Stringfellow'S Of New York,Ltd.

424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stringfellow's of New York, Ltd. and Hotel Employ- ees and Restaurant Employees Union, Local 100, of New York, New York and Vicinity AFL-CIO. Case 2-CA-22439 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On September 8, 1988, Administrative Law Judge Raymond P. Green issued the attached deci- sion . The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recom- mended Order as modified. 1. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging bartenders Clive Griffiths and Karl Turpeinen on August 28/29, 1987.1 The Respondent excepts to these findings on the ground that there is no evi- dence that the Respondent had knowledge of any union activity by Griffiths and Turpeinen. For the reasons stated below, we find no merit to this ex- ception. The record establishes that as early as June the Respondent's waiters were becoming increasingly vocal about their dissatisfaction with certain as- pects of the Respondent's tip policy. They were overheard by William Cressler, a consultant to the Respondent, commenting that if they had a union they would be protected. Cressler informed the owner, Peter Stringfellow, of the waiters' conver- sation and Stringfellow replied: "The first person I hear mention union is out . . . ." On August 20, bartender Griffiths telephoned the Union's office and made an appointment for August 25. During the appointment with the union representative, Griffiths was given an authorization card to sign and additional cards to distribute to the Respond- ent's other employees. That evening while at work Griffiths spoke to several employees about union representation, explaining to them the requirements for starting a union and its benefits. Fellow bar- tender Turpeinen signed an authorization card the next evening, August 26. On August 28/29 (Friday night to Saturday morning), waiters Wilson, Ken- ' All dates are 1987 unless otherwise indicated nedy, and Read solicited the Respondent's employ- ees to sign authorization cards. Kennedy was terminated at the end of the shift about 4 a.m. on August 29. Read and Wilson were terminated on reporting for work on the night of August 29. The Respondent has not excepted to the judge's findings that these employees were un- lawfully discharged because of their union activi- ties. Griffiths and Turpeinen also were terminated on reporting to work the evening of August 29. Restaurant Manager Tony Fox had a conversa- tion with Kennedy on the evening of August 26, 3 days before the discharges. Kennedy testified that he told Fox about the organizing activities and Fox replied that the Respondent could not afford a union. That same evening assistant cook John Gomez was questioned by General Manager Rus- sell as to Gomez' feelings about unions and was told by Fox that a few waiters were going to be fired because of "the union thing." Approximately 1 week after the discharges, Fox asked waiter Peter Dunn how he felt about Griffiths' discharge and why Griffiths attempted to organize. Also, Fox added that the owner would rather cease oper- ations than allow in a union and if General Manag- er Russell found out that Dunn was connected with a union, Russell would seek Dunn's discharge. It is clear that the Respondent's knowledge of Griffiths' union activity is established. Restaurant Manager Fox's statements to employee Dunn after Griffiths' discharge, but before the filing of the charge in the instant case, amount to an admission that the Respondent was aware of Griffiths' union activities and discharged him because of those ac- tivities. Although there is no similar direct evidence of knowledge of Turpeinen's union activities, we find there is sufficient evidence to warrant the inference of such knowledge. Thus, the record shows that union activity was occurring on the Respondent's premises, both Griffiths and Turpeinen were in- volved in union activities on the premises, the Re- spondent was generally aware of such activities before it discharged any employees, the Respond- ent expressed plans to discharge some of the em- ployees because of union activities, and Griffiths and Turpeinen were discharged within hours after the discharges of the waiters which the judge found were motivated by union activities. The Re- spondent has not excepted to the judge's findings with regard to the discharges of the waiters. The confluence of these circumstances warrants the in- ference that the Respondent was aware of the union activities of both Griffiths and Turpeinen.2 2 See Abbey's Transportation Services, 284 NLRB 696 (1987), enfd. 837 F.2d 575 (2d Cir. 1988), and cases cited therein 296 NLRB No. 57 STRINGFELLOW'S OF NEW YORK The inference of knowledge is further supported by inadequacies of the Respondent's asserted rea- sons for the discharge of Griffiths and Turpeinen. The Respondent contends that it discharged these employees because the August 29 stocktaking by General Manager Neilson showed they had been embezzling funds . As the judge found, however, there are a number of problems with the Respond- ent's defense . The Respondent claimed it did the August 29 stocktaking because it suspected that employees Griffiths, Stringfellow, and Ishmael were involved in falsely reporting that bottles of brandy were missing. These employees worked at Disco 3-4. Yet Neilson's stocktaking extended to Disco 1-2 where Turpeinen (who had not reported missing bottles) worked. Further, although the Re- spondent claimed that the stocktaking showed a scam had been going on, the Respondent did not discharge Ishmael who had reported missing bot- tles and was not engaged in union activity, but in- stead discharged Turpeinen who had not reported missing bottles and was engaged in union activity. Finally, although we do not rely on the judge's comments concerning the possibility for error in such a stocktaking or the possibility that Neilson could have manipulated the figures, we find that the timing and circumstances of the stocktaking raise the inference that unlawful motivation was in- volved. The Respondent had received a stocktak- ing report by the London-based firm of D. B. Walker & Sons, on August 4, which showed defi- cits on all the Respondent's bars. Around August 14, Griffiths, Stringfellow, and Ishmael reported eight missing bottles of brandy. Yet it was not until the afternoon of August 29, 2 days after employee Kennedy had told Restaurant Manager Fox that there were rumors about union organizing activi- ties, less than a day after union solicitations had been made on the premise, a few hours after waiter Kennedy was unlawfully discharged , and the same day that waiters Read and Wilson were unlawfully discharged, that Neilson decided to do the stock- taking himself. Neilson assertedly conducted the stocktaking in the same manner as the firm of D. B. Walker & Sons, yet he completed in the period of morning to midafternoon on August 29, the task that would have taken two employees of D. B. Walker & Sons 1 full day to complete. With- out regard to questions concerning the accuracy of Neilson's stocktaking, we find that the timing of it as well as the hurried manner in which it was con- ducted support the inference that the Respondent was aware of Griffiths' and Turpeinen's union ac- tivities and sought to find a way to rid itself of them. 425 For all the above reasons, we agree with the judge's finding that the General Counsel made out a prima facie case that the Respondent violated Section 8(a)(3) and (1) by discharging Griffiths and Turpeinen and that the Respondent failed to show that it would have discharged these employees in the absence of their union activities. 2. The judge's recommended Order requires the Respondent to offer reinstatement to discriminatee Jon Read a second time . The Respondent excepts to this requirement on the ground that it made a valid offer of reinstatement to Read that he neither accepted nor rejected . We find merit in this excep- tion. The record indicates, and the judge found, that the Respondent made a valid offer of reinstate- ment to Read that Read acknowledged receiving on October 30, 1987. The record further shows that Read neither accepted nor rejected this offer. In such circumstances the Respondent is not re- quired to make a second offer of reinstatement. Ac- cordingly, we shall modify the judge's recommend- ed Order to delete Read's name from the reinstate- ment provision.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Stringfellow's of New York, Ltd., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete from paragraph 2(a) reference to em- ployee Jon Read. 2. Insert the following as paragraph 2(b) and re- number the succeeding paragraphs. "(b) Make Jon Read whole for any loss of earn- ings and other benefits he may have suffered be- cause of his discharge on August 29, 1987." 3. Substitute the attached notice for that of the administrative law judge. ' Maietta Contracting, 265 NLRB 1279 (1982). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or threaten to discharge our employees because they join or assist Hotel Employees and Restaurant Employees Union Local 100, of New York, New York and Vicinity, AFL- CIO or any other labor organization. WE WILL NOT threaten to close our facility if our employees select union representation. WE WILL NOT interrogate our employees about their union membership or activities. 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 offer reinstatement to Allen Kennedy, Paul Wilson, Karl Turpeinen, and Clive Griffiths to their former jobs and make them whole for any loss of earnings and other benefits they may have suffered because of our discharge of them on August 29, 1987, plus interest. WE WILL make Jon Read whole for any loss of earnings and other benefits he may have suffered because of our discharge of him on August 29, 1987, plus interest. WE WILL remove from our files any references to the discharge of Allen Kennedy , Jon Read, Paul Wilson, Karl Turpeinen, and Clive Griffiths and notify them in writing that this has been done and that evidence of the discharges will not be used as a basis for any future personnel actions against them. STRINGFELLOW'S OF NEW YORK, LTD. Richard L. DeSteno, Esq., for the General Counsel. Jeffrey E. Glen, Esq. (Kaplan, Russin, Vecchi & Kirk- wood), for the Respondent. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was heard by me on May 9 through 11, 1988, in New York, New York. The charge was filed on Septem- ber 24, 1987, and the complaint issued on October 29, 1987. At the hearing the complaint was amended. In sub- stance, the General Counsel alleged: 1. That the Union commenced an organizing campaign among Respondent's employees on August 25, 1987; 2. That on August 26, 1987, Respondent by Julian Russell interrogated an employee about his union sympa- thies. 3. That on August 29, 1987, Respondent discharged Allen Kennedy, Jon Read, Paul Wilson, Karl Turpeinen, and Clive Griffiths because these employees joined or supported the Union; 4. That on August 29, 1987, Respondent by Tony Fox threatened employees with discharge because of their ac- tivities on behalf of the Union; 5. That on September 5, 1987, Respondent by Tony Fox interrogated employees about their union activities and threatened closure of the facility. Based on the entire record in this case, including my observation of the demeanor of the witnesses and after consideration of the arguments of counsel , I make the following FINDINGS I. JURISDICTION It is conceded and I find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. It also is conceded that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. OPERATIVE FACTS Stringfellows of New York , Ltd. is one of three restaurant/discotheques owned by Peter Stringfellow. The other two are located in London. Below Peter Stringfellow in the heirarchy are Julian Russell , general manager of all three locations, John Nielson , manager of the New York location , and Tony Fox, the New York restaurant manager. The alleged discriminatees and Clive Griffiths and Karl Turpeinen, both bartenders and Allen Kennedy, Paul Wilson, and Jon Read. The latter three were wait- ers. It seems that although employees have made good earnings by way of tips, this has not precluded disgrun- tlement. A consultant to the Company, William Cressler, testified that in June 1987 he overheard waiters com- plaining about some aspect of the tip policy and saying that if they had a union they would be protected. Cressler testified that he told Peter Stringfellow that some of the waiters (unnamed) had complaints and that, "I wouldn't be surprised if they went and got a union to protect themselves." Cressler states that Stringfellow re- plied, "The first I hear mention union is out." On August 4, 1987, a stocktaking was done by an out- side London-based firm called D. B. Walker & Sons. This was, in essence, a full audit and inventory check done for the period from July 7 to August 4, 1987. The stocktaking consisted of, inter alia, a complete physical inventory of every bottle of alcoholic beverages in the house. As far as the four bars were concerned , the report showed a "deficit" of $ 1,498.25 on the bar known as Disco 1-2 and a "deficit" of $1,421 .26 on the bar known as Disco 3-4. STRINGFELLOW'S OF NEW YORK 427 The term "deficit" as used above does not mean that either bar lost money. Rather it refers to an accounting outcome which compares the actual cash register re- ceipts against the retail value of the drinks' sold less breakage and wastage.2 Deficits most often result from mistakes by a bartender in recording or failing to record a transaction. For exam- ple, if a drink is returned because the glass is dirty (and another drink is proffered in its place) and the bartender neglects to record the return as wastage , then the cash register receipts will be lower than the accounted for retail value of the drinks sold that night. Therefore, if the retail value of that one drink was $12, that $12 will be part of the "deficit." Deficits reported in the stocktaking can also result from a number of other factors including counting errors and clerical errors in making the report itself. At worst, stocktaking might possibly reveal embezzlement which Neilson described as a "fiddle."a In relation to the August 4 report, it is not disputed that on August 7, the Company's management held a meeting with the bartenders at which they were criti- cized. As Clive Griffiths acknowledged, Julian Russell told them that the stocktaking results were very bad. Griffiths testified that Russell told the bartenders "you've got to pull your socks up . . . if things keep get- ting back, I'll have to chop some heads." Karl Turpenein was the bartender at Disco 1-2. At Disco 3-4 the bar- tenders were Julian Stringfellow (Peter's nephew) and Clive Griffiths. The barback, or assistant, at Disco 3-4 was an employee named Ishmael Ishmael . There also was a cocktail bar and a service bar, each staffed by one person. Sometime in mid-August 1987, Griffiths, Julian String- fellow, and Ishmael together reported to John Neilson that a cabinet on their bar was broken and that eight bot- tles of brandy were missing . According to Neilson, he made a check of the records and determined that, at most, only one bottle was missing. Neilson asserts that he then became suspicious that these employees were en- gaging in a "fiddle." In this respect, Neilson asserts that such a scam could be based on the fact that where eight bottles, having a total retail price of $2338, are written off as missing when they are not in fact missing, this gives the bartender a $2388 reserve against which he can draw cash from the till or can give out free drinks to his friends. On or about August 20, Griffiths telephoned the Union and made an appointment for August 25. On August 25, he went to the Union's office and spoke to organizer Richard Hernandez. At the office, Griffiths signed a ' This is calculated by totaling the number of bottles of each brand used up, by the number of drinks per bottle , times the retail value of each drink. For example a liter of Scotch which might cost $9 will ordinarily yield 29 to 30 drinks for a total retail value of over $120. 2 Wastage can result from, among other things, a customer returning a drink because he ordered something else. a Ideally, if all recnrdkeeping is done correctly, the stocktaking report should show a small surplus. This is related to the fact that sodas and fruit juices which are sold as parts of mixed drinks and as items of their own, are given a zero value for accounting purposes . Thus a coke, sold for $6 will show up on the cash register receipts and that will be a $6 surplus. union authorization card and was given a group of blank cards to distribute to other employees . After he reported to work (about 7:30 p.m.), Griffiths spoke to various em- ployees, including Karl Turpeinen, during the evening of August 25/26 about joining the Union . Turpeinen signed a card the next evening. Allen Kennedy testified without contradiction that on the evening of August 26/27 he spoke to Terry Fox who had recently returned from vacation . He states that he told Fox that the waiters were upset about the policy re- garding tips on complimentary checks and that there were rumors about union organizing activities. Accord- ing to Kennedy, he told Fox that if he did not address the problems, a union would win. Fox responded that he could not have a union; that the Company could not afford a union. On the same evening (August 26/27), Julian Russell asked assistant cook John Gomez if he had ever been in a union and what he thought about unions . Gomez re- plied that there were good and bad points about unions, but that he was not interested in a union at this job. On the evening of August 28/29 (Friday night-Satur- day morning), union solicitation at the Company's prem- ises was carried on by employees Wilson , Kennedy and Read. At the end of the shift (about 4 a.m.), Kennedy was told by Neilson that he was fired. In this regard, Neilson claims that he saw Kennedy drunk after service on the previous night and that Kennedy was again in- toxicated on this night . This assertion, however, was cre- dibly denied by Kennedy who testified that he had noth- ing to drink on the night of August 28/29 and that on the previous night of August 27/28, he and employee Charles Bruno, after service, drank some leftover cham- pagne before going home. According to Neilson, on Saturday, August 29, he did a stocktaking of the bars and he did it in the same manner as would have been done by D. B . Walker & Sons.4 Neilson asserts that he found that Disco 1-2 had a deficit of $1805 and that Disco 3-4 had a deficit of $2706. According to Neilson, he concluded based on this audit that the five bartenders in Disco 1-2 and Disco 3-4 were involved in a scam and should be discharged immediate- ly. Accordingly, bartenders Griffiths and Terpeinen were fired when they reported to work . Julian Stringfellow, the owner's nephew, had his discharge overruled by a higher authority according to Neilson. The barbacks on Disco 1-2 and Disco 3-4 were not discharged. According to Gomez, on the afternoon of August 29, Tony Fox confided to him that the company was going to get rid of a few of the waiters because of the "union thing." That evening Jon Read called in to say that he would be a little late for work, but when he arrived at 7:40 p.m. (about 10 minutes late), he was told by Fox that he was discharged. Wilson also was discharged by Fox as soon as he reported to work on August 29. As * I note that normally D. B. Walker & Sons uses two people to do a 3- or 4-day audit of both the foods and beverages. The bar audits, according to Neilson, generally take these two people I day to complete Neilson asserts that he did essentially the same task by himself from the morning of August 29 to midafternoon on the same day 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fox did not testify, he did not deny the conversation re- ported by Gomez. Neilson claims that Read had been chronically late for work and that this was the reason for his discharge. As to Wilson, he asserts without corroboration that earlier in the week Fox had reported that Wilson had been loudly insubordinate to him in front of the kitchen staff. Peter Dunn (a waiter) testified that about a week after the discharges, Fox asked him what he thought about Clive Griffiths being fired and why Dunn thought Grif- fiths tried to start a union . Dunn also testified that Fox said that Peter Stringfellow would close down the club rather than allow a union and that if Julian Russell ever found out that Dunn was in any way connected with a union, he would ask for Dunn 's discharge. As noted above, Fox did not testify. On October 20, 1987 the company sent letters offering reinstatement to Read and Wilson. In Wilson's case the letter was not received because he had moved. At the hearing, the reinstatement offer was remade to Wilson who neither accepted nor rejected it. I do not know what, if anything has occurred since the hearing closed. III. DISCUSSION In my opinion the General Counsel had made out a strong prima facie case in support of his contention that the five employees involved herein were discriminatorily discharged because of their union activity. The evidence shows that union soliciting activity was carried out by Griffiths, Turpeinen, Kennedy, Wilson, and Read, that it took place on the Company's premises, and that it took place during the period from August 25 to August 28. Kennedy was discharged at the end of the shift on August 28/29 ostensibly for drunkenness, which I do not think has been proven by the Respondent. The four other employees were discharged when they report- ed to work on August 29. Therefore the timing of the discharges, in relation to the employees' union activity is, by itself, strongly indicative of discriminatory intent. Darbar Indian Restaurant, 288 NLRB 545 (1988). Additionally, there was direct and credible evidence of discriminatory intent . Thus, William Cressler, a manage- ment consultant, testified that in June 1987 Peter String- fellow told him that anyone who mentioned a union would be fired. While this conversation took place before any union activity commenced, it nevertheless shows that Stringfellow was willing to discharge em- ployees if they tried to obtain union representation. Also, employee John Gomez testified, without contradiction, that on the afternoon of August 29 Tony Fox told him that the Company was getting rid of a few waiters be- cause of the "union thing." Finally, employee Peter Dunn testified, without contradiction, that about 1 week after the discharges, Fox asked him what he thought of Griffiths' discharge and why he thought Griffiths had tried to start a union. The Respondent's defenses to the respective discharges are not convincing . As to Kennedy, I have already noted that I believe his denial of Nielson 's assertion that he was intoxicated on the evenings of August 27/28 and August 28/29. I also view as pretextual Neilson's contention that Read was discharged on account of chronic lateness. While Read conceded that he was 10 minutes late on August 29, he testified that he had earlier notified the Company that he would be a little late . Moreover, no evidence was presented by the Company to show that Read was in fact, chronically late. Similarly, Neilson's claim that Paul Wilson had been insubordinate to Tony Fox was insufficiently shown. In my opinion the Company's claim that bartenders Griffiths and Turpeinen were guilty of embezzlement was also not proven. Neilsen claims that he became sus- picious of a scam around August 14 when Griffiths, Julian Stringfellow, and Ishmael (the bar assistant) to- gether reported eight missing bottles from Disco 3-4 which, according to Neilsen were not , in fact, missing. According to Neilsen, he decided to do a stocktaking by himself (rather than having it done by the independent firm of D. B. Walker & Sons), on Saturday August 29. He testified that he thereupon found deficits on bars Disco 1-2 and Disco 3-4, thereby confirming his suspi- cions. He states that he then decided to discharge bar- tenders Turpeinen, Griffiths, and Stringfellow. (Neilson states that his decision to discharge Julian Stringfellow was countermanded in London because of the fact that he was the owner's nephew.) I have a number of problems with the Respondent's account. If Neilson suspected that the people at Disco 3- 4 were involved in a scam why bother to do a stock- check on all the bars including Disco 1-2 where no suspi- cions had arisen? If the stocktaking did in fact present Neilson with proof of a scam then why was Ishmael not also discharged. (After all, Ishmael was also involved in reporting the missing bottles, which according to Neil- son, was the foundation for the scam.) I am also convinced by the evidence in this case that a stocktaking report is subject to inadvertent error even when done by professionals trained to do this type of job. Thus, a relatively small miscount of a few bottles, or even a minor error in transcription, can easily result in the type of deficits that Neilson found on August 29. When one considers that Neilson (who is not an auditor), when engaged in the stocktaking on August 29, was doing the work of two people, the possibility of error rises. Also, as there is strong evidence that Neilson de- sired to discharge Griffiths and Turpeinen because of their union activity, I cannot discount the possibility that he could easily have fiddled with the figures to arrive at the deficits and the concommitant pretext to discharge the employees in question. Given the strong evidence showing that the five em- ployees (Griffiths, Turpeinen, Read , Wilson, and Kenne- dy) were discriminatorily discharged , as contrasted with the unconvincing evidence presented in defense , I am led to the conclusion that their discharges were in violation of Section 8(a)(1) and (3) of the Act. Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989; NLRB v. Transportation Man- agement Co., 462 U.S. 393 (1983). I also make the following conclusions. 1. The Respondent, in violation of Section 8(a)(1) of the Act, unlawfully interrogated employees Gomez and Dunn, respectively on August 26 and September 7, 1987. STRINGFELLOW'S OF NEW YORK 2. The Respondent in violation of Section 8(a)(1) of the Act unlawfully threatened to close its facility if the Union was selected by the employees and unlawfully threatened employees with discharge to discourage them from engaging in union activities. 3. All of the aforesaid unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged the five employees involved herein , I shall rec- ommend, except as otherwise provided, that it offer them immediate and full reinstatement to their former or sub- stantially equivalent positions of employment without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings and other benefits they may have suffered by reason of the discrim- ination against them . All backpay provided shall be com- puted with interest on a quarterly basis, in the manner described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest thereon computed in the manner and amount prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). See also Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, in accordance with Sterling Sugars, 261 NLRB 472 ( 1982), 1 shall recommend that Respondent expunge from its files any reference to the discharges and notify them in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against them. In the case of Jon Read, the record establishes that on or about October 20, 1987, the Respondent sent him a letter by certified mail offering him reinstatement. Read acknowledged receiving this letter on or about October 30, 1987. He states that in subsequent conversations with management, he neither accepted nor rejected the offer, intending to defer making a definite commitment at that time. In these circumstances, it is my opinion that the offer of reinstatement was valid on its face , was duly de- livered to and received by Read , and that it imposed no improper conditions for acceptance . I therefore conclude that backpay for Read should be tolled as of the date of the offer's receipt (Oct. 30, 1987). However, as Read did not expressly reject the offer, I shall recommend that an- other offer of reinstatement be made to him as part of the Order in this case. See Burnup & Sims, 256 NLRB 965, 978 (1981); Carruthers Ready Mix, 262 NLRB 739, 749 (1982). Regarding Paul Wilson, although the Company asserts that it mailed him a similar offer of reinstatement (via certified mail) on October 20, 1987, Wilson testified that he did not receive it because he had moved. It is not clear as to whether Wilson left a forwarding address or whether the Company had other means of knowing his whereabouts. At the hearing on May 9, 1988 , the Com- pany reoffered the reinstatement offer which was neither accepted nor rejected and I have no idea as to what if 429 any communications were had between Wilson and the company thereafter. In Wilson's case, I think it would be best to leave the question of backpay and reinstatement to compliance. In Carruthers Ready Mix, supra,and Burn up & Sims, supra, the Board held that where an unconditional offer is mailed to a discriminatee 's last known address, the offer, even if not received, will terminate backpay as of the date of the offer but will not preclude an order requiring a reinstatement remedy. In the present case I feel that the issues were not sufficiently litigated so as to deter- mine at this stage of the preceeding what backpay and/or reinstatement remedy would be appropriate for Wilson. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Stringfellows of New York Ltd., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because of their member- ship in and/or their support or activities on behalf of Hotel Employees and Restaurant Employees Union, Local 100, of New York and Vicinity, AFL-CIO or any other union. (b) Threatening to discharge employees or threatening to close the facility if employees select a union to repre- sent them. (c) Interrogating employees about their union activities and sympathies. (d) In any like or related manner interfering with, re- straining, or coercing employees in 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 Clive Griffiths, Allen Kennedy, Jon Read, Karl Turpeinen, and Paul Wilson immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions ,6 with- out prejudice to their seniority or other rights and privi- leges, and make them whole for any loss of earnings and other benefits they would have received but for the dis- crimination against them in the manner set forth in the remedy section of this decision. (b) Expunge from its files any references to the dis- charges of the aforesaid employees and notify them in writing that this has been done and that evidence of the discharges will not be used as a basis for any future per- sonnel actions against them. 5If 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. 6 In the case of Paul Wilson the Respondent would be entitled to show whether he has explicily rejected an offer of reinstatement previously made to him. Such a showing could affect his right to reinstatement. 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of the backpay due under the terms of this Order. (d) Post at its office copies of the attached notice marked ` :Appendix."7 Copies of the notice on forms pro- 7 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 vided by the Regional Director for Region 2, after being signed by Respondent's authorized representatives shall be posted for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, de- faced, or coverd by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."