Nemacolin Country Club

456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nemacolin Country Club and Teamsters Local Union 872, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO i Case 6-CA- 20349 October 28 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 19 1988 Administrative Law Judge Joel A Harmatz issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed cross exceptions and a supporting and 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 2 and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order as modified 3 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 4 and 5 4 The Respondent violated Section 8(a)(3) and (1) of the Act during the period from September 21 1987 through January 1988 by reducing the hours and earning opportunities of employees in the appropriate collective bargaining unit in repris al for their designation of the Union as their exclu sive collective bargaining representative I On November 1 1987 the Teamsters International Union was read mitted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties 9 The General Counsel has excepted to the judge s inadvertent failure to include in his Conclusions of Law that the Respondent violated Sec 8(a)(3) and (5) of the Act by unilaterally reducing the hours and earning opportunities of employees during the period from Septembr 21-30 1987 and in January 1988 (The judge concluded that the violations of the Act had occurred during the months of October November and December 1987) The General Counsel has also excepted to the judge s failure to include these additional time periods in the make whole portion of his notice We agree that the evidence on which the judge relied indicated that cutbacks in operations were implemented commencing September 21 1987 and that the grill hours in January 1988 were shorter than pre viously scheduled We have therefore modified the Conclusions of Law and have substituted a new notice to enlarge the make whole remedy to include the time period from September 21 1987 through January 1988 No modification of the recommended Order is necessary as it provides generally that employees are to be reimbursed with interest for all losses sustained by reason of the Respondent s unlawful conduct We have modified par 2(d) of the recommended Order to provide the standard 20 days from the date of the Order for the Respondent to notify the Regional Director what steps have been taken to comply with the Order 5 The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally reducing traditional hours worked by employees as well as their earn ing opportunities during the period from Septem ber 21 1987 through January 1988 without notify ing the Union and affording it an opportunity to bargain with respect to such changes ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Nemacolin Country Club Beallsville Pennsylvania its officers agents successors and assigns shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(d) (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT question you concerning your union activity WE WILL NOT instruct you to remove union in signia WE WILL NOT create the impression that we are spying on your union activity WE WILL NOT threaten to discharge you to re place you by contracting out or to effect cutbacks in your employment should you designate a union as your representative WE WILL NOT discourage activity on behalf of Teamsters Local Union 872 a/w International 291 NLRB No 78 NEMACOLIN COUNTRY CLUB 457 Brotherhood of Teamsters Chauffeurs Warehouse men and Helpers of America AFL-CIO or any other labor organization by cutting your hours or reducing your earning opportunities or in any other manner discriminating against you with respect to wages hours or terms and conditions of employ ment WE WILL NOT make changes in hours employee earning opportunities or other conditions of work without first notifying and affording the Union an opportunity to bargain about such matters The ap propriate collective bargaining unit is All full time and regular part time waitresses bus boys bartenders cooks (kitchen help) housekeepers (locker room attendants) and snackbar operators employed by us at our Route 40 Beallsville Pennsylvania facility excluding all office clerical employees the custodian night watchman head waitress head bartender head kitchen planner the early kitchen supervisor and guards professional employees and other supervisors as defined in the Act and all other employees 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 whole all of our employees within the collective bargaining unit for earnings and benefits lost by reason of our unlawful reduc tion of grill chalet and dining room operations during the period from September 21 1987 through January 1988 and by our institution of a reduced menu during that period NEMACOLIN COUNTRY CLUB surveillance by actual surveillance of union activity and by requiring an employee to divulge union sentiment before receiving wages The complaint further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by reducing hours of work and employee earning opportunities in reprisal for union activity Finally the complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by effecting these changes um laterally without prior notification or affording the Union an opportunity to negotiate and bargain In its duly filed answer Respondent denied that any unfair labor practices were committed Following the close of the hearing briefs were filed on behalf of the General Counsel and the Respondent On the entire record in this proceeding including my opportunity to directly observe the witnesses while testi fying and their demeanor and after consideraton of the posthearing briefs I make the following FINDINGS OF FACT I JURISDICTION The Respondent is a Pennsylvania corporation which operates a country club in Beallsville Pennsylvania During the 12 months ending August 31 1987 Respond ent in the course of its operations derived gross reve nues exceeding $500 000 and received at its facility goods and materials valued in excess of $50 000 directly from outside the Commonwealth of Pennsylvania The complaint alleges Respondent at the hearing stip ulated and it is found that at all times material Re spondent is and has been an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges the parties at the hearing stipli lated and it is found that Teamsters Local Union 872 a/w International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America is a labor orga nization within the meaning of Section 2(5) of the Act Kim Slegert Esq and Suzanne C McGinnis Esq for the General Counsel George S Gobel Esq of McKeesport Pennsylvania for the Respondent Robert L Lackner of Charleroi Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE JOEL A HARMATZ Administrative Law Judge This proceeding was heard by me in Pittsburgh Pennsylvania on March 14 and 15 1988 on an initial unfair labor prac Lice charge filed on September 28 1987 and a complaint issued on November 12 1987 alleging that the Respond ent independently violated Section 8(a)(1) of the Act by threatening employees with job losses by preventing em ployees from wearing a union button by coercively in terrogating employees concerning union activity by cre ating the impression that union activity was subject to III THE ALLEGED UNFAIR LABOR PRACTICES A Preliminary Statement This proceeding relates to unfair labor practices alleg edly committed before an election to thwart union orga nization and thereafter as a reprisal for employee desig nation of the Union The Respondent is a country club which provides golf swimming and food and beverage services to its members and guests During the summer of 1987 organizational activity began among Respond ent s food service and clubhouse maintenance employ ees i A representation petition was filed on July 10 and an election conducted on September 18 The results showed that 26 employees voted for and only 5 against union representation As indicated the complaint challenges two distinct phases of the Respondents reaction to the organizational ' All dates refer to 1987 unless otherwise indicated 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD effort The first phase relates to the period prior to the election and entails a variety of independent 8(a)(1) alle gations including interrogation threats interference with employee rights to brandish union insignia condi tioning earnings on employee disclosure of union senti ment surveillance and creating the impression of sur veillance This conduct is imputed to two members of Respondents board of governors James Dunlevy and Dewey Milich Notwithstanding this alleged misconduct the Union was designated by a majority According to the com plaint Respondent reacted through imposition of a varie ty of discriminatory actions More specifically the Gen eral Counsel contends that Respondent beginning on September 20 only 2 days after the election announced a series of measures calculated to reduce hours work op portunities and earnings of waitresses and other club house personnel The complaint further alleges that these changes were made in violation of Section 8(a)(5) and (1) of the Act because implemented unilaterally without prior notifica tion or consultation with the exclusive representative certified on September 28 B Concluding Findings 1 Interference restraint and coercion a The agency issue As indicated the complaint attributes independent 8(a)(1) violations to Dewey Milich and James Dunlevy A threshold issue is presented by the Respondents denial that either was an agent whose actions might be consid ered binding on it Milich at times material was a member and president of the Respondents board of governors Dunlevy was also a member of that board and during the preelection period was chairman of the Respondents membership committee The board of governors is responsible for all affairs of the club It consists of nine members with three elected by the membership each year on a staggered basis As for the president the bylaws merely provide that the in cumbent shall preside at the meetings of the club [and] appoint all committees 2 All committee ac tivities are subordinated to the control of the board of di rectors 3 Abraham Toury is the club manager He serves under contract with the board of governors and subject to its direction and control Consistent with the contention of the Respondent the bylaws do not confer authority on individual members of the board of governors to act on their own while pur porting to further interests of the club Additionally there is no evidence of any formal resolution that might have authorized either Milich or Dunlevy to address the issue of union representation on behalf of the club During the preelection campaign on July 30 and 31 letters over signature of Milich were distributed to em ployees The letters were written on country club sta 2 See G C Exh 14 art 5 p 2 3lbid art 3sec5p3 tionery and expressed opposition to the Union Denise Hagyan a waitress and prominent union supporter tes tified without contradiction that the July 30 letter was distributed to her along with her paycheck and that the July 31 letter was handed to her personally by Club Manager Toury Counsel for the General Counsel correctly observes that pursuant to Section 2(13) of the Act a finding of agency does not require proof that the specific acts per formed were actually authorized or subsequently rati feed Under the doctrine of apparent authority a party may be bound by the conduct of those who it holds out to speak and act for it In the case of Milich he not only was a member of the board of governors but its presi dent Although it is fair to infer that the board of gover nors knew of his July 30 and 31 letters 4 the distribution to employees through its official channels as Payroll and General Manager Toury an admitted supervisor con veyed to employees that Milich s message on club sta tionery was sponsored by the highest level of manage ment Based thereon employees would rightfully assume that Milich was the spokesman designated by the Re spondent to address the issue of union representation In the circumstances it is concluded that Milich was clothed with apparent authority to carry forth the Re spondent s antiunion message and in that light the Re spondent was bound by all of his conduct to that end The case of Dunlevy is weaker For there is neither evidence nor reasonable ground for inferring that the board of governors would have been mindful of any an bunion conduct in which he participated Responsibility in this instance would stem solely from his status as a member of the board of governors In this regard it is a fact that all board members exert influence over the club s operations even though their authority cannot be asserted individually Unquestionably individuals elected to those positions are cogs within a single overarching management team Employees naturally would perceive these officials as privy to the development and imple mentation of club policy and accordingly their stated views would be taken as in harmony with those of man agement Consistent with these observations [t]he [Na tional Labor Relations] Board regularly finds elected or appointed officials of an organization to be agents of that organization See Electrical Workers IBEW Local 453 (National Electrical) 258 NLRB 1427 1428 (1981) Car penters Local 1780 244 NLRB 277 279 fn 6 (1979) Indeed such officials are presumed to be agents clothed with apparent authority Thus as stated in Local 453 above at 1428 * Dunlevy initially testified that he could not recall that the board con ferred specific authority on Milich to addresses the organizational issue during this timeframe However later when Dunlevy was questioned about when he became aware of the election petition he replied I heard a rumor that they were having an election But that was handled by Dewey Milich Generally Dunlevy was an unreliable wit ness His testimony is rejected to the extent that it may be interpreted as indicating that the board of governors was not made aware of Milich s antiunion conduct until it received a copy of the complaint which was issued on November 12 1987 NEMACOLIN COUNTRY CLUB 459 While the holding of elective office does not man date a finding of agency per se such status is per suasive and substantial evidence which will be deci sive absent compelling contrary evidence This policy has been applied to a labor organization acting as an employer in circumstances substantively in distinguishable from the instant case See Carpenters Local 1780 supra Based on this authority and the cir cumstances presented it is concluded that employees had reasonable basis for believing that Dunlevy s conduct being consistent with the officially promulgated views set forth in Milich s letters was part and parcel of the Respondents antiunion campaign and hence his state ments are deemed to be binding on the latter 2 Dewey Milich The complaint alleges that Respondent violated Sec tion 8(a)(1) of the Act through Milich s having (1) threatened a reduction in staff and loss of jobs to dis courage union activity (2) created the impression that union activity was subject to surveillance and (3) inter fered with employee rights to express union sentiment by directing that an employee remove union insignia Milich did not testify and the allegations are substantiated by uncontradicted testimony Denise Hagyan a waitress testified in support of the union button incident Hagyan had initially contacted the Union and she was a prime protagonist She related that on September 12 she wore a union button to work the button was 2 inches in diameter with the word VOTE in large letters and Teamsters in small on a black background (See G C Exh 12) Hagyan testified that on the morning in question she wore the union button on her uniform directly above her name tag While tend ing her tables a member noticed the button and as they discussed it Milich who was in the area importuned Hagyari You can do what you want to do with the Union but you re not allowed to wear the button to work Hagyan stated that her union representa tive indicated that she could do so but Milich countered No it s part of your uniform and take the button off Under established Board policy employees may not lawfully be constrained in their right to wear union relat ed insignia or attire unless the employer demonstrates special circumstances showing that the restriction is nec essary to maintain production and discipline See Repub he Aviation Corp v NLRB 324 U S 793 (1945) More over the mere fact that employees wearing union but tons may come in contact with customers has been held not to constitute special circumstances sufficient to deprive employees of the rights recognized to exist under the Act See Broadway 267 NLRB 385 404 (1983) It is true that the Sixth Circuit Court of Appeals adopted a more restrictive view in reversing the Board in Burger King Corp v NLRB 725 F 2d 1053 (1984) There the court held that a duly promulgated nondis crimmatory rule that employees who have contact with the public may only wear authorized uniforms is as a matter of law supported by a special circumstance which justifies the banning of union buttons Although the Respondent relies on Burger King there is no indica tion that the Board has adhered to that view In any event the case is distinguishable Contrary to the asser tion in Respondents brief here there is no evidence that Respondent maintained or promulgated any formal rule regulating the appearance of uniforms worn by its em ployees From all appearances the action against Ha gyan was an unprecedented ad lib reaction Indeed in the past managements interest was not evoked when waitresses had adorned their uniforms with other types of pins and buttons Accordingly the decision in Burger King is plainly distinguishable and there being no inde pendent showing of special circumstances justifying Milich s conduct in this regard the Respondent thereby violated Section 8(a)(1) of the Act See e g Nordstrom Inc 264 NLRB 698 (1982) 5 Hagyan testified to a further incident involving Milich about a half hour later She avers that Milich then told her union or no union things would be different next year they were going to bring an outfit in from West Virginia and they were going to bring in their own food their own people and the club wouldn t have to worry about anything anymore In the context of Mi lich s overall conduct this statement may not be lightly dismissed as neutral Thus while prefaced by the sugges tion that work would be farmed out irrespective of the outcome of the election Milich earlier that same day had told Hagyan You know I am very much against this Union From this remark coupled with Milich s in sistence that Hagyari remove the prounion button one could rightfully assume that Milich s reference to con tracting out was inspired by resentment of the Union and mentioned to demonstrate that the Respondent had a means for avoiding the worry brought about by the organization campaign In the circumstances the state ment tended to coerce and restrain the exercise of Sec tion 7 rights and was violative of Section 8(a)(1) of the Act Another waitress Mary Ann Pohill testified that Milich initiated a conversation with her on August 1 in quinng about what she thought about the Union Pohill responded We 11 just have to wait and see Pohill then complained about Club Manager Toury s scheduling waitresses in a manner producing inadequate coverage of shifts Milich responded If the Union is voted in he would cut the staff Based on Pohill s uncontradicted account and as she had never overtly manifested union sentiment in the presence of any management representa tive it is concluded that the interrogation about her thoughts concerning the Union particularly in the con text of Milich s professed hostilities in that regard was plainly coercive Accordingly Respondent violated Sec tion 8(a)(1) of the Act through the interrogation of Pohill and the threat to cut staff in the event of unioniza tion 5 Contrary to the Respondent the fact that this or any other interfer ence with statutory rights was ineffective to thwart or impair union ac tivity is not a relevant consideration The Board has repeatedly stated that it is the tendency to impede employees in the exercise of their Sec 7 rights rather than the effectiveness of the alleged unlawful conduct which controls 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Loretta Bnggs also a waitress testified about another encounter with Mllich on August 1 In this respect Bill Stephan a member of the club asked Briggs what she was doing at Tambellini s Restaurant According to Briggs before she could answer Miltch interjected that they were having a union meeting In fact Bnggs Hagyan and Union Representative Bob Lackner had met at Tambellini s the day before to discuss union busi ness Based on the uncontroverted testimony of Briggs it is concluded that Milich s professed knowledge of the meeting occurred under conditions implying surveillance of union activity and hence violated Section 8(a)(1) of the Act See e g So Cal Products 273 NLRB 1486 1490 (1985) 3 James Dunlevy The complaint alleges that Respondent violated Sec tion 8(a)(1) through Dunlevy s coercive interrogation and his having conditioned an employees receipt of wages on disclosure of her union sentiment This allega tion was substantiated by testimony of employee Bnggs who related that toward the end of August she was waiting on Dunlevy and because her shift was about to end she requested that he sign his tab Dunley respond ed that he would do so if Briggs told him how she would vote When Briggs did not answer Dunlevy re peated that if I wanted my tab signed to tell him how I was going to vote for the Union Briggs indicated that she would vote for the Union Dunlevy laughed stating that he already knew that Dunlevy could not recall whether he made the remarks to Bnggs I credit her Based thereon and as Briggs credibly testified that she had never before made her union sentiment known to management it is concluded that the inquiry about how she would vote constituted coercive interrogation viola tive of Section 8(a)(1) 6 Finally waitress Donna Puskavich testified that in September she overheard a conversation in which one of the members was offering advice to Dunlevy about how the Union could be kept out Dunlevy responded Well we could fire the whole fucking bunch The General Counsel concedes that the evidence does not establish that the remark was addressed to Puskavich Nor does it appear that Dunlevy was aware of her presence or that she was within earshot Nonetheless in agreement with the General Counsel it is concluded that such factors furnish no cogent defense so long as the coercive remark is heard by an employee It is well settled that 8 No violation is found on grounds that Dunlevy conditioned Briggs receipt of wages on her disclosure of union sentiment It is true that wait resses earn gratuities through a surcharge placed on the tab However Bnggs could not have assumed that Dunlevy s remark could have im paired in any fashion her full realization of her earning entitlement She was fully aware of the Respondents policy enabling a waitress to her self sign the tab in the event that a member failed or refused to do so Although Dunlevy s failure to cooperate contributed to the coercive nature of the encounter Briggs had no reasonable basis for concern that her income might be affected should she decline to answer Dunlevy Beyond that the complaint attributes an act of surveillance to Dunlevy Although there is no evidence whatever to suggest that he engaged in any such conduct he did create the impression of surveillance Because I am not entirely sure that this unalleged issue was fully litigated no find ing is made thereon the assessment of a statement for purposes of Section 8(a)(1) does not turn on the employers motive but the test of legality is whether the remark tended to impede employees in the exercise of their Section 7 rights Dun levy s threat was not denied and clearly violated Section 8(a)(1) of the Act 7 C The Alleged Discrimination The allegations of discrimination focus on Respond ent s curtailment of hours and earning opportunities of clubhouse employees during the period immediately after the election Essentially the General Counsels conten tions are addressed to the acceleration of off season re ductions which normally begin on November 1 of each year The actions targeted by the General Counsel are outlined as follows 1 Premature reduction of hours of operation of food service in the grill 2 Premature closing of the dining room 3 Premature institution of an abbreviated soup and salad type menu 4 Changing the method of assigning post seasonal work opportunities from an equitable distribution of work through a rotation system to assigning shifts on the basis of seniority A chronologue of the undisputed background facts shows that the Union was designated by a majority in an election conducted on September 18 No objections to the election were filed On Sunday September 20 the menu included a notice to the effect that the board of directors has announced that effective Monday Septem ber 21 1987 the hours of operation of both the grill room and dining room will be reduced 8 On September 24 a special meeting of the board of governors was con vened by Milich At that meeting additional cuts were made in the operation of the grill room and the chalet 9 and a decision was made to close the dining room except for previously booked parties 10 Also it was de termined that effective October 1 the grill would oper ate on a limited soup and sandwich menu 11 On Septem 7 See Maywood Inc 251 NLRB 979 981 (1980) Long Airdox Co 277 NLRB 1157 1167-1168 (1985) Pioneer Hotel & Gambling Hall 276 NLRB 694 702 (1985) involves a materially distinct variation of the theme There the coercive remarks were in a conversation between su pervisors and never conveyed to or overheard by any employee 8 See G C Exh 5 It does not appear that this step was pursuant to action taken at a regular or special meeting of the board of governors No evidence was offered identifying those who participated in this cut back decision or how it was made 8 The chalet is a light food and beverage operation located on the golf course In the past and as scheduled for 1987 the chalet operated on a 7 day basis throughout the golf season In its postheanng brief Respondent suggested that the normal golf season extends from April through Sep tember However the clubs 1987 yearbook which apparently represents a guide to its operations defines the golf season as running from April 1 through October 31 See G C Exh 15 p 2 I find that prior to the elec tion the chalet was scheduled to remain open on a daily basis until No vember 1 10 See R Exh 8 1 1 See G C Exh 8 NEMACOLIN COUNTRY CLUB 461 ber 27 an notice implementing these change was posted 12 They were to take effect on October 1 As indicated the golf season normally ran from April 1 to October 31 During those months members are charged a monthly minimum of $75 which they must spend on food and beverage at the club or lose At the special meeting of September 24 the board of governors waived the October monthly minimum It is fair to assume that this step was taken as an offset to the re duced food and beverage privileges ordained by the board of governors for the month of October The Respondent concedes that prior to 1987 the dining room remained open to members during the winter months of October November and December on Wednesdays Fridays and Sundays In addition it is also conceded that the grill room was a 7 day operation during October in past years while reduced to Wednes days Fridays Saturdays and Sundays beginning No vember 1 13 Finally the grill menu was not curtailed sig nificantly in prior years until January 1 and the chalet remained open 7 days per week until it closed on No vember 1 There can be no quarrel with the fact that these steps had a detrimental impact on the earnings of many bar gaining unit employees It is also clear that the cutbacks were at variance with Respondents prior practices as well as its announced schedule for 1987 14 Considering the evidence of union animus which foreshadowed these unprecedented changes including an unlawful threat by the president of the board of governors to reduce staff and the fact that the cutbacks were decided on shortly after overwhelming designation of the Union it is con cluded that the General Counsel has established prima facie that union activity was at least a part of the motive for Respondent s action 15 Under Wright Line 251 "See GC Exh 7 11 On September 27 it was announced inter aha that effective Octo ber I the grill would be closed on Mondays and that effective October 6 on Tuesdays as well That announcement also reduced the chalet to a 5 day operation as of October 6 See G C Exh 7 14 See Respondents 1987 yearbook p 2 G C Exh 15 This conclusion does not extend to the General Counsels contention that waitresses were further prejudiced by a change in the method of scheduling their work which was also instituted in October 1987 Thus waitress Hagyan with corroboration from Pohill and Puskavich testified that in the past the available hours during the off season were shared by the waitresses with the work divided on a rotation basis However they claim that during the last quarter of 1987 the lions share of the work was given to the four waitresses with the greatest seniority and Bea Kur janowicz their supervisor In rejecting this view it is first noted that there was neither allegation nor litigation of Kurjanowicz status in this respect and comments imputed to her are nonprobative hearsay not binding on the Respondent Second the waitresses themselves could not articulate a sensible definition of what was entailed in the so called rota tion system or how it worked If panty was the intended result of the system in effect in prior years their testimony does not inspire confi dence in their comprehension of how that was to be achieved Indeed if there was a systematic process of rotation in effect during the fourth quarter of 1986 its basis and objectives are hardly discernible from the 1986 pattern of employment of the waitresses Thus the hours worked by the top six waitresses in 1986 does not reflect that shifts were awarded with equalization in mind Moreover their description of the system of mandatory seniority which allegedly was placed in effect in October 1987 also made little pragmatic sense Here again the 1987 figures for the same quarter suggest that factors other than seniority determined who worked and when In sum although it is true that Hagyan and Cun ningham in 1987 worked proportionately fewer hours than in the last NLRB 1083 (1980) in such circumstances the onus shifts to the Respondent to establish that this was not the case The standard of proof is one of persuasion or as described by the Board in Roure Bertrand DuPont Inc 271 NLRB 443 (1984) An affirmative defense in which the employer must demonstrate by preponderance of the evidence that the same action would have taken place even in the absence of protected conduct The defense does not dispute that in 1987 traditional seasonal cutbacks were advanced to earlier dates How ever the Respondent argues that this strategy bore no relationship to union activity but was adopted in light of an accounts payable problem that developed in the con text of the Respondents ongoing financial difficulties Financially there can be no dispute that the Respond ent had been in a deteriorating condition since 1985 Steps had been taken dating back to the fall of 1986 to correct the shortfall in cash available to meet current ac counts payable To this end moneys were shifted be tween reserve accounts dues were increased money was borrowed and assessments were levied against members to offset the worsening economic difficulties However the fact that Respondents financial adversi ties extended into 1987 does not alone foreclose a finding of unlawful discrimination Instead credible evidence is required to demonstrate that the specific cutbacks in grill chalet and dining room operations during the last quarter of 1987 were unrelated to union activity In other words the issue is not whether the Respondent was suffering from serious fiscal problems but why these steps were taken at that time The indisputable sequence of events hardly suggests that the cutbacks amounted to a routine fiscal correction The board of governors only 3 weeks earlier had met on August 26 At that time according to the minutes finan cial statements and current accounts were reviewed and a decision was made to increase the clubs line of credit This step was apparently in furtherance of the effort to pay off current bills It does not appear that curtailment of food and beverage operations was con templated at that time 16 Yet only 2 days after designa tion of the Union the Respondents governing authority unleashed unprecedented cutbacks in the food and bever age operations Other than conclusionary parol testimony from unimpressive witnesses the Respondents evidence basically affords no persuasive basis for separating the quarter of 1986 the record does not warrant a conclusion that this was based on a shift in any discernible scheduling formula If unlawful the experience of Hagyan and Cunningham in 1987 would have been a by product of acts of reprisal against them individually a theory of discnmi nation neither alleged nor litigated in this proceeding Accordingly it is concluded that the General Counsel has not established that a change to a nondiscretionary scheduling formula was implemented in 1987 Hence the premise for any 8(a)(3) and ( 1) contention in this respect is unsubstan hated This is not to say however that any disproportionate 1987 loss of work to Cunningham and Hagyan or any other waitress will not be re dressed through appropriate remedial formulas that might obtain under other violations that might be supported by this record 16 Subsequent to this meeting by memo dated September 10 Club Manager Toury appealed to employees to conserve utility costs in the light of the financial problems of the club As I construe the memoran dum LABOR ISSUES was mentioned as a factor presenting a chal lenge to the club in light of this condition See G C Exh 4 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD two Indeed the Respondent does not even address a number of critical elements bearing on the timing origin and foundation for the alleged discrimination For example managements action took place in two stages As to the first virtually no defense is offered Al though the reductions announced on September 20 were attributed to the board of governors there is no sugges tion that the board even convened at any time proximate to the announcement More importantly not a single wit ness who participated in that decision has been pro duced Thus although this action was the forerunner of a series of postelection cutbacks the record is silent about how why and when the decision was made This flaw in the defense is underscored by the fact that apart from the Union s designation 2 days earlier the record does not identify any supervening financial development occurring in the interim since the August 26 regular meeting of the board of governors which might have triggered the initial reductions The Respondents evidence concerning the additional cutbacks announced on September 27 is also deficient Thus these reductions were pursuant to a special meet ing convened by Milich on September 24 However Milich did not testify and no evidence was presented identifying the immediate justification for that meeting 17 Here again the Respondents evidence does not contest the inference that the Union s designation presented the sole supervening crisis No other triggering event is suggested by financial data which might have been consulted by the board of governors in deciding on any of the cutbacks Indeed there is no evidence that any financial data was consult ed to support the initial reductions announced on Sep tember 20 As for those announced on September 27 the financial records offered in evidence here clearly were not available for consideration at the time of the Septem ber 24 special meeting 18 Thus while the record is devoid of pertinent econom is reports Arnold Braden a certified public accountant and a member of the board of governors was examined concerning financial documents if any which were con sulted and available during the special meeting of Sep tember 24 1 a Significantly Braden did concede that no comparative analysis of the savings to be realized by the accelerate cutbacks was available to the board 20 This omission be 17 A regular meeting of the board of governors was held 6 days later on September 30 See R Exh 14 It is fair to assume that Milich was aware when the special meeting was scheduled that the regular meeting was in the offing i8 The accounts payable ledger was not available until after October 28 Additionally neither the 9 month nor yearend financial statements would have been available at any time poor to the special meeting See R Exhs 5 and 6 19 My own impression of Braden s testimony left me convinced that no financial records were consulted at the September 24 special meeting As an accountant Braden clearly would grasp that financial decisions rou tinely are predicated on financial data yet his testimony about the exist ence of such data was uncertain shifting and inconsistent In the end Braden suggested that monthly reports may have been considered but at the time of his testimony they were not in his possession However when the hearing was subsequently resumed the Respondent made no effort to produce any such documentation 20 It is conceivable that the savings involved would be minimal Most of the cutbacks were limited to the month of October and affected low comes significant when considered against the full scope of the action taken at the September 24 meeting For the board at that time did not confine itself to cost reduction It elected also to invoke a measure guaranteed to reduce October revenues Thus the board also elected to deny the club the $75 compulsory membership minimum fee for that month Clearly cost analysis would serve no useful purpose if union activity were the motivating cause for the board s action However it is incomprehen Bible that the board would take another quite different step in a series of actions designed to combat economic difficulties without guidance whether the combination of cutbacks and lost revenues would interact to produce a positive or negative effect on the club s cashflow prob lems 21 For all the above reasons it is concluded that the credible evidence does not preponderate to show that the cutbacks announced on September 20 and 27 and subsequently implemented would have occurred even if the employees had not designated the Union According ly the Respondent by taking these steps to the prejudice of employees violated Section 8(a)(3) and (1) of the Act The General Counsel also alleges that the foregoing changes occurring as they did after the Union s designa tion by a majority in a Board conducted election and having been implemented unilaterally and without notifi cation to the Union also violated Section 8(a)(5) and (1) of the Act The factual basis for this assertion is uncon tested For the reasons stated above the decison was founded on labor considerations had detrimental impact on employment conditions and hence constituted a man datory subject of collective bargaining The obligation to refrain from making unilateral changes in employes conditions of employment is applicable even between the date of the union s election victory and the Board s certi fication of the Union s victory especially where as in the instant case no objections to the election were filed by Respondent See e g Rahco Co 265 NLRB 235 252 fn 36 (1982) Accordingly it is further found that Respondents initiation of the change without bargaining notifying or providing any opportunity to the Union to consult also violated Section 8(a)(5) and (1) of the Act 22 wage base employees who enjoyed no hospitalization or unmandated fringe benefits 21 Although I have no intention of second guessing the Respondent on matters of business judgment this does not mean that when more logical explanations exist for an employers behavior the irrational reasons as signed by the latter must be blindly credited In the area of credibility the Respondent argues that the testimony of Toury Braden and Dun levy should be credited because uncontradicted insofar as they relate an economic justification for the cutbacks There is no merit in this view The motive issue being entirely subjective and a matter within the pecu liar knowledge of the declarant normally is not amenable to direct con tradiction through parol testimony Accordingly the verity of such testi mony must be weighed against the record as a whole Here not a shred of documentary evidence has been offered to substantiate that economics divorced from union considerations provoked the changes in question At the same time I was unimpressed with the demeanor of Toury Braden and Dunlevy Moreover when considered against the objective undeniable evidence their testimony was circumstantially improbable 22 Respondent s reliance on Sundstrand Heat Y NLRB 538 F 2d 1257 (7th Cir 1976) is misplaced Unlike the instant case there the change was compelled by economic necessity NEMACOLIN COUNTRY CLUB 463 CONCLUSIONS OF LAW ORDER 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 The Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating an employ ee concerning her union sentiment by instructing an em ployee to remove a union button by creating the impres sion that union activity was subject to surveillance and by threatening employees with discharge cutbacks and a contracting out of their work in the event that they designated the Union as their representative 4 Respondent violated Section 8(a)(3) and (1) of the Act by during October November and December 1987 reducing the hours and earning opportunities of employ ees in the appropriate collective bargaining agreement in reprisal for their designation of the Union as their exclu sive collective bargaining representative 5 The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally reducing traditional hours worked by employees as well as their earning opportune ties during the months of October November and De cember 1987 without notifying and affording the Union an opportunity to bargain regarding these changes 6 The unfair labor practices found above are unfair labor practices having an affect on commerce within the meaning of Section 2(2) (6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices within the meaning of the Act it shall be recommended that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent unlawfully acceler ated closure of the dining room reduced off season hours of operation of the grill and chalet and placed in effect prematurely a reduced menu all of which pro duced a loss of earning for employees it is recommended that all employees affected be made whole for any loss of earnings or other benefits caused by the discrimina tion Backpay under the terms of this order shall include interest computed in accordance with New Horizons for the Retarded 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed23 The Respondent Nemacolin Country Club Beallsville Pennsylvania its officers agents successors and assigns shall 1 Cease and desist from (a) Coercively interrogating employees concerning union activity or instructing an employee to remove a union button (b) Creating the impression that union activity is sub ject to surveillance (c) Threatening employees with discharge cutbacks or replacement through contracting out in the event that they support a union (d) Discouraging activity on behalf of a labor organs zation by reducing hours or any other manner discrimi nating regarding the work or opportunity for earnings of employees or their wages hours or terms and conditions of employment (e) Refusing to bargain in good faith by making unilat eral changes to employees hours earning opportunities and other terms or conditions of employment without first notifying and affording the Union an opportunity to bargain with respect thereto (f) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Reimburse with interest employees in the appro priate collective bargaining unit for all losses sustained by reason of the accelerated closure and cutback of the dining room premature reduced hours in the grill room and chalet and early installation of a reduced menu (b) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its facility in Beallsville Pennsylvania copies of the attached notice marked Appendix 24 Copies of the notice on forms provided by the Regional Director for Region 6 after being signed by the Re spondent 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 customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order as to what steps Re spondent has taken to comply 23 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 24 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