing with Richard Erman, on behalf of Namer, the possibility of selling the Club. During this period, Erman was a frequent visitor to the Club and either shortly before or shortly after a deal was consumated, rumors began to be heard by employees that the Club would be sold and that they all would be 2 At the opening of the hearing counsel for Namer, Inc informed me that Namer's president, Richard Erman, had gone back to France on 7 June 1981 and would not return to the United States until September 1986 As I was not informed as to the reason for Mr Erman's absence and as no request for a countinuance was made to me, the hearing pro- ceeded However, counsel for Namer elected not to participate and left the hearing 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fired. It was these rumors that prompted the employees to seek union representation. In any event ,on 3 December 1985 a contract was exe- cuted by Larama and Namer whereby the latter agreed to operate the Club for a period after 1 January with an option to purchase the shares of Larama. In consider- ation, Namer agreed to assume Larama's indebtness and agreed to pay Amaral as a "consultant," a fairly substan- tial amount of money over six consecutive quarters. One part of the agreement required Larama, on 2 weeks' notice, to discharge the employees on 1 January 1986 and gave Namer the option of designating which em- ployees it wished to retain. The relevant provisions of this contract are as follows: Transfer of Management Functions 1.1 Effective at noon on January 1, 1986; Larama grants to Namer the exclusive right and license to operate and manage the Club for the account of Larama as herein provided. 1.2 In furtherance of the foregoing, Namer shall appoint Richard Erman (Erman) or such other per- sons designated by Namer from time to time upon the consent of Larama, as manager and operator of the Club as of January 1, 1986. Larama shall notify such third parties and make such arrangements as may be necessary to give such manager such con- trol 'and powers as are necessary or appropriate to operate the Club. Without limiting the foregoing, such control and powers shall include the rights and duties: to hire, discharge and determine the compensa- tion of any employee, consultant or agent, to purchase, rent or otherwise acquire all food- stuffs, liquor, supplies or other goods and services for the Club, to open bank accounts, to draw checks, to keep books and records, and otherwise to handle the financial affairs of the Club, to operate the Club in such manner as Namer may believe to be in the best interests of promot- ` ing and expanding the business of the Club, sub- ject to Paragraph 1.3 below, and to do all things necessary to renew or maintain in effect all per- mits and l4censes relating thereto, to alter or suspend during any period of alter- ations the operation of the Club but not to change the name of the Club, and to make such capital improvements or repairs to the Club as it deems appropriate, at its own ex- pense; provided that any single alteration in excess of Fifty Thousand Dollars ($50,000) or any series of related alterations which aggregate Fifty Thousand Dollars ($50,000) or more shall require the prior consent of Larama, which such consent shall not be unreasonably withheld. 1.3 Amara,.. shall have the right to occupy and utilize the Club without charge for two weeks or seven consecutive days each, which weeks need not be consecutive, during each year from January 1, 1986 to the Transfer Date (as hereinafter defined) during daytime hours (that is, prior to 6 p.m.) sub- ject only to availability and prior bookings of the Club and in any event upon at least ninety (90) days' prior written notice to Namer. 1.4 From the date of signature of this Agreement and until January 1, 1986, Larama will permit Erman, Namer, or their respective designees, to be present at any time during business hours at the Club to examine the facilities, to inspect all books and records of the Club, and to discuss the oper- ations of the Club with suppliers, personnel and other third parties, in order to acquaint itself or himself with the operations of the Club. Should, after due consultation with Larama, Namer deter- mine prior to the Effective Date that the financial condition, operations or business prospects of the Club will not generate the cash flow necessary to make the payments specified in Paragraph 2.1, Namer shall so notify Larama, and this Agreement shall be considered null and void ab initio, and nei- ther party will have any further liability to the other. 2. Consideration 2.1 In consideration for the above-mentioned rights, Namer agrees to pay or otherwise settle on behalf of Larama the financial obligations of Larama as detailed in Schedule A (long term and overdue indebtedness) and Schedule B (current trade payables), as attached hereto and made a part hereof; provides however that (a) Namer's aggre- gate obligations hereunder shall not exceed Three Million Seven Hundred Seventy Thousand Dollars ($3,777,000), and (b) Namer's obligation in any cal- endar year to any category of creditor shall not exceed the following sums during each of the fol- lowing calendar years, (with "Banco" as used herein referring to Banco Nacional, S A) 2.8 As from the Effective Date, Larama shall have terminated on two weeks' prior notice the employ of all personnel working at or on behalf of the Larama as requested by Namer, and Larama shall pay all salaries accrued to such terminated em- ployees, including any accrued severance or vaca- tion pay. Namer may, retain on Larama's payroll such personnel of Larama as Namer elects, pursuant to Paragraph 1.2. 2.10 As additional consideration for the respec- tive undertaking hereunder and subject to closing on the Transfer Date, Namer agrees to pay or cause Larama to pay to Amaral personally a consulting fee which shall be payable at the rate of ($50,000) per calendar quarter, for (6) consecutive quarters, the first such fee due on the first day of the calen- dar quarter following the Transfer Date, as speci- fied in Paragraph 3.2 below. In consideration there- for, Amaral agrees to render such marketing and other assistance to Namer as may be reasonably re- quested from time to time. Such consulting fees CLUB A 525 shall be deemed to accrue on a pro-rata basis over the term of this agreement until the Transfer Date; otherwise, such fees shall be considered personal to Amaral, and to the extent not accrued shall not sur- vive any death, disability or non-performance of Amaral 5. Warranties and Covenants 5.1 Larama and Amaral, jointly and severally, warrant and covenent that: (n) Larama is not party to any collective bargain- ing agreement. Miscellaneous 9.3 Each party shall be deemed in respect of all activities contemplated hereunder to be an inde- pendent contractor, and this Agreement shall not create a joint venture, partnership or similar rela- tionship between the parties. On 2 January Erman took over the management of the Club and operated it until June 1986. During that time, neither Amaral nor any of the other officers of Larama performed any services for Namer. During the same period of time, the Club had gross sales in excess of $500,000 and purchased California and French wines in amounts more that de minimis.3 In January 1986 Larama filed for bankruptcy. After operating the Club for several more months, Erman de- cided not to purchase the shares of Larama and terminat- ed his relationship to the Club. As a result, in June 1986 the Club closed. Based on the above I conclude that during the time that Namer operated Club A, it met the yearly gross sales figures required for asserting jurisdiction over retail establishments. I also conclude that its purchases of out- of-state wines was more than de minimus. Accordingly, it is my opinion that Namer, on its own account, was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Also based on the contract between Namer and Larama, I conclude that during the period from January to June 1986, Namer was a joint employer with Larama. Boire v. Greyhound Corp., 375 U.S. 473 (1964); Emeryville Trucking, 278 NLRB 1112 (1986); American Air Filter Co., 258 NLRB 49, 52 (1981); C. R. Adams Trucking, 262 NLRB 563, 566 (1982), enfd. 718 F.2d 869 (5th Cir. 1983). III. OPERATIVE FACTS In the latter part of 1985 Club A employed about 40 people, none of whom were represented by a union. Al- though the testimony of the General Counsel's witnesses a Namer, Inc did not respond to a subpoena duces tecum directing it to produce its sales and purchases records Also, as Erman, Namer's president, did not appear at the hearing, the General Counsel introduced sales records for the Club that were produced by Larama and showed sales from 2 January 1986 to June 1986 As Namer, Inc did not respond to a valid subpoena, it is in no position to object to the introduction into the record of evidence that might oth- erwise be objectionable Tropicana Products, 122 NLRB 121 (1958); George E Masker, Inc, 261 NLRB 118 in 2 (1982); Carpet City Mechani- cal Co, 244 NLRB 1031, 1032 (1979) is a bit unclear as to whether employees began talking about unionization in mid-November or early December 1985, the record shows that discussions of unionization began after and because the employees heard rumors that the Club would be sold and that they would be fired. Indeed these rumore were essentially correct as the 3 December contract between Larama and Namer required the former to discharge its employees prior to Namer as- suming questions and upon 2 weeks' notice. (The notice to be given around 16 or 17 December). In my view it is significant that the discussions between Amaral and Erman leading up to his contract most likely occurred before the employees made any effort to seek union rep- resentation. In the beginning of December 1985, Erman com- menced interviewing employees of the Club. According to Jean Hatgtdimitriou, one of the three bartenders, when he was interviewed by Erman he made various suggestions on how to run the bar. He states that Erman said that he liked the ideas and looked forward to meet- ing him again. Sometime later in December, Erman told him that he was going to use only one bartender. Daniel Lag, a waiter, testified that he was interviewed by Erman in the early part of December. He states that Erman told him that he was going to keep five or six employees; that he was going to look at how the em- ployees worked and handled business. Erman told Lag that he would let him know by the end of the month he would be retained. Victor Barroso testified that he was interviewed by Erman during the second week of December but was not made any job offer at that time. According to Barroso, sometime in mid-December (probably between 11 and 14 December), he called up Albert Stephenson, a union representative and arranged for Stephenson to meet with the Club's employees on 16 December. Barroso also spoke to other employees about this meeting, Barroso states that about 14 December he, spoke to Claude Canteloube, the maitre d' and his assistant Chris- tian Daniel. He states that he told Canteloube (admitted- ly a supervisor of Larama), that the employees were thinking of joining a union whereupon Canteloube re- plied that he thought that getting a union was a good idea but that he could not get involved and could not know anything about it because he was part of manage- ment. Barroso joked that Canteloube was acting like Sgt. Schultz on Hogan Heros (i.e., "I hear nothing, I see nothing, I know nothing"). I note that according to Bar- roso he had earlier spoken to Canteloube who said that he (Canteloube) would not be retained by Erman; that Erman intended to hire six or seven of the waiters; and that he was going to rehire Rene Brunelieu to be in charge of the waiters and busboys. Thus Barroso states that he spoke to Canteloube about the Union because be felt that Canteloube (in light of his imminent discharge), had no reason to say anything to management. (Cante- loube was not called as a witness in this proceeding.) According to Hatgidimitriou, on 14 or 15 December he spoke to Canteloube. He states that Canteloube said that he had just spoken to Erman who said that the only 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD two people who were going to be kept were the captain, Rene Scarzolla, and Jean Hatgidimitriou. Canteloube also said that Erman told him that he had a completely different type of operation in mind and that he (Cante- loube), did not expect to be retained. Amaral testified that on 15 and 16 December he was told by Erman that he did not want to keep any of the employees except for the day-time service personnel. Ac- cording to Amaral, Erman said that he wanted to have a completely different type of operation and that if he kept the old employees he would have difficulties making changes. Amaral states that as a result of this conversa- tion, he prepared the discharge letters that were given to the employees on 16 and 17 December (described below). He stated that prior to this time he had no knowledge of union activities and that neither Cante- loube nor Christian Daniel had mentioned anything to him about a union. On 16 December a union meeting was held at Eduar- do's restaurant. This was the first meeting between union agents and the Club's employees. It was attended by about 15 or 16 employees and some of the employees signed union authorization cards. According to Lag, on 17 December he told Canteloube about the union meet- ing whereupon the latter said that it was a good idea but that he could not do anything. Lag initiated this conver- sation. About 17 December, and consistent with the terms of the 3 December contract between Larama and Namer, the former sent a letter to its employees which read as follows To All Club A/Larama Staff, Over the past few weeks most of you have met Mr. Richard Erman, representing "Namer" who. will be the new management to direct all further administrative decisions for Club A. as of January 1, 1986. The writing of this memorandum is not a pleasur- able task, but it is however inevitable. We the present management sincerely regret to inform you that as of January 1, 1985 you will no longer be employed by Larama Corporation. We wish to thank all of you, whether you have been with us since we opened our doors or if you have joined us recently, for your part in what has been more or less a family, with the normal prob- lems and conflicts which are inherent in all families. We wish all of you the very best of luck in future endeavors and success in whatever roads you may travel, and we hope to have the opportunity to work with you again in yet another great endeavor. According to Barroso around the week before Christ- mas he spoke to Erman who told him that he was the only waiter that Erman wanted to keep. Erman also told Barroso that he also intended to retain Isteak Rumi as a service bartender. (Rumi was hired as a busboy and was, at this time, being trained to be a bartender.) According to Barroso, Erman told him that there would be a meet- ing coming up but that Barroso did not have to 'attend; that it mostly would be in French. Erman told Barroso that he would get in touch with him regarding the new ,procedures. Jean Hatgidimitriou testified that a few days before Christmas Isteak Rumi told him that a group of new em- ployees had been at a meeting and that Rene Hatgidimi- triou figured that since he had not been invited to this meeting he was not being retained. He also felt that if Bruneliere, with whom he had a prior dispute, had been hired, then the job was "not for me anyway." As a result he did not go back to the Club after 31 December. He also states that Rumi told him that at the meeting, Rene Bruneliere was taking notes and was acting like he was in charge of the meeting. Barroso testified that on the day after Christmas he got a telephone call from Bruneliere who said that he was in charge of the waiters and busboys and that he wanted to set up a meeting to explain to Barroso every- thing that was going on. According to Barroso, Brune- liere said that the Club expected to reopen, on 2 January but that there might be problems because the old waiters were getting involved with a union and they (manage- ment) did not know if the old waiters would prevent the new waiters from coming to work. Barroso states that Bruneliere told him to meet him at a coffee shop in As- toria on Friday. He states that during this conversation he did not tell Bruneliere about his involvement in the Union. Barroso did not go to the meeting on Friday. About 21 December another union meeting was held where more employees signed union cards. Thereafter on 27 December, the Union filed a petition for an election in Case 2-RC-20080. (I do not know when this was ac- tually received by the employer.) About 29 December another union meeting was held because some of the employees wanted to picket the Club when it reopened under Erman's management. Ste- phenson, the Union's business agent, dissuaded the em- ployees from taking such action. He said that he was going to go talk to Amaral and that the employees should "wait and see." On 30 December the Union sent a mailgram to the Club which was received on 31 December. This stated: Please be advised that a majority of your employees have designated Hotel Employees and Restaurant Employees Union Local 100 as their sole exclusive representative for the purpose of collective bargain- ing and resolution of grievances, We have in our possession Local 100 authorization cards duly exe- cuted by a majority of your employees. We are willing to submit same to an impartial third party for purposes of authentication. We wish to negotiate the terms and conditions of a collective bargaining agreement. Our representative will be at your estab- lishment on Tuesday December 31, 1985 at 11:30 AM. Any action by you or your supervisors that discriminates 'against your employees or interferes with that union or other protected activities and their support for Local 100 will require us to take legal or other appropriate action. On 31 December, union agent Stephenson visited the Club and spoke to Amaral. He demanded recognition CLUB A 527 and Amaral declined, stated that the place had been sold. According to Stephenson, Amaral said that he would try to set up a meeting with the new owner. On 1 January 1986 the Club closed and was reopened on 2 January under the management of Erman. Apart from a few of the former employees, the Club was re- opened with essentially a new crew. Jean Hatgidimitriou, as noted above, did not attempt to go to work on 2 Janu- ary 1986 as he assumed that he would not be hired. According to Daniel Lag he went to the Club on the evening of 2 January. He states that when he entered he saw a whole new crew of waiters working and that he heard Erman introduce Rene Bruneliere to someone as the head waiter. Lag states that he spoke to Erman and told him that he came down to see if he was supposed to work because Erman had previously said that he intend- ed to keep a few of the old employees. Erman allegedly responded that "because of the application I make to the, Union and because of the trouble and all made to him and because of the champagne and wine we stole ... he changed his mind and he had all his crew ready to start work." According to Lag, thereafter in January 1986 he called Bruneliere a few times about working at the Club but was put off each time and was never offered employ- ment. Victor Barroso testified that he went to the Club on the evening of 2 January and that when he saw Rene Bruneliere the latter asked why he (Barroso) had not called him back and why Erman had hired someone else. He asserts that Bruneliere said, "I don't know what is going on because of this thing with the union." Accord- ing to Barroso when he spoke with Erman later in the evening, Erman said something to the effect that he ex- pected problems; that he was afraid that the old waiters might try to stop the new waiters from coming in to work. According to Barroso he left his phone number with Erman for the latter to call if Erman wanted to employ him. Barroso asserts that he was neither then nor thereafter offered work at the Club. About 12 January 1986 Larama filed for protection from creditors pursuant to Chapter 11 of the Bankruptcy laws. This apparently caused new discussions to take place between Larama and Namer regarding the terms of the purchase agreement. In March 1986, according to Barroso, he happened to meet Rene Bruneliere at a bar. He states that in the course of conversation, Bruneliere said that Erman "fired you because of the Union." In June 1986 Erman decided that he would not go through with the purchase of Larama's stock and with- drew from Club A's management. On 15 June 1986 the Club closed, IV. ANALYSIS The General Counsel argues that the joint Respond- ents on 2 January 1986 discharged employees Barroso, Lag, and Hatgidimitriou because of their activities on behalf of the Union. He also contends that on the same date the Respondents, for antiunion reasons, discharged 14 other employees and refused to rehire them for five available jobs. It has been demonstrated that, by December 1985, Larama was losing considerable amounts of money from the operation of Club A and that Amaral, its principal owner, entered into negotiations with Erman for the latter to purchase the shares of Larama through a corpo- ration called Namer, Inc. At the time those negotiations commenced, the employees of the Club were not repre- sented by any labor organization. The record also shows that Erman, as part of the deal, insisted that all of the employes of the Club be given notice of their discharge effective upon his takeover; said notice to be given 2 weeks in advance. Erman also as- serted in the contract the right to retain any of the old employees that he chose. The key point for purposes of this case is not why Erman insisted on this condition. Rather, the significance lies in the fact that his decision in this regard occurred before the Club's employees made any attempts to seek unionization. Therefore this decision by Erman, which was embodied in the 3 De- cember contract, could not have been motivated because of the employees' nonexistent union activities. In fact, the evidence shows that it was this decision, when it became known to employees, that prompted them to seek union representation. About 17 December 1985 Larama, in accordance with the terms of the 3 December contract, notified all of its employees that they would be discharged on 1 January 1986. The evidence, even as presented by the General Coun- sel's own witnesses, confirms that Erman, before taking over the Club's, operations, had decided to retain only a very small number of the employees. Thus, although there were, in mid-December, about 40 people employed at the Club, Daniel Lag reported that at a meeting he had with Erman about 10 December (before the first union meeting on 16 December) the latter said that he was going to keep "five or six of us."' Hatgidimitriou tes- tified that prior to receiving his discharge notice he was told by Claude Canteloube that Erman had told him that he (Erman) was only going to keep two people, Hatgidi- mitriou and Rene Scarzolla.4 Similarly, Barroso testified that about a week before Christmas he was told by Erman that he, (Barroso) was the only waiter Erman wanted to retain. He was also told that Isteak Rumi was going to be kept on as the service bartender. Because I conclude that by 16 December Erman on behalf of the Respondents made the decision to discharge the vast majority of the Club's employees for reasons that were not violative of the Act, it follows that in order for the General Counsel to prove an 8(a)(3) viola- tion as to any particular employee, he must show that Erman intended to make an exception for that employee and retain his or her services on the Club's reopening in January 1986.5 As to the individuals other than Barroso, 4 Although the evidence shows that Canteloube was a supervisor of Larama within the meaning of Sec 2(11) of the Act, I would not con. clude that was in this case acting as an agent of Erman When Cante- loube spoke to Hatgidimitriou or other employees from mid-December on, he was aware that he too was going to be discharged on 1 January and that Erman had no intention of retaining his services 5 1 pass no judgment as to the wisdom or general fairness of this deci- sion My only function is to determine whether this decision was motivat- Contin.ued 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lag, and Hatgimiditriou, whom the General Counsel al- leges were discriminatorily denied employment for "five available jobs," I see no evidence that would lead me to conclude that Erman intended to keep any of those spe- cific individuals accept for Eugene Excellent who was, in fact, hired when the Club reopened. As I do not find any evidence that their nonretention was discriminatorily motivated, I shall recommended that this allegation of the complaint be dismissed. In his brief the General Counsel argues that soon after the Union's organizational campaign got under way, Erman "had withdrawn job offers from Barroso, Hatgi- dimitriou and Lag." Yet based on this record, I find evi- dence of only one such offer, that being to Victor Bar- roso about 20 December. In Lag's case there is absolute- ly no evidence that he was ever offered continued em- ployment at the Club by anyone. Hatgidimitriou's case is somewhat intermediate because although there is no evi- dence that he was ever offered employment by Erman6 or anyone clearly acting on Erman's behalf, there is evi- dence that Hatgidimitriou was told by Claude Cante- loube that Erman intended to retain his services. Never- theless as Canteloube was aware at this time that he too was going to be discharged by Erman, it is hard for me to conclude, despite his supervisory status for Larama, that he was speaking on Erman's behalf. In the case of Lag, the General Counsel relies to a great extent on an alleged conversation between Lag and Erman on 2 January 1986. Lag states that he told Erman that he had come to the Club because Erman had previ- ously said that he was going to keep a few of the old employees.? He asserts that Erman said that he had changed his mind and had hired a new crew "because of the application I made to the Union and because of the trouble we all made to him and because of the cham- pagne and wine we stole ...."8 Recognizing that Erman did not testify and therefore did not deny this al- leged conversation, I find it to be too pat and so at vari- ance with the other objective facts of the case that it is unbelievable. Since Lag concedes that neither Erman nor - anyone on his behalf had ever made a job offer to him (as had been made to Barroso and a number of other em- ployees), I fail to see how Erman could have changed his mind about offering him employment. As Lag, with most of the other employees had been notified (for non- discriminatory reasons) of his impending discharge by letter of 16 or 17 December and as there was no evi- dence to suggest that Erman ever intended to retain his services I do not believe that the evidence is sufficient to establish, as the General Counsel argues, that Erman withdrew an offer of employment previously made to Lag for discriminatory reasons. ed by antiunion reasons or otherwise motivated by a desire to preclude the employees from engaging in concerted activities for their mutual aid and protection as defined by Sec 7 of the Act 6 To my mind Hatgidimitriou's testimony that Erman liked his ideas about running the bar does not translate into evidence of a job offer One would think that if Erman intended to retain Hatgimiditnou as a bartend- er, he would have as in the case of Barroso, offered him the job directly ' Erman did in fact keep a few of the old employees 8 There is no evidence that any champagne or wine was stolen Barroso's case is different from Lag's because there is evidence that Erman had specifically offered employ- ment to him about a week before Christmas. Neverthe- less, on 2 January when Barroso came to the Club he was not hired. Rather, he was told by Erman something to the effect that he (Erman) expected problems and that he was afraid that the old waiters might try to stop the new crew from coming to work. Given the failure to put Barroso to work after having made him a job offer short- ly before, coupled with the uncontradicted statements at- tributed to Erman by Barroso on 2 January, I can only conclude that the most probable reasons that he was denied employment ' was because Erman believed that Barroso would likely engage in picket line activity and/or because he supported the Union As picketing by employees for the purpose of saving their jobs would constitute protected concerted activity within the mean- ing of Section 7 of the Act, a refusal to employ Barroso because Erman believed that Barroso might engage in such activity would be violative of the Act.9 Hi Fi Buys, 257 NLRB 1250, 1252 (1981). Alternatively, if Barroso was not employed because he joined or supported the Union, such an action would likewise violate the Act. The evidence involving Hatgidimitriou is intermediate between the cases of Barroso and Lag. Thus, although there is no evidence that Erman directly offered Hatgidi- mitriou a job, there is at least some evidence that he in- tended to retain Hatgidimitriou's services after the Club reopened in January 1986. The problem is that this evi- dence is, to my mind, ambiguous. It may be that Lara- ma's maitre d' Claude Canteloube told Hatgidimitriou that Erman intended to retain him., However, as Erman had not yet taken over management of the Club, Cante- loube cannot be considered his agent. Moreover, because Canteloube was aware that he too was going to be dis- charged when he had this discussion with Hatgidimt- triou, this seriously undermines any contention that he was speaking on behalf of the Respondents. Accordingly, if Canteloube at this point should not be considered as an agent of Erman (the person making the employment de- cisions), then Hatgidimitriou's testimony as to what Erman allegedly told Canteloube would constitute hear- say. Although admissible, absent objection,10 the testi- mony in the circumstances does not strike me as being particularly reliable insofar as the alleged statement by Erman to Canteloube that he intended to hire Hatgidimi- triou. In this respect, it simply makes no sense to me that Erman, who was constantly at the Club's premises in December, would utilize a man (Canteloube) whom he was about to have fired, to transmit a job offer to Hatgi- dimitriou There clearly was ample time and opportunity for Erman to do this himself if, as Hatgidimitriou claims, he was so impressed with the latter's ideas for running the bar. Therefore, I simply am not persuaded that Erman intended to retain the services of Hatgidimitriou 9 In reaching this conclusion I need not rely on the testimony of Bar- roso as to a conversation he had with Rene Bruneliere in March 1986 In this regard, although I have no doubt as to the conversation as reported by Barroso, I do have serious doubts as to the agency status of Brunehere vis a vis the Respondents 10 C & D Transfer, 258 NLRB 586 In 2 (1981) CLUB A 529 or' that an offer of employment was made to him by any person acting on Erman's behalf. Thus, for the same rea- sons applicable to Lag's case, I conclude that the Gener- al Counsel has not established that Hatigidmitriou was denied employment at the Club for discriminatory rea- sons. CONCLUSIONS OF LAW Based on the record as a whole I make the following conclusions 1. Respondent Larama Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Namer, Inc. is an employer engaged in commerce within the meaning, of Section 2(2), (6), and (7) of the Act. 3. During the period from 2 January 1986 to Club A's closing in June 1986, Larama Corporation and Namer, Inc. were joint employers as to the operation of the Club. 4. Since 2 January 1986, Respondents denied employ- ment to Victor Barroso because of his activities on behalf of the Union and/or their belief that he would participate in concerted action with other employees for their mutual aid and protection. 5. The unfair labor practice described above affects commerce within the meaning of Section 2(6) and (7) of the Act. ' (. Fxcept to. the,extent found above, the Respondents have not violated the Act in any other manner alleged in the complaint. THE REMEDY Having found that Respondents have violated the Act in certain respects, I shall recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Concerning Victor Barroso, it is recommended that if either Respondents Larama Corporation or Namer, Inc. reopen the Club that they offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prej- udice to his seniority or other rights and privileges previ- ously enjoyed. I shall also recommend that Respondents, jointly and severally make Barroso whole for any loss of earnings he may have suffered because of the discrimina- tion practiced against him. The backpay period would commence on 1 January 1986 until the date the Club closed, but would resume if and when the Club were to be reopened by either Respondents. Backpay is to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 (1950), with interest to be computed in the manner prescribed in 1171orida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1982). [Recommended Order, omitted from publication.]