Kirby'S Restaurant

KIRBY'S RESTAURANT 897 Leon Pano, a Sole Proprietorship d/b/a Kirby's Restaurant and Hotel Employees, Restaurant Employees and Bartenders Union Local 28, AFL-CIO. Case 32-CA-9670 June 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 16, 1989, Administrative Law Judge Earldean V .S. Robbins issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Leon Pano, A Sole Propri- etorship d/b/a Kirby's Restaurant, El Cerrito, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951) We have carefuly examined the record and find no basis for reversing the findings. The Respondent in his exceptions argues that the predecessor employer paid employees their accrued vacation benefits . We leave resolution of this issue to compliance proceedings. Sharon Chabon, Esq., for the General Counsel. Leon Pano, of South San Francisco , California, in pro per. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This case was heard before me in Oakland, California, on October 6 and 26, and November 1, 1988. The charge was filed by Hotel Employees, Restaurant Employees and Bartenders Union, Local 28, AFL-CIO (the Union) and served on Leon Pano, a sole proprietor, d/b/a Kirby's Restaurant (the Respondent), on June 6, 1988. The complaint, which issued July 21, 1988 , alleges that Respondent violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act (the Act). A posttrial brief was filed by the General Counsel. The basic issues are: (1) Whether Respondent violated Section 8(a)(1) and (5) by making unilateral changes and by engaging in direct dealings with its employees; and (2) whether Respondent violated Section 8(a)(1) of the Act by threatening an employee because she filed a grievance and by polling employees to determine their support for the Union. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the posthearing brief filed by the General Counsel, I make the following FINDINGS OF FACT I. JURISDICTION At all times material prior to February 5, 1988, Dave Viale d/b/a Kirby's Restaurant (Kirby's or the Restau- rant), was engaged in the operation of a public restaurant selling food and beverages. On February 5, 1988, Re- spondent purchased the assets , liabilities, and goodwill of Kirby's and since that date has continued to operate the business of Kirby's in basically unchanged form with the same restaurant manager and substantially the same em- ployees. Respondent admits it has continued the employ- ing entity and is a successor of Kirby's. During the 12 months immediately preceding Re- spondent's February 5, 1988, takeover of Kirby's Restau- rant, Kirby's, in the course and conduct of its business operations described above, derived gross revenues in excess of $500,000 and purchased or received goods or services valued in excess of $50,000 which originated outside the State of California. Based on either Kirby's operations during the 12 months prior to Respondent's takeover on February 5, 1988, or on a projection of Re- spondent's operations since its takeover, Respondent, in the course and conduct of its business operations, will annually derive gross revenues in excess of $500,000 and purchase goods or services valued in excess of $5000 which will originate outside the State of California. The complaint alleges, Respondent admits, and I find that at all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all times material, the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES Many of the facts are undisputed . Prior to Respond- ent's February 5, 1988,11 purchase of Kirby's, and since at least 1981, the Union was the designated exclusive col- lective-bargaining representative of the following em- ployees in a multiemployer unit: All full time and regular part-time cooks , dishwash- ers, buspersons, cashiers, hosts, and waiters/wait- resses employed at Kirby's and El Cerrito Station at I Unless otherwise indicated, all dates herein are in 1988 295 NLRB No. 90 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD #10 El Cerrito Plaza, El Cerrito, California, exclud- ing all other employees, guards and supervisors as defined in the Act. Kirby's was party to successive collective-bargaining agreements covering these employees , the most recent of which is effective for the period October 22, 1983, to October 22, 1988. As set forth above, Respondent admits that it is a successor employer to Kirby's. Pano admits in his testimony that he did not inform employees, either prior to the takeover or at the time of the takeover, that they would be working under different terms and condi- tions of employment. A. The Events of January, February, and March Corinne Comer, a business representation for the Union testified that during the latter half of January, she and Malcolm Samuels, senior business representative for the Union, went to Kirby's. According to her, Pano and his wife were there. Samuels and Comer introduced themselves to the Panos but made no attempt to conduct any business. Samuels also introduced Comer to individ- ual employees as their new union representative . At least one employee, Mary Parez, expressed concern regarding insurance coverage . Pano denies such a visit. Samuels testified he does not recall going to the restaurant with Comer, and that he first met Pano when he went to the restaurant in February with Union Agent Dan Cassidy. According to him, sometime in February it came to his attention that Kirby's had been sold. Later that month he and Cassidy went to the restaurant, introduced them- selves to Pano, and told him they would like to arrange a meeting for contract negotiations. Pano said that was no problem, that he would contact Samuels as soon as he could speak with Dave Viale, the previous owner. How- ever, Pano never contacted Samuels. Comer testified that she returned to the restaurant on February 5 at which time she exchanged greetings with Pano, and discussed with Parez her complaint with regard to the failure to pay medical bills. However, Pano testified that the purchase of Kirby's was being finalized and he was not at the restaurant on that date. Later that day, according to Comer, she made some inquiries re- garding Parez' complaint and wrote her a letter with in- structions as to how to handle medical bills. Comer also testified that she returned to the restaurant on February 8. At this time she gave Pano the insurance forms that employees needed to sign to continue their insurance coverage with the new union health and welfare plan ad- ministrators and asked him to post a notice, which she provided, explaining the change of administrators, the necessity of signing new insurance forms, and the proce- dure for obtaining reimbursement for medical bills in- curred during the time Kirby's was delinquent in paying health and welfare premiums . Pano does not deny that she asked him to post this notice. On March 16 Samuels sent Respondent a letter, the body of which reads: Pursuant to the Current Collective Bargaining Agreement, Local 28 is notifying you that you are bound by this agreement. We would like to set a date and time to com- mence negotiations with Kirbys. Enclosed please find a copy of the current addendum. Please contact this office at (415) 893-3181 so that;we may discuss all of the above. Thank you in advance for your cooperation. The letter was received by Respondent on March 19. However, Pano did not respond. According to Pano, after receiving this letter, he asked employees if they were union. On receiving an affirma- tive answer, Pano said he would talk to the Union. Shortly thereafter , according to him, he had a conversa- tion with Parez regarding insurance coverage . Parez tes- tified that, around the end of February, she asked Pano if he was going to provide medical insurance for employ- ees. Pano asked if the employees had any current cover- age. Parez said they did not. Pano said he would contact someone for them. Pano testified that Parez said the employees had no in- surance coverage and wanted Pano to find an insurance company they could speak to regarding coverage. Pano agreed to call some insurance companies regarding speaking to the employees. Pano said he would not talk to the insurance representatives, that the employees would have to do so, and that they should also speak to their Union. He further said he did not want each em- ployee coming to him with their individual preferences. Rather the employees should get together, decide what they wanted, and have one employee talk to him and to the Union regarding insurance. According to him, he also said the employees should make a choice, provided they talked with their Union. Subsequently, according to Parez, an insurance agent contacted her and set up several meetings. At the first meeting, there were not enough employees in attend- ance. At the second meeting, the insurance representa- tive did not bring sufficient materials . At some point after this meeting, Parez told Pano they did not have enough information to make a decision. Pano made no response other than to say the employees should choose what they would like. On April 12, Samuels hand-delivered a letter to Pano, the body of which reads: On March 19th, 1988 your office received a reg- istered letter from Local 28 asking for a meeting date to resolve the change of ownership of the res- taurant. As of this date we have not heard from you regarding this matter therefore we assume that you have assumed all the terms and conditions of the collective bargaining agreement. Under the terms of aforementioned collective bargaining agreement you have certain obligations regarding the payment of health and welfare contri- butions, holiday pay, sick leave, etc. Therefore, I am again requesting that you make yourself avail- able in order to make sure that the Union is correct in our assumption that you are committed to making timely payments towards the health & wel- fare plan that is currently available to the workers of your establishment. KIRBY'S RESTAURANT 899 Please contact me within 24 hours after your re- ceipt of this hand delivered letter. B. The April Meetings Between Pano and the Union Representatives and Between the Union Representatives and the Employees On April 18 Samuels and Union Representative Max Barela went to the Restaurant and spoke to Pano in his office. According to Barela, they told Pano that since none of the employees had been terminated, they wanted to sit down and discuss the contract . The subject of in- surance was discussed. Either Barela or Samuels said they were planning to change the present insurance to the Oakland Restaurant and Taverns Trust Fund which would result in a considerable savings for Respondent. Pano said the union representatives should have a meet- ing with the employees, that he was willing to do any- thing his employees wanted and if they wanted to stay in the Union and have this insurance that would be fine. Pano further said the employees were worried about their insurance and he had assured them some sort of in- surance would be offered . He said the employees were going to be contacted by a carrier he had found in the yellow pages. Again, Pano said Samuels and Barela should have a meeting with employees. Samuels' testimo- ny corroborates Barela. According to him, Pano also said there was no sense talking to him until they talked to the employees . Barela and Samuels agreed to meet with the employees. Pano denies saying he would do whatever the employ- ees wanted . According to him, one of the union repre- sentatives said it was a union shop, and they were all going to be in the Union . Pano said he had no objections but they should talk to the employees and tell them that was what they intended . Barela or Samuels said, "Well, we'll have some meetings." He further said, "You're the boss and you can do whatever you think is right with your business." Pano said he had a bunch of good em- ployees and would like to keep them in good faith with the restaurant. According to Pano, he further said no one wanted to get out of the Union, that the only thing the employees wanted was to have the type of an insur- ance plan they wanted . Pano also said he was not sure what the employees wanted , but the Union should find out. On April 20 or 22, Barela and Samuels had a meeting with about 12 to 15 employees . According to Barela, he introduced Samuels, said they were there to discuss the insurance problem and some information received by the Union of a possible decertification. Barela mentioned several disadvantages of a decertification, including the possible loss of their present insurance coverage . At this point, the employees mentioned that they were looking at some other insurance coverage . Barela said when an employer offers insurance , employees usually do not have the option of choosing from more than one plan, might not have dental and/or optical coverage , and the cost factor would be higher. Barela also asked for copies of the insurance information being offered to them. After the meeting, Parez gave Barela and Samuels some pam- phlets on the insurance the employees were considering. Barela said he would have it analyzed to see if the cov- erage was as good as the union plan. Two to 5 days later, Barela and Samuels again met with Pano. According to Barela, he told Pano nothing had been resolved as to insurance coverage . He asked Pano to sit down and negotiate with them. Pano said he would do whatever his employees wanted him to do. According to Samuels, Pano said he did not offer the employees insurance, that the question of insurance had arisen when one of the employees asked him about insur- ance. Barela or Samuels said the restaurant was a union house, and they wanted to negotiate. Pano showed them the unfair labor practice charges filed by the Union and questioned the Union's filing of the charges while talking about negotiating . Barela again attempted to schedule ne- gotiations. Pano responded, "You guys need to meet with your members again, have another meeting, and what they decide is what I will do. If they decide to stay with the union, then I will be glad to stay with the union, too. But if they decide that they want to get out of the union, then that's the way I would have to go." Pano also suggested they should not have to "go through all of that" since the Union still got its $18 a month. Samuels said that was not what the Union wanted. Pano suggested they meet with the employees again and said he would do whatever the employees de- cided they wanted. Barela said the Union would show good faith by withdrawing the charge. According to Barela, during this meeting, he and Sam- uels got the impression that Pano would sit down and negotiate if they met with the employees again and reach a favorable conclusion . So the following week, Samuels and Barela again met with 10 to 12 employees. Insurance coverage was again discussed but no conclusion was reached. Thereafter, they had no further meetings with the employees. Pano admits he told Barela and Samuels they should meet with the employees again and he would abide by the employees' decision . According to him, the only question was whether the employees would get their own insurance plan. He suggested the Union should give them that option. C. Polling of Employees as to Their Union Representation Preference In April, after one of the employee meetings, Parez asked each employee at work that night to vote as to whether they wanted the Union, and place the ballot in a bucket on the counter. She denies that either Pano or Ervin asked her to do this. Waitress Renee Howley testified , without contradic- tion, that in April Ervin approached her in the break- room. He told her they were having a vote and asked her to vote yes or no for the Union in writing and put it in the bucket. Howley then went into Pano's office, wrote her vote, and put it in the bucket. Dishwasher Willie Jackson testified that in April, Ervin brought a bucket to his work station and told him they were having a secret vote. Jackson took a paper out of the bucket, wrote his vote and put the paper back inside the bucket. 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. The Changes in Work Shifts and Conversations with Regard Thereto It is undisputed that in April Pano changed the work shifts of several employees, including Jackson and Pau- line Hasenplug. Also, the work hours for Hasenplug and Jackson were reduced. Pano admits these reductions were made without regard for seniority and without no- tifying, or discussing the changes with, the Union. Ac- cording to him, the cuts were made because of "poor business." When Hasenplug's hours were reduced, she com- plained to Pano. According to her, she told Pano she wanted her shift, that it was not fair to give her hours to someone with less seniority . Pano said they started "from scratch," that everyone was a new employee when he took over and her seniority did not count. On June 17 Hasenplug filed a grievance with the Union protesting the change in the shift she had worked for the previous 7 years and requesting that she be reassigned to her previ- ous shift. Subsequently, Hasenplug testified, Pano approached her in the breakroom with her grievance in his hand. Ac- cording to Hasenplug, Pano said, "What's this." Hasen- plug said, "It's just what it says, Leon . I want my shift." Pano said, "Are you in trouble? You are really in trouble now. You'll never get it." Pano denies telling Hasenplug she was in trouble. According to him, he said, "Pauline, why you went to so much trouble where there's no such a shift exists . You cannot get that shift back because there's no such a shift anymore." I credit Hansenplug. I found her to be an honest , reliable witness who was en- deavoring to be truthful. Jackson also complained to Pano regarding the reduc- tion in his hours. Pano said it was better to cut hours than to lay off an employee. A dishwasher with less se- niority did not have his hours reduced . Prior to the change in his shift hours, Jackson worked a 7 a.m. to 3 p.m. shift. After the change, he worked an 8:30 a.m. to 3 p.m. shift. The less senior dishwasher worked a 3 to 11 p.m. shift. Jackson admits Pano told him he could work more hours if he took the night shift. However, Jackson said he could not work the night shift. He does contend that, if offered, he could work an 8:30 a.m. to 4:30 p.m.shift. The seniority provision of Kirby's contract with the Union provides, inter alia: Section 5 . SENIORITY (a) In the event that the Employer finds it neces- sary to lay off employees due to slackness of busi- ness, such layoffs shall be on the basis of seniority within craft classifications if the senior employee is capable and qualified to perform the available work, in the employee on duty in the establishment having the shorter period of continuous service with the Employer shall be laid off before any other employ- ee having a longer period of continuous service. The Employer agrees to give preference to laid-off employees in re-employment in the reverse order of seniority-the last man laid off will be the first one re-hired, unless the Employer can prove the indi- vidual is not qualified for the job. Whenever there is a job opening, and only then the senior qualified employee shall have preference of full time employment . Once the senior employee waives his or her right to full time employment they must wait until a scheduled full time shift va- cancy occurs before being able to bid on a more full time schedule. The employer shall establish all work schedules setting the hours and days of work, including days off, but as much as is possible the employer will uti- lize full time shifts. When senior employees bid on schedule vacancies, they must bid for the entire schedule vacancy and cannot bid for individual shifts or days off within the vacancy. (b) A senior employee shall have the preference of a scheduled vacancy if their prior work record is satisfactory and they are capable and qualified to perform the available work when open for bid. The Employer will post job vacancies seventy-two (72) hours in advance. (c) Due to slackness of business on any specific shift the Employer reserves the right to send an em- ployee home without the requirement to pay for a full scheduled shift, and the employment rate for time worked shall be maintained at the short hour scale. If more than one employee is that day work- ing the same shift, classification and working hours the one with the less job seniority will have his or hers time reduced provided the employee left is ca- pable of performing the job assigned. E. The Failure to Pay Vacation Pay Pano also admits he did not pay employees any vaca- tion pay in 1988. According to him, the employees were all new employees of Respondent who were not entitled to vacation pay. The vacation provision of Kirby's con- tract with the Union provides, inter alia: Section 31. PAID VACATIONS (a) The period of service for the purpose of earn- ing a vacation with pay shall begin with the date of employment with the particular employer . After an employee has been in the service of the Employer for twelve (12) consecutive months, he or she will be entitled to one (1) week's vacation pay. (b) After an employee has been in the service of the Employer for twenty-four (24) consecutive months, he or she shall be entitled to two (2) week's vacation pay. (c) After an employee has been in the service of the Employer for ninety-six (96) consecutive months (eight [8] years) he or she shall be entitled to three (3) week's vacation pay. (d) Vacation pay shall be the average weekly earnings received by the employee during the year preceding the vacation. (e) The schedule of vacations may be arranged by the Employer provided that the employee be given at least two (2) week's notice of the date of KIRBY'S RESTAURANT the vacation period . The full vacation period to which an employee is entitled shall be given in con- secutive days, as no employee shall be called back to work during his or her vacation period. Vaca- tions are due only after the employee has been in the service of the Employer for one (1) year and each year thereafter. A subsequent letter of understanding further provides: Under subsection (b) all employees hired after the effective date of this agreement must work thirty-six (36) consecutive months prior to receiving two (2) weeks vacation pay provided the employer can produce a signed document showing the employee was advised of the aforementioned provision on or before his or her hire date. All present employees shall remain under the provision provided for in this section. F. June Conversations Between Pano and Samuels On June 2, the Union sent Respondent a telegram, the body of which reads: LOCAL 28 DEMANDS THAT YOU AS SUCCESSOR OWNER IMMEDIATELY MEET WITH US TO FINISH CONTRACT NEGOTIATIONS. IF YOU CONTINUE TO REFUSE TO MEET AND CONCLUDE NEGOTIATIONS THE UNION WILL TAKE ECONOMIC ACTION THAT IS APPROPRIATE. Later that month Samuels went to the Restaurant and spoke to Pano. According to Samuels, he asked, "Mr. Pano, what's the problem with us sitting down and trying to negotiate a new contract for these people?" Pano said he did not want to do anything the employees did not want, Samuels said Pano was the owner, he was the employer. Pano said, "Well, it just doesn't matter." Samuels said, "Do you know, I thought you were a smart business man. Do you know I'm going to shut you down?" Pano said, "Do what you have to do." According to Pano, Samuels said, "Are we going to have this contract negotiated or not?" He further said if they were not going to negotiate, he would file with the Board. Pano said he did not agree with everything with the Union. He also said, "Talk to the employees, have meetings and whatever comes with it, I will go with it- you know-with whatever you say. But if you want to file a petition over there, you go ahead and do what you have to do but I'm here all the time to talk to you any- time." Pano denies saying he would do whatever his em- ployees wanted to do. With the exception of Pano's denial that he ever said he would do whatever his employees wanted to do, the testimony of Samuels, Barela and Pano is not contradic- tory, and I find that a composite of their testimony as to their conversations more accurately reflect what was said. Further, I credit Barela that Pano said he would do what the employees wanted. According to Pano's own version of his June 2 conversation with Samuels, a simi- lar statement was made. IV. CONCLUSIONS 901 A. The Alleged Violations of Section 8(a)(5) The Supreme Court has held that a successor en: ploy- er is ordinarily free to set the initial terms on which it will hire the employees of a predecessor since the contin- ued majority status of the bargaining representative of the predecessor's unit employees is not evident until the succesgor has hired a full complement of employees. However, the Court also recognized that "there will be instances in which it is perfectly clear that the new em- ployer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially con- sult with the employees' bargaining representative before he fixes terms." NLRB v. Burns Security Services, 406 U.S. 272 (1972). The Board has interpreted this caveat to be restricted to "circumstances in which the new employer has either actively or, by tacit inference, misled employees into be- lieving they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer . . . has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment." Spruce Up Corp., 209 NLRB 194 (1974); L. A. Beefland, 232 NLRB 1189 (1977). Here, Respondent continued to employ the same unit employees and made no announcement either prior to or on the day of the takeover that it would eliminate the prior seniority credit of employees. I therefore find the Respondent was obligated to notify and consult with the Union prior to implementing changes in wages, hours, and terms and conditions of employment. Accordingly, I find that, by unilaterally eliminating seniority credit earned during employment with the predecessor employ- ers for purposes of determining vacation pay entitlement, Respondent has violated Section 8(a)(5) and (1) of the Act. I further find that by the reduction of hours for Pauline Hasenplug and Willie Jackson without regard to their seniority, and without notification to, and consulta- tion with, the Union, Respondent has unilaterally changed their wages, hours, and terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act. I also find that by Pano's discussions with Parez and his conduct in arranging for an insurance representative to meet with unit employees regarding a possible change of insurance plan, Respondent has engaged in direct dealings with employees in violation of Section 8(a)(5) and (1) of the Act. Fremont Ford, 289 NLRB 1290 (1988). Rogers Cleaning Contractors, 277 NLRB 482 (1985); Hiney Printing Co., 262 NLRB 157 (1982). Finally, I conclude that, although Pano was always willing to talk to union representatives, he was in fact conditioning his willingness to engage in negotiations with the Union on some vague expectation as to an ac- ceptable outcome of the Union' s meetings with employ- ees. In these circumstances, I conclude that Respondent's conduct was in fact a refusal to bargain with the Union. Accordingly, I find that Respondent thereby violated Section 8(a)(5) and (1) of the Act. 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Alleged Violations of Section 8(a)(1) It is well established that lawful polling of employees by an employer must adhere to certain safeguards: (1) the purpose of the poll must be to determine the truth of a union's claim of majority; (2) such purpose must be communicated to the employees ; (3) assurances against reprisal must be given; (4) the poll must be by secret ballot; and (5) the poll must be conducted in an atmos- phere free of unfair labor practices or other coercion by the employer. Struksnes Construction Co., 165 NLRB 1062 (1967); Hohn Industries, 283 NLRB 71 (1987); cf. Boaz Carpet Yarns, 280 NLRB 40 ( 1986). Here, although most employees were polled by a fellow employer, two employees were polled by Restaurant Manager Richard Erwin. Based on his authority to hire and fire employees, I find that Erwin is a supervisor within the meaning of Section 2(11) of the Act. The purpose of the poll was not communicated to these employees nor were they given any assurances against reprisals . Further, the record establishes no objective basis for any doubt as to the Union's majority status and the poll was conducted at a time when Respondent was engaged in unfair labor practices in violation of Section 8(a)(5) of the Act. In these circumstances, I find that Respondent violated Sec- tion 8(a)(1) of the Act by polling employees with regard to their preference for union representation . Hohn Indus- tries, supra. I also find that Pano's statement to Hasenplug that she was in trouble and would never get her shift back consti- tutes a threat of retaliation for filing a grievance in viola- tion of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent Leon Pano, a sole proprietorship d/b/a Kirby's Restaurant is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hotel Employees, Restaurant Employees and Bar- tenders Union Local 28, AFL-CIO is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full time and regular part-time cooks , dishwash- ers, buspersons, cashiers, hosts, and waiters/wait- resses employed by Respondent at #10 El Cerrito Plaza, El Cerrito, California, excluding all other employees, guards, and supervisors as defined in the Act. 4. Since February 5, 1988, the Union has been the ex- clusive representative of the employees in the above-de- scribed appropriate unit, for the purposes of collective bargaining with respect to wages, rates of pay, hours of employment and other terms and conditions of employ- ment. 5. Since late February 1988 and continuing to date, the Union has requested , and is requesting Respondent to recognize and bargain collectively with it as the exclu- sive representative of employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 6. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by: (a) Failing and refusing since late February 1988 to bargain collectively with the Union as the exclusive col- lective-bargaining representative of its employees in the above-described unit. (b) Unilaterally, without notice to or consultation with the Union failing and refusing to pay its employees vaca- tion pay, changing the shifts and/or hours of employees in the appropriate unit without regard to each employ- ee's seniority and announcing to employees that seniority would no longer be a consideration in the assignment of shifts and/or hours. (c) Bypassing the Union and dealing directly with em- ployees in the above-described unit with regard to health insurance. 7. Respondent has interfered with, restrained , and co- erced its employees in the exercise of their rights guaran- teed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by: (a) Threatening an employee with reprisals for filing a grievance with the Union. (b) Conducting a poll of its employees to determine their support of the Union, without legitimate purpose and proper safeguards. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, in violation of Section 8(a)(5) and (1) of the Act, unilaterally eliminated seniori- ty in determining vacation entitlement and shift changes, I shall recommend that Respondent cease and desist from making unilateral changes in the wages , hours, and other terms and conditions of employment of the em- ployees in the appropriate unit herein, and that Respond- ent make whole said employees for any loss of pay or other benefits they may have suffered as a result of Re- spondent's unilateral elimination of seniority in determin- ing vacation entitlement and shift changes with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977), and New Horizons for the Retarded, 283 NLRB 1173 (1987). I will also recommend that Respondent cancel such unilateral changes and continue the seniority policy in effect prior to February 5, 1988, until such time as Re- spondent negotiates in good faith with the Union to agreement, or to impasse. KIRBY'S RESTAURANT 903 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Leon Pano, a sole proprietorship d/b/a Kirby's Restaurant, El Cerrito, California, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All full time and regular part-time cooks, dishwash- ers, buspersons, cashiers, hosts, and waiters/wait- resses employed by Respondent at #10 El Cerrito Plaza, El Cerrito, California, excluding all other employees, guards, and supervisors as defined in the Act. (d) Post at its restaurant in El Cerrito , California, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 32 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 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." (b) Unilaterally, without notice to or consultation with the Union, eliminating seniority in determining vacation entitlement and changes in shifts and/or hours of em- ployment in the appropriate unit and announcing to em- ployees that seniority would no longer be a consideration in the assignment of shifts and/or hours. (c) Bypassing the Union and dealing directly with em- ployees in the above-described unit with regard to health insurance or other terms and conditions of employment. (d) Threatening employees with reprisals for filing grievances with the Union. (e) Polling its employees to determine their support of the Union, without legitimate purpose and proper safe- guards. (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) Cancel the unilateral changes heretofore made in wages, hours, or other terms and conditions of employ- ment of the employees in the above -described appropri- ate unit and continue the wages, hours, and other terms and conditions of employment in effect on February 4, 1988, until such time as Respondent negotiates in good faith with the Union to agreement or to impasse. (b) Make whole the employees in the appropriate unit for any loss of pay or other benefits they may have suf- fered as a result of the unilateral elimination of seniority for purposes of determining vacation entitlement and changes in shifts and/or hours, with interest. (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. 2If 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. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to meet and bargain collectively with Hotel Employees, Restaurant Employees and Bar- tenders Union, Local 28, AFL-CIO as the exclusive col- lective-bargaining representative of our employees in the following appropriate unit: All full time and regular part-time cooks, dishwash- ers, buspersons, cashiers, hosts, and waiters/wait- resses employed by Respondent at #10 El Cerrito Plaza, El Cerrito, California, excluding all other employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally, without notice to or con- sultation with the above-named Union, eliminate seniori- ty in determining vacation entitlements and changes in shifts and/or hours of employees in the above-described unit. WE WILL NOT announce to employees that seniority will no longer be a consideration. WE WILL NOT bypass the Union and deal directly with employees in the above-described unit with regard to health insurance or any other terms or conditions of em- ployment. WE WILL NOT threaten employees with reprisals for filing a grievance with the Union. WE WILL NOT conduct a poll of our employees to de- termine their support of the Union, without legitimate purpose and proper safeguards. 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, meet and bargain with the above-named Union and put in writing and sign any agreement reached on terms and conditions of employ- ment for our employees in the above-described bargain- ing unit. WE WILL cancel our elimination of prior seniority for purposes of determining the vacation entitlement of our employees and changes in shifts and/or hours in the above-described unit; and WE WILL continue, retroac- tively and prospectively , the wages, hours, and other terms and conditions of employment of said employees in effect prior to February 5, 1988, until such time as we negotiate in good faith with the Union to agreement or to impasse. WE WILL make whole the employees in the above-de- scribed unit for any loss of pay or other benefits they may have suffered as a result of our unilateral elimina- tion of seniority credit for purposes of determining vaca- tion and entitlement and changes in shifts and/or hours. LEON PANO, A SOLE PROPRIETORSHIP D/B/A KIRBY'S RESTAURANT