Darbar Indian Restaurant

DARBAR INDIAN RESTAURANT 545 Fortinbras Services, Inc. d/b/a Darbar Indian Res- taurant and Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO. Cases 2-CA- 21111, 2-CA-21246, and 2-RC-19980 April 20, 1988 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS BAR SON AND CRACRAFT On October 8, 1986, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, 1 and conclusions 2 as modified and to adopt the recom- mended Order as modified.3 1. We agree with the judge's fmding that the Re- spondent violated Section 8(a)(1) and (3) of the Act by discharging Dulal Saha on June 8, 1985, 4 The 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an admuustrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Thy 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. We correct the judge's inadvertent failure to mention, in the analysis section of his decision, that Supervisor Harbans Singh threatened Ra- vinder Kumar with discharge in violation of Sec. 8(a)(1). We note the judge implicitly credited Kinnar's unrefuted testimony regarding this mci- dent as evidenced by his reconunended Order. Furthermore, we find that the record supports such a finding. We also correct the judge's statement that Harbans Singh earned a salary of 5700 per week. The record indicates that Harbans Smgh earned $700 biweekly. 2 With regard to Case 2-RC-19980, absent exceptions, we adopt pro forma the judge's recommendation that the challenge to the ballot of Satish Chander be sustained and the challenge to the ballot of Dennis Dass be overruled. 3 The judge included a visitatorial clause in his recommended Order authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause and will modify the Order accordingly. See Chero- kee Marine Terminal, 287 NLRB 1080 (1988). In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall 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 January 1, 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). 4 All dates are m 1985 unless otherwise indicated. discharge occurred 3 weeks after the Union made its demand for recognition. The record establishes that Saha was one of the first employees who vis- ited the Union's office and that he signed a union authorization card. The judge found that, given the timing of Saha's discharge and concurrent 8(a)(1) conduct by the Respondent, the General Counsel had made a prima facie showing that the discharge was discriminatorily motivated. The judge further found that the Respondent had failed to cite any event or transaction which would reasonably ex- plain why Saha was discharged. Noting that the , Respondent contended at the hearing that Saha was discharged for incompetence, the judge found that Saha was told at the time of his discharge that he was being laid off because work was slow. In its exceptions to the judge's finding of an 8(a)(3) violation in the discharge of Saha, the Re- spondent contends, inter alia, that the General Counsel failed to establish that it had knowledge of Saha's union activities. Although there is no direct evidence of the Respondent's knowledge, we be- lieve that the circumstances here support an infer- ence of knowledge based, inter alia, on the Re- spondent's general knowledge of union activity among the small group of seven dining room em- ployees, the timing of the discharge, the contempo- raneous 8(a)(1) conduct, the shifting and pretextual reasons asserted for the discharge, and the absence of any incident involving Saha or any conduct by him to explain his discharge on June 8. See, e.g., Coca-Cola Bottling Co. of Miami, 237 NLRB 936, 944 (1978); Dr. Frederick Davidowitz D.D.S, 277 NLRB 1046 (1985), and Abbey's Transportation Services, 284 NLRB 696 (1987), in which the Board held that the same circumstances may be relied on to support both an inference of knowledge and an inference of discrimination. See also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Based on the foregoing, we adopt the judge's recommendation that Saha's ballot be opened and counted. 2. The judge found that Gurbhej Singh Sandhu, a part-time employee, began working as a meatcut- ter on June 3, 1985, 1 day after the cutoff date of voter eligibility, and therefore sustained the Union's challenge to his ballot. In making this fmd- ing the judge relied on the credited testimony of the Union's employee witnesses who stated that June 3 was the first day they saw Sandhu at the restaurant. For the reasons set forth below, we dis- agree with judge's finding and we do not find these employees' testimony to be dispositive of the issue. Three dining room waiters, AFT Islam, Arun Saha, and Ravinder Kumar, testified that the first 288 NLRB No. 62 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD time they saw Sandhu working was on June 3. However, neither Islam nor Saha worked on June 2. Furthermore, Sandhu worked in the facility's basement, one floor down from the waiters. We fmd it is reasonable that none of the employees who testified would necessarily have seen Sandhu in the regular course of their duties at the restau- rant. The Respondent argues that Sandhu began work prior to June 2. In support the Respondent submit- ted into evidence a payroll check dated June 2 and made out to Sandhu. Manager Khan's unrefuted testimony was that the check was for the pay period ending June 2 and covered 8 part-time clays of work for the 2 weeks immediately preceding June 2. No party objected to the submission of the check into evidence and its authenticity was not disputed. We therefore rely on the unrefuted documentary evidence that the judge failed to address specifical- ly, and find that Sandhu was employed prior to the eligibility cutoff date. Accordingly, we direct that his ballot be opened and counted. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Fortinbras Services, Inc., d/b/a Darbar Indian Restaurant, New York, New York, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraphs 2(d) and (e). "(d) Post at its place of business in New York, New York, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms pro- vided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent 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 Respondent has taken to comply." DIRECTION IT IS DIRECTED that the Regional Director shall, within 10 days from the date of this Decision, Order, and Direction, open and count the ballots of Dennis Dass, Dulal Saha, Surrinder Singh, and Gurbhej Singh Sandhu, and serve on the parties a revised tally of ballots. If the revised tally shows that the Union has received a majority of the valid ballots cast, a certification of representative shall issue. If the revised tally shows that the Union has not received a majority of the valid ballots cast, a second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropri- ate. [Direction of Second Election omitted from pub- lication.] MEMBER CRACRAFT, dissenting in part. Contrary to my colleagues, I would reverse the judge's finding that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging Dulal Saha. I would find that the General Counsel failed to make a prima facie showing that the Respondent's discharge of Dulal Saha violated Section 8(a)(3) and (1) of the Act. Saha was hired as a waiter in April 1985 and was discharged on June 8, 1985, 3 weeks after the Union's demand for recognition and a few days after the parties executed the Stipu- lated Election Agreement. Saha's union activity consisted of signing an authorization card, distrib- uting cards to other employees and, along with other employees, meeting with a union representa- tive away from the office. No evidence exists in the record as to when or where Saha distributed the cards. Saha was a probationary employee at the time of his discharge. The judge found, based on the timing of Saha's discharge and the Respondent's 8(a)(1) conduct, that the General Counsel presented prima facie evi- dence of unlawful motivation. I disagree. The Gen- eral Counsel has not shown that the Respondent had knowledge of Saha's union sympathies or ac- tivities when it discharged him. In addition, the surrounding circumstances in this case do not permit me to infer knowledge to the Respondent regarding protected activities. Nothing in the record indicates that Saha's limited union activities were open or evident or that they took place on the Respondent's premises. Although the Respond- ent interrogated several employees regarding their union activities and sympathies (the 8(a)(1) conduct the judge referred to), the Respondent never inter- rogated Saha. Furthermore, none of the employees who testified regarding the interrogations stated that Saha was ever mentioned during those conver- sations. Nor do I agree with the judge's additional ra- tionale that the Respondent's differing reasons for discharging Saha indicate unlawful motivation. The DARBAR INDIAN RESTAURANT 547 Respondent told Saha he was being laid off be- cause work was slow. At the hearing the Respond- ent contended Saha was discharged for poor work performance. I note that Saha was a probationary employee who was laid off in the summer months, admittedly the time of the Respondent's slowest business. I do not find it unreasonable that the Re- spondent would choose to let go, in its slowest season, a probationary employee who was at least arguably not one of its top workers.' I disagree, therefore, with the judge's finding that the Re- spondent set forth shifting reasons for the dis- charge. Rather, I find the proffered reasons to be compatible, if not entirely identical. Nor do I find it unreasonable, under these circumstances, that the Respondent would tell Saha that the reason for the termination was the slow season rather than his own incompetence. Based on the foregoing, be- cause I am unable to find that the General Counsel has met the burden of showing Saha's discharge was unlawfully motivated, I would dismiss that portion of the complaint, and direct that his ballot remain unopened.2 The record contains conflicting testimony regarding Saha's abilities , that the judge did not resolve. 2 In all other respects, I agree with my colleagues except that, in adopting the judge's conclusion that the Respondent interrogated em- ployees in violation of Sec. 8(aXI), I find it unnecessary to rely on Ray- theon Co., 279 NLRB 245 (1986), and Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). James G. Paulsen, Esq., for the General Counsel. Charles H Rosenberg, Esq. (Abraham, Silver and Rosen- berg), of New York, New York, for the Respondent. Harold Ickes, Esq. (Suozzi, English & Klein, P. C), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in New York, New York, on 29 and 30 January and 19-21 and 25 February 1986. On 15 May 1985 the Union filed a petition for an elec- tion in Case 2-RC-19980. On 3 June the parties executed a Stipulation for Certification upon Consent Election and an election was held on 26 June. The voting unit consist- ed of all full-time and regular part-time dining room, bar, and kitchen employees. Because a number of the ballots were challenged, the outcome of the election was inde- terminate. 1 The Union challenged the ballots of Dennis Dass, Satish Chander, S. Harbans Singh, Surrinder Singh,2 and Gurbhej Singh Sandhu. Also, the Board 1 Seven votes were cast for the Union, five were cast against the Union, six were challenged, and one ballot was void. 2 In its posttrial brief, the Union withdrew its challenge to the vote of Surrinder Singh who was one of the cooks agent conducting the election and the Employer chal- lenged the ballot of Dulal Saha because his name did not appear on the voter eligibility list prepared by the Em- ployer. As to the challenged ballots, the positions of the par- ties are as follows: The Employer asserts that Dennis Dass, Satish Chander, S. Harban Singh, and Gurbhej Singh Sandhu are all eligible voters whereas the Union claims that the first three are ineligible because they are supervisors within the meaning of the Act and that Gurbhej Singh Sandhu is ineligible because he began work after the eli- gibility date. As to Dulal Saha, the employer asserts that he is not eligible to vote because he was discharged for cause before the election. The Union, however, asserts that he was fired because of his union activities, and is therefore entitled to reinstatement. Accordingly it argues that the vote of Dulal Saha should be counted. On 3 July 1985 the Union filed objections to the con- duct of the election. The Union alleged that: (1) On and prior to the date of the election the em- ployer offered to pay money to certain employees on the condition that they agree to vote against the Union.3 (2) The Employer promised benefits for several weeks before the election. (3) Prior to the election, the Employer threatened to reduce the employees' hours of employment. (4) The Employer's managers engaged in surveillance of the election by stationing themselves at the bar near the election location. The Union also contends that man- agement engaged in electioneering. (5) The Employer selected a supervisor, Dennis Dass, to be its observer during the election. Meanwhile, on 19 June 1985 during the pendency of the election, the Union also filed an unfair labor practice charge in Case 2-CA-21111. On 1 August 1985 the Re- gional Director for Region 2 of the National Labor Rela- tions Board issued a complaint in Case 2-CA-21111 and on 13 August he issued an order consolidating for hear- ing the allegation of the complaint with the allegations of the Union's objections. Thereafter, on 9 September 1985, the Union filed another unfair labor practice charge in Case 2-CA-21246. On 31 October 1985 the Regional Di- rector issued a consolidated complaint in Cases 2-CA- 21111 and 2-CA-21246, which was thereafter consolidat- ed with Case 2-RC-19980 by order dated 6 November 1985. Finally, on 9 January 1986 the Acting Regional Di- rector issued an amended consolidated complaint adding a number of new allegations. By answers filed on 19 No- vember 1985 and 21 January 1986 the Employer denied the allegations of the respective complaints. The employ- er also denied the allegations in the Union's objections to the election. In substance, the allegations set forth in the various complaints, consolidated complaints, and amended con- solidated complaints are as follows: (1) In mid-May the employer by Akbar Khan and Satish Chander 8 At the hearing the Union withdrew its Objection 1. 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Interrogated employees concerning their union membership and activities. (b) Threatened employees with unspecified reprisals. (c) Solicited grievances and promised to remedy them. (d) Agreed to adjust grievances about tips. (2) On 2 June 1985 the Employer by Dennis Dass in- terrogated employees about their union activity. (3) On 8 June 1985 the Employer discharged Dulal Saha because of his union membership and activities. (4) On 21 or 22 June 1985 the Employer by Akhar Khan and S. Harbans Singh promised benefits to em- ployees. (5) On 21 or 22 June 1985 the Employer by S. Har- bans Singh interrogated employees about their union ac- tivities. (6) On 22 or 23 June 1985 the Employer by S. Har- bans Singh threatened employees with plant closure if the Union was selected as the bargaining representative. (7) On 22 or 23 June 1985 the Employer by S. Har- bans Singh threatened employee Ravinder Kumar with discharge. (8) On 26 June 1985 the Employer by Akbar Khan threatened certain employees that he would reduce their hours of employment and send them home early. (9) Since 27 June 1985 the Employer discriminatorily reduced the hours of employment (and consequently the earnings) of Arun Saha, Vimal Mehta, Ravinder Kumar, Abul Islam, and Moazzemul Hague. (10) On 15 August 1985 the Employer, for discrimina- tory reasons, discharged its employee Moazzemul Hague. (11) On 15 August 1985 the Employer, for discrimina- tory reasons, constructively discharged its employee Ra- vinder Kumar. As noted above, the Employer denies the allegations of the complaints. Insofar as the 8(a)(3) allegations, the Employer contends that it discharged Dulal Saha, a waiter, after about 3 months of employment because he simply was not performing capably. As to the alleged re- duction of hours, the Employer asserts that this was done because business slowed down in the summer of 1985 (as it does each summer), and that it tried to devise a scheme to deal with this slowdown so as to hurt its employees to the least possible extent. With respect to Ravinder Kumar, the Employer asserts that he quit. (Al- though conceding that Ravinder Kumar quit, the Gener- al Counsel's theory is that he was constructively dis- charged due to the reduction of his hours discussed above.) Finally, as to Moazzemul Hague, the Employer contends that it decided to lay him off because of slow business and because Hague worked only part-time at the Company while having a full-time job at the Helmsley Palace. Based on the entire record in this case, including my observation of the demeanor of the witnesses, and after considering the excellent briefs filed by the parties, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION All parties agree, and I fmd, that the Employer, a New York corporation which operates an Indian Restau- rant in Manhattan, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is agreed and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED 8 (A ) ( 1) AND ( 3 ) VIOLATIONS The restaurant is managed by the brothers Akbar Khan and Haroon Khan. Up until mid-May 1985 they in turn employed a person named Ashok Bhatra who was the general manager. As of the spring of 1985 and after Bhatra left the Company, the dining room staff consisted of a bartender, Dennis Dass, a maitre d', Satish Chander, along with several captains and several waiters. There were also employed a category called expediters who mainly worked in the kitchen. In addition the kitchen staff consisted of a chief chef, S. Harbans Singh, three cooks, plus several helpers and meatcutters.4 There is no dispute and I find that Akbar Khan and Haroon Khan are supervisors within the meaning of the Act and agents of the Company. As more fully described below, I also conclude that Satish Chander and S. Har- bans Singh are supervisors within the meaning of the Act. However, I find that Dennis Dass is merely an em- ployee and not a supervisor as alleged by the General Counsel and the Union. In early May, at a regularly scheduled Friday meet- ing, 5 Ashok Bhatra announced that from thenceforth the chef would have a share of the tips. This provoked re- sentment from some of the dining room employees be- cause their tips were pooled among the captains, waiters, maitre d', and bartender. Thus, the creation of an addi- tional share would reduce each person's earnings. 6 When opposition to sharing tips with the chef was expressed, Ashok Bhatra said that he would speak to Khan. As a result of the tip announcement, certain of the em- ployees contacted friends from another restaurant. At a meeting it was suggested that a union was needed and Local 100 was mentioned. The next day, a group of Re- spondent's employees met with John Mui of the Union and signed union authorization cards. Those present who signed cards were Arun Saha, Dulal Saha, and Ravinder Kumar. (Niraj Browne went to the Union's office but ap- parently did not sign a card.) After this meeting Dulal Saha solicited other employees to join the Union and cards were signed by Abul, Islam, 7 Moazzemal, Hague, and Vimal, Mehta (i.e., six out of the seven captains and waiters). On Wednesday, 15 May 1985, the Union filed the peti- tion for an election in Case 2-RC-19980. At the same time it sent a telegram to the Employer reading: 4 The spouses of the Khans did the office clerical work. 5 The evidence shows that management held a meeting with the dining room staff each Friday to discuss procedures and service. 6 In the pooling system then extant, each person who shared in the tips was assigned a number that defmed his portion. Thus a newly hired waiter would ordmari1y get 2-1/2 points, whereas the maitre d', the bar- tender, and some service captains received 5 points, the highest allowed in the system. 7 He is sometimes referred to as AFT Islam. DARBAR INDIAN RESTAURANT 549 Please be advised that a majority of your dining room employees has designated Hotel and Restau- rant Employees, Local 100 as their sole and exclu- sive representative for the purposes of collective bargaining and resolution of grievances. We have in our possession Local 100 authorization cards duly executed by a majority of your dining room em- ployees. We are willing to submit same to an impar- tial third party for purposes of authentication. We wish to negotiate the terms and conditions of a col- lective bargaining agreement. Our representatives will be at your establishment on Wednesday, May 15 at 3 p.m. Any action by you or your supervisors that dis- criminate against your employees or interferes with their union or protected activities and their support for Local 100 will require us to take legal or other appropriate action. According to Alchar Khan, he received the telegram about noon on 15 May. He states that not knowing any- thing about union procedures, he called some of his em- ployees one at time into his office where he showed them the telegram and asked them what they knew of it. According to AFT Islam, he was called into the office by Satish Chander and Akbar Khan on 15 May 1985 where he was asked about the telegram and replied that he knew nothing about it. He states that Khan said that if "we have a problem, we should solve it ourselves; we should not invite any other third party to come and ne- gotiate." According to Islam, Khan said that if he (Islam) had any problems he should call Khan at the office or at home. Similarly, Moazzemul Hague testified that after he denied knowing anything about the Union (in response to Akbar Khan's question), Khan said that if he had any problems he should raise them and that he (Khan) would try to solve them. Arun Saha testified that Akbar Khan showed him the telegram, asked what he knew about it, and asked if he (Saha) thought there were any problems in the restaurant. Saha states that he told Khan about the employees' dissatisfaction with the tip system. He also states that Khan told him that if he (Saha) had any problems he should bring them to the Company and that he (Khan) would "try to fulfill." There also was the testimony of Ravinder Kumar who states that he too was asked if he knew anything about the telegram and that Khan said that someone from the dining room must have invited in the union people. Ac- cording to Kumar, after he denied knowing anything about it, Khan said that we should not invite a third party to interfere in our business, that "we can settle things, compromise, and that the company can accept your demands." Kumar states that Khan said that when he (Kumar) joined the staff he was a waiter, that he now was a captain, and that maybe he would be something else tomorrow. Regarding this last remark, the General Counsel argues that it should be construed as a threat of reprisal. When I first heard this testimony, I surmised that it might be a promise of benefit. On reflection, I now think it too cryptic to amount to a violation of the Act in any manner. On the next day (Thursday, 16 May), Union Agent John Mui went to the restaurant where he demanded recognition. He spoke to Satish Chander, Dennis Dass, and S. Harbans Singh (the chef). The latter said that he thought it was not fair that the kitchen employees were not involved; and they should have the right to vote.s At the Friday staff meeting held on 17 May 1985, Akbar Khan told the dining room employees that they could decide whether to share tips with the chef; that it was up to them. One of the employees complained about the policy of the Company in deducting a certain portion of their tips for breakage. Khan replied, "If you think its unfair then we will stop it." Finally, when one of the employees asked that there be a daily accounting of tips, Khan agreed to such a procedure. The Subject of the Union was not mentioned during this meeting. According to Dulal Saha, at the end of the night shift on 2 June 1985, Dennis Dass (the bartender) asked him why he joined the Union. Saha replied that he did not know. On 3 June the Company and the Union executed a Stipulation for Certification upon Consent Election. Pur- suant to this agreement an election was scheduled for Wednesday, 26 June 1985, at the Employer's premises. The parties agreed that the voting unit should include all -full-time and regular part-time dining room, bar, and -kitchen employees, including captains, waiters, waitress- es, bartenders, expediters, cooks, kitchen helpers, and dishwashers/utility persons, but excluding all office cleri- cal employees, managerial employees, guards, profession- al employees and supervisors as defused in the Act. Also, it was agreed that persons hired after Sunday, 2 June 1985, would not be eligible to vote. On 8 June Dulal Saha (who had been hired on 8 March 1985) was told by Satish Chander that he was being laid off. He was informed that his layoff was be- cause business was slow and that he would be recalled when business picked up. He never was. On or about 16 June S. Harbans Singh spoke to AFT Islam in the basement office. According to Islam, Har- bans Singh said, "You are the most senior guy in this res- taurant and I respect you a lot. Why don't you try to make the others understand what they are doing is not right." According to Islam (or at least as I interpret his testimony), S. Harbans Singh said that if the Union got in, the employees would not get all the benefits that the Union was promising; that the Company gives better benefits than the Union.° Islam states that Harbans Singh offered to give him and Arun Saha written guarantees that they would never be fired. S. Harbans Singh did not testify. Ravinder Kumar testified that sometime in June he too was spoken to by S. Harbans Singh in the basement office. He states that S. Harbans Singh said that "we know you are going to lose that election" whereupon he replied that if management knew the Union was going to lose, then why did he (Harbans Singh) keep trying to convince him. According to Kumar, S. Harbans Singh 8 Satish Chander denies that he ever spoke to John Mm. 9 Perhaps because Islam speaks English as a second language, this part of his testimony was a bit garbled. 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then said even if the Company lost it would not matter much because they would close the restaurant for a couple of weeks and reopen under new management. Kumar also asserts that S. Harbans Singh also said that if the Union lost the election, he (Kumar) would be fired the same day. Kumar also testified to a conversation he had with Akbar Khan around 21 or 22 June 1985. He states that Khan said if the Union got in they would not have a friendly relationship because everything would have to go through the Union. He states that Khan said that, "If you guys can withdraw your cards, we can come to some compromises, work things out," and that he would not retaliate. According to Khan, at various times before the elec- tion he spoke to employees. He states that he said pretty much the same thing to each person. He asserts that he told employees that if a union came in they would have to pay dues; that the Union was going to make promises but it had to go through management to materialize those promises; that the most important thing is that when a union is here the union negotiates and a person loses his individuality; and that the employees can vote any way they liked. The election was held on 26 June between 3 and 5 p.m. Arun Saha, Ravinder Kumar, and AFT Islam all testified that about 3 p.m., as they were changing clothes in the basement locker area, they overheard, but did not see, Akbar Khan talking to the kitchen employees. Their testimony was, in essence, that Khan told the kitchen employees that if the Union won the election, he would have to reduce their hours from about 60 hours per week to about 40 hours per week; that they would therefore earn less money; that he would have to hire more kitch- en employees, which would therefore result in layoffs when business slowed down. The above alleged transaction was denied completely by Akbar Khan who testified that no such meeting was ever held. Respondent also produced a kitchen employee who testified that no such meeting was held. Additional- ly, Respondent points out that the alleged threat to reduce hours is preposterous because the kitchen em- ployees worked only about 40 hours per week. It also points out that the basement area, although small, is a particularly noisy place with sounds from the air condi- tioner and the refrigerator. At the election the Employer designated Dennis Dass as its observer. Thus, if it is concluded that Dass is a su- pervisor, this, by itself, would be objectionable conduct and grounds for setting aside the election. Mid-Continent Spring Co., 273 NLRB 884 (1985). The Union also con- tends that the Employer engaged in objectionable con- duct, (a) when Akbar Khan sat at the bar during the election, and (b) when S. Harbans Singh, about 4 p.m., led the kitchen employees up to the voting area. In both of these cases, I see no objectionable conduct. The elec- tion was held in the backroom on the second floor of the restaurant, whereas the bar is located near the front en- trance and is situated so that one sitting there could not possibly observe the voting. I also cannot conclude that S. Harbans Singh engaged in any misconduct when he merely told the kitchen employees that it was time to vote and that they should follow him upstairs to the voting area. There is no dispute that commencing about July and through August 1985 the hours of work of many of the dining room employees was reduced, mainly by telling them to go home early. The only question is whether this reducton in hours was discriminatorily motivated or was a reasonable way to deal with a seasonal dirnunition of business. The evidence, in my opinion, does not tend to estab- lish that the reduction in hours was discriminatorily mo- tivated. Rather, the record establishes that the summer months see fewer patrons at the restaurant than other seasons of the year with the exception of January. The evidence shows that in January 1985, when business was slow, the Company reduced the hours of work for many of its employees by changing their schedules so that they had fewer days of work. The only difference was that in the summer of 1985, instead of reducing the days per week, the Company reduced the number of hours per day worked. The net effect on the dining room staff's earnings was probably much the same. In any case, as the evidence satisfactorily establishes a past practice of reducing hours of work for employees during slow peri- ods, I cannot say that the method of reducing hours in the summer of 1985 was unreasonable or discriminatorily motivated.10 On or about 15 August 1985 Ravinder Kumar was sent home early by Satish Chander. The next day he called in sick and never returned to work. The following week Kumar called in and told Chander that he was quitting. According to Kumar, he quit because his hours had been reduced. Because the General Counsel argues that the re- duction of hours was discriminatorily motivated, he con- tends that Kumar's quitting amounted to an illegal con- structive discharge. However, as I have concluded that the reduction in hours was not illegally motivated, I therefore recommend the dismissal of that portion of the complaint alleging Kumar's constructive discharge. Also on 15 August the Company laid off Moazzemul Hague. Hague was at this time a part-time waiter. Be- cause his principal job was at a hotel called the Helmsley Palace he could only work at the Respondent at times that he was not scheduled to work at the hotel. The Re- spondent convincingly contends that because of the slowdown in business in the summer, it decided to lay off Hague because he was a part-time employee who had no flexibility when it came to scheduling. When business 10 The General Counsel notes that various persons were hired after the Company started reducing hours. In this regard Manoj Motwam worked as a waiter for about 2 weeks in July 1985 However, the evidence shows that this person was hired merely as a temporary replacement for another waiter, Niraj Browne, who went on vacation and who brought this person to the attention of the Company. Clyde Singh worked only 1 day on 20 August 1985. Kapoor Ashwani began working as an expediter during the payroll period ending 25 August. In Bus respect the Company explained that in July one of the two expediters left, that they managed to inc only one expediter during part of July and August, but that in anticipation of a pickup in business after Labor Day, Kapoor Ashwam was hired to be trained as an expedit- er. Another waiter, Man* Singh, was lured as a waiter on or about 13 September 1985. As he began working after the summer slow season, his hire is not relevant to the reduction-of-hours issue. ••=3 DARBAR INDIAN RESTAURANT 551 did pick up in September, Hague was offered a full-time job but he refused because he wanted to retain his job at the Helmsley Palace. According to the Respondent, Hague was not offered a part-time position because the Company's managers felt that it was more advantageous to have full-time waiters (to the extent possible), who were more flexible when it came to scheduling their days and hours of work. III. THE CHALLENGED BALLOTS A. Satish Chander Chander was employed at the restaurant since its opening in 1983. Initially employed as a waiter, he pro- gressed to being a captain and then to his present positon of maitre d'. Until early June 1985 a person named Ashok Batra was the manager, reporting to the two Khan brothers. After Batra left, Chander was the most senior person in the dining room. The evidence in this case establishes that Chander, during the period from 1984 to the present, has been the one to tell dining room employees that they were fired, laid off, or disciplined. Thus it was he who told Dulal Saha and Moazzemul Hague that they were being laid off. Also it was Chander who in July 1984 handed a letter of discharge to employee Gurdip Singh, which letter was signed by Chander as "Assistant Manager." This letter read: Following Ashok Batra's (the manager) letter of June 11, 1984, management has closely watched your performance, unfortunately there has not been the slightest improvement noticed. Also on several occasions you have threatened management to disrupt the discipline of the restau- rant, of which several employees witnesses. There are also witnesses who claim that cash tips have been stolen either directly by you or under your supervision. With all these things, I am forced to let you go. I wish you success in your future career. In addition to the above, there is credible evidence that Chander has issued warning letters to employees, that he trains new waiters, and that he directs and cor- rects the work of the dining room employees. I do not credit the Employer's contention that Chander never acts on his own discretion and in all cases merely acts as a conduit between the Khans and the employees. Rather, it is my conclusion that Chander exercises supervisory authority as defined in Section 2(11) of the Act. Accord- ingly, I recommend that his ballot remain unopened and uncounted. B. Dennis Dass I have searched this record in vain for any evidence to show that Dass exercised any of the authorities or powers enumerated in Section 2(11) of the Act. Accord- ingly, I conclude that he is the person who, on 6 days per week, tends the bar. As such I find that he is an eli- gible voter under the terms of the Stipulation for Certifi- cation Upon Consent Election and that his ballot should be opened and counted. C. S. Harbans Singh The evidence shows that S. Harbans Singh was the chief chef and was considered by the Khans as the best indian chef in New York. , He was described by Haroon Khan as an artist who was so possessive of his cuisine that he would not let his brother stand near him when he prepared his mixes. The record shows that during 1985, S. Harbans Singh earned a salary of $700 per week which was, by far, the highest of the kitchen employ- ees). 1 The kitchen staff consisted of S. Harbans Singh as the chef, three cooks, plus several helper/meatcutters and expediters. (Generally there were two expediters.) As re- lated by Haroon Khan, if something was wrong with the food or if one of the cooks was not preparing the food to the chefs satisfaction, the chef would tell the cook what he was doing wrong. According to Harron Khan, S. Harbans Singh "has to make sure that anything that goes out of the kitchen goes according to his recipes and ac- cording to his tastes." As the credible evidence in this case convinces me that S. Harbans Singh responsibly directed the work of the kitchen employees and that he had the authority to hire and fire. I conclude that he was a supervisor within the meaning of Section 2(11) of the Act. I therefore recom- mend that his ballot remain unopened and uncounted. D. Dulal Saha The determination of whether this employee's ballot should be opened depends on whether I find that he was discharged for cause or whether he was discharged ille- gally for union considerations. I therefore shall defer my discussion of this issue to a later point in this decision. E. Surrinder Singh As noted above, the Union in its brief withdrew its challenge to the ballot of Surrinder Singh. I therefore recommend that his ballot be opened and counted. F. Gurbhej Singh Sandu This employee was originally hired as a doorman when the restaurant opened in 1983 but he quit sometime thereafter. The Company contends that it rehired Gurb- hej Singh Sandu on 25 May 1985 and that he began working on that date as a meatcutter. The Stipulation for Certification Upon Consent Elec- tion establishes "Sunday, June 2, 1985" as the cutoff date for purposes of voter eligibility. The critical date is not the date of hire but rather the date on which the employ- ee actually commences to work. Emro Marketing Co., 269 NLRB 926 (1984). The salary of S. Harbans Smgh was $150 per week more than the salanes of Dennis Dass and Satish Chander, and almost double that of the next highest paid kitchen employee. However unlike the dining room em- ployees, including Dass and Chander, Harban Singh did not take a por- tion of the tips. 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the present case there is a sharp disagreement about when Sandu began to work. The Union's witnesses testi- fied that they did not see him at the restaurant until Monday, 3 June, whereas the Employer's witnesses testi- fied that Sandu began working on 25 May 1985. Sandu, who was still employed by the Company at the time of this hearing, was not called as a witness. Based on the record as a whole, and to a large degree on demeanor grounds, I shall credit the testimony of the Union's witnesses on this issue and conclude that Sandu did not begin to work on 25 May as contended by the Company, but on 3 June as alleged by the Union. I therefore shall recommend that his ballot remain un- opened and uncounted. Analysis I have already concluded that Dennis Dass was not a supervisor or agent within the meaning of the Act. I therefore recommend the dismisal of that portion of the complaint that alleges that he engaged in illegal interro- gation. I also recommend dismissal of the Union's Objec- tions to Election insofar as they are based on the fact that he was named by the Employer to be its observer at the election. I have also concluded above that in accordance with seasonal fluctuations, the Company's business declined in the summer of 1985 and that in accordance with past practice the Company reduced the hours of many of its employees. I therefore fmd to be without merit the alle- gation that the Company illegally reduced the hours of work of its employees. Also, inasmuch as the alleged constructive discharge of Ravinder Kumar is premised on the alleged unlawful reduction of his hours, this too is deemed to be without merit. Moreover, in view of the economic circumstances prevailing at the Company during the summer of 1985, I cannot conclude that the layoff of Moazzemul Hague was discriminatorily moti- vated. As Haque's principal job was at another employ- er, it seems to me that his layoff was justified given the decline in the Company's business. (Indeed had he not been laid off, the other waiters would probably have had their hours reduced even more.) Further, the evidence establishes that when business picked up, the Employer offered Hague full-time employment which he declined. In this regard I do not conclude that the offer of full- time, as opposed to part-time, employment was discrimi- natorily motivated and I accept as reasonable the Com- pany's explanation that Hague was not offered part-time employment because of his lack of flexibility where scheduling was concerned. There is no dispute that on 15 May 1985, Akbar Khan, after receiving the Union's telegraphic demand for rec- ognition, called many of the employees into the basement office, one at a time, where he showed them the tele- gram and asked what they knew about it. The credible evidence also establishes that Khan asked some of the employees what their problems were, invited them to discuss their problems with him, and suggested that in- stead of inviting in a third party, the management and the employees could negotiate and solve their own prob- lems. The record also shows that during one such con- versation, Arun Saha told Khan that the dining room employees were dissatisfied with the tip system. It is my opinion that the Employer's interrogation of its employees on 15 May had a "reasonable tendency" to interfere with employees' Section 7 rights under the Board's "totality of circumstances test." Raytheon Co., 279 NLRB 245 (1986); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). I therefore conclude that these inter- rogations violated Section 8(a)(1) of the Act. I also con- clude that during these conversations on 15 May, Khan solicited grievances and promised to correct them. In this respect, I find that the Company violated Section 8(aX1) of the Act. Uarco Inc., 216 NLRB 1 (1974); Fred Jones Mfg. Co., 239 NLRB 54 (1978); Raley's, Inc., 236 NLRB 971 (1978).12 On Friday, 17 May, 1 day after the Union's agent, Mui, visited the Company, Akbar Khan, at the weekly staff meeting, announced to the dining room employees that the participation of the chef in the tip pool was up to them. This, therefore, was a retraction of the previous announcement that the chef was going to get a share in the tips. It also was a retraction of the issue that led the employees to seek union representation in the first place. It seems to me that even though the Union was not men- tioned at this meeting, this retraction was made to induce the employees to withdraw their support for the Union. I therefore conclude that this too violated Section 8(a)(1) of the Act. Similarly, I conclude that by agreeing to eliminate the deductions for breakage and by agreeing to a new system of tip accounting, the Employer unlawful- ly promised and/or granted benefits to its employees. Pine Valley Meats, 255 NLRB 402, 409 (1981). Islam testified, without contradiction, that on or about 16 June he was spoken to by S. Harbans Singh in the basement office where, among other things, the latter asked Islam to try to convince the other employees to vote against the Union and promised that he would guar- antee that neither Islam nor Arun Saha would ever be fired. I conclude that this statement violated Section 8(a)(1) of the Act. It also is undisputed that in June, S. Harbans Singh told Ravinder Kumar that even if the Company lost the election it did not matter because they would close the restaurant for a couple of weeks and reopen under new management. As this, in effect, is a threat of plant clo- sure, I therefore construe it as a violation of Section 8(a)(1) of the Act. Bronx Metal Polishing Co., 268 NLRB 887, 889 (1984). There was testimony by the General Counsel's wit- nesses that on the day of the election (26 June), Akbar Khan told various kitchen employees that if the Union won the election, he would have to reduce their hours from about 60 to 40 and that they therefore would earn less money. As to this incident, which is denied by Akbar Khan, I conclude that the General Counsel's evi- dence is not sufficiently convincing to establish a viola- 12 Ravinder Kumar credibly testified about a similar conversation he had with Akbar Khan around 21 June m which ,the latter promised, in effect, to negotiate directly with employees and make some compromises. Thus, I conclude that the Respondent violated Sec. 8(a)(1) in this respect for the same reasons DARBAR INDIAN RESTAURANT 553 tion of the Act. For one thing, the General Counsel's witnesses testified that they overheard this conversation in the basement but did not see who was talking. Second, although the basement area is small, it is in fact very noisy, and this could easily lead to misinterpretations. Fi- nally, the record shows that the kitchen employees gen- erally worked between 40 and 45 hours per week and were paid the same amount per week irrespective of their actual hours of work. As such, it seems implausible that Khan would have told them that their hours would be lowered from 60 to 40 and that their earnings would therefore be reduced. I therefore recommend that this al- legation be dismissed. The final issues for consideration relate to the dis- charge of Dulal Saha whom the General Counsel and the Union contend was discharged because of his union activities. The Employer, on the other hand, asserts that he was employed as a waiter who, during the probation- ary period, did not measure up to its standards and there- fore was fired for incompetence. Dulal Saha was hired in April 1985 as a waiter. He was one of the employees who first visited the Union's office and he signed a union authorization card. His dis- charge occurred on 8 June about 3 weeks after the Union made its demand for recognition and a few days after the parties executed the Stipulation for Certification Upon Consent Election. Given the timing of his dis- charge and the concurrent 8(a)(1) conduct mentioned above, it seems to me that the General Counsel has made out a prima facie case for his contention that Saha was discharged because of his union activities. Having estab- lished a prima facie case, the burden then shifts to the Respondent to show that it would have discharged Saha even in the absence of union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The Employer contends that Saha was discharged be- cause of his inability to perform his job functions proper- ly. One of the most serious problems he had, according to the Employer, was his difficulty in communicating with customers in English. In this respect, it was fairly obvious at the hearing that Saha did in fact have difficul- ty in speaking English. Nevertheless, as a waiter, Saha's opportunity to talk to customers was rather limited as it was the function of the captains to take the main order with the waiters relegated to serving. Further, Saha did work for about 3 months and if his difficulty in commu- nicating was that crucial it certainly would have mani- fested itself shortly after his hire. (This is, after all, an ethnic restaurant and I expect that most customers expect the staff to be using English as a second lan- guage.) The company asserts that there was a general impres- sion throughout the dining room that Dulal Saha's co- workers were avoiding sending him to tables so as not to adversely affect their tips. Yet the testimony of the cap- tains, Ravinder Kumar and AFT Islam, was that Saha was a good worker about whom they had no complaints. The Employer cited an incident where Saha walked by and ignored a customer and another incident where he brought to the customer's table the spices to make special tea instead of preparing the tea in the kitchen. Yet these alleged transgressions were not placed at any particular time, seem relatively inconsequential, and did not result in any sort of discipline or written warning. In fact the Employer did not cite any event or transaction that would reasonably explain why Saha was discharged on 8 June. Moreover, I note that whereas the Respond- ent contends in this hearing that Saha was discharged for incompetence, this was not the reason given to him at the time of his discharge. Rather he was told by Satish Chander that he was being laid off because work was slow. Based on the record as a whole, it is my opinion that the Respondent discharged Dulal Saha because of his union activities in violation of Section 8(a)(1) and (3) of the Act. I therefore recommend that his ballot be opened and counted. CONCLUSIONS OF LAW 1. Respondent Fortinbras Services, Inc. d/b/a Darbar Indian restaurant is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hotel Employees and Restaurant Employees Union Local 100 of New York and Vicinity, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about the Union, the Employer has violated Section 8(a)(1) of the Act. 4. By soliciting employee grievances and by promising to resolve them and by promising and granting other benefits to employees in order to induce them to with- hold their support for the Union, the Respondent has violated Section 8(a)(1) of the Act. 5. By threatening to close the restaurant if the Union won the election, the Respondent violated Section 8(a)(1) of the Act. 6. By threatening to discharge employees for antiunion reasons, the Respondent violated Section 8(a)(1) of the Act. 7. By discharging Dulal Saha because of his member- ship and support for the union, the Respondent violated Section 8(a)(1) and (3) of the Act. 8.The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. The acts and conducts described above in para- graphs 3 through 7 interfered with the conduct of the election and, therefore, I recommend that the Union's Objection 2 to the election be sustained. 10.Except to the extent heretofore found, the other al- legations of the complaint and the Union's objections are dismissed. 11.Satish Chander and S. Harbans Singh are supervi- sors within the meaning of Section 2(11) of the Act and their ballots should be unopened and uncounted. 12.Dennis Dass is employed as a nonsupervisory bar- tender whose ballot should be opened and counted. ' 13. Dulal Saha was unlawfully discharged in violation of Section 8(a)(3) of the Act and therefore his ballot should be opened and counted. 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14. Gurbhej Singh Sandu did not begin to work at the restaurant until after the cutoff date for voter eligibility and therefore his ballot should remain unopened and un- counted. THE REMEDY Having found that the Respondent has violated the Act in certain respects, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. With respect to Dulal Saha, it is recommended that Respondent offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges previously enjoyed, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination practiced against him, such earnings to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, in accordance with Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent expunge from its files any reference to the discharge of Saha and notify him in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against him Insofar as the representation case is concerned (2-RC- 19980), I recommend that the ballots of Dulal Saha and Dennis Dass be opened and counted, that a revised tally of ballots be issued, and that if the Union obtains a ma- jority of the valid votes counted, that it be certified as the collective-bargaining representative for the employ- ees in the bargaining unit described in the Stipulation for Certification upon Consent Election. If, however, the re- vised tally of ballots shows that a majority of the valid votes were not cast for the Union, I recommend that the election be declared a nullity and set aside because of the Employer's conduct, which I have previously concluded to be conduct interfering with the election. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's ORDER The Respondent, Fortinbras Services, Inc. d/b/a Darbar Indian Restaurant, New York, New York, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union support or sympathies. (b) Soliciting employees' grievances and promising to resolve such grievances for the purpose of inducing em- ployees to withhold their support for the Union. 13 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. (c) Promising and granting benefits for the purpose of inducing employees to withhold their support for the Union. (d) Threatening to close the restaurant if the Union were to win an election. (e) Threatening to discharge or discharging employees because of their union support or sympathies. (t) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Dulal Saha immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges and make him whole for any loss of earnings he may have suffered in the manner set forth in the remedy section of this Deci- sion. (b) Remove from its files any references to the dis- charge of Saha and notify him in writing that this has been done and that evidence of the discharge will not be used as a basis for any future personnel actions against him. (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 place of business in New York, New York, copies of the attached notice marked "Appen- dix." 14 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this order, what steps have been taken to comply. For the purpose of determining or se- curing compliance with this order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United 14 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." DARBAR INDIAN RESTAURANT 555 States court of appeals enforcing this order and may be had on any matter reasonably related to compliance with this Order, as enforced by the court. IT IS FURTHER ORDERED that the petition in Case 2- RC-19980 be remanded to the Regional Director for Region 2 for action consistent with the findings of this decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE THE NATIONAL LABOR RELATIONS BAORD An Agency of the United States Government 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 interrogate our employees concerning their activities or support for Hotel Employees & Res- taurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO. WE WILL NOT discharge or threaten employees with discharge or threaten the closure of the restaurant be- cause of our employees' union or other protected con- certed activities. WE WILL NOT solicit grievances and promise or grant benefits to our employees for the purpose of including them to withhold their support for the Union. 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 reinstatement to Dulal Saha and make him whole for any loss of earnings he may have suffered becuase of our discharge of him on 8 June 1985. FORTINBRAS SERVICES, INC. D/B/A DAR- BAR INDIAN RESTAURANT