Water'S Edge

WATERS EDGE 465 Quinn Restaurant Corp d/b/a Water's Edge and Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO Cases 29-CA-12214, 29- CA-12304, and 29-CA-12978 March 28, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On June 17, 1988, Administrative Law Judge James F Morton issued the attached decision The Respondent and the General Counsel filed excep- tions and supporting briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions as modified herein and to adopt the recommended Order as modified I The judge found that the Respondent did not violate Section 8(a)(5), (3), or (1) by adopting new procedures on how employees could change their work schedules Specifically, he found that before the election a unit employee, Carol Welker, pre- pared the weekly schedule and when an employee needed to switch a shift he merely found a replace merit and told Welker Either the employee or Welker wrote in the change on the schedule After the election, the general manager wrote in the scheduling changes The judge concluded that there was no `substantial change" because "essen- tially the same scheduling procedures" were em- ployed as before the election The General Counsel excepts arguing that the elimination of the employ- ees' unfettered right to change their work sched- ules constituted a loss of a substantial benefit and violated Section 8(a)(3) and (1) because it was im- posed to retaliate against the employees for choos- ing the Union as their collective-bargaining repre- sentative and violated Section 8(a)(5) and (1) be- cause it was implemented without bargaining with the Union We find merit in the General Counsel's exceptions We agree with the judge's analysis of how the schedule was made and what the employees had to do in order to obtain a change in their schedule i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings both before and after the election However, the record contains one critical fact that the judge failed to mention in his decision Before the elec- tion, employees were never denied the right to make a change in their schedule as long as they found a replacement Dennis O'Reilly, the Re- spondent's former general manager, testified2 that after he began preparing the schedule, he had, on occasion, rejected some of the employees' offers of replacements Thus, after the Respondent instituted the new procedure the employees lost a significant benefit of their employment the ability to freely change their schedules In the context of the Re- spondent's other unlawful conduct, we find that the Respondent instituted this change because its employees chose the Union as their collective-bar- gaining representative in violation of Section 8(a)(3) and (1) We also find that this change vio- lated Section 8(a)(5) and (1) because it was institut- ed without bargaining with the Union 2 The General Counsel also excepts to the judge's failure to order the Respondent to post the notice to employees in Spanish, Mandarin, and Cantonese, as well as English We shall order the Respondent to do so in view of the ethnic diversity of the Respondent's work force ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Quinn Restaurant Corp d/b/a Water's Edge, Long Island City, New York, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(d) and re- letter the subsequent paragraphs "(d) Refusing to allow employees to change their work schedules as long as they find a replacement because they selected the Union to represent them " 2 Insert the following as paragraph 2(e) and re- letter the subsequent paragraphs "(e) Rescind the work rules that deny employees the right to change their schedules as long as they find a replacement and that require employees to punch timecards after eating " ' We agree with the judge that 0 Reilly s testimony was technically not proper rebuttal because it was not introduced to refute evidence pro vided by the Respondents witness We note however that the admissi bility of evidence on rebuttal is committed to the discretion of the judge See 6 Wigmore Evidence § 1867 at 656 and § 1873 at 672 (Chadbourn rev 1976) Thus although the General Counsel should have elicited O Reilly s testimony during her case in chief we find the judge did not err in admitting it We reject the Respondents contention that 0 Reilly s testimony should be stricken 293 NLRB No 54 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Substitute the attached notice in English, Spanish, Mandarin, and Cantonese 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 WE WILL NOT inform our employees, in effect, that more stringent work rules will be adopted and enforced because they selected Hotel Employees and Restaurant Employees Union, Local 100 of New York, New York and Vicinity, AFL-CIO to represent them WE WILL NOT threaten to defer payment to our employees of their charge card tips in order to dis- courage support of the Union WE WILL NOT fail and refuse to continue paying employees for mealtimes or prohibit them from punching in their timecards before eating in order to discourage them from supporting the Union WE WILL NOT implement work rules without first bargaining collectively thereon with the above-named Union WE WILL NOT refuse to allow employees to change their schedule provided they find a replace- ment worker because they selected the Union to represent them WE WILL NOT refuse to recognize the Union as the exclusive collective-bargaining representative of our banquet employees WE WILL NOT renege on or refuse to sign, when requested, a contract we reached with the above- named Union 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, on request by the Union, execute a collective bargaining agreement embodying the terms and conditions to which we agreed with the Union in December 1986 WE WILL apply that agreement retroactively and make our employees whole for any loss suffered, with interest, as a result of our failure to execute and abide by that contract WE WILL make our employees whole, with inter- est, for losses suffered as a result of our failure to pay for mealtimes WE WILL notify the Union in writing that we recognize the Union as the exclusive collective bar- gaining representative of our banquet employees and WE WILL apply the agreement, referred to above, to them and make them whole for any loss of earnings they may have suffered WE WILL rescind the work rule requiring em ployees to punch timecards after eating and instead allow them to punch in before eating WE WILL rescind the work rule that denies em ployees the right to change their schedules as long as they find a replacement worker QUINN RESTAURANT CORP D/B/A WATER'S EDGE Kathleen M Troy Esq for the General Counsel Richard G Kass Esq (Rains & Pogrebin P C), of Mineo la, New York, for the Respondent Barry J Peek Esq (Snozzi English & Klein P C) of Mineola, New York, for the Charging Party DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge The complaint in Cases 29-CA-12214 and 29-CA-12304 was consolidated for hearing with the complaint that issued in Case 29-CA-12978 The underlying unfair labor prac tice charges were filed by Hotel Employees and Restau rant Employees Union Local 100 of New York New York and Vicinity, AFL-CIO (the Union) against Quinn Restaurant Corp d/b/a Water s Edge (Respondent) The complaints alleged that Respondent committed unfair labor practices within the meaning of Section 8(a)(1) (3), and (5) of the National Labor Relations Act (the Act) The pleading set out the following issues 1 Whether Respondent, because its employees had se lected the Union as their representative, warned them that it would now play by the book 2 Whether Respondent implemented new work rules without bargaining with the Union and because the em ployees had voted for the Union 3 Whether Respondent had agreed on the terms of a collective bargaining agreement with the Union and then unlawfully refused the Union s request that it sign a con tract which incorporated these terms The hearing was held before me in New York City on November 17 and December 8 and 15 1987 On the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT I JURISDICTION The pleadings establish, and I find, that Respondent operates a restaurant and catering business and that in its operations annually it meets the Board s retail standard for the assertion of jurisdiction I further find, based on WATERS EDGE the pleadings , that the Union is a labor organization as defined in Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background In September 1987, Stuart Somerstein and his wife Maricka, purchased Waters Edge, a restaurant in Long Island City, a section of New York City The employees of Waters Edge were then unrepresented Soon after wards, the Union filed a petition in Case 29-RC-6468 for an election to represent these employees The hearing in that case, held on November 4 and 6 1985 was ad journed , pending approval of the Stipulation upon Con sent Election executed by the parties The election was held on December 19, 1985 Prior to the election, Maricka and Stuart Somerstein sent a Notice to Employees to each employee inform ing them of the election agreement and setting forth their views, which were couched in the first person, presum ably a reference to Stuart The notice stated , I do not want a union here in my restaurant I do not think a union will help our business , and I do not think a union will help you or your family I am opposed to a union, and I will do my best to keep the union out of here The Union won the election The General Counsel contends that , immediately after the results of the election were announced and also shortly thereafter, Respondent made coercive statements, unlawfully changed certain work practices , and that it later engaged in extensive contract negotiations only to renege on the agreement ultimately reached Respondent asserts that various changes in working conditions al leged as unlawful actually took place before the advent of the Union, it also contends that it reached no agree ment with the Union and that , in any event as the unit of employees claimed by the Union was broader than the certified unit and was inappropriate Respondent lawfully refused to sign the preferred contract B Alleged Coercion Discrimination and Unilateral Changes 1 Implied threat Jane 0 Donovan, a witness in Respondents employ from May 1985 until her discharge in late December 1985, testified that Stuart Somerstein was very angry on leaving the election area at the end of the election on December 19 1985, and was yelling at everyone She testified further that later that day when she went into the kitchen, Somerstein yelled, wanted to know what all these employees were doing in the kitchen and told the employees there that because they voted the Union in, `[n]ow we were going to play by the rules Somerstein testified that he was upset that the Union won the election He was asked by Respondents counsel if he remembered ever saying to any of the employees that he was to play by the book and he answered that he did not I credit Donovan s account It was vivid Somerstein did not deny that he talked to the employees about the fact that the Union won the election , he merely an 467 swered in the negative when asked a clearly leading question and at best that answer only established that he did not remember saying what 0 Donovan clearly did recall Somerstein s angry statement to employees made right after the Union won the election on December 19, 1985, that Respondent would now play by the rules is violative of Section 8(a)(1) of the Act as it is a threat of unspeci fled reprisals See K & M Electronics 283 NLRB 279 fn 2 (1987) 2 Change in mealtime practice The General Counsels second witness , John Brancale, testified that several days after the election Respondent s general marager at that time, Dennis 0 Reilly, held a meeting with the employees at which he informed them that they were no longer to punch in at the clock before they ate but that they were to eat before they punched in As a result, Brancale testified the employees lost a half hour s wages each workday Somerstein testified that , when he purchased Water s Edge in September 1985, it was terribly mismanaged and that he instituted a number of changes at that time He alluded to a problem with lateness' and stated that a previous practice permitted employees to eat first if they came in at 5 o'clock they didn t have to be on the floor To correct that practice, according to Somer stein, he informed employees in September 1985 that they had to be on the floor at 5 o clock 1 do not see that Somerstein s testimony materially controverts Brancale s, particularly that aspect of Bran cale s account which relates that all the employees suf fered a loss of a half hour s wages each workday In any event, I credit Brancale s testimony I note too that it is consistent with the import of O'Donovan s testimony credited above, that Somerstein intended to retaliate against the employees because they selected the Union to represent them The change in mealtime practice as announced by General Manager 0 Reilly shortly after the election was obviously one of those reprisals Thus that change vio lated Section 8(a)(1) and (3) of the Act See Superior For warding Co 282 NLRB 806 (1987) The change also was effected without notice to the Union in contravention of Respondents duty to bargain collectively in violation of Section 8(a)(1) and (5) of the Act See Storall Mfg Co 275 NLRB 220 237 (1985) The Union was not certified as the representative of Respondents employees until late January 1986 Nonetheless Respondents having of fected a unilateral change between the date of the elec tion and the date of the certification was an act in dero gation of its responsibility to bargain collectively with the Union See O'Connor Chevrolet Buick GMC Co 209 NLRB 701 704 (1974) 3 Alleged unlawful change in method of scheduling work The General Counsel contends that Respondent re quired its dining room employees to obtain its approval before they could change their shifts that Respondent adopted this procedure because the employees selected 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Union and that it did so without bargaining thereon with the Union In support thereof, the General Counsels witnesses testified that prior to the election, a unit employee (Carol Welker) prepared the weekly schedule and that when the dining room employees needed to switch shifts or change [they] took it up with her and if [anyone] needed to get off [he or she] would find some one to cover and had Carol change it [i e the schedule] The General Counsels witness could not re member if she herself was allowed to write in the name of her replacement on the schedule or if Carol did that ' After the election, the general manager then O Reilly, had to physically change it The General Counsel asserts in her brief that Respond ent implemented the most serious work rule change from the employees perspective when 0 Reilly took over the scheduling of employees work hours from employee Carol Welker There was no substantial change as O'Reilly essentially employed the same scheduling proce dures Welker used I thus find that Respondent did not unlawfully change the terms and conditions of employ ment for the unit employees by 0 Reilly s assumption of scheduling duties See Murphy Oil USA 286 NLRB 1039 (1987), in which the Board approved the administrative law judge s analysis as to the application of the holding in Peerless Food Products 236 NLRB 161 (1978), to van ous insubstantial changes See also San Antonio Portland Cement Co 277 NLRB 309 314 (1985) 4 Alleged unlawful warning The General Counsel contends that Respondents gen eral manager, 0 Reilly, unlawfully warned employees in December 1985 that Respondent might begin to include their charge card tips in their regular paychecks Bran cale testified without contradiction that 0 Reilly men tioned (at the same time he informed the employees that they had to punch their timecards in after not before, they ate) that Respondent was toying with the idea of not paying them each evening as was normally done the tips given them via customer charge cards and in stead including those tips in their weekly paychecks Although the change was never made Brancale testified that 0 Reilly s announcement scared the waiters had Respondent put the change into effect and deferred pay ments of those tips the waiters still would have to pay each night to the hosts, the bartenders, and the busboys their respective shares of those tips and also the waiters would be saddled with an enormous amount of paper work' The timing of the announcement by 0 Reilly and its context show that Respondent was actively considenng taking specific retaliatory measures against its employees because they selected the Union to represent them, an act which clearly interfered with their nght under Sec tion 7 of the Act i 1 0 Reilly made other announcements at this time Only one of those other announcements was also alleged as violative of the Act The con solidated complaint in Cases 29-CA- 12214 and 29-CA-12304 alleges that Respondent by announcing and implementing a work rule that restricted employees from using the telephone while working on the floor discnmi nated against its employees because they selected the Union as their bar C Alleged Unlawful Refusal to Sign the Contract 1 The negotiations On January 27, 1986, the Union was certified as the exclusive collective bargaining representative for the fol lowing unit All full and regular part time dining room em ployees bar kitchen and coat check employees em ployed by Respondent excluding all valet parking employees, professional employees office clerical employees, guards the executive manager, general manager, banquet manager the chef the maitre d and all supervisors as defined in the Act On March 3, 1986, the Union submitted its contract proposals to Respondent and several months later the first negotiation session was held There were about 10 such sessions altogether The Union s president Anthony Amodeo, negotiated for the Union, Somerstein and John Russell a partner in a consulting firm retained by Re spondent handled the negotiations for Respondent Somerstein testified that at each negotiating session he stated as ground rules that any agreement reached had to be approved by his attorneys Amodeo testified that the only time Somerstein made reference to an attor ney was at one of the earlier sessions when Somerstein somehow indicated that he wanted to have an attorney present Amodeo testified that he told Somerstein that he would not negotiate separately with Russell and an attor ney but would not object to having an attorney present so they can all sit down and work together Accord ing to Amodeo, Somerstein and Russell then left the bar gaining table to meet privately and on returning, Somer stein agreed to continue negotiating using only Russell Amodeo s account was corroborated by detailed testimo ny given by Russell It is unlikely that Somerstein would at each of the 10 sessions repeat the ground rules It is even more unlikely that the Union would participate in one negotiating session with Respondents pnncipal all subject to approval by an attorney Respondent would designate I credit Amodeo s corroborated testimony At the last session in December 1986 according to Amodeo, the parties reviewed a draft agreement para graph by paragraph and reached accord on all His ac count was corroborated by Russell Somerstein was asked by Respondents counsel if he had ever reached an gaining representative The General Counsel offered no evidence in sup port of that allegation during the presentation of her case in chief 0 Reil ly who had left Respondent s employ after a dispute with Somerstein testified for the General Counsel as a rebuttal witness and over Respond ent s objection he testified that he made this announcement at this time because the waiters were lackadaisical in their duties and were leaving their stations unattended to take care of personal matters 0 Reilly s ac count is clearly not proper rebuttal and constituted a reopening of the General Counsels case in -chief However the Boards practice is to allow considerable leeway in developing a record Cf Cedar Rapids Building Trades Council (Siebke Hoyt) 283 NLRB 1155 (1987) As to the merits of the allegation I find that while the timing of the announcement makes out a prima facie case of discriminatory motivation 0 Reilly s ac count itself effectively negates a finding of an unfair labor practice as the evidence is uncontroverted that the rule was adopted to ensure proper service to Respondents customers WATERS EDGE 469 agreement about a contract with the Union and an swered in the negative I credit Amodeo s account over the conclusional testimony offered by Someistein At the last session, Amodeo agreed to have the con tract typed in final and that Russell would pick it up to be signed by Respondent Russell came by Amodeo s office several days later and informed Amodeo that So merstein wanted to have his lawyer look it over When a week or so went by without any further development, Amodeo asked the Union s attorney, Harold Ickes, to look into the matter Ickes testified that he met with an attorney, Fred Braid, who was then handling the matter for Respondent and that Braid proposed some changes Ickes consulted with Amodeo who agreed to the changes reluctantly so as not to hold up the execution of the contract Ickes sent Braid the revised contract Braid then requested an additional change Ickes accepted it Braid responded by proposing changes in the wage rate schedule covering Respondents catering employees Ickes endeavored to accommodate him Ickes testimony which is uncontro verted, is that Braid, in several subsequent conversations with him advised that he, Braid, either had not been able to meet with Somerstein or that Somerstem had failed to keep appointments with him On March 27, 1987, Ickes sent Braid the final contract to be signed by Respondent and advised that, if it was not signed by March 30, the Union would file an unfair labor practice charge based on Respondents refusal to sign When Ickes heard nothing further, the Union filed the charge in Case 29-CA-12978 It is obvious from the foregoing, and I thus find, that the parties had reached full agreement in December 1986, and that Respondent thereafter used evasive tactics to renege on the agreement At the hearing before me Respondent raised a new contention which has to do with the appropriateness of the contractual unit disci ssed next 2 The scope of the unit Respondent contends that in July 1986, it established a separate unit of catering employees larger in size than the unit certified 6 months previously Respondent fur ther contends that the agreement, which the Union would have it sign improperly accretes the catering unit to the certified unit without the consent of the catering employees The General Counsel and the Union contend that the certified unit had always encompassed the em ployees of Respondent who did its catering work When Somerstein purchased Respondent in September 1985 there was a small area on the second floor of Re spondent s two story building That area was used for ca tering purposes This area was used for the purpose of conducting the election in Case 29-RC-6468 and was re ferred to in the election agreement in that case as the Second Floor Banquet Room The public dining room occupied the first floor Whenever a large catering affair was held, the dining room was closed to the public so that the affair could be held on the first floor The dining room employees, also called the restaurant employees or the a la carte employees, in Respondents employ then also handled the catering duties In the latter capacity they performed the duties of what are termed banquet employees or servers Banquet employees are required to wear white gloves, to provide French service, and to perform other duties which vary from those of a la carte servers When working then on catered affairs, the dining room employees were supervised by a banquet manager When they worked in the public dining room, they were supervised by a general manager There were other differences For example, as dining room employ ees the servers shared their tips with the busboys, bar tenders and others, in their catering duties, they re ceived a defined percentage as their tips In November 1985, about a month before the election referred to above, Respondent began a major renovation program At the representation hearing held in Case 29- RC-6468 in early November 1985, Respondent took the position that no election could be held then as the unit was expanding It withdrew that contention when it agreed to the holding of an election As the unit descrip tion set out above reveals, there was no express refer ence made to banquet employees Only a passing refer ence was made to the fact that the dining room employ ees also did the banquet work in that the unit description did expressly exclude the banquet manager and, as noted above, the election was to be held in the banquet room The renovations begun in November, took over 6 months to be completed In that interval no banquets were held on the second floor as it was undergoing major changes The banquets were held on the first floor which was closed to the public whenever there was a large catered affair The renovation was finished in July 1986 The second floor then had its own separate kitchen and storeroom Somerstein hired a banquet manager who then used two lists of servers for the banquets On the first list were the servers who received regular banquet assignments, the second was for those who were called in as needed The employees who worked on the first floor-kitchen em ployees servers were from that point on used infre quently as banquet employees In the last half of 1986 Respondent had on its weekly payroll as few as 35 to as many as 52 employees who worked in its dining room, in that same period it had on a weekly payroll as few as 14 to as many as 38 banquet employees, including kitchen employees who worked on the second floor It was not until October 26, 1986 that Respondent placed its banquet kitchen employees on a separate payroll Respondent and the Union negotiated respecting the rates of pay and other terms of employment of the ban quet employees beginning with the session held on August 13, 1986 The Union proposed the adoption of the wage schedule that it has in a contract covering em ployees of another firm owned by Somerstein which pro vides only catering services That schedule ultimately de veloped into Schedule B which was in December 1986, incorporated into the contract then agreed to by Re spondent and the Union as discussed earlier 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Analysis The facts stated above are not in material dispute They demonstrate that the banquet work was a signifi cant function performed by employees in the unit before and at the time the election was held in December 1985 and that banquet duties are closely akin to those per formed for the dining public In substance, banquet work was unit work when the Union was certified That Re spondent restructured its operations in July 1986, by set ting up two divisions, one for the dining room and an other for its banquet facilities , hardly removes banquet functions from those to be performed by unit employees The parties themselves obviously contemplated through out their negotiations that banquet work would continue to be unit work as they discussed and agreed on the terms set out in Schedule B to the contract Nor do I find that the number of employees in the banquet oper ation is so large in relation to the number of employees on the first floor as to necessitate a finding that the former could only be in the unit if they now vote for in clusion In Meyers Cafe & Konditoret, 282 NLRB 1 (1986), the employer there put in a take out delicatessen next to a self service cafeteria and refused to apply the contract covering the cafeteria employees to the employees hired for the delicatessen The Board there rejected the em ployer s contention that because the number of newly hired delicatessen employees exceeded the number of employees in the cafeteria it was not obligated to extend that contract to the delicatessen employees Rather, the Board held that the delicatessen operation was nothing more than an enlargement of the existing restaurant oper ation which required the hiring of new employees to staff the facility In the light of overwhelmingly strong community of interest factors shared by the delicatessen and cafeteria employees in that case , the Board held that the new hires fell within the existing contractual unit and in those circumstances it was irrelevant that there was a larger number of new hires In the case before me, the community of interest factors are stronger than those in Meyers Cafe because the dining room employees did the very banquet work involved , as the parties negotiated about the wage rates and other terms of employment for the banquet employees and because even the number of banquet employees is markedly fewer than the number of employees on the first floor The banquet employees at all times were part of the certified unit I thus find that Respondent has failed and refused to honor the Union s request that it execute the contract agreed on at the last negotiating session in December 1986 Respondents of forts subsequently to obtain modifications should not be countenanced as, in retrospect, they were not made in good faith but were in furtherance of an attempt to evade its obligation to bargain collectively with the Union Of course that determination would not preclude the parties from later agreeing to modifications other wise appropriate CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act 2 The Union is a labor organization as defined in Sec tion 2(5) of the Act 3 At all times material , the Union has been the exclu sive collective bargaining representative of the employ ees in the following appropriate unit 2 All full and regular part time dining room and ban quet employees, bartenders, kitchen employees and coat check employees employed by Respondent ex cluding all valet parking employees , professional employees, office clerical employees , guards, the ex ecutive manager, general manager , banquet manag er, the chef, the maitre d and all other supervisors as defined in the Act 4 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by having impliedly threatened its employees that it would adopt and put into effect stricter work rules, by having warned them that it intended to defer payment of their charge card tips until payday and by having engaged in those acts because the employees had selected the Union as their collective bargaining representative Respondent also violated Section 8(a)(1) by the acts described in the next two paragraphs 5 Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) of the Act by having required its employees , because they selected the Union to represent them to punch timecards in for work after they have eaten and by no longer paying them for the time spent while eating and by implementing this policy because the employees supported the Union 6 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act by having unilaterally and without bargaining with the Union implemented the change described above in para graph 6, by refusing to execute the collective bargaining agreement given its representative in December 1986 for that purpose and by refusing to recognize the Union as the exclusive collective bargaining representative of its banquet employees 7 Respondent has not engaged in any unfair labor practices alleged in the complaints in this case which are not found 8 The unfair labor practices set out above in pars graphs 4 5 and 6 affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act 2 The description of the certified unit is modified to make clear that it encompasses the banquet employees WATER S EDGE Having found that Respondent has unlawfully discon tinued paying its employees for mealtimes , it shall make them whole for such losses , to be computed in accord ance with the Board s decision in Ogle Protection Service, 183 NLRB 682 (1970), with interest in accordance with the principles enacted in New Horizons for the Retarded, 283 NLRB 1173 ( 1987) Respondent shall also be ordered to execute, on request by the Union, the agreed on con tract and to apply its terms retroactively , with employees to be made whole in a manner consistent with the policy set out in Ogle Protection, supra, with interest thereon under New Horizons, supra On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed3 ORDER The Respondent, Quinn Restaurant Corp d/b/a Water s Edge, Long Island City, New York its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Impliedly threatening its employees that it will adopt and enforce more stringent work rules or threaten ing to defer payment of charge card tips in retaliation for their having selected Hotel Employees and Restaurant Employees Union Local 100, AFL-CIO as their collec tive bargaining representative (b) Failing and refusing to continue paying them for mealtimes or to prohibit them from punching in their timecards before they eat because they selected the Union to represent them (c) Implementing work rules without first bargaining collectively thereon with the Union (d) Refusing to recognize the Union as the exclusive collective bargaining representative of its banquet em ployees (e) Refusing to execute a contract negotiated and agreed on with the Union (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 3 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 471 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Execute, on request, a collective bargaining agree ment embodying the terms and conditions to which it and the Union agreed in December 1986 (b) Apply retroactively the terms and conditions of that agreement and make employees whole for any loss of earnings suffered as a result of its failure to execute and abide by that agreement in the manner described in the remedy section of this decision (c) Make whole employees for losses incurred, with in terest to be computed thereon in the manner described in the remedy section of this decision, as a result of the dis criminatory discontinuance of payment for mealtimes (d) Notify the Union in writing that it recognizes the Union as the exclusive collective bargaining representa tive of its banquet employees and apply the agreement, referred to above, to them and make them whole for any loss of earnings they may have suffered, in the manner described above (e) 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 (f) Post at its facility in Long Island City, New York, copies of the attached notice marked Appendix 4 Copies of the notice, on forms provided by the Regional Director for Region 29, 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 (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board