Black Angus of Lauderhill, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1974

213 N.L.R.B. 425 (N.L.R.B. 1974)

BLACK ANGUS OF LAUDERHILL, INC. 425
Black Angus of Lauderhill , Inc. and Hotel , Motel, Res-
taurant Employees & Bartenders Union, Local
Union No . 339, AFL-CIO. Cases 12-CA-5977 and
12-CA-6026
September 24, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On October 31, 1973, Administrative Law Judge
Almira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and a "Motion to
Reopen the Hearing and/or Record to Adduce Addi-
tional Evidence," with an accompanying memoran-
dum. The General Counsel filed an opposition to the
Respondent's motion. Thereafter, the Respondent
filed a reply to the General Counsel's opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board considered the record in light of the
exceptions, the motion, and the briefs and on March
27, issued an Order Reopening Record and Remand-
ing Proceeding to the Regional Director, in which the
Board ordered a further proceeding before Adminis-
trative Law Judge Stevenson for the purpose of taking
evidence relevant to the improper solicitation of au-
thorization cards within the meaning of N.L.R.B. v.
Savair Manufacturing Company, 414 U.S. 270, decided
December 17, 1973.
On May 31, 1974, the Administrative Law Judge
issued the attached Supplemental Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a supplemental brief.
The Board has considered the record and the at-
tached Decisions 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 her recommended Order,' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below and hereby orders that Respondent, Black An-
gus of Lauderhill, Inc., Lauderhill, Florida, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified:
Delete paragraph 1(c) and reletter the subsequent
paragraph accordingly.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges Respondent violated Sec-
tion 8(a)(5) of the Act.
' For the reasons stated by the majority in Steel-Fab, Inc., 212 NLRB No.
25 (1974), we do not adopt the Administrative Law Judge's finding that
Respondent violated Sec. 8(a)(5) of the Act, but rather enter a bargaining
order as a remedy for the serious unfair labor practices committed by Re-
spondent . We shall modify the Administrative Law Judge' s recommended
Order accordingly . Consistent with his dissent in Steel-Fab, Member Fanning
would find a violation of Sec . 8(a)(5), as did the Administrative Law Judge.
Member Kennedy accepts the credibility resolutions of the Administrative
Law Judge with respect to the misconduct of strikers Sharon Cook and Joan
Norton. In view of Cook's and Norton' s admissions with respect to the
offensive remarks to customers about the barbecue and salad , he would not
order their reinstatement . The severity of the Respondent 's unfair labor
practices does not excuse the misconduct of Cook and Norton.
2 The Administrative Law Judge' s inadvertent references to the "Director
of Region 7" are hereby corrected to read "Regional Director for Region 12."
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Coral Gables, Florida, August 21-24
and 28-31, 1973. The charge in Case 12-CA-5977 was filed
by the Union March 26, 1973, and served on the Respon-
dent March 27, 1973; the charge in Case 12-CA-6026 was
filed by the Union May 7, 1973, and served on the Respon-
dent May 8, 1973. The original complaint was issued May
24, 1973; an order consolidating cases and amending com-
plaint was issued June 28, 1973.
The issues are whether the Respondent (1) violated Sec-
tion 8(a)(1) of the National Labor Relations Act, as amend-
ed, by coercively interrogating, harassing, and threatening
employees; creating the impression of surveillance; and sol-
iciting grievances and impliedly promising to adjust them;
(2) violated Section 8(a)(5) by refusing to bargain with the
Union as the majority representative of the employees in an
appropriate unit; and (3) violated Section 8(a)(3) by deny-
ing reinstatement to four strikers . Additional issues are
whether the strike was an unfair labor practice strike, and
the appropriate remedy. For the reasons given below, I
conclude that the Respondent violated the Act as alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the brief filed by the Respondent and the supplement to oral
argument on majority status filed by the General Counsel,'
I make the following:
1 The General Counsel 's motion to correct the record is granted in the
absence of objection.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT 2
AND
CONCLUSIONS OF LAW
after the Union's first recognition demand , Draznin asked
her, "Do you have anything to do with this union?"
Vera Letter and waitress Joan Norton testified, similarly,
that the same day, Draznin said to them, "What's all this
about the union?" or words to that effect. According to
Letter, he then added, "I'm sorry, I shouldn't have said
that."
There is no testimony that Draznin interrogated employ-
ees March 20.
In the contest of this case, I conclude that Draznin's
interrogation of three employees March 17, 1973, was coer-
cive, and violated Section 8(a)(1) of the Act.
2. Paragraph 5(c) of the complaint alleges that Draznin
also harrassed and threatened employees March 17, 1973.
Vera Letter testified that after the conversation referred
to above, Draznin said that thereafter anyone who came in
I minute late or threw away a bad potato would be fired.
Vera Letter explained that customarily waitresses opened
baked potatoes before serving them to a customer and threw
away the bad ones.
I conclude that this statement, in context, constituted a
threat and harassment of employees, in violation of Section
8(a)(1).
3. Paragraphs 5(d)(1) -(4) allege that on March 18, 1973,
Draznin threatened employees, told an employee her work-
ing hours were changed because she had signed a union
authorization card , and created the impression that employ-
ees' union activities were under surveillance.
In support of these allegations , Lewis and waitress Karen
Triola testified similarly that on this date in the presence of
three or four employees, Head Hostess Dufresne, and two
to four customers, Draznin pointed to each of them and
yelled, "She's a union gal," and pointed to other employees
and yelled the same at them ; and that Draznin also said, in
the presence of Assistant Manager Dimitri Flamburis, "If
they want a union, or if you want a union, I'll give you a
good reason to get a union." Lewis and Vera Letter also
testified that that evening Draznin presented them and
other employees with a new work schedule, commenting,
"Here, read this and weep," and directed Vera Letter to post
it. According to Lewis, Draznin commented again, "I'll give
you a good reason to get a union," and subsequently added,
to her, "Well, how do you like that schedule? It sure isn't
good for you, is it, Jackie. . . ?" After saying he could not
understand why any one would want a union here, Lewis
testified, Draznin then told her, "Well, I know you are the
instigator." Vera Letter testified that she posted the new
schedule as directed, but received a message the following
day that it would not be put into effect. When she asked
Draznin why he had changed the schedule to her disadvan-
tage , he told her it was because he thought she had signed
a union card.
I conclude that by Draznin's statements recounted above,
the Respondent threatened and harassed employees for en-
gaging in protected concerted activities and created the im-
pression that their union activities were under surveillance,
as alleged, and that such conduct was violative of Section
8(a)(1).
4. Paragraph 5(f) alleges that on March 20, 1973, Draz-
nin again threatened employees. Joan Norton testified, in
support of this allegation, that on this date Draznin said in
1. JURISDICTION
The Respondent is a Florida corporation which operates
the retail restaurant at Lauderhill, Florida, here involved.
During the past 12 months, the Respondent received gross
revenues in excess of $500,000, and purchased and received
goods and supplies from outside Florida valued in excess of
$10,000. I conclude that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
11. LABOR ORGANIZATION
The record establishes , and I conclude , that the Union is
a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Union organizational campaign among the employ-
ees of the Respondent 's Lauderhill restaurant began March
12, 1973, when Jacqueline (Jackie) Lewis , a waitress , called
at the office of Dennie Meehan , secretary-treasurer and
business agent of the Union, and obtained union authoriza-
tion cards . Lewis signed a card and obtained the signatures
of waitresses Vera and Marilyn (Mimi) Letter. The organiz-
ing campaign , by these three and others, extended over most
of the subsequent 3 weeks . The Union presented demands
for recognition March 16, 1973, and on subsequent occa-
sions , which demands the Respondent refused . It was dur-
ing the period March 16 to March 23, when the Respondent
was struck , that the 8 (a)(1) violations are alleged to have
occurred . The Union requested reinstatement of all strikers
April 30, 1973. Vera Letter, Mimi Letter, Sharon Cook, and
Joan Norton were refused reinstatement because of alleged
misconduct on the picket line.
B. The 8(a)(1) Violations
The facts regarding the conduct of Manager Jerome
Draznin, an admitted supervisor and agent of the Respon-
dent, are based on the uncontradicted and credited testimo-
ny of the employees indicated. Draznin did not testify.
1. Paragraph 5(a) of the complaint alleges that on March
17 and 20, 1973, Draznin unlawfully interrogated employ-
ees.
In support of this allegation , waitress-barmaid Mary Ann
Moran testified that on Saturday, March 17, 1973, the day
2 In resolving credibility issues, I have in certain instances credited some
and discredited other testimony of the same witnesses. It has been said that
nothing is more common than that . N.L.R.B. v. Universal Camera Corp., 179
F.2d 749, 754 (C.A. 2, 1950). I do not rely on police reports identified by
Sergeant Brown and Officer Johnston for any factual findings , as they did
not witness the events referred to therein.
BLACK ANGUS OF LAUDERHILL, INC. 427
her presence and in the presence of other employees,
"Things are going to be an awful lot worse in here if the
union comes in here ." This statement was a clear threat, and
I conclude it violated Section 8(a)(1).
5. Although Vice President and General Manager Peter
Allieri , an admitted supervisor and agent of the Respon-
dent , took the witness stand , he did not testify regarding the
alleged Section 8(a)(1) violations attributed to him.
Paragraph 5(b) of the complaint alleges that Allieri un-
lawfully interrogated an employee March 17 , 1973. In sup-
port thereof, Mimi Letter credibly testified , without
contradiction , that on this date she overheard Allieri ask
employee MacDonald , "How long have you worked here?"
"Do you like your job?" and "Did you sign a card?" When
MacDonald responded , "What card?" Allieri said, "Oh,
never mind."
I conclude that Allieri 's statement to MacDonald in
Letter's presence constituted coercive interrogation and an
implied threat violative of Section 8(a)(1).
6. Paragraph 5(e) alleges that Allieri threatened employ-
ees March 18, 1973 . Jackie Lewis credibly testified , without
dispute , that after she called another of the Respondent's
restaurants on the telephone to extend her condolences be-
cause a fire had damaged the building , Allieri asked her, in
the presence of Supervisor and Manager Paul Gold, on
Sunday , March 18 , 1973, "Are you going to call here Tues-
day and give condolences when we close the door?" I find,
in context , that this statement was an implied threat to close
the restaurant because of the employees ' union activities,
and conclude it violated Section 8 (a)(1).
7. Paragraph 5(g) alleges that Allieri held a meeting with
employees March 21 , 1973, in which employees were asked
to reveal their grievances and impliedly promised their
grievances would be adjusted . Supervisor and Manager
Paul Gold , an admitted agent and supervisor , Head Hostess
Ella Dufresne , and waitresses Jackie Lewis , Vera Letter,
Mimi Letter, and Joan Norton testified regarding this meet-
ing. I rely on the testimony of Gold as to facts regarding the
events leading up to, and the Respondent's reason for, call-
ing this meeting , as it is uncontradicted and because, as
explained below , it wittingly or unwittingly contains ele-
ments of an admission against the Respondent 's interests in
these proceedings. As for what actually took place at the
meeting, however , I rely on the testimony of the waitresses
hereinbefore named and Dufresne because I find Jackie
Lewis and Vera Letter generally credible based on their
demeanor and accounts of the other three were consistent
with theirs . To the extent that Gold 's account of what took
place at the meeting differed from theirs , it lacked corrobo-
ration and I do not credit it.
For some time prior to the events herein Gold exercised
supervision over several of the Respondent 's restaurants
including . the one at Lauderhill . On March 17 , 1973, the day
after the Union 's initial demand for recognition, Gold was
assigned to the Lauderhill store exclusively , to see whether
complaints he had received about Manager Draznin were
true , and to see if he could appease the waitresses who had
become interested in union activity . He and Alfieri decided
to hold meetings with employees March 20 to 22 for the
stated purpose of alleviating employee complaints. The
March 21, 1973 , meeting was held on the same day Gold
delivered to the Union a letter signed by Alfieri declining
the Union's March 16 request for recognition . It was attend-
ed by the above -named witnesses , as well as other wait-
resses , cooks , dishwashers , and bartenders-10 to 12 in all.
Allieri opened the meeting by telling the employees he had
received complaints and "wanted to make things right." He
asked those present to feel free to state any complaints they
had, assuring them that what they said would go no further.
Although one of the employees mentioned the Union, Alli-
eri replied he was not there to talk about the Union. As
complaints were aired , Gold took notes , and Allieri advised
employees that he and Gold "were going to talk it over and
try and have these things corrected ." Employees were asked
individually to voice their complaints . Those voiced includ-
ed the docking of waitresses ' pay for meals , a recent increase
in insurance premiums , work breaks , a new no-smoking
rule, Draznin's constant hollering and yelling at and harass-
ing employees , timecards , the need for a new adding ma-
chine, the shortage of table silver , and an empty fire extin-
guisher.
Although restaurant managers had previously held meet-
ings with employees upon occasion , the purpose of those
prior meetings had been to discuss such matters as changes
in portions , prices , or rules . Employees were at times asked
at the end of such meetings if they wished to voice any
complaints not already covered ; there is no evidence, how-
ever , that the manager took notes or expressed an intent to
adjust any of the complaints , which were mostly about the
quality of the food being served to the customers.
Several witnesses testified that conditions improved after
the March 21 meeting.
According to Gold , Draznin was transferred subsequent-
ly during the strike.
The above evidence establishes that this meeting was held
for the purpose of inducing employees to abandon interest
in the Union , and thus constituted improper interference
with the employees ' right to self-organization . No business
justification is advanced for the meeting , and it did not
conform with past practices . Thus, prior meetings were
called by the restaurant manager for the purpose of convey-
ing management decisions to employees-invitations to
voice complaints were merely thrown out as an afterthought
and as far as the record shows , there were no promises to
adjust, and there was no adjustment, of any complaints. The
Respondent 's past practice in this respect is in sharp con-
trast with its conduct after the Union began to press for
recognition . The very day after the initial union demand,
Gold was put in charge of the restaurant and told to "see
if he could appease the waitresses" who had become inter-
ested in unionization . The meeting of March 21 was the first
one ever held by Vice President and General Manager Alli-
eri and Supervisor and Manager Gold and was held in the
furtherance of the same objective, despite Allieri's comment
to the contrary. Moreover , this was the first meeting ever
called solely to solicit complaints , and it was also unique in
being called for the avowed purpose of alleviating such
complaints-a purpose clearly conveyed to the employees
by the careful note -taking and the remarks to the effect
that management wished to make things right and would
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see what could be done to straighten out the problems
voiced.
Accordingly, I conclude that Allieri and Gold held the
March 21 meeting with 10 to 12 employees to solicit, and
impliedly promised to adjust, employee grievances for the
purpose of discouraging employees from designating a
union representative, thereby interfering with , restraining,
and coercing employees in the exercise of their Section 7
rights, in violation of Section 8(a)(1).3
C. The 8(a)(5) Violation
1. Appropriate unit
The General Counsel contends that the appropriate unit
consists of all full-time and regular part-time kitchen , dining
room, and barroom employees employed at the
Respondent's Lauderhill restaurant, excluding office cleri-
cal employees, musicians, guards, and supervisors. The par-
ties agree that Head Hostess Dufresne should be excluded
as supervisor. However, the Respondent contends the musi-
cians should be included in the unit; that Robert Steam,
head bartender, whom the General Counsel would include,
should be excluded as a supervisor; and that Beatrice Brin-
del, bookkeeper, whom the General Counsel would exclude,
should be included as a dual-purpose employee.
Musicians . The evidence regarding musicians is substan-
tially undisputed. In March 1973, there were three musi-
cians who have been employed on a regular part-time basis
in the restaurant lounge since late 1972, when they were
hired by the restaurant manager . They work Friday and
Saturday nights from 8:30 to 12:30, their hours being estab-
lished by the Respondent's corporate director of operations.
They are on the payroll, are covered by workmen's and
unemployment compensation, and their salary is paid by
the night.
Business Agent Meehan testified that the wage scale of
musicians is different from that of other restaurant employ-
ees and bartenders, and that the Union "would not know
how to negotiate a wage scale for musicians," who "do have
a musician's union ." Their hours are different , he testified,
as they do not work straight full time, but work half an hour
or 20 minutes at a time.
Musicians are not docked for meals whether they eat
them or not, as waitresses are, but are charged in the same
manner as customers for any food they order. Musicians
never attend employee meetings conducted by the restau-
rant manager . Musicians are also permitted to drink on
duty, their drinks sometimes being paid for by customers.
The musicians have a "spokesman" and decide as a group
on their playing. However, Gold has told them not to play
so loud and not to play so much country music . He also
discharged a musician for dressing inappropriately at work.
Also employed in the lounge, where the musicians work,
are four waitresses, two busboys, three bartenders, and a
hostess. Two of the musicians refused to cross the picketline
3 Texaco, Inc. v. N.L.R.B ., 436 F .2d 520 (C.A. 7, 1971); Ring Metals Com-
pany, 198 NLRB 1020; Reliance Electric Company, Madison Plant Mechanical
Drives Division, 191 NLRB 44 ( 1971), enfd . 457 F.2d 503 (C.A. 6, 1972);
Ratheon Company, 188 NLRB 311 (1971).
the first night, but all have worked throughout the strike
since then. None signed a union authorization card.
The above demonstrates that there are considerations on
both sides of this issue . Thus, the factors favoring the-
Respondent's contention that the musicians should be in-
cluded in the unit are their regular part-time status; that
they are on the payroll, and are covered by workmen's and
unemployment compensation, as included employees are;
and that they share the same supervision, at least to some
extent, and are located in the same area-the lounge-with
some of the included employees. On the whole, however, I
find that the factors mitigating against their inclusion in the
unit are more impressive. Thus, the Union seeks their exclu-
sion, and the evidence suggests that their inclusion would be
a departure from area practice. Moreover, their skills are
totally different from those of any employee in the unit, as
is their employment and performance as a group rather than
as individuals. In addition, they are paid by the night in-
stead of by the week, and they are treated differently from
unit employees in such matters as attendance at manage-
ment meetings with employees, working schedules, meal
charges, and drinking-on-duty privileges. On the facts in
this case, therefore, I conclude that the functions and inter-
ests of the musicians are not sufficiently integrated with
those of the employees in the unit to justify their inclusion,
and I therefore exclude them.
Head Bartender Robert Stearn. Steam signed a union au-
thorization card March 14, 1973. He went out on strike, and
joined in the picketing.
Three full-time employees work behind the bar: Steam,
the most senior and most experienced of these three, who
is paid $125 for a 6-day week; and former waitresses Marga-
rete Aspen, at $100 a week, and Mary Ann Moran, at $105
a week. All receive tips, and are not charged for meals.
Steam bears the responsibility for seeing that the work is
done by the other bartenders, tells them when they do
wrong, and schedules their work. Gold also testified that
Stearn has authority to hire and fire. Thus, Gold said,
Steam had told him, about 3 years ago, that he would like
to hire one Robert O'Connor. Gold told him "fine." Gold
also testified that Stearn fired one Robert Howard about 2
years ago for not cleaning up, but Gold did not know wheth-
er the then assistant manager had told Steam to fire the
man.
Although the two other bartenders, Aspen and Moran,
testified as to other issues, they were not questioned about
the status of Steam. Steam did not testify.
On the basis of Gold's undisputed testimony, I find that
Steam has authority at least effectively to recommend hir-
ing, and that he responsibly directs the work of bartenders.
I conclude, therefore , that Stearn is a supervisor as defined
in Section 2(11) of the Act, and I exclude him from the unit.
Bookkeeper Beatrice Brindel. Brindel occupies a desk in
the restaurant manager's office. The door of the office,
whet Brindel spends most of her time, is kept locked for
secullty reasons. Her hours were 9 a.m. to 5 or 6 p.m.
originally, but were changed to 12 noon to 8 p.m. at her own
request. She worked 12 to 8 during March 1973. She is paid
a salary, does not participate in the distribution of tips, and
is not docked for meals she does not eat.
Brindel testified that her primary duty is to write the
BLACK ANGUS OF LAUDERHILL, INC. 429
payroll. The manager figures the employees' time from
timecards which he then turns over to Brindel . Brindel does
some checking with employees regarding the timecards, as
to such matters as tips, when the manager is busy. She
figures the employees' pay on Mondays and writes the
checks for Gold's signature on Tuesdays. Brindel also
makes up the daily sales reports . When on her original
schedule , she read the cash registers for a minimum of 1
hour a day, checking the day cashier in and out and check-
ing the night cashier in and putting new tapes on the regis-
ters . On her 12-to-8 schedule , information necessary for the
report is brought to her desk by the cashiers and the barten-
der, or by the manager.
Brindel is requested to perform additional duties when
there is no manager present to perform them . In these cir-
cumstances , she takes the empty bottle count ; she also keeps
the beverage inventory records . She has taken storeroom
inventory, and, in the absence of the manager and the head
bartender, received shipments of beverages , and unlocked
the door for food shipments so the preparation man can
check in the food.
Brindel has on occasion relieved cashiers ; she has also
waited on customers in the lounge, and she and Gold have
bussed tables , when the restaurant was swamped at lunch-
time.
The facts set forth above show that Brindel's duties ba-
sically are those of bookkeeper, as is indeed her title. The
additional duties she performs are those of surrogate man-
ager or supervisor, rather than those of any of the employees
in the unit. Accordingly, I conclude that Brindel does not
share common interests or functions with employees in the
unit , and exclude her.4
I find that the following unit is appropriate for the pur-
poses of collective bargaining within the meaning of Section
9 of the Act.
All full-time and regular part-time kitchen, dining
room, and barroom employees employed by Black An-
gus of Lauderhill, Inc., at 1599 North State Road #7,
Lauderhill, Florida, excluding all office clerical em-
ployees , bookkeeper , musicians, head hostess, head
bartender, guards, and all other supervisors as defined
in the Act.
2. Bargaining demands and refusals
After several meetings with Jackie Lewis and other em-
ployees of the Respondent , and receiving a number of
signed authorization cards from them, Union Secretary-
Treasurer Meehan and President Paul Mahoney on Friday,
March 16, 1973 , called on Manager Draznin, at the
Respondent 's restaurant , and hand delivered to him a letter
claiming the Union to represent a majority of the restaurant
employees and requesting a meeting to discuss a bargaining
agreement . Draznin disputed their claim of majority status,
and then said he had no authority to recognize the Union
and asked them to give him until Tuesday.
The following Wednesday, Gold delivered to Meehan a
4 John Hammonds and Roy Winegardner, Partners, d/b/a 77 Operating
Company, d/b/a Holiday Inn Restaurant, 160 NLRB 927, fn . 8 (1966).
letter dated March 20, 1973, over the signature of Vice
President and General Manager Allieri. The letter denied
the Union's request for recognition on the ground that "we
do not know the circumstances under which you have
gained our employee support , the conditions surrounding
any such support and the extend [sic] of such support" ;
suggested that the Union file a petition with the Board by
March 28, 1973 , and stated, "Should you fail to do so, we
will file a petition on behalf of our employees so that their
interests will be fully protected" ; and questioned in general
terms the appropriateness of the unit requested.
Meehan, Vera Letter, and Jackie Lewis thereupon con-
sulted their attorney, who dictated a letter which Meehan
hand delivered to Draznin and Allieri March 21, 1973. In
this letter, the Union described the unit in which it claimed
to represent a majority as "all regular kitchen , dining room
and bar employees" of the Lauderhill restaurant , excluding
office clericals and supervisors ; suggested a check of its
authorization cards by a neutral person; and cautioned
against the commission of unfair labor practices. At the
time he delivered this letter, Meehan requested Allieri "to
reconsider," but Allieri merely responded, "No comment."
Two days later, on March 23, Meehan visited the restau-
rant again at about 6 p.m., this time with another union
business agent. They repeated their request that Allieri "re-
consider ," but Allieri merely repeated his former response,
"No comment." At 6:30, Meehan advised the dining room
employees that the Respondent "would not consider the
union as a bargaining agent." Shortly thereafter, about 30
employees walked out, and picket lines were established.
Thereafter , Meehan received from Respondent's attorney
a letter dated March 26, declining the Union 's offer of a
neutral card check, as
... we do not believe that such an examination of such
cards would reveal the authenticity of the signatures
thereon or the conditions under which the cards were
obtained-such as promises , threats, misrepresenta-
tions, improper solicitation, solicitation by improper
persons, or numerous other conditions which would
possibly surround and affect the validity of such cards.
The letter offered to discuss a private election, or a card
check, which would provide for examination of the condi-
tions and circumstances referred to. The letter also denied
committing any unfair labor practices and requested infor-
mation as to any such alleged conduct by its supervisors.
On March 27, 1973, the union attorney addressed a letter
to the Respondent's attorney referring to a telephone con-
versation between the two that day. The Union asserted that
the object of the walkout was to protest the Respondent's
failure to recognize the Union, and that it had offered to
allow representatives of the Company to meet with the strik-
ers en masse to satisfy themselves of that fact ; that the
Respondent had retracted its prior agreement to a third-
party check; and that evidence of 8(a)(1) conduct would be
submitted direct to the NLRB. The letter also expressed the
Union's continuing willingness to follow any procedure
which would satisfy the Respondent as to its majority status.
The last letter in the series of communications was ad-
dressed to the Union's attorney by the Respondent's attor-
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ney March 29, 1973. It asserted that in view of the Union's
expressed intent to file a failure-to-bargain charge against
the Respondent, the NLRB would resolve the majority sta-
tus issues; and it again requested the Union's evidence of
alleged 8(a)(1) conduct.
3. Majority status
The General Counsel concedes that the Union did not
represent a majority before March 22 but insists, contrary
to the Respondent, that the Union did represent a majority
on that date, on March 23, and thereafter.
The record shows that on March 22, there were 65 em-
ployees whose inclusion in the unit is not disputed.5 This
figure excludes employees stipulated to be supervisors, the
head bartender, found to be a supervisor, the bookkeeper,
and the musicians excluded above.
The parties are in dispute over whether two unit employ-
ees were employed on March 22. The Respondent' s conten-
tion that part-time cashier Faye Acquafredda quit March 21
is not supported by probative evidence. Acquafredda' s testi-
mony that she did not quit is supported, and I credit her.
With regard to waitress Brenda Seeley, the Respondent pre-
sented evidence that she did not come to work after Tues-
day, March 20. The Respondent contends that Seeley was
automatically terminated after Tuesday, March 20, on
Allieri's testimony that under company policy failure to
show for scheduled work resulted in automatic termination.
However, Allieri went on to say that under the policy, it was
within the manager's discretion to reemploy the no-show if
there was a reason for the failure to show. Seeley's own
employment history reveals that she was off Wednesday
and Thursday during the week ending Sunday, February 25,
and was off Tuesday and Wednesday during the weeks
ending March 4 and March 11. However, during the week
ending Sunday, March 18, she was off Tuesday, Wednes-
day, and Thursday, and yet she was allowed to return to
work for the first two days of the week ending Sunday,
March 25. Moreover, Seeley thereafter frequently took part
in picketing the restaurant, beginning on Sunday, March 25,
and she returned to work after the strike. I therefore find
that Seeley was not terminated, automatically or otherwise,
but remained in the Respondent's employ throughout the
period in question.
With the addition of these two disputed employees, I find
that the unit complement on March 22 was 67 employees.
I also find that on March 22, the Union was in possession
of 35 valid cards designating the Union as the employees'
bargaining agent.6
5 [The list of employees which originally appeared there is attached as
Appendix B.]
[The list of cardsigners which originally appeared here is attached as
Appendix C.] I find that the validity of these cards was not affected by
testimony as to some, that they were signed on dates (on or before March
22) other than those on the face of such cards; or that some cards were
handed to the solicitor by an employee who verified at the time that it was
his or her card which had been signed outside the solicitor's presence. I have
also counted the three cards which were solicited by Mary Ann Moran even
though, as I find , she told the three signers at the time that "everybody was
joining the Union." There is no evidence that Moran intended a deliberate
misrepresentation by the statement , which could well be construed as mean-
ing merely that this was the time to join , during the campaign . Marie Phillips,
Regarding the unit complement on the next day, March
23, when the strike began , the Respondent contends that
waitresses Wanda Faust and Virginia Molinari , both card
signers , were no longer employed . The record indicates that
these two employees did not come to work that day, al-
though apparently scheduled to do so . There is no evidence,
however , that either of them quit , other than Allieri' s testi-
mony referred to. above regarding company policy of auto-
matic termination for failure to show. I find, however, that
the policy as stated was neither strictly worded nor strictly
enforced at this store , In any event, there is no evidence that
these employees did not have permission to be absent.
Moreover , Faust's and Molinar 's subsequent participation
in the picketing is consistent with an assumption on their
part that they were still employees of the Respondent.
As the Union obtained one more valid card on March 23,
from dishwasher Barry June, it possessed cards from 36 of
the 67 unit employees on March 23.
Accordingly, I find that on March 22 and March 23 the
Union represented a majority of the Respondent's employ-
ees in the appropriate unit , and that the Respondent 's refus-
al on and after those dates of the Union's demands for
recognition and bargaining violated Section 8(a)(5) of the
Act.
D. The Strike
It is clear from the credited testimony of Jackie Lewis,
who spearheaded the union movement, that Draznin pro-
vided the initial impetus therefor by his conduct toward
employees. Meehan testified that as early as March 16,
Lewis reported to him that the employees were disgusted
with Draznin's behavior and were ready to strike. He ad-
vised Lewis, he said, to hold off to give the Respondent an
opportunity to recognize the Union, and she made it clear
that the employees wanted to strike if the Company refused
to do so. According to the mutually consistent and credited
testimony of Lewis and Vera Letter, who became picket
captains after the strike started, and Mimi Letter as well, the
threats and harrassment of employees by Draznin and Alli-
eri, and the March 21 meeting when better times were
prophesied, were all reported to Meehan, Lewis telling him
employees had said "they just couldn't take it any more,"
and that she had told the employees "to hold on, that we
would do everything we could." Thereafter, upon being
informed by Meehan, on March 23, that the Respondent
had refused to reconsider its refusal to recognize the Union,
at which time , as set forth above, the Union represented a
clear majority of the employees in the appropriate unit, the
employees struck the Respondent.
The above evidence establishes that employee strike sen-
timent had been building up since before the advent of the
union campaign , was fed by the Respondent's unlawful
conduct during the campaign, and was prevented from
being put into effect only by the hope of redress through the
Inc., 178 NLRB 340 (1969), affd . 443 F.2d 667 (C.A.D.C., 1970). I have not
counted the card purported to have been signed by Eddie Barnes, as it was
not adequately verified . Contrary to the Respondent, I find that Margarete
Aspen did not unequivocally revoke her authorization . Moore's Seafood Prod-
ucts, Inc., 152 NLRB 683 (1965), enfd. 369 F.2d 488 (C.A. 7, 1966); Quality
Markets, Inc., 160 NLRB 44 (1966), affd. 387 F.2d 20 (C.A. 3, 1967).
BLACK ANGUS OF LAUDERHILL, INC.
recognition of the employees ' designated bargaining agent.
When information was received , on March 23, that the
Respondent had again refused such recognition , employees
spontaneously walked out . Notwithstanding the Union's
prearrangement for the printing of picket signs and the
payment of strike benefits in anticipation of the
Respondent's refusal of recognition , it is my opinion that
the evidence clearly establishes , and I find, a clear causal
connection between the Respondent 's unfair labor practic-
es, found above , and the strike . I conclude , therefore, that
the strike which began March 23 and which terminated
April 30, 1973, was an unfair labor practice strike?
E. The 8(a)(3) Violations
Paragraphs 11(c) through (e) and paragraph 14 of the
amended complaint allege that on April 30, 1973, the Union
made unconditional application for reinstatement of all
strikers, but the Respondent on or about May 2, 1973, de-
nied reinstatement to strikers Sharon Cook, Marilyn (Mimi)
Letter, Vera Letter, and Joan Norton, in violation of Section
8(a)(3) and (1) of the Act. The Respondent admits the un-
conditional application for reinstatement and its denial of
reinstatement to the aforesaid strikers, but asserts that rein-
statement was justifiably denied because of their miscon-
duct on the picket line.
The parties stipulated that Paul Gold would testify (and
such evidence is not contradicted) that the Respondent
made an unconditional offer to return to work all other
strikers who were on the payroll as of March 23.
The record shows that Secretary-Treasurer Meehan fre-
quently instructed the pickets to keep moving; told them not
to initiate conversations with customers of the restaurant,
and if asked, to say they were on strike and that unfair labor
practice had been charged, and to ask customers not to
cross the picket line. Pickets patrolled all four sides of the
restaurant, including all entrances to its immediately adja-
cent parking spaces. During the afternoons, there were 2 to
4 pickets, and during the evening, 10 to 14 pickets.
The Respondent assigned three young men from manage-
ment-Craig Willuweit, Nestor Valenzuela who usually had
a camera with him, and, until he was removed for directing
foul language at pickets, Thomas Dikeman-to stand out-
side the restaurant and assist customers , direct traffic, and
observe what went on. Gold also remained outside 3 to 5
hours a day for the same purposes. In addition, the Respon-
dent hired a majority of the men in the Lauderhill Police
Department, at one time or other, for periods of 4 to 6 hours,
as off-duty guards to watch the parked cars of nonstrikers
and customers. Police also were frequently present in their
official capacity.
1. Alleged violence on picket line
One instance of violent conduct, referred to as the April
20 "altercation," is attributed by the Respondent to three of
the alleged discriminatees-Vera Letter, Mimi Letter, and
Sharon Cook. It is not alleged that Joan Norton took any
7 See Juniata Packing Company, 182 NLRB 934 (1970), enfd. in pertinent
part 464 F.2d 153 (C.A. 3, 1972).
431
part. The Respondent's case is based on the testimony of
Nestor Valenzuela and Paul Gold, who were standing to-
gether outside the restaurant that evening while several
pickets were patrolling, when LaRae Pantel, a nonstriking
employee, emerged from the main door of the restaurant.
Valenzuela's account: Mimi Letter said, "That's the one
what we should get," threw her picket sign down, and ad-
vanced toward Pantel, saying, "Let's get her." Pantel ad-
vanced toward Muni Letter and said, "I will not hit you
first" ; and repeated three or four times, "But you want to
hit me, but I will not." Mimi Letter replied, "You are a
bitch," or something like this, and Pantel said something
like, "Who the fuck do you think you are?" Vera Letter now
approached the two and said, "You can't talk to her in that
way." Pantel answered, "Who the fuck are you?" Vera Let-
ter said "I'm her mother." Pantel stated, "Big fucking deal."
Vera Letter thereupon grabbed Pantel by the hair and start-
ed "pulling her down," Mimi Letter and Sharon Cook
joined in, while Vera Letter's son put an arm lock around
Pantel's neck. Pantel went down kicking and hitting and
going wild trying to defend herself. Valenzuela grabbed
Pantel by the waist and pulled her away and back into the
restaurant. Valenzuela came outside again, and about 5
minutes later Pantel also came out again , screaming to the
police who had arrived by then, "I want these people arrest-
ed." Valenzuela grabbed her and pulled her back inside
again . Valenzuela could not remember any action taken by
Gold.
Although Paul Gold's account conformed with
Valenzuela's in some respects, he was unable to confirm
positively that Vera Letter was the first to strike, or that
Mimi Letter, Sharon Cook, or Vera Letter's son joined in
the fight.
Vera Letter's account: Along with other pickets, she was
patrolling, talking with her son who was walking next to her,
when the restaurant door opened and a woman in waitress
uniform, now known to be Pantel, came out and ran to-
wards the picket line screaming and hollering, "We're going
to get you," and stopped in front of Mimi Letter. Mimi
Letter said to Pantel, "Go back to work, scab." When Pantel
repeated to Mimi Letter, "We're are going to get you," Vera
Letter walked towards the two, stepped in front of Pantel,
and told her "That she should not threaten anyone on the
picket line and she was not to threaten Mimi." Pantel turned
to Vera Letter and asked, "Who the hell are you?" Vera
replied, "I'm her mother. Stop threatening her." Pantel said,
"I don't give a shit who you are, you fucking old bag," and
thereupon swung at Vera Letter and knocked her glasses
off. Vera Letter pushed her away and bent down to pick up
her glasses and Pantel grabbed hold of Vera Letter's hair.
Someone pulled Pantel off Vera Letter, and she then
straightened up. Another picket handed Letter her glasses,
on which a lense had been shattered. When she put her
glasses on, she saw Valenzuela dragging Pantel back into
the restaurant still screaming, shouting, and throwing her
arms around . A few minutes later, Pantel again ran out the
door, this time with four, five, or six busboys running be-
hind her, toward Vera Letter. However, one of the busboys
grabbed Pantel and dragged her back into the restaurant.
Mimi Letter's testimony regarding the incident conforms
substantially with that of Vera Letter. Although Sharon
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook was not questioned in detail about the incident, she
did corroborate Vera and Mimi Letter' s statements to the
effect that Pantel struck the first blow.
I credit Vera Letter. Based on her demeanor, she im-
pressed me as having the most integrity of these five witness-
es. Upon review of her testimony, and my observation of her
on the witness stand , I find her to be a mature , responsible
person, self-disciplined and compassionate . The demeanor
of Valenzuela, by contrast , was not impressive. His attitude
toward the strikers struck me as apprehensive and his per-
sonality as excitable . Because of that or because of his desire
to further management 's position , or both , I believe he exag-
gerated and elaborated on the conduct of the strikers.
Gold's demeanor was on the whole more impressive , and his
testimony more realistic. Although I have credited him in
several instances below , I find that he was wrong about how
this incident began. In any event, he did not directly attrib-
ute the violence to any of the alleged discriminatees. I also
find that Vera Letter's account conforms more closely with
the probabilities. Thus, it seems most unlikely that it was the
person I have described Vera Letter to be who would initi-
ate the violence , rather than Pantel who is 5 inches taller and
was revealed by both Valenzuela and Gold to be in a near
hysterical state. Finally, the Respondent neither put Pantel
on the witness stand nor explained the reason for its failure
to do so.
Accordingly, I find no misconduct on the part of any of
the alleged discriminatees in connection with this incident.
2. Name calling
Barbara Rothwell, a nonstriking waitress , Angie Papa-
georgiou, a nonstriking hostess, and Gerald Aspen, husband
of nonstriking bartender Margarete Aspen , testified that
Mimi Letter and Joan Norton called them vulgar and insult-
ing names during the strike . Mimi Letter and Norton denied
it. Based on their demeanor , and their straightforward testi-
mony, I find that Rothwell and Papageorgiou told the truth.
I find, despite the denial of Mimi Letter, that Mimi Letter
made vulgar and insulting remarks to Barbara Rothwell and
Angie Papageorgiou. I do not, however, base any findings
on Aspen 's testimony regarding anonymous obscene tele-
phone calls allegedly made by Norton and vulgar insulting
remarks made by pickets. In my opinion, he failed clearly
to establish that Norton was the person who made the tele-
phone calls and no reason is advanced for her to do such
a cowardly thing which would be out of character with her
personality as I observed it. As to remarks allegedly made
by pickets, Aspen was not specific with regard to which
pickets said what to him.
3. Conduct toward customers
The Respondent contends that all the pickets engaged in
misconduct toward customers but the four alleged discrimi-
natees engaged in more such misconduct than the others.
Car Blocking. I credit Gold, as well as Valenzuela, Willu-
weit , and Police Sergeant Brown to the extent that their
testimony was consistent with his, that pickets flashed their
pickets signs for periods of approximately 30 seconds, in
front of the windshields of cars entering the restaurant
premises, and then engaged drivers who stopped in conver-
sation for 2 to 3 minutes ; and that 20 to 35 percent of such
drivers turned back. This occurred on approximately 20
occasions during the strike. I place no reliance on testimony
that the four alleged discriminatees were the worst offenders
in this respect, as such testimony was not specific and was,
in my view , merely an estimate or an opinion . Gold conced-
ed that he could not hear the conversations between pickets
and drivers, and the other three above-named witnesses did
not claim to be able to hear them.
I also credit Meehan whom I credit generally, Vera Letter
whom I have found generally credible, as well as the other
three alleged discriminatees whose testimony is consistent
with theirs on this matter , that the pickets did not intention-
ally block cars, but may have inadvertently blocked cars
momentarily. I also credit Vera Letter, corroborated in sub-
stantial part by Mimi Letter and Sharon Cook and to some
extent Willuweit, to the effect that many such drivers were
known to the pickets as past patrons of the restaurant,
friends, and former employees; many times such drivers
and others slowed to read the pickets signs and ask ques-
tions ; and most such drivers turned away.
Threats and insults to customers . Based on Gold 's credited
testimony, which was not categorically denied, I find that
all pickets often called customers who refused their requests
not to cross the picket line "scabs." I do not rely on Gold's
testimony that the four alleged discriminatees used this
word more than other pickets did, for the reason given
above.
I also credit Gold that Norton told a customer who had
parked along side the restaurant , "You're pretty brave to
park your car here"; that Norton made a show of copying
down on the back of her picket sign the license numbers of
customers' cars approximately 15 times during the strike,
and once of a delivery truck. Norton as much as admitted
that on several occasions she told another picket in a voice
loud enough to be heard that a customer might lose his job
because he crossed the picket line.
Although I find that customer William Anderson's preg-
nant wife was called a "fat slob" by pickets, the evidence is
not clear which picket did so. Anderson's identification of
Vera Letter as the culprit is clearly erroneous, as it would
have been out of character for her. I do not credit Sergeant
Brown's testimony that Norton called customer John
Church a vulgar name , because although Church took the
stand, he testified to no such remark and failed to identify
Norton.
I discredit the testimony of Valenzuela and Willuweit as
to additional vulgarities and insulting and threatening re-
marks allegedly made by the four strikers who were denied
reinstatement . Although not an excitable personality,
Willuweit's testimony was, in my opinion, colored by the
same attitudes as Valenzuela 's. In addition , most of such
testimony was vague and in the form of estimates and opin-
ions; none of it was pinpointed in time or supported by
records or notes or by Paul Gold who was a more reliable
witness and who was on the scene during most of the picket-
ing.
BLACK ANGUS OF LAUDERHILL, INC.
4. Disparagement of Respondent's food
I find, as Vera Letter testified, that practically every pick-
et, including herself, Cook, Norton, and Minn Letter, called
out to customers who crossed the picket line, "Eat the bar-
becue." I find, substantially as testified to by Gold and Vera
Letter, and as admitted by Sharon Cook, that on three
occasions, Sharon Cook called out to customers who
crossed the picket line, "Eat the barbecue. I had the barbe-
cue last week and I had the shits all night." Based on Gold's
testimony, I find that Cook also told a customer, "Look
through your salad, you might find an empty sugar packet
in it."
I find, based substantially on her own admission after
some dissembling, that Joan Norton, on two or more occa-
sions, told customers there were cockroaches in the salad.
I do not credit the testimony of Valenzuela and Willuweit
regarding alleged additional disparaging remarks made by
pickets about the food, for the reasons given above.
5. Conclusions as to alleged misconduct on the
picket line
Summarizing, I have found that (a) practically all pickets
delayed for periods of 30 seconds at a time customers enter-
ing the restaurant premises in their cars, and delayed those
who inquired about the strike for periods of 2 to 3 minutes;
(b) all pickets often called customers who crossed the picket
line "scabs"; (c) practically all pickets told customers who
crossed the line to "eat the barbecue"; (d) Sharon Cook
added on three occasions that she had eaten the barbecue
and had the shits all night, and also told a customer there
might be a sugar packet in the salad; (e) Joan Norton on two
or more occasions told customers there were roaches in the
salad, told a customer he was pretty brave to park his car
alongside the restaurant, made a show of copying down on
her picket sign the license numbers of approximately 15
customers and I delivery truck, and on several occasions in
effect told customers they might lose theirjobs because they
crossed the picket line; (f) Mimi Letter called two nonstrik-
ing employees vulgar and insulting names.
In resolving the issue as to whether the Respondent's
refusal to reinstate these four employees was justified on the
basis of misconduct or whether it constituted violations of
Section 8(a)(3) and (1) of the Act, I have attempted to
balance the conduct engaged in against the unfair labor
practices committed by the Respondent.'
As to the conduct enumerated in (a), (b), and (c ), engaged
in by practically all pickets, I find that the remark "eat the
barbecue," by itself, cannot reasonably be construed to con-
stitute disparagement of the Respondent's product, or
"scabs" more than common permissible picket line lan-
guage. Momentarily blocking vehicles which are allowed to
proceed after brief conversations has been held not to justi-
8 See Juniata Packing Company, supra at 935, Edir, Inc., d/b/a Wolfie's, 159
NLRB 686, In 25 (1966); H N Thayer Company, 115 NLRB 1591 (1956).
9 See National Packing Company, Inc, 147 NLRB 446,447 (1964 ), remand-
ed on other grounds 352 F.2d 482 (C A 10, 1965).
433
fy refusal to reinstate.9 Moreover, the Respondent's offer of
reinstatement to other strikers, most of whom engaged in
misconduct to an extent, as far as the credible evidence
shows, similar to that of these four strikers, demonstrates
that the Respondent itself did not consider this to be serious
misconduct. ° I also find that Mimi Letter's scurrilous lan-
guage toward nonstrikers, referred to in (f) above, cruel as
it may have been, did not justify the Respondent's refusal
to reinstate her, particularly as there was no violence for
which the pickets were responsible.I I Moreover, the absence
of evidence that the Respondent was aware of these remarks
to its nonstriking employees at the time it denied reinstate-
ment to Mimi Letter suggests that they are afterthoughts.
Nor do I perceive any threats to the Respondent's cus-
tomers in Joan Norton 's actions and statements . Her re-
marks to the effect that a customer was brave to park
alongside the building seem meaningless in view of the pha-
lanx of guards and observers employed about the premises.
As for her taking down license numbers, and saying that
several customers might lose their jobs, what could she do
with license numbers? It is similarly appropriate to ask how
Norton could reasonably be expected to endanger a
person's job? There is no evidence that she or anyone else
made any attempt to do so.
We come now to (d), Sharon Cook' s four disparaging
remarks about the barbecue and the salad, and (e), the
several occasions on which Joan Norton disparaged the
salad served in the restaurant. These impulsive remarks ut-
tered on a limited number of occasions during a 5-week
unfair labor practice strike are such a far cry from the
organized widespread distribution to the public by eco-
nomic strikers of literature impugning the employers' prod-
ucts in N.L.R.B. v. Local Union 1229, International Brother-
hood of Electrical Workers, AFL [Jefferson Standard
Broadcasting Co.], 346 U.S. 464 (1953), and The Patterson-
Sergent Company, 115 NLRB 1627 (1956), as to defy com-
parison. Nor is there any evidence that the remarks made
by these two strikers caused the Respondent any loss of
patronage. On the contrary, an inference might be drawn
from Gold's testimony-that he hired 16 permanent re-
placements during the strike, and still offered reinstate-
ment to all strikers except these four (which he refused to
reinstate because of alleged misconduct, not because there
was no work for them)-that the Respondent's business
actually increased during the strike.12
Accordingly, I conclude that, on balance, the
Respondent's obligation to reinstate Vera Letter, Mimi Let-
ter, Sharon Cook, and Joan Norton matured when they
made an unconditional offer to return , and that its failure
to reinstate them, at the start of their next regularly sched-
uled work shift as it did other unfair labor practice strikers,
discriminated against them in violation of Section 8(a)(3)
and interfered with its employees ' exercise of Section 7
rights in violation of Section 8(a)(1) of the Act.
10 See Coca Cola Bottling Works, Inc., 186 NLRB 1050, 1055, enfd . in this
respect sub nom Retail, Wholesale and Department Store Union, AFL-CIO v.
N L.R.B., 466 F.2d 380, 385 (C A D C, 1972), Terry Coach Industries, Inc.,
166 NLRB 560, 564 ( 1967), enfd 411 F 2d 612 (C.A 9, 1969).
11 Terry Coach Industries, Inc, supra.
13 Cf O 'Daniel Oldsmobile, Inc, 179 NLRB 398, 405 (1969).
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act , I shall recommend that it cease and desist there-
from and , in view of the nature and extent of the violations,
from any interference with the rights of its employees guar-
anteed by Section 7 of the Act, and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent violated Section
8(a)(1) and (3) by refusing to reinstate Vera Letter, Sharon
Cook, Joan Norton, and Mimi Letter, I shall recommend
that it offer them immediate , full, and unconditional rein-
statement to their former jobs or , if their jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges; and make them
whole for any loss of pay suffered on and after the start of
their first regularly scheduled work shift subsequent to April
30, 1973, in the manner described in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with 6 percent interest as provid-
ed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The Respondent contends that a bargaining order is not
justified under N. L. R. B. v. Gissel Packing Co., 395 U.S. 575
(1969), on the ground that the Respondent 's unfair labor
practices did not impede the Union's campaign. The Gissel
case does not, however, impose such a restriction on the
issue of the bargaining order . The Respondent , immediately
upon being apprised of employee interest in exercising the
rights guaranteed by Section 7 of the Act, launched a cam-
paign of interfering with the exercise of those rights by
coercively interrogating , threatening, and harassing its em-
ployees, creating the impression of surveilling their union
activity, and sending its top officials to offer the possibility
of better treatment . Even if the effects of those practices
could be effectively erased from the employees' minds
merely by the issuance of the cease-and-desist order, which
I doubt, the Respondent 's unlawful subsequent refusal to
reinstate four of the strikers reduced that possibility and the
possibility of insuring a fair election to a minimum . In these
circumstances , I find that the employee sentiment expressed
through the valid authorization cards would, on balance, be
better rotected by a bargaining order, and I so recom-,
mend)?
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
13 Peerless ofAmerica, Incorporated, 198 NLRB 982 (1972); Gissel Packing
Co., Inc., 180 NLRB 54 (1969); Heck's Inc., 180 NLRB 530 (1970). To the
extent that the Administrative Law Judge in Congoleum Industries, Inc, 197
NLRB 534 (1972), and the court of appeals in Arbie Mineral Feed Co v.
N. L.R.B , 438 F 2d 940 (C.A. 8,1971), relied on by the Respondent, expressed
a contrary view on this issue , that view has not , to my knowledge, been
adopted by the Board . I find no ment in the Respondent 's further contention
that a bargaining order is barred by union misconduct. There is no substan-
tial credible evidence that union officials condoned intentional car blocking
or profanity towards customers , or that Union President Mahoney engaged
in a fist fight Although President Mahoney on one occasion , when Police
Officer Johnson arrived at the restaurant about 9 p in . off duty in civilian
clothes, called Johnson a "fucking scab ," that conduct is not enough to'bnng
the case within the purview of Herbert Bernstein, et al. d/b/a Laura Modes
Co, 144 NLRB 1592 (1963), and other such cases , which are totally distin-
guishable on their facts.
the Act, I hereby issue the following recommended
ORDER 14
Black Angus of Lauderhill, Inc., of Lauderhill, Florida,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Hotel, Motel, Restau-
rant Employees & Bartenders Union, Local No. 339, AFL-
CIO, or any other labor organization by refusing to rein-
state, or otherwise discriminating against , employees in
regard to hire or tenure of employment of any other term
or condition of employment.
(b) Coercively interrogating, threatening, or harassing
employees, creating the impression of surveillance of their
union activities, or promising them benefits to discourage
their union activity.
(c) Failing and refusing to bargain collectively in good
faith with Motel, Hotel, Restaurant Employees & Barten-
ders Union, Local No. 339, AFL-CIO, as the exclusive
collective-bargaining representative of an appropriate unit
of all full-time and regular part-time kitchen, dining room,
and barroom employees employed by Black Angus of Lau-
derhill, Inc., at 1599 North State Road #7, Lauderhill,
Florida, excluding all office clerical employees, bookkeeper,
musicians , head hostess, head bartender, guards, and all
other 'supervisors as defined in the Act, concerning rates of
pay, wages, hours of work, and, other terms and conditions
of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Vera Letter, Joan Norton, Sharon Cook, and
Marilyn Letter full, immediate, and unconditional rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, and make them
whole with interest, in the manner'described in the Remedy
section of this Decision.
(b) Upoii request, bargain collectively in good faith with
the above-named labor, organization, as the exclusive rep-
resentative of its employees in the above-described appro-
priate unit, concerning rates of pay, wages, hours of work,
and other terms and conditions of employment, and, if an,
understanding is reached, embody such understanding in
a signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all time-
cards, payroll, social security, and personnel records and
reports, and all other records necessary to determine the
amount of backpay due under this Order.
(d) Post at its restaurant in Lauderhill, Florida, copies of
the attached notice.15 Copies of the notice, on forms provid-
In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections' thereto be deemed
waived for all purposes.
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
BLACK ANGUS OF LAUDERHILL, INC.
ed by the Director of Region 7, shall be signed by an author-
ized representative of the Respondent, posted by it immedi-
ately upon receipt thereof, and maintained for 60
consecutive days thereafter in conspicuous places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Director of Region 7, in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Hotel, Motel,
Restaurant Employees & Bartenders Union, Local No.
339, AFL-CIO, or any other labor organization by
refusing to reinstate or otherwise discriminating
against our employees in regard to hire or tenure of
employment or any other term or condition of em-
ployment.
WE WILL NOT coercively interrogate, threaten, or har-
ass our employees, or create the impression of surveil-
lance of their union activity, or promise better
conditions if they will abandon the Union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights protected by Section 7 of the National Labor
Relations Act, as amended.
WE WILL offer Vera Letter, Joan Norton, Sharon
Cook, and Marilyn Letter full, immediate, and uncon-
ditional reinstatement to their jobs or, if those jobs no
longer exist, to substantially equivalent ones, and make
them whole for any loss of pay they suffered as a result
of the refusal to reinstate them, with interest at 6 per-
cent.
WE WILL upon request bargain collectively in good
faith with the above-named Union as the exclusive
collective-bargaining representative of our employees
in the appropriate unit, which is:
All full-time and regular part-time kitchen, dining
room, and barroom employees employed by Black
Angus of Lauderhill, Inc., at 1599 North State Road
#7, Lauderhill, Florida, excluding all office clerical
employees, bookkeeper, musicians, head hostess,
head bartender, guards, and all other supervisors as
defined in the Act.
BLACK ANGUS OF LAUDERHILL,
INC.
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."
435
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Room 706, Federal Office Build-
ing, 500 Zack Street, P. O. Box 3322, Tampa, Florida 33602,
Telephone 813-228-2641.
APPENDIX B
Jeffery Albury, Dwight McCray,
dishwasher-busboy dishwasher
Darrell Alston, Eddie McMillan , busboy
preparation-cook
Margarete Aspen , Lee Migliorie,
barmaid relief hostess-cashier
Patricia Baldwin , Sue Miles , waitress
waitress
Eddie Barnes , Ella (Dolly) Miller,
dishwasher waitress
Shirley Basore , waitress Virginia Molinari , waitress
Loretta Berkheimer , Mary Ann Moran,
waitress barmaid
Della Binney, waitress Lucia Nazare , waitress
Billie Blount , busboy Mary Jane Nelson , waitress
Donna Brady , waitress Joan Norton , waitress
John Brady , Sr., Mike Olige,
preparation dishwasher-busboy
Sharon Cook , waitress Diana Palmer , hostess
Ronald Covin, Angela Papageoriou,
dishwasher hostess
Judith Douglas, waitressFrancis Paradiso , waitress
Wanda Faust , waitress Norma Pinnel, waitress
Anne Fellmy , cashier Anne Poarch , waitress
Bobby Fletcher , Sherwin Richardson, cook
dishwasher
John Gilarkski , busboy Rickey Robinson, cook
Ronnie Hines , busboy. Theresa Scolaro , waitress
George Holiday, cook Larry Smith , busboy
Helen Howland , Mary M. Smith , waitress
waitress
Calvin Jackson , Nadine Stresnic , waitress
dishwasher
Norman Johnson, cook Richard Thomas III, no
classif. given
Barry June, dishwasher Karen Triola , waitress
Otis Keeve , cook Connie Varian, waitress
Jeanne Kaufer , waitress Benjamin Wiggins,
dishwasher
Marilyn Letter, waitress Isaac Wi lkins, cook
Vera Letter , waitress Thomas Williams,
dishwasher
436
Jacqueline Lewis,
waitress
Steven London,
dishwasher
Sophia Loria, cashier
Laura MacDonald,
waitress
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bennie Willingham,
preparation
Lenvelt Williams,
dishwasher
Cleo Wright, busboy
Kenneth Wright, dishwasher
Nino Zazzara, cook
APPENDIX C
Faye Acquafredda
Jeffery Albury
Margarete Aspen
Shirley Basore
Loretta Berkheimer
Della Binney
Donna Brady
Sharon Cook
Judith Douglas
Wanda Faust
Helen Howland
Marilyn Letter
Vera Letter
Jacqueline Lewis
Sophia Loria
Laura MacDonald
Eddie McMillan
Sue Miles
Ella (Dolly) Miller
Virginia Molinari
Mary Ann Moran
Mary Jane Nelson
Joan Norton
Mike Olige
Francis Paradiso
Ann Poarch
Brenda Seeley
Larry N. Smith
Nadine Stresnic
Karen Triola
Connie Varian
Isaac Wilkins
Lenvelt Williams
Cleo Wright
Nino Zarrara
SUPPLEMENTAL DECISION
ALMIRA ABBOT STEVENSON, Administrative Law Judge: On
October 31, 1973, I issued a Decision in this case concluding
that the Respondent' violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended, and rec-
ommending that the Respondent be ordered to cease and
desist from the unfair labor practices found and from inter-
fering with, restraining, or coercing its employees in any
other manner, and to take certain affirmative action de-
scribed therein. In that Decision, I found that on March 22
and March 23, 1973, there were 67 employees in the appro-
priate unit; and that on March 22 the Union was in posses-
sion of 35 valid cards, and on March 23 of 36 valid cards,
designating it as the bargaining agent of the employees in
the unit. I concluded that the Respondent's refusal on and
after those dates of the Union's demands for recognition
and bargaining violated Section 8(a)(5) and (1) of the Act,
and recommended that the Respondent be ordered to bar-
gain upon request.
On March 27, 1974, the National Labor Relations Board
issued an order reopening record and remanding proceed-
ing to the Regional Director for the purpose of arranging a
further hearing before me. In its order, the Board ruled that
the Respondent's argument, in a motion filed with the
Board attaching two affidavits, that if allowed to adduce
additional evidence it would show that under the Supreme
1 At the hearing herein, the parties stipulated that on October 1, 1973,
Local No. 339 merged with Locals No. 133 and 255 to become Local No.
355.
Court's decision in N.L.R.B. v. Savair Manufacturing Co.,
414 U.S. 270, at least five of the authorization cards relied
on by the Union for its majority were invalid because solici-
tors promised to waive initiation fees "if all employees
would sign authorization cards permitting the Union to gain
recognition," raised issues warranting reopening the record.
The Board pointed out that with five cards invalid the Re-
spondent would neither be in violation of Section 8(a)(5)
nor would a bargaining order be appropriate. The Board
ordered me, upon conclusion of the further hearing, to pre-
pare and serve on the parties a Supplemental Decision con-
taining findings of fact based upon the evidence received
pursuant to its order, conclusions of law, and recommenda-
tions.
On May 2 and 3, 1974, after due notice, I convened a
further hearing at Coral Gables, Florida, for the purpose of
receiving evidence as ordered by the Board. After the evi-
dence was received, the General Counsel presented oral
argument; the Respondent waived oral argument and filed
a brief.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the Respondent's brief and the General Counsel's argu-
ment, I make the following findings of fact, conclusions of
law, and recommendations.
The affidavits attached to the motion which the Respon-
dent filed with the Board were executed by unit employees
Mary Ann Moran and Margarete Aspen.
The affidavit of Moran asserts that Jackie Lewis, Vera
Letter, and Marilyn Letter requested her to sign a card
March 13, 1973; Moran had been a member of a union in
New York and a $50 initiation fee had been charged each
new member of that union; Moran asked if she would have
to pay an initiation fee; and Jackie Lewis and Vera Letter
told Moran, "If everybody signs these cards, neither you nor
anyone else will have to pay the initiation fee, and you will
only have to pay monthly dues once the Union gets in.
There will be no initiation fee." Moran's affidavit also as-
serts that these three employees then requested her to ask
other employees to sign cards, and she agreed to do so, "so
long as they didn't have to pay any initiation fee." Moran's
affidavit also contains statements to the effect that she solic-
ited signatures of three employees, Connie Varian, Judy
Douglas, and Brenda Seeley, and told all of them that if
everybody signed an authorization card, there would be no
initiation fee, before they signed their cards.
Aspen's affidavit asserts that on March 13, 1973, Vera
and Marilyn (Mimi) Letter and Jackie Lewis asked her to
sign an authorization card, and Aspen became concerned as
to the cost and asked them "what it would cost me." Her
affidavit continues, "Jackie and Vera told me that the
Union would waive the initiation fee if I and everybody
would sign the authorization card now, and I wouldn't have
to pay any dues until the Union got in. They also said if I
waited until the Union got in to join, I would then have to
pay the initiation fee."
The Respondent's Evidence
On the witness stand, Moran acknowledged the affidavit
as her own, and gave the following account of the circum-
BLACK ANGUS OF LAUDERHILL, INC.
stances under which she signed an authorization card at the
request of Lewis and the two Letters. They said it was
imperative to get as many signatures as possible-100 per-
cent if possible . Moran testified on direct examination that
she asked them how much money it was going to cost her,
"and I was told that this had nothing to do with any money.
We were signing cards, and if the union did get in we would
have to pay dues, but that flat rate-if you join a union you
have to pay a flat rate-would be waived because of our low
salaries and, you know, if we could get all the signatures,"
or "if everybody had signed ." Moran testified on cross-
examination , however, that she did not think "the word
everybody was used," but rather that "they needed a majori-
ty of signatures , as many as possible," and "If they could
get everybody it would be great," or "If we could get a
hundred percent it would have been beautiful."
Moran 's testimony regarding the circumstances sur-
rounding her soliciation of the signatures of the three other
employees differs even more dramatically from the account
given in her affidavit. Thus, she testified that she signed the
affidavit after discussing the matter with the Respondent's
counsel , and although she "wasn 't forced," and "He didn't
put any words in my mouth," still , the words of the affidavit
aren 't my words. I wouldn't come up to somebody and
say please sign this card because there's going to be no
initiation fee.
Moran explained, "I don't speak like this . I'm not that-I'm
not a lawyer , let me put it like that ." At the time she gave
the affidavit , she said , she was asked whether she had men-
tioned initiation fees and responded that she probably had
because she thought at that time she had done so. At the
time she testified , however, she said, she felt she had been
mistaken . She discussed the matter with Varian and Seeley
after she signed the affidavit and they both said she had not
mentioned money at the time she solicited their signatures.
Moreover , Moran testified she "can't even remember what
Judy [Douglas] looks like." At the time of the reopened
hearing, therefore , Moran 's testimony was that the waiver
of initiation fees had probably been brought up at a later
time after the cards were signed . If employees asked her
about initiation fees , she said, she answered them the same
way Lewis and the Letters had answered her, but she could
not remember who asked her and who did not.
As for Margarete Aspen , she testified on direct examina-
tion that she inquired of Lewis and the Letters "if it would
cost me a lot of money to join , and I was told it wouldn't
cost anything at the time , no initiation fee would be charged
to me if we had enough signatures and then we only had to
pay the dues once the union would get in ." On cross-exami-
nation Aspen testified, "They said there was no initiation
fee . . . It was waived because I guess if you get enough
cards together or something and because of the low wages
of the waitresses I was told we wouldn't have to pay any
initiation fee at all . . . I wouldn't ever have to pay it if I
would sign at that time . . . I was told eventually I'd have
to pay dues." The following colloquy then occurred between
Aspen and the General Counsel:
437
Q. What was said? Tell me what you remember?
A. It was said that if we get enough cards or enough
people to sign that the union would get in then , and the
initiation fee was waived because of the low wages for
the waitresses though . I don't think that had that much
to do with who signed what card?
Q. Well now, is that what you think was said or is
that what you recall was said?
A. That's what I recall was said.
Q. You recall that. But they didn't say what number,
what amount , just if a number of people sign , is that
what they said?
A. It wasn't said in that way. It wasn 't said that if
so many people signed we don 't have to pay initiation
fees.
Q. Please tell me how it was said?
A. It was said that we didn't have to pay the initia-
tion fee at all because of the low wages , and that wasn't
even in the same conversation with when we started
talking about how many people had to sign. This was
at the same night , of course , and the same conversa-
tion, but not following the deal with the initiation fee.
Q. I see.
There were no ifs , ands or buts on the initiation fee.
It's just no initiation fee would be paid; is that it?
A. As far as I remember.
Q. It was not contingent, and if I can think of anoth-
er word , it was not dependent upon any number that
signed? It's just-the statement was made no initiation
fee would be charged; is that the way you recall it?
A. That's right.
Q. Not dependent upon any number?
A. Not that I-no.
Q. Not that you recall?
A. Not that I know of.
On redirect examination , Aspen testified as follows:
Q. Would you tell us again how the initiation fee
was mentioned in response to your question?
A. It was told to me that we didn't have to pay any
initiation fee because of the waitresses low wages.
Q. Was anything else said in response to your ques-
tion about the signing of the cards?
A. About the signing of the cards, it was said that
the more cards were signed of if they had 100 percent
go at it, then there was no problem about the Union
getting in.
Aspen affirmed her signature on the affidavit but said she
could no longer remember the employees ' saying "if I wait-
ed until the Union got in , I would have to pay the initiation
fee then," which might have been said about the dues. As-
pen continued , on redirect examination , as follows:
Q. Well now, you stated on cross-examination that
they really didn't say everybody would sign . Could you
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tell us again how this was phrased so that we can clarify
this for the record?
A. Well, I remember that they said to me the more
people sign, and they had a certain, had to have a
certain amount of cards to even get started, and the
more people sign, of course, the better it would be.
Q. And how did they relate that, if they did, to the
initiation fee? Can you tell us that again?
A. Well, there I don't remember if this initiation fee
came with this conversation or not. I just remember
that they told me there was no initiation fee.
Q. And you don't recall as to whether they discussed
the initiation fee with-
A. (Interposing) With the signing of the cards.
Q. With the signing of the cards.
A. No, the whole conversation went around that for
a little while and one may have followed the other, but
I can't say for sure any more what was what.
Had there been a fee, Aspen said, she would have had to ask
her husband before she signed the card.
The General Counsel's Evidence
fied that Moran did not tell them the initiation fee would
be waived if everybody signed cards or anything to that
effect.
Connie Varian testified that Moran told her the Union
was trying to get into Black Angus and asked her to sign;
Varian asked Moran whether she had signed; Moran re-
plied that she had; and Varian then signed the card. Moran
did not mention money, or dues, or initiation fee, Varian
testified.
Dennis Meehan testified that the Union does not have a
practice of waiving initiation fees during organization
drives, and did not do so during the several years preceding
March 1973. He also testified that he never told Jackie
Lewis, Vera Letter, or other waitresses that initiation fees
would be waived if all employees signed authorization
cards.
The parties stipulated that if she were to testify, Vera
Letter would state that at no time did she, or Mimi Letter
or Jackie Lewis in her presence, tell either Margarete Aspen
or Mary Ann Moran that the Union would waive the initia-
tion fee if she and everyone else would sign the authoriza-
tion card now and that she would not have to pay any dues
until the Union got in.
Employees Jacqueline Lewis, Marilyn Letter, Brenda
Seeley, Judy Douglas Van Strander, Connie Varian, and
former Union Secretary-Treasurer Dennis Meehan testified
for the General Counsel.
Jacqueline Lewis, the employee who instituted the union
campaign among the Respondent's employees, flatly denied
mentioning either initiation fees or dues to Moran, Aspen,
or to any other employee whose card she solicited. She also
testified that Meehan never said anything about initiation
fees or dues during his meetings with her. Lewis had be-
longed to a union before , she said, and assumed that initia-
tion fees and dues were "automatic" if you were employed
,.at a union house." According to Lewis, she and Vera and
Mimi Letter met Margarete Aspen by appointment ar-
ranged by Mimi Letter over the telephone; Aspen asked for
a card, signed it, and commented that her husband was in
a union at the Post Office. As for Moran, Lewis testified that
she asked for a card as the three employees entered her
house and signed the card before any further conversation
took place.
Marilyn Lewis testified that at the time Aspen signed the
card, the only conversation consisted of Aspen's asking
whether she would be fired for signing the card and men-
tioning that her husband was in the Postal Workers Union.
She said that Moran asked for a card as the three employees
entered her home and signed it as the four of them sat down
before any conversation took place. According to Mimi
Letter, when Moran was subsequently given blank cards to
in turn solicit other employees to sign, she commented that
almost everyone on the day shift would sign one, but she did
not say she would solicit since there would not be any
initiation fee. Mimi Letter denied that any of the three
solicitors told either of these two employees they would not
have to pay an initiation fee if everybody signed cards.
Letter also denied making such a statement to any employee
whose card she solicited.
Brenda Seeley and Judy Douglas Van Strander both testi-
Findings and Conclusions
The testimony summarized above 2 establishes that the
record fails to support the Respondent's claim that any
authorization cards were improperly solicited within the
meaning of N.L.R.B. v. Savair Manufacturing Co., supra.
In its brief, the Respondent conceded that Moran 's testi-
mony on the witness stand did not support the statements
in her affidavit to the effect that she told Varian, Douglas,
and Seeley that the initiation fee would be waived, which all
three of these employees denied. The Respondent therefore
withdrew its argument that these cards were invalidated on
this ground, and I find that there is no probative evidence
tending to compromise the validity of the authorization
cards executed by employees Varian,3 Douglas, and Seeley.
As for the cards of Moran and Aspen, these employees
demonstrated on the stand a marked uncertainty about
what Lewis and the two Letters said to them regarding
initiation fees . By contrast, Lewis and Marilyn Letter flatly
denied the statements attributed to them in the affidavits,
and the parties stipulated that Vera Letter would testify to
the same effect. Finally, there is the testimony by Meehan
that the Union has no practice of waiving initiation fees
2 It is well established that pretrial affidavits such as those of Moran and
Aspen "have no independent testimonial value and, in accord with the weight
of authority must be looked at solely as measures of the credit of the individu-
als who testified at the hearing ." Sealtest Southern Dairies Division, National
Dairy Products Corp., 126 NLRB 1223, 1225 (1960), affd. 287 F.2d 563 (C.A.
6, 1961). Accord , N.LR.B. v. Local 776 International Alliance of Theatrical
and Stage Employees [Film Editors], 303 F.2d 513, 520 (C.A. 9); N.L.R.B. v.
Local 160, International Hod Carriers, Building and Common Laborers of
America, AFL-CIO, 268 F .2d 185, 186 (C.A. 7, 1959); N.L.R.B. v. Quest-Shon
Mark Brassiere Co., Inc., 185 F.2d 285, 289 (C.A. 2, 1950); Barker's East Main
Corporation, 136 NLRB 494, 495 (1962).
In view of my finding below that Moran' s card was valid, I find no merit
in the Respondent's further contention, in its brief , that Varian's card was
invalid because she testified she would not have signed it if Moran had not
signed a card.
BLACK ANGUS OF LAUDERHILL, INC. 439
during organization drives, and his testimony, as well as that
of Lewis, that he never extended such an offer to these
employees. In view of Moran's established inaccuracy re-
garding her solicitation of cards, the indication of suggesta-
bility in her testimony, the equivocal testimony by Moran
and Aspen regarding what was said to them when they
signed, the consistent denials by Lewis, and, it was stipulat-
ed, by Vera Letter, both of whom I have heretofore credited
generally, as well as by Mimi Letter, and the testimony in
support thereof by Dennis Meehan, whom I also have found
generally credible, I find that there is no positive, believable
evidence invalidating the cards executed by Mary Ann
Moran and Margarete Aspen.4
Accordingly, I affirm my original conclusions and recom-
mendations in toto, including my conclusion that the Re-
spondent violated Section 8(a)(5) of the Act, and my
recommendation that the Respondent be ordered to bar-
gain upon request with the Union.
4 I do not consider the issue of the validity of the card signed by Barry June
on March 23 , raised in the Respondent 's brief , is properly before me at this
time If it were , I would affirm my onginal finding that his card was valid.