Plattdeutsche Park Restaurant, Inc.

PLATTDEUTSCHE PARK RESTAURANT 133 Plattdeutsche Park Restaurant, Inc. and Raymond Lacinski and Hotel Employees & Restaurant Employees Union, Local 100, of New York, New York and Vicinity, AFL-CIO. Cases 29- CA-13230, 29-CA-13244, and 29-CA-13400 August 18, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On May 12, 1989, Administrative Law Judge El- eanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. 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 and to adopt the recommend Order as modified.2 Elizabeth Orfan, Esq., for the General Counsel. Saul Roth, Esq. (Roth, Koval & Woods), of Garden City, New York, for the Respondent. Harold Ickes, Esq. and Barry J. Peek, Esq. (Meyer, Suozzi, English & Klein), of Mineola, New York, for the Charging Party. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in Brooklyn, New York, on Septem- ber 27, 28, and 29 and October 13, 1988. The consolidat- ed complaint alleges that Respondent Plattdeutsche Park Restaurant, Inc., in violation of Section 8(a)(1), (3), and (5) of the Act, reduced the amount of work of its em- ployee, discharged its employee and conditioned the exe- cution and implementation of an agreed-upon collective- bargaining agreement on the Union's consent to nonman- datory subjects of bargaining. Respondent denies the ma- terial allegations of the complaint. Upon the entire record, including my observations of the demeanor of the witnesses, and after due consider- ation of the briefs filed by Respondent and General Counsel, I make the following FINDINGS OF FACT ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Plattdeutsche Park Restaurant, Inc., Franklin Square, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(d). "(d) On request execute the collective-bargaining agreement agreed on by the Respondent and the Union, give effect to the contract retroactively from July 23, 1987, and make employees whole for any loss of earnings and other benefits that they may have suffered as a result of the Respondent's failure to execute and to apply the agreement." 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 Cir 1951). We have carefully examined the record and find no basis for reversing the findings z We shall modify the recommended Order to specify the remedial re- quirement that terms of the Respondent's collective-bargaining agreement with the Union shall be effective retroactive to July 23, 1987. Backpay due as a result of the Respondent 's unlawful failure to execute and apply the contract on and after that date shall be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), with interest to be comput- ed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), except that any interest on additional amounts that the Re- spondent must pay into employee benefit trust funds shall be determined in the manner set forth in Merryweather Optical Ca, 240 NLRB 1213, 1216 fn 7 (1979). I. JURISDICTION Respondent, a New York corporation located in Franklin Square, Nassau County, New York, operates a restaurant and catering facility. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Credibility of the Witnesses Raymond Lacinski testified on behalf of General Counsel . Lacinski was a forthright witness and I shall credit his testimony . Anthony R. Amodeo testified for General Counsel. He was cooperative and answered fully, and I shall credit his testimony . James Ward testi- fied for General Counsel . He was forthright and cooper- ative and I shall rely on his testimony. John F. Harmel- ing testified for Respondent . He answered fully and con- sidered his answers carefully, taking care not to testify as to matters where his recollection was not exact . Harmel- ing was no longer a member of Respondent 's negotiating committee in 1987 and he could not recall dates and meetings in 1987. Therefore , Harmeling's testimony had no usefulness regarding meetings taking place in 1987. I shall not rely on Harmeling's testimony relating to the meetings relevant to this case. Alfred Goerke testified for Respondent. He was not able to recall many of the facts relevant to his testimony without consulting his notes. Based upon Goerke's testimony , it is clear that these notes were not accurate and could not serve to refresh Goerke's recollection about the actual events. Goerke's 296 NLRB No. 26 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testimony contradicted his sworn affidavit in many re- spects, the affidavit having been given much closer in time to the actual events than Goerke's testimony at the instant hearing. I shall not rely on Goerke's testimony where it is contradicted by other more reliable evidence such as the testimony of other witnesses and his own sworn affidavit. Saul Roth testified for the Respondent. He did not have a good recollection of the events and his testimony contradicted his sworn affidavit. He was unable to identify documents crucial to his testimony. I shall not rely on Roth's testimony where it is contradict- ed by more reliable evidence. In addition to these wit- nesses, Ann Zelda Shikora, Stephanie Bonfante and Diane Phillips testified in this proceeding. Their testimo- ny was not seriously challenged and I shall credit it. B. Background Respondent admits that since on or before February 1, 1981, the Union has been the designated exclusive collec- tive-bargaining representative of Respondent's employees in a unit consisting of Respondent's dining room, bar, and kitchen employees and that the Union has been rec- ognized as such representative by Respondent. Respond- ent and the Union negotiated a collective-bargaining agreement for the period 1981 through 1984. This con- tract was extended to January 31, 1985 , and then ex- tended again through January 31, 1986. There were a series of negotiations for a successor agreement in 1986 and 1987. Respondent and General Counsel stipulated that as of July 1, 1987, the only issues left unresolved between the Union and Respondent for a successor agreement to the one expiring on January 31, 1986, "were the questions of the percentage of gratuities to be paid to part-time banquet/catering employees and the method of calcula- tion of wage rates for all employees, including full-time and part-time employees, so that such wages be paid by the hour rather than by the shift in accordance [with] New York State Department of Labor requirements."' Respondent and General Counsel also stipulated that "during discussions during the period July, 1987 to August, 1987 . . . Respondent ... informed Local 100 President Anthony Amodeo that as [a] condition of sign- ing an agreement between Local 100 and the employer it would be necessary that pending lawsuits against the em- ployer involving Mr. Lacinski, Local 100's vacation fund and the H.E.R.E. International Union Pension Fund and the H.E.R.E. International Union Welfare Fund be with- drawn and that Mr. Lacinski would no longer be em- ployed by or eligible for employment with the employ- er." General Counsel contends that the parties met and ne- gotiated on July 23, 1987, and reached full agreement on the outstanding issues and that counsel for Respondent agreed to reduce the agreement to writing, but failed to do so despite repeated requests by the Union. Then, Re- I Respondent had not been in compliance with the requirement that employees be paid by the hour, and as the result of complaints filed with the Department of Labor by some employees it was obliged to bring its next collective-bargaining agreement into compliance with applicable reg- ulations spondent insisted upon certain illegal conditions before it would sign an agreement. When the Union reduced the agreement to writing in January 1988, Respondent re- peated its refusal to sign the collective-bargaining agree- ment unless the Union agreed to the illegal conditions. The parties stipulated that in late June 1987, Respond- ent discharged Lacinski and has since refused to reinstate him. General Counsel seeks an order applying the collec- tive-bargaining agreement retroactively to July 23, 1987, for its term from February 1, 1986, through 1989, and an order reinstating Lacinski with backpay. Respondent disputes the factual allegations made by General Counsel, takes a different view of the credibility of the witnesses, and urges that Lacinski was discharged for just cause. Further, Respondent maintains that its labor counsel, Roth, had no authority to negotiate a col- lective-bargaining agreement on its behalf. C. Lack of Work for and Discharge of Lacinski Lacinski worked at Respondent's restaurant as a steady part-time employee since 1971 . He began as a waiter and then became a captain or maitre d'. Before the incidents relevant to this case occurred, Lacinski worked between two and five shifts each weekend from Friday to Sunday. He was third in seniority of the "basic" part- time employees, that is those who formed the permanent core of Respondent's part-time banquet employees. La- cinski was the shop steward for the Union at the restau- rant; he attended to employee complaints and he sat in on contract negotiations. One of Lacinski's duties was to ascertain whether employees were receiving proper gra- tuities when they worked at a banquet. Respondent paid its part-time employees "house pay" plus 15 percent of the total paid by the customer for each banquet .2 After the bill was settled by the customer, Lacinski would check the contract between Respondent and the custom- er and the adding machine calculations to see what gra- tuities were provided therein and to ensure that the part- time employees received the correct amount . This func- tion was in accord with the terms of the collective-bar- gaining agreement which provided: "THE SHOP STEWARD SHALL HAVE THE RIGHT TO EXAM- INE ALL BANQUET AND PARTY CHECKS BEFORE ACCEPTING THE GRATUITIES FOR THE WAITERS THAT SERVED SAID PARTY." In January 1985, Alfred Goerke took charge of the restaurant as the new general manager. In late 1985, several employees told Lacinski that they believed that they were not receiving proper overtime pay. Lacinski spoke to Goerke about this and was told that the employees were getting their due. Lacinski checked further with the Union's business agent, and then advised the employees to go to the Department of Labor for relief.4 2 The contract called for a gratuity of 15 percent of food and liquor, but Respondent apparently had a practice of paying 15 percent of the total bill. a This provision is set forth in caps in the collective-bargaining agree- ment, apparently for emphasis. 4 In May 1986, the Secretary of Labor sought an injunction against Re- spondent's methods of bookkeeping and methods of paying its employees PLATTDEUTSCHE PARK RESTAURANT 135 Sometime after this, Lacinski was engaged in his regu- lar task of checking gratuities with the assistant manager of the restaurant when Goerke came over and instructed Lacinski that from now he must deal only with Goerke on the matter of gratuities. In April 1986, some employees complained to Lacinski about the gratuities they had been paid for a certain function. Lacinski asked Goerke if he could see the con- tract with the customer but Goerke refused, saying that it was a secret document. When Lacinski pointed out that under past practice he had always been able to see the contract and that the collective-bargaining agreement provided for such an inspection, Goerke replied that the collective-bargaining agreement had expired and that "it was a worthless piece of paper." Goerke told Lacinski that if he did not like it he could quit. Normal procedure requires the Respondent to call the Union to schedule part-time employees for work at ban- quets. The Union refers the number of employees re- quested in the order of seniority from among the "basic" part-time employees associated with Respondent. Since 1979, when he became shop steward, Lacinski had been handling the Respondent's requests for part-time employ- ees. Thus, instead of calling the labor chiefs at the Union and requesting part-time employees, Respondent would tell Lacinski how many were needed for upcoming func- tions and Lacinski would make the assignments. In 1986, however, Goerke informed Lacinski that he no longer wanted Lacinski to handle the part-time requirements, but that he wanted employees to call him directly for work at banquets. Lacinski told Goerke that the direct method was not permissible and that Goerke would have to use the method of requesting employees from the labor chiefs at the Union. Soon after Lacinski ceased handling part-time assignments, he noticed that nonunion employees were working at Respondent . Lacinski com- plained to Goerke about this and told the latter that he had to get help from the union labor chiefs ; only if the Union could not supply the help was Goerke permitted to use workers from outside the Union . Goerke said that the collective-bargaining agreement had expired and if Lacinski didn't like it, he could quit. Lacinski told Goerke that he would inform his business agent, and that the collective-bargaining agreement still applied because the parties were in negotiations; but Goerke said he could do as he liked. Lacinski continued to complain about Respondent's failure to use the hiring hall through 1986 and into 1987. By the end of 1986, a number of employees had com- plained to Lacinski about Goerke's failure to use the se- niority system and his propensity to call nonunion em- ployees before union members, and Lacinski himself was being bypassed in favor of employees lower on the se- niority list. When Lacinski again spoke to Goerke about the situation , the latter replied that there was no collec- tive-bargaining agreement , that he was sick of the Union, sick of the hiring hall, and sick of paying out the bene- fits. A grievance filed by the Union over Goerke's failure to use the hiring hall was upheld by the arbitrator. Re- spondent was found to have avoided the obligations of the collective-bargaining agreement relating to the hiring hall and was ordered to adhere to its provisions.5 In April or May 1986 , at a negotiation session for a new collective-bargaining agreement, one of the union negotiators referred to the problem of checking customer contracts to see if proper gratuities were being paid to employees. Lacinski testified that at this meeting two members of Respondent's house committee told Goerke that Lacinski had the right to see the contract with the customer. Goerke objected, saying that it was confiden- tial information and that he did not want Lacinski to write down any figures from the contract . After this meeting, Goerke permitted Lacinski to see two contracts, but after that time he insisted on showing Lacinski only the receipt from the banquet. This paper did not contain enough detail to enable Lacinski to calculate the correct gratuities and he told Goerke that it was insufficient. But Goerke replied that he was giving enough information and that since the collective-bargaining agreement had expired, he was not obliged to show any more to La- cinski.6 At about this time, Goerke also changed the method of computing gratuities and the employees received less money. Goerke also changed the practice of telling La- cinski what the gratuities were promptly after the ban- quets were held. Lacinski worked at the restaurant on weekends only which coincided with the time when most banquets were scheduled, but Goerke insisted that Lacinski call him Monday or even later in the week. The part-time employees normally received their checks on Wednesdays, and it was inconvenient for Lacinski to re- ceive information about gratuities so close to payday. However, when Lacinski complained to Goerke that he needed to know about the gratuities before they were payable, Goerke said that he or anyone else who did not like this system could quit. In June or July 1986, Lacinski again spoke to Goerke about the incorrect payment of gratuities to part-time employees who worked two separate banquets at once. Respondent had not given the employees the pay re- quired by the collective-bargaining agreement, but Goerke responded that the agreement had expired and that he would not follow its provisions . Lacinski told Goerke he would have to speak to the business agent about this matter. Eventually, the Union took the entire matter of gratuities to arbitration in January 1987. The arbitrator upheld the grievance and ordered Respondent, inter alia, to allow the shop steward to examine all the banquet checks, to pay banquet employees the proper gratuities under the collective -bargaining agreement, and to make the employees whole. In December 1986, Lacinski discovered that Respond- ent was behind in its payments to various funds main- tained for the benefit of the employees . When he ap- 5 The arbitration hearings were held in December 1986 and January and March 1987 The award issued in April 1987. The arbitrator also had before him two grievances relating to Lacinski personally; they will be discussed below 6 Lacinski and Jim Ward, vice president of the Union, met with Goerke separately to try to work out this problem Ward told Goerke that the receipt book was not sufficient for Lacinski's purposes 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proached Goerke about the arrears , Goerke replied that since there was no collective-bargaining agreement he did not have to pay the funds . Lacinski told Goerke that he would have to go to the Union about this . Eventually, the issue was taken to arbitration by the Union, the grievance was upheld , and the Union brought suit to en- force the award and collect the money. In fall 1986, Lacinski was twice suspended by Goerke: once he was sent home from a banquet where he was the captain for failing to fold napkins and the other time he was sent home because the customer, a member of Re- spondent's committee, allegedly did not want Lacinski to work at the party . These two suspensions were grieved by Lacinski and they were decided by the arbitrator to- gether with the grievance relating to the failure to use the hiring hall properly. The arbitrator found that La- cinski had been suspended without just cause and or- dered that he be made whole. The award issued on April 22, 1987. The record is clear that these two suspensions consti- tute the only discipline ever received by Lacinski. Since these suspensions were found to violate the collective- bargaining agreement, Lacinski's record at Respondent's restaurant is clean and without any disciplinary findings. In the beginning of 1987, Lacinski distributed letters to certain new employees informing that they must join the Union after 30 days' employment. Goerke told Lacinski that if the employees did not want to join, he would not force them to and that he would not discharge them for their failure to join the Union. By the end of 1986, Lacinski noticed that he was working fewer shifts than he had usually worked and that employees with less seniority were working in his place. When he asked Goerke about this, the latter re- plied that he could hire whom he wanted. Lacinski's hours continued to decline until July 1987, when he called Goerke and complained. Goerke told him that he would not work until there was a collective -bargaining agreement. As noted above, Respondent stipulated that it discharged Lacinski in late June 1987. In support of its contention that it discharged Lacinski for just cause, Respondent offered the testimony of Goerke. As noted above, I do not find that Goerke is a credible witness and do not rely on his testimony. I noted from Goerke's demeanor while testifying that he had a personal dislike for Lacinski and tended to make gratuitous remarks disparaging Lacinski . Goerke testified at very great length about certain instances of alleged misconduct by Lacinski. Two of these resulted in the suspensions that were found to be without just cause by the arbitrator. None of the other alleged incidents result- ed in the imposition of discipline by Respondent, Goerke did not call the Union to complain about Lacinski's con- duct with respect to these incidents , Goerke did not tes- tify about them at the arbitration relating to Lacinski's two suspensions and as to all of them Lacinski gave testi- mony that contradicted Goerke's assertions .' As noted above, Goerke opened his testimony by stating that he could not recall the events without consulting his notes. These notes were recently copied from a notebook for use at the instant hearing and they were edited instead of being copied verbatim; the notes were not complete and Respondent did not produce the original for inspection by General Counsel . I find that testimony based on these notes should not be given any weight at all. I conclude that Respondent had no basis for asserting that Lacinski was not a satisfactory employee . I find that Goerke's testimony about misconduct by Lacinski was fabricated in some instances and in other instances it was magnified or distorted to make an innocent occurrence seem to reflect badly on Lacinski 's work.8 Thus, I con- clude that all of the misconduct testified to by Goerke was in fact a pretext for assigning less work to Lacinski and for Lacinski's discharge.9 Goerke's hostility to the Union and to Lacinski's ac- tivities on behalf of the Union are set forth above. Goerke made no secret of his desire to be free of the Union and quit of the obligations of the collective-bar- gaining agreement . I conclude that Respondent assigned less work to Lacinski and discharged Lacinski because of his membership in the Union and because of his activities as shop steward on behalf of the Union. Respondent thus violated Section 8(a)(3) and (1) of the Act. D. Collective-Bargaining Agreement It is undisputed that by July 1, 1987, the Union and Respondent had agreed upon all the terms of their new collective-bargaining agreement except two: the percent- age of gratuities for part-time banquet employees and a provision for hourly wage rates for employees. I note that the amount of wages to be paid was not in dispute; rather, Respondent was required by law to pay by the hour and not by the shift, and the agreement had to be drawn to reflect an hourly wage. Amodeo, the president of the Union, met with Re- spondent's labor counsel, Roth, on July 23, 1987. The meeting was arranged by counsel for the Union for the purpose of settling the two remaining open items. Ac- cording to Amodeo, Roth told him that he was perfectly satisfied with the provisions of the collective-bargaining agreement except for the two points in question. Amodeo and Roth discussed the calculation of gratu- ities. Roth pointed out that gratuities had been calculated as 15 percent of the total bill and that Respondent wanted to pay only 9.5 percent of the total bill, but Amodeo said that based on prior discussions it was clear that the amount should be 15 percent of only food and liquor. Roth responded that he was perfectly satisfied with 15 percent of food and liquor. Roth and Amodeo then discussed the hourly wage provision and Roth told Amodeo that he was satisfied with the hourly wages the Union agreed to. Amodeo testified that once these two issues were resolved, Roth said "we have an agreement." Roth told Amodeo that he would have the modifications a For these reasons, I do not deem it necessary to discuss each and Goerke testified that under the collective-bargaining agreement he every incident related in Goerke's testimony could have discharged Lacinski for an act of misconduct , yet he never 9 See Wright Line, 251 NLRB 1083 ( 1980), enfd 662 F 2d 899 ( 1st Cir sought to impose this discipline for any of the alleged incidents . 1981), cert denied 455 U.S. 989 (1982) PLATTDEUTSCHE PARK RESTAURANT made to the collective-bargaining agreement and call Amodeo with a date for signing the document. Then, Roth mentioned two "lawsuits" relating to the welfare fund and the vacation fund.' ° He told Amodeo that if they could be dropped, the contract would be signed more quickly. Amodeo replied that those matters did not even enter into the present discussion. Roth con- tinued that Respondent would like very much to get rid of Lacinski and that would also speed up the process. On July 31, 1987, Amodeo called Roth to arrange for the signing of the collective-bargaining agreement. Roth told Amodeo that he would call him on August 5. When Roth did not call, Amodeo called Roth on August 6. Roth told Amodeo that he would prepare the collective- bargaining agreement and call Amodeo. He again men- tioned the pending claims made by the funds, but Amodeo said he had nothing to do with the funds. Roth never called Amodeo but Amodeo called Roth several more times in 1987 and left messages. Not having heard from Roth, Amodeo had the collective-bargaining agree- ment typed up and mailed it to Roth on January 21, 1988, requesting that Respondent execute the agreement. Respondent has not signed the collective-bargaining agreement. In response to Respondent's contention that Roth did not have the authority to enter into a collective-bargain- ing agreement on its behalf, Amodeo testified that he un- derstood that Roth had the power to enter into a con- tract for Respondent. Roth did not tell Amodeo that he had no power to bind Respondent and Roth told him he agreed to the provisions being negotiated. As discussed above, I shall not credit Roth's testimony where it is contradicted by more reliable evidence. Al- though Roth claimed to have told Amodeo that he had no power to bind Respondent and enter into an agree- ment on its behalf, I find that he did not so inform Amodeo. First, I do not rely on Roth's testimony that he made certain disclaimers about his authority to Amodeo. Second, I do rely on the testimony of Amodeo that Roth told him "we have an agreement." Amodeo knew that he was dealing with Respondent's labor counsel; when that labor counsel told Amodeo that the parties had an agreement, Amodeo was entitled to rely on that repre- sentation. Finally, Roth's own affidavit refers to the fact that Respondent considered that it had an agreement with the Union but that signing was being held up by the litigation over the funds.' 1 Respondent contended, through the testimony of Goerke, Harmeling, and Roth that the Union had not made corrections to the collective -bargaining agreement as agreed between the parties and that the document sub- mitted for execution by the Union on January 21, 1988, was incorrect. I reject this contention. First, neither Goerke nor Harmeling nor even Roth could identify the various drafts they purported to be testifying about. 10 Both matters arose from demands for arbitration filed by the funds when Respondent failed to make required payments. 11 Roth had attended a number of bargaining sessions with the Union, at these negotiations he commented on relevant matters such as the finan- cial condition of Respondent, he represented Respondent in arbitrations with the Union , and Harmeling testified that Respondent employed a labor counsel to negotiate and have discussions with the Union 137 These witnesses convinced me that they had no recollec- tion about the drafts they tried to describe in their testi- mony. Second, I am convinced by the testimony of Amodeo and James Ward, vice president of the Union that the Union made the changes agreed upon and sub- mitted a proper collective-bargaining agreement to Re- spondent for execution. I find that as a result of negotia- tions conducted in 1986, the parties had agreed upon all but the two outstanding items described above. The doc- ument resulting from the negotiations so far was identi- fied by Ward as a draft submitted to Respondent's house committee in 1986. Ward conceded that it contained a paragraph that should have been omitted; there is no convincing testimony that the document did not in other respects represent the agreement of the parties so far. After Amodeo and Roth met on July 23, 1987, there was agreement on the two open items and Roth agreed to reduce the agreement to writing. When he failed to do so, Amodeo had the collective-bargaining agreement typed, signed by Ward and then sent to Roth for execu- tion on January 21, 1988. Schedule "B" of this document sets forth the wages for all employees on an hourly basis and provides for 15-percent gratuities for part-time ban- quet employees based on the food and liquor check. Thus, the document mailed by Amodeo to Roth contains the items the two men had agreed upon on July 23, 1987, and embodies the collective-bargaining agreement be- tween the parties. Respondent's refusal to execute the collective-bargaining agreement violates Section 8(a)(5) and (1) of the Act. I have found that Respondent and the Union reached agreement on a collective-bargaining agreement on July 23, 1987. The parties stipulated that Respondent made it a condition for signing the agreement that the lawsuits against the funds be withdrawn and that Lacinski no longer work for Respondent. From the credible evi- dence, it is clear that after he and Amodeo reached agreement on the two outstanding matters of the hourly wages and gratuities for part-timers, Roth raised the mat- ters of the lawsuits and Lacinski's status. Respondent was asking the Union to secure the withdrawal of vari- ous actions filed by the funds to collect delinquent con- tributions from Respondent. By asking the Union to agree as part of the collective-bargaining agreement that Respondent had the right to discharge Lacinski, Re- spondent was asking the Union to ratify the discriminato- ry action against Lacinski. Neither of these matters is a mandatory subject of bargaining, and the demand with respect to Lacinski is prohibited; thus Respondent's ad- mitted insistence upon these matters as a condition of executing the agreement is a refusal to bargain which violates Section 8(a)(5) and (1) of the Act.12 12 Laredo Packing Co, 254 NLRB 1, 19 (1981) (the demand for the withdrawal of a lawsuit is a voluntary, nonmandatory subject of bargain- ing), Air Express International Corp, 245 NLRB 478, 500 (1979), enfd 670 F 2d 512 (5th Cir 1982) (reinstatement of discriminates is not a bargaina- ble issue). 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All dining room, bar and kitchen employees of Re- spondent excluding supervisors as defined in the Act. 2. At all times since 1981, the Union has been the des- ignated exclusive collective-bargaining representative of the employees in the unit and has been recognized as such representative by Respondent. 3. By assigning less work to Raymond Lacinski and then discharging Lacinski because of his membership in the Union and because of his activities on behalf of the Union, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By refusing to execute the collective -bargaining agreement with the Union and by insisting upon nonman- datory subjects of bargaining as a condition of executing the agreement, Respondent violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily assigned less work to Raymond Lacinski and having discharged Ray- mond Lacinski, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed from the time he received less work at the end of 1986 and computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent having refused to execute the collective- bargaining agreement negotiated on July 23, 1987, it must be ordered to execute forthwith the collective-bar- gaining agreement agreed upon by Respondent and the Union, and to give effect to the contract retroactively from July 23, 1987, making employees whole for any losses they incurred as a result of Respondent's refusal to abide by the terms of such agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 1. Cease and desist from (a) Reducing the amount of work of its employee and discharging its employee because of his membership in and activities on behalf of the Union. (b) Refusing to execute the agreed-upon collective-bar- gaining agreement and conditioning execution of the agreement on nonmandatory subjects of bargaining. (c) 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) Offer Raymond Lacinski immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify Lacinski in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Upon request execute forthwith the collective-bar- gaining agreement with the Union and make the employ- ees whole for any loss of earnings and other benefits in the manner set forth in the remedy section of the deci- sion. (e) Post at its restaurant copies of the attached notice marked "Appendix."14 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representa- tive, 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ORDER The Respondent, Plattdeutsche Park Restaurant, Inc., Franklin Square, New York, its officers, agents, succes- sors, and assigns, shall is 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. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " PLATTDEUTSCHE PARK RESTAURANT 139 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we violated the Na- tional 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT discharge or otherwise discriminate against any of you for supporting Local 100 or any other union. WE WILL NOT reduce your hours of work for support- ing Local 100 or any other union. WE WILL NOT refuse to execute the collective-bargain- ing agreement we negotiated with Local 100 nor will we insist upon nonmandatory subjects of bargaining as a condition of executing the collective -bargaining agree- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Raymond Lacinski immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position , without prej- udice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge and from the reduction in his hours, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. WE WILL upon request execute forthwith the collec- tive-bargaining agreement with the Union and WE WILL make our employees whole for any loss of earnings and other benefits resulting from our failure to execute the collective-bargaining agreement from July 23, 1987. PLATTDEUTSCHE PARK RESTAURANT, INC.