Bankers Club, Inc.

National Labor Relations Board - Board DecisionsMay 29, 1975

218 N.L.R.B. 22 (N.L.R.B. 1975)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bankers Club, Inc. and Hotel, Motel, Restaurant, Hi- Rise Employees and Bartenders Union, Local 355, AFL-CIO. Case 12-CA-6292 May 29, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 30, 1974, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter,- the General Counsel and the Charging Party filed exceptions and supporting briefs. The Respondent filed a"cross-exception and a brief in answer to the exceptions of the General Counsel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Bankers Club, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER JENKINS, concurring and dissenting in part: My colleagues fmd that the Respondent discrimi- natorily discharged employee Angel Hernandez on March 1, 1974, because of his union activities. I agree . In such circumstances, the usual remedy is reinstatement with full backpay. However, my colleagues, in agreement with the Administrative Law Judge, deny reinstatement and order backpay only to March 31, because they conclude that it is "reasonable" to assume that Hernandez would have been terminated by that date anyway. I do not agree. In my view, the Respondent has not established when, if ever, after March 1, Hernandez would have been discharged for nondiscriminatory reasons. 1 The Administrative Law Judge relied on the Tomahawk and Coca-Cola cases. In Tomahawk, the unlawful discharge merely accelerated a firm decision, reached I month before by the employer 's board of directors, to replace the discriminatee for reasons wholly unrelated to the latter's union activities . Similarly, in Coca-Cola the credited testimony established that the discriminatory discharge was effected at a time when the employer was 218 NLRB No. 7 Compare Masco Products, Inc., 198 NLRB 424 (1972), with Tomahawk Boat Manufacturing Corpora- tion, 144 NLRB 1345 (1963); Coca-Cola Bottling Company of Sacramento, 146 NLRB 1045 (1964).1 Indeed, the Administrative Law Judge found only that the Respondent decided to replace Hernandez when "it was convenient," and, in specifically discrediting the testimony of Fidalgo and Riscigno, concluded that "no firm decision" had been reached to terminate Hernandez on March 1. All that remains is Riscigno's candid admission that Hernan- dez would have been terminated no later than March 4, because an employee-management meeting was scheduled for that date and Hernandez "would be there strictly to discuss bringing a union in." Obviously, this explanation of the Respondent's timetable for Hernandez' unlawful discharge offers us no clue to a schedule for effecting his nondiscrimi- natory discharge. The Administrative Law Judge conceded as much by concluding that a lawful termination would have occurred at some "indefin- ite" date (but definitely within 30 days). Thus, it is manifestly clear that the Respondent has not met its burden and, having found the unlawful reasons for the discharge, I do not believe it is for us to engage in conjecture by attempting to divine a time when for tardiness, or for some other valid reason, the Respondent would have lawfully terminated Hernan- dez. Masco, supra. And see The Lima Lumber Company, 176 NLRB 696, (1969), enfd., 437 F.2d 455 (C.A. 6, 1971). Accord: N. L. R.B. v. Remington Rand, Inc., 94 F.2d 862, 872 (C.A. 2), cert. denied 304 U.S. 576 (1938). My colleagues, in agreement with the Administra- tive Law Judge, also find that the Respondent's no- solicitation and no-distribution rule is overly broad with regard to solicitation, but find that its prohib- ition of the distribution of literature "in the customer areas of the restaurant at any time, whether [during] working or non-working time," is not unlawful. As it is established that a portion of the restaurant, the banquet room, is especially reserved before opening hours for the employees' lunch, I would fmd that the no-distribution rule banning distribution of literature in this area "at any time" is presumptively invalid. But more fundamental to my disagreement with my colleagues is the fact that they, and the Administra- tive Law Judge, overlook the blatantly discriminato- ry motivation behind the promulgation of the rule. Thus, as the Administrative Law Judge found, the rule was admittedly drafted as a direct response to already training the discrimmatee 's replacement . Clearly, this is not the situation here. A third case cited by the Administrative Law Judge , Superior Gas Service, Inc., 167 NLRB 155 (1967), is inapposite because there we found insufficient evidence to support a conclusion that the discharge occurred or was accelerated by unlawful considerations. BANKERS CLUB, INC. 23 information that an employee was soliciting for the Union. And during the I day in which the rule was in effect, Respondent's supervisor confronted employee Santalla, a well-known union adherent, read the rule to him, and further warned that there would be trouble if he violated it even though there is no evidence that Santalla engaged in any union solicita- tion or distribution at any time on the Respondent's premises. As I understand my colleagues' position in prior cases, even if the entire rule were valid such clear evidence of a discriminatory purpose would warrant a finding of unlawful interference. See, e.g., OIC Corporation, 212 NLRB 63 (1974). I would so find in this case. DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Administrative Law Judge: Upon a charge of unfair labor practices filed on March 7, 1974, by Hotel, Motel, Restaurant, Hi-Rise Employees and Bar- tenders Union, Local 355, AFL-CIO, herein called the Union, against Bankers Club, Inc., herein called Respon- dent or Company, the General Counsel of the National Labor Relations Board issued a complaint on May 23, 1974, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer, and a hearing was held before me at Coral Gables, Florida, on July 23, 1974,'at which all parties were represented. Subsequent to the hearing, Respondent, General Counsel, and the Union filed excellent briefs which have been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD Respondent is a Florida corporation engaged in the operation of a private membership club which furnishes food and beverage service to its members and guests from its location in Miami, Florida. Respondent opened for business on January 28, 1974. Since the start of its business operations to March 20, 1974,1 Respondent purchased goods valued in excess of $5,000 from suppliers within the State of Florida, who, in turn, purchased such goods in interstate commerce from outside the State of Florida. Based on the Respondent's sales in a representative period, Respondent's annual gross sales will exceed $500,000, and therefore meets the dollar-volume test of the 1 The date of the hearing in Case 12-RC-4555. 2 The facts with respect to Respondent's operations have been taken from the findings of the Regional Director in Case 12-RC-4555, dated May 7, 1974, of which I have taken official notice. 3 Although Riscigno testified that he did not see Hernandez leave the restaurant on March 1,'and Fidalgo said he did not know where he was at 2 p.m. that day and denied that he handed Hernandez his paycheck, the logic of the situation favors Hernandez. Respondent's training manual states that Board's standard for asserting jurisdiction over retail establishments such as private dinner clubs. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that the Board will assert jurisdiction in this case.2 H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Angel Hernandez 1. The evidence and some findings of fact On February 4, 1974, Angel Hernandez commenced work as a part-time waiter at Respondent's restaurant, which, as indicated earlier, opened for business on January 28, 1974. Having first spoken with a number of employees about their feelings in regard to union organization, Hernandez, a member of the Union for a number of years, telephoned the Union and made arrangements to meet with Mario Barrera, a representative of the Union, on Wednesday, February 27, 1974. When he met with Barrera, Hernandez was given blank union authorization cards, and on the following day, he obtained the signatures of 23 employees of Respondent at work. On March 1, 1974, Hernandez worked as usual and left the restaurant at approximately 2 p.m. He testified, and I credit his testimony, that General Manager Riscigno and Maitre d' Fidalgo were sitting together at a table when he left. Since it was payday, he approached them and they gave him his paycheck, wished him goodnight, and said they would see him on the following Monday .3 That evening, at approximately 7:15 p.m., Riscigno telephoned Hernandez at another .restaurant where he worked part time and terminated him. Respondent contends that it fired Hernandez because he was always late for work and had been warned about it, but the testimony about Hernandez' working habits is in conflict as is the testimony about what Riscigno told him when he fired him and about what was said when tiscigno and Hernandez met on two later occasions. According to Hernandez, after Riscigno told him during the March 1 telephone call that his services were no longer needed, he asked him why he was being dismissed And Riscigno told him it was because he had attempted to organize a union behind his back. Riscigno also stated, Hernandez testified, that he knew that Hernandez was working for the Union, that he had had a bad experience with a union in Chicago, and that he did not want to work under union pressure or have a union telling him what to do. employees' checks are distributed by their supervisor, and Fidalgo admitted that he usually distributes them. Riscigno also admitted that the present practice is for the immediate supervisor to distribute paychecks, and he testified that Fidalgo would "normally" deliver, Hernandez' check to him and "probably" did so on March 1. Moreover, if someone else, gave Hernandez his paycheck, Respondent failed to explain why such person was not identified and called to testify. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the same conversation, according to Hernandez, he told Riscigno that he had signed a majority of employees for the Union and had sent the cards to the Union, but he said Riscigno expressed disbelief. Hernandez testified that Riscigno telephoned him at 9 a.m., Saturday, and asked him to meet him at the restaurant and bring the union cards with him. When they met later that morning, Riscigno admittedly asked Hernan- dez to show him the cards, but Hernandez said he told him that he had sent them to the Union and was only interested in being rehired. According to Hernandez, Riscigno argued that he wanted to see if he had told the truth about having signed up a majority of employees for the Union and called him a liar when he repeated that he no longer had the cards. Riscigno once more accused him of organizing for the Union behind his back, Hernandez said, and stated that his termination stood. Before Hernandez left the restaurant arrangements were made for a meeting between Riscigno, Hernandez, and an official of the Union on the following Monday, March 4, 1974. According to Hernandez, during the meeting, Union Organizer Barrera asked Riscigno to recognize the Union as the employees' representative, but Riscigno declined. Hernandei testified that Barrera also asked Riscigno why he had discharged him, and that Riscigno replied that it was because Hernandez had brought a union into the establishment and caused the employees to lose confidence in Riscigno. Barrera asked for his ,reinstatement, Hernan- dez said, but Riscigno refused.4 It is conceded that at the March 4 meeting, Barrera handed Riscigno a copy of a letter, which Respondent had not yet received, demanding that Respondent recognize the Union as the employees' statutory representative. Barrera also testified, but Riscigno contradicted him, that when he accused Riscigno of discharging Hernandez because of his union activities, Riscigno replied that Hernandez had been fired because he misled 'the employees about the Union, and he (Riscigno)' would get affidavits from the employees stating that they did not know what they were doing when they signed union authorization cards. Respondent's general manager, James Riscigno, admit- ted that he spoke with Hernandez twice on the telephone and met with him once alone and again in Barrera's presence, but his version of what was said each time contradicts theirs in all important areas.' Riscigno testified that during Hernandez' first week of employment he told him that he was aware that he had been late for work every day and that he must report for work on time like all other employees. He said Hernandez replied that he had some problem in connection with driving his child to school. Riscigno said that later he told Maitre d' Fidalgo about his conversation with Hernandez and pressed him 'to have employees adhere to the rules. On Wednesday, February 27, 1974, according to Riscig- no, Fidalgo, after showing him Hernandez' timecard, which revealed that Hernandez had been reporting late every day, insisted that Hernandez be terminated because he was destroying the morale of others who had to report at 10 a.m. Riscigno said that he agreed that Hernandez should be terminated. He testified that he also told Fidalgo that since the restaurant had just opened and was in a difficult stage, he would like to postpone Hernandez' discharge until Friday, March 1. Hernandez worked Thursday and Friday and was late both days, but as found above, he was not discharged until Riscigno reached him Friday night at his other job. Riscigno testified that he intended to discharge Hernandez before he left the restaurant Friday, but he did not see him leave, and since he "blew it," he telephoned him at his other place of employment. He explained that he did not wait until Saturday or Monday to inform Hernandez about his dismissal because he did not want him at the restaurant on Monday because he thought he would be a disrupting influence if he were present and attended a meeting of employees that Riscigno had arranged for that day. Riscigno admitted that he had learned from an employee at approximately 5:30 p.m. on Friday that Hernandez had distributed union authorization cards to some employees at the restaurant. He said, however, that when he spoke with Hernandez on the telephone at 7:30 p.m., he professed ignorance of Hernandez' activities. His version of the conversation was that he immediately informed Hernandez that he was terminated for tardiness, and that Hernandez reacted by stating that he (Riscigno) would be sorry. Riscigno said'he asked him what he meant, and Hernandez stated that he had obtained union authorization cards from all the employees. Riscigno said he replied that it made no difference and that Hernandez could still consider himself terminated. Riscigno explained his Saturday meeting with Hernan- dez at the restaurant on the grounds that Hernandez requested him to meet him Monday at the restaurant. He did not want Hernandez present at the restaurant Monday because of the employee meeting, and he told Hernandez so, he said. Hernandez then asked to meet with him on Saturday, and promised to bring the union cards with him. Riscigno asked Hernandez if he would be sure to bring the cards, ' and when he assured him that he would, he agreed to meet only on that basis. Hernandez did not bring the union authorization cards to the restaurant on Saturday, March 2, as he had promised, but instead began to talk about union recogni- tion, which Riscigno wanted no part of, he said. Hernandez also wanted to discuss his job, but Riscigno said he was only interested in seeing the authorization cards and became very upset when Hernandez said he did not have them. Riscigno testified that he', called Hernandez a liar and accused him of not living up to his "bargain" to bring the card's for his inspection. He said he told Hernandez that he no longer wished to discuss anything with him, but when Hernandez asked him to meet with him and a union official on Monday, he agreed to do so on condition that the meeting not take place until after the Monday morning emplpyee meeting was over. On Monday afternoon, March 4, Barrera asked him to reinstate Hernandez, but Riscigno said he refused, telling Barrera that he had fired Hernandez because he was always late for work and had been amply warned about it. Maitre d' Frank Fidalgo, a supervisor who hired Hernandez, testified that he informed him when he 4 There is also a dispute about which side asked to have this meeting. BANKERS CLUB, INC. employed him that his starting time was 10 a.m. He said that because Hernand6z had been late every day of his employment he warned him about it twice, the second time adding that if he did not reform, "measures would be taken to straighten it out" According to Fidalgo , Hernandez mentioned having to. drive his daughter to school . Fidalgo testified further on direct examination that on Wednesday, February 26 , he asked Riscigno to fire Ierhandez immediately after he discovered that he had been late on the previous 2 days, but Riscigno explained that since Respondent did not have sufficient help, "We may have to hold off because we were in a bind for help . We had just opened -the club and were organizing, and we didh't have too much help, and he told me we may have to hold off letting him go." On cross -examination , Fidalgo added that when he spoke with Riscigno about discharging Hernan- dez, Riscigno told him that they "possibly should wait and let (Hernandez) go at the end of the week ." but he then added that Respondent was "defmitelyy going to let him go at the end of the week." Dennis Murawsky, now employed as a waiter but working as a bartender at the time, testified that, in the middle of February 1974; he overheard Fidalgo tell Hernandez that he must start coming to work on time. Hernandez testified that he had never been told what time to report to woik but understood that ' he was supposed to be at the restaurant some time between 10 and '10:30 a .m., in time to have the dining room ready for lunch customers . He denied that Riscigno or Fidalgo had ever cautioned him about being tardy. I find the testimony of Respondent's witnesses Riscigno, Fidalgo, and Murawsky more persuasive in this area. Since it is uncontradicted that all other waiters had to report at 10 a.m., it is difficult to believe that Hernandez would have been given special treatment . I find that Hernandez was late for work on every day of his employment and warned about it on three occasions by Respondent's representa- tives. 2. Analysis and additional findings and conclusions Although I have found that Hernandez had been warned more than once about his constant failure to report to work on time, I am unable to credit Respondent's contention that it fired him when it did only because of his tardiness. First of all, the timing of the discharge cuts against Respondent's argument. General Manager Riscigno first learned of Hernandez organizing Respondent's employees on March 1, 1974, at approximately 3:30 p.m. Not more than 2 hours later, he found it important enough to telephone Hernandez at his other place of employment to announce his termination. This hasty, odd behavior needed a believable explanation, but none was forthcoming, for Riscigno's testimony that it had been determined on the previous Wednesday to fire Hernandez at the close of business on Friday, but that he "blew it," meaning, I assume, forgot to do it, and let Hernandez slip out of the restaurant, was most unconvincing. If it was important from a business standpoint that Hernandez not work another day, he would not have forgotten it, and, in any event, Fidalgo, who hired Hernandez and who was bent on 25 getting rid of him quickly, according to his testimony, could have handled the matter. Moreover, Riscigno's and Fidalgo's testimony about who hands out paychecks on Friday and about where they were and why they did not see Hernandez leave the restaurant after work was lame, and I have credited Hernandez' testimony that they were together when he left , that one of them handed him his weekly paycheck , and that both indicated that they would see him again on the following Monday at work. Not only was Respondent 's failure to fire Hernandez before he left work on Friday and the speed and manner of its action in terminating him as soon as- it learned of his organizing activities an indication that no firm decision had been made on Wednesday to let him go on Friday, but Fidalgo's testimony on the point was somewhat contradic- tory and appeared to me to be designed to buttress Respondent's case . As indicated earlier, he at first stated that when he went to Riscigno seeking Hernandez' discharge, Riscigno told him that because Respondent did not have enough waiters it might "have to hold off letting him go." It, was only on cross-examination that Fidalgo amplified his testimony to include, first, "possibly" letting Hernandez go at the end of the week , and then a decision to "definitely" terminate him on Friday. Riscigno's explanation for why, having fumbled Hernan- dez' separation on Friday, he did not wait until Monday to talk with him clearly shows that he was motivated by more than Hernandez' inability to get to work on time. He testified that because he had arranged an employee meeting for the following Monday to hear whatever grievances or problems the employees had, he did not want Hernandez at the meeting because he thought he would be a disrupting influence. He added that if Hernandez were present at the meeting he assumed "that he would be there strictly to discuss bringing a union in. " I have found that Hernandez was not a candid witness in the area of tardiness , but I was equally unimpressed by Riscigno's testimony concerning his meetings and conver- sations with Hernandez and Barrera. Hernandez ' testimo- ny was more logical than Riscigno's, and he corroborated by Barrera in regard to one meeting. If Riscigno told Hernandez , when he telephoned him at 7:30 p.m. on March 1 , that he was fired because he had gone behind his back in organizing the employees , it would not be unnatural for Hernandez to respond t̀hat he had a majority of employees with him, as he testified. I do not consider Riscigno's admission abnormal , for he admitted he was quite upset in a subsequent meeting with Hernandez when he sought to inspect the union authorization cards and found that Hernandez did not have them . I believe that he was also disturbed when he discovered, just 2 hours before, that Hernandez was a union organizer and had not recovered enough to resist confronting Hernandez with the information when he spoke with him on the telephone. His 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct and statements then are in character with what he said to a group of employees on February, 28 or March 2.5 Employee Santalla testified credibly and without contra- diction that on February 28, 1974, Riscigno spoke with him and two other waiters and asked if union cards had been brought into the restaurant. When Santalla admitted that such was the case, Riscigno stated that he had had a bad experience with a union in Chicago, that he did not want a union in the place, and that if he had "to put everybody out" he would. I credit Hernandez' and Barrera's testimony in regard to their conversations with Riscigno, and I fmd, therefore, that Riscigno told Hernandez during their March 1 telephone conversation that he was being terminated because he was organizing for the Union, that he made essentially the same admission when he saw him on Saturday, and later told Barrera, when he met with him and Hernandez at the restaurant on March 4, that he had fired Hernandez because of his union activities. I find and conclude, therefore, that Respondent was motivated in substantial part by' Hernandez' union activities in discharging him when it did, even though there existed good reason to discharge him earlier. By such conduct, Respondent violated Section 8(a)(3) and (1) of the Act 6 Respondent contends that even if I fmd that Hernandez' discharge were unlawfully motivated, neither reinstatement nor backpay should be ordered because Hernandez would have been discharged no later than the morning of Monday, March 4, effective Friday, March 1, 1974 , I agree with Respondent in part, for I am convinced that prior to March 1, Respondent had decided to replace Hernandez, when it was convenient to do so, because of his poor attendance- record. I will, therefore, not order him reinstated. I do not agree, however, that Hernandez would have been discharged on March 4, 1974, at the latest, for I have found against Respondent's contention that a decision was made on Wednesday, February 27, to discharge him on Friday, March 1, but that it was not implemented only because Riscigno forgot to do it. The date of Hernandez' termination is, therefore, indefinite, but I think it is reasonable to conclude that Respondent would have effected it no later than 30 days after he was actually discharged. Backpay will, therefore, be ordered only for the period of March 1, 1974, to April 1, 1974.7 5 Riscigno testified that this incident occurred on March 2, but employee Santalla said it was on February 28, 1974. Legally, and as a matter of evidence bearing on Hernandez ' discharge and Riscigno 's statements to him, the difference is unimportant. 6 NL.RB. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956); N.L.RB. v. American Manufacturing Coinpany of Texas, 351 F.2d 74, 79 (C.A. 5, 1965). 7 See Tomahawk Boat Manufacturing Corporation, 144 NLRB 1345 (1963); Coco-Cola Bottling Company of Sacremento, 146 NLRB 1045, 1057 (1964); Superior Gas Service, Inc., 167 NLRB 155, 170 (1967). 8 I find no merit in Respondent's argument that since it posted a notice to employees on March 7, 1974, disavowing this conduct , no additional B. Independent Violation of Section 8(a)(1) of the Act 1. Interrogation and threats As found above, Riscigno interrogated employee Santal- la and others on or about March 1, 1974, about the distribution of union authorization cards, stated-that he opposed having a union among, the employees, and threatened to "put everybody out" if he had to. In the context, Respondent's interrogation was coercive. Respon- dent also twice stated to Hernandez that he was being terminated because he attempted to organize the employ- ees. I fmd that by its interrogation and threats, Respondent violated Section 8(a)(1) of the Act .8 2. Respondent's attempt to view the signed union authorization cards Having previously found that Hernandez ' version of his conversations with Riscigno after his discharge is more credible than - Riscigno's, I fmd further that Riscigno telephoned Hernandez at 9 a.m. Saturday , March 1, and asked him to meet him at the restaurant -and bring the union authorization cards with him. When Hernandez arrived at the restaurant, Riscigno asked for the cards and became angry when he learned that Hernandez did not have , them with him. Riscigno conceded that he wanted to see the cards and would not have agreed to meet with Hernandez on any other basis , but he 'testified that he had no intention of discovering the identity of the card signers but merely wanted to fmd "out what in the world they were and what he had ." I find that Respondent had no legitimate basis for insisting on viewing the Union's authorization cards and that, in the circumstances of this case, its attempt to obtain them constituted interference, restraint, and coercion in violation of Section 8(aXl) of the Act .9 3. The no-solicitation no-distribution rule On or about May 15, 1974, Respondent posted a rule, which remained posted for 1 day, providing that "No solicitation or distribution of literature will be permitted during working time within the restaurant," and "No solicitation or distribution of literature will be permitted in the customer areas of the restaurant at any time, whether working or non-working time." General Counsel concedes that the portion of the rule relating to the prohibition of solicitation or distribution of literature during working time within the restaurant is clearly valid, but she contends that the prohibition against solicitation or distribution of remedy is required. The conduct was not isolated and the notice does not cover other matters found herein to be a violation of the Act. In any case, even if Respondent had completely complied with a Board order rather than taking the voluntary actions it did in this case, it would not make the matter moot . N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567. 9 Respondent does not claim it was testing the Union's claim to be the majonty representative of the employees, preparatory to recognizing it as such if the claim was valid, when Riscigno asked to see the union authorization cards. Actually, the Union had not made such a claim at that time to Respondent 's knowledge . See Cramco, Inc, 162 NLRB 1442,`1450- 51(1967). BANKERS CLUB, INC. literature "in the customer areas of the restaurant at any time, whether working or non-working time" is invalid because it is overly broad.10 The record shows that employees presently report to work at 10:30 a.m. and take a break from 11 a.m. to 11:30 a.m. for lunch, which they eat in a banquet room, which is at one end of the main dining room but separate from it. The dining room opens for regular customer business at 12 noon, but the bar of the club opens at 11:30 a.m., and customers begin to arrive around that time. Employee Santalla testified without contradiction that persons eating in the banquet room cannot be observed by persons in the bar and that he has never seen a customer in the dining room area while employees are eating lunch in the banquet room. The Board has long approved employer rules prohibiting all solicitation, even during employees' nonworking time, in the selling areas of stores and other establishments, such as restaurants, on the theory that such activity might tend to drive away customers.11 In Republic Aviation Corp. v. N.LR.B., 324 U.S. 793, 803-804, fn. 10, the Supreme Court approved the Board's holding in Peyton Packing Company, 49 NLRB 828, 843 (1943), that although an employer may make reasonable rules covering conduct of employees on company time and may prohibit solicitation during working hours, rules which will be considered presumptively valid, "It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employee to promulgate and enforce a rule prohibiting union solicita- tion by an employee, outside of working, hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and there- fore discriminatory in the absence of evidence that special circumstances make the rule necessary to maintain order or discipline." In the cases of restaurants or other establishments where customers are present it is their presence and the likelihood of their being exposed to union activities 'that creates the "special circumstances" that justify infringing on employees' basic rights. I agree with General Counsel, however, that it is the likelihood of customers being present that legitimatized the 10 The rule was posted almost , 3 months after the union activity commenced , and it was drafted by counsel after Itiscigno advised him that one employee was soliciting for the Union on company time and asked that a more specific rule against "solicitations" be drafted. I do not believe, as General Counsel suggests , that the evidence will support's finding that in posting the rule Respondent was only attempting to put an end to union activities and was, therefore, discriminatorily motivated. 11 May Department Stores Co., d/b/a Famous-Barr Company, 59 NLRB 976, 981 (1944), enfd. as modified 154 F.2d 533 (C.A. 8), cert, denied 329 U.S. 725; J.L. Hudson Company, 67 NLRB 1403 (1946); Goldblatt Bros., Inc., 77 NLRB 1262 (1948); Marshall Field & Company, 98 NLRB 88 (1952); McDonald's Corporation d/b/a McDonalds ofPalolo, 205 NLRB 404 (1973). 12 In J L. Hudson Company, supra4 the Board, in approving the rule, noted that customers are "normally" present on the selling floors, and it found that it had not been intended, to cover union solicitation off the selling floor during nonworking time, In Goldblatt Bros., Inc., supra, in sustaining the validity of a rule covering solicitation in a department store's restaurant, the Board relied on the fact that employees off duty, union organizers, and customers were in close contact with each other. In Marshall 27 rule against solicitation in the cited cases, for if there are no customers present or likely to be present, the employer does not need such a sweeping rule to protect his business, and so it would be unreasonable to strike the balance in his favor when weighing employee rights under the Act against his right to run his 'business efficiently.12 Although the banquet room in a broad sense is a "customer" or "selling" area, because it is used by members for special parties, in a real sense it is not when no customers are likely to be present, which is the case between 11 and 11:30 a.m., when the employees eat their lunch before the restaurant opens for business. I can see no business or other legitimate reason for Respondent to prohibit solicitation in that area during the employees' lunch break, and accordingly I find that the rule is overly broad and unlawful. I also find that the rule is defective on another ground in that it appears to include in its prohibitions, and may reasonably so read by employees, any union activity on the employees' own time before or after working hours. There appears to be no justification, and none has been suggested, for forbidding employees from soliciting for the Union on their way to and from the timeclock when the restaurant is closed to the public.13 I fmd that the no- solicitation rule posted by Respondent on May 15, 1974, is unlawfully restrictive and that Respondent thereby violat- ed Section 8(a)(1) of the Act. Although I have found the no-solicitation part of the rule invalid, I believe that other considerations justify, that portion of the rule prohibiting the distribution of literature at any time in the customer areas of the restaurant.14 Employee conversations at lunch in the banquet room or on the way to and from the timeclock while the restaurant is closed will not disturb customers, but literature in the customer area not only might create a litter problem, but might also antagonize customers who fmd and read a discarded copy. Whatever short- or long-run ill effects on customer appetite or patronage might flow from a flyer advocating a boycott of lettuce or grapes, not to mention one attacking Respondent's labor policies - with or without recommendations - I cannot say, but Respondent should not have to bear the risk of any when there are other areas for distribution in the restaurant. I fmd that the no-distribution portion of the rule is not overly broad and illegal. Field & Company, supra, the Board devoted considerable thought to determining exactly what. areas should be considered "selling areas" and it did not permit an interdiction of solicitation in certain areas offthe selling floor even though customers sometimes frequented those areas . Of course, consistent with the requirement that the rule conform with legitimate business needs, if it prohibits activities in nonpublic areas of the establishment it is discriminatory. Montgomery Ward& Co., Inc., 145 NLRB 846 (1964). 13 Respondent may not have intended such a prohibition , but the well- settled rule in these cases is that any ambiguity in the rule works against its promulgator rather than against the employees to whom it applies . N.LRB. v. Harold Miller, d/b/a Miller Charles & Co., 341 F.2d 870, 874 (C.A. 2, 1965); Fashion Fair Inc., 163 NLRB 97, 99-100 (1967)_ It is not difficult to draft a rule which makes it clear that it applies only when the establishment is open . See, for example, The May Department Stores Company d/b/a Famous-Barr Company, 174 NLRB 770, 779 ( 1969). 14 See Stoddard-Quirk Manufacturing Ca., 138 NLRB 615, 619-621 (1962). 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also find, as the record shows, that on or about May 15, 1974, Maitre d' Fidalgo called employee Santalla aside and, after first stating that he especially wanted to speak to him since he was well known to be one of the principal "union men in the place," read him the no-solicitation and no-distribution rule which Respondent posted later, and then warned him that he would be in trouble if he violated it. There is no evidence that Santalla had engaged in union activity during working time, or, for that matter, at any time . As found earlier, Riscigno had previously interrogat- ed Saritalla about the presence of union authorization cards in the restaurant . By Fidalgo's singling out of Santalla for warning and special treatment, Respondent violated Section 8(a)(1) of the Act, because, in the circumstances of this case, its conduct had the natural tendency to inhibit Santalla in the exercise of his rights under Section 7 of the Act.15 IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Angel Hernandez' discharge on March 1, 1974, was accelerated because of his union activities but that Respondent intended to replace him no later than 30 days thereafter, I will not recommend that he be offered reinstatement, but only that he be made whole for any loss of earnings he may have suffered as a result of his discharge during the period commencing on March 1, 1974, and ending on March 31, 1974, by payment to him of a sum of money equal to what he normally would have earned during said period, less net earnings, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging Angel Hernandez for engaging in union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By coercively interrogating employees about their union activities and by threatening employees with reprisals for engaging in union activities, Respondent violated Section 8(a)(1) of the Act. 5. By posting and enforcing an invalid no-solicitation rule, Respondent violated Section 8(a)(1) of the Act. 6. By calling said rule to an employee's attention in a manner calculated to interfere with said employee's right of self-organization, Respondent' violated Section 8(a)(1) of the Act. 7. By seeking to discover the identity of union adherents by asking an employee to show it the Union's authorization cards, Respondent violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER 16 The Respondent, Bankers Club, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in union activities. (b) Threatening employees with reprisals because they engage in union activities. (c) Coercively interrogating employees about their union activities. (d) Promulgating or maintaining an unlawful no-solicita- tion rule. (e) Coercively calling employees' attention to said no- solicitation rule. (f) Asking any employee to show the Company any signed union authorization cards for the purpose of discovering who signed them. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Make Angel Hernandez whole for any loss of pay suffered by reason of the discrimination against him as provided above in the section entitled "The Remedy." (b) Rescind the no-solicitation portion of its rule against no-solicitation and no-distribution at any time in the customer area of the restaurant. (c) Preserve and, upon request, make available to the Board or its agents payroll and other records necessary to compute the backpay rights, as set forth in "The Remedy" section of this Decision. (d) Post at its Miami, Florida, restaurant, copies of the attached notice marked "Appendix." iz Copies of said notice, on forms provided by the Regional Director for Region 12, shall, after being dilly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable Steps shall be taken to insure 15 See Montgomery Ward & Co., 189 NLRB 80, 82 (1971). 16 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. 17 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." BANKERS CLUB, INC. that said notices are not altered , defaced or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten our employees with reprisals for engaging in union activities. WE WILL NOT ask anyone to show us signed union authorization cards in order to find out who signed them. WE WILL NOT post and/or call to our employees' attention any no-solicitation rule, in a manner calculat- 29 ed to interfere with the employees ' right of self- organization. WE WILL NOT discharge any employee or otherwise discriminate against him or her because of his or her membership in, or activities on behalf,of, Hotel, Motel, Restaurant, Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO, or any other labor organization, in order to try to discourage our employees from being or becoming members of or joining in activities on behalf of the above-named Union , or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named Union , or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE wu.L rescind and not enforce our unlawful no- solicitation rule. WE WILL make Angel Hernandez whole for any loss of earnings suffered by reason of the discrimination against him. All our employees are free to become , remain, or refrain from becoming or remaining members of Hotel , Motel, Restaurant , Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO, or any other labor organization. BANKERS CLUB, INC.