Cimarron Motel Corp.

National Labor Relations Board - Board DecisionsSep 27, 1974

213 N.L.R.B. 709 (N.L.R.B. 1974)

FANCY DAN'S JET INN RESTAURANT Cimarron Motel Corporation ; Ron Bergquist and Sharon Ray d/b/a Fancy Dan's Jet Inn Restaurant; and William F. Brenner and Wilson J. Hutcheson d/b/a Hutch, Inc. and Seattle Local Joint Executive Board Composed of Bartenders Local 487, Cooks Local 33, Waiters Local 239 , Waitresses Local 240, and Hotel , Motel and Club Service Employees Local 551. Case 19-CA-6440 September 27, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On May 30, 1974, Administrative Law Judge Jo- seph I. Nachman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. 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 has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopts his recommended Order, as modified herein. The complaint herein alleges, in addition to the allegations denied and tried at the hearing, that on and after March 15, 1973, Respondents violated Sec- tion 8(a)(1) and (5) of the Act by: (1) refusing to recognize the Union as the representative of their em- ployees in an appropriate unit of restaurant-lounge employees: (2) refusing to honor the contract between the Union and Respondent Cimarron 'd'ated June 27, 1972, applicable to these employees: and (3) unilater- ally discontinuing health and welfare, vision and den- tal care, pension fund contributions, and other benefits established by the aforementioned contract. The General Counsel excepts to the Administrative Law Judge's failure to make findings and conclusions with respect to the above-noted allegations and to provide an appropriate remedy for the violations of the Act alleged therein. Inasmuch as Respondents' answer to the complaint admitted these allegations, we find merit in the General Counsel's exceptions. Accordingly, we find that Respondents violated Sec- tion 8(a)(1) and (5) of the Act by taking the actions set forth in paragraphs 7(a)(1) and (3), and 7(c)(1) and (2) of the complaint.' As the Administrative Law Judge so found , Respondents concede that they are all responsible for, and have the duty to remedy, any and all unfair labor practices found in this proceeding. SUPPLEMENTAL REMEDY 709 Having found that Respondents, in violation of Section 8 (a)(1) and (5) of the Act, refused to recognize the Union as the representative of their employees in an appropriate unit of restaurant-lounge employees, refused to honor a contract with the Union covering these employees, and unilaterally discontinued em- ployee benefits to which they were contractually bound, it shall be ordered that Respondents cease and desist from the aforementioned conduct. Also, Re- spondents shall be further ordered to take the affirma- tive action of recognizing and bargaining with the Union as the representative of their restaurant-lounge employees, of honoring the above-described contract, dated June 27, 1972, and of making said employees whole for any loss of benefits they may have suffered as a result of Respondents' actions.' SUPPLEMENTAL CONCLUSIONS OF LAW By refusing to recognize the Union as the represen- tative of their employees in an appropriate bargaining unit, by refusing to honor the collective-bargaining contract dated June 27, 1972, and by unilaterally dis- continuing health and welfare, vision and dental care, pension fund contributions, and other benefits estab- lished by said contract, Respondents have engaged in r Contrary to the view expressed in Chairman Miller 's dissent, we conclude that Respondents ' allegations as to agreements they may have reached with the Union subsequent to the issuance of the complaint herein do not serve to relieve the Board of its responsibility for determining whether Respon- dents violated the Act in significant respects when they refused to recognize the Union, refused to honor the Union's contract , and unilaterally discontin- ued employee benefits to which they were contractually bound . Subsequent actions taken by Respondents to ameliorate the effects of their admittedly illegal conduct are relevant only to the issue of Respondents ' compliance with our remedial order. Accordingly, in our Supplemental Remedy, we have made provision for subsequent agreements between Respondents and the Union to be taken into consideration during the compliance procedure. See fn. 3, infra. Further, we note that the record evidence herein does not estab- lish that the alleged agreements effectively provide remedies for Respon- dents' violations of the Act which are coextensive with the Board 's traditional remedies for such illegal conduct. 7 Respondents, in their answer to the complaint, allege that : ( 1) in January 1974, they made an oral agreement to recognize the Union and to pay all fringe benefit contributions which were unilaterally discontinued; (2) on April 2, 1974, Respondent Hutch , Inc., executed a collective -bargaining agreement with the Union; (3) they have agreed upon settlement of law suits filed by the Union and by certain fringe benefit trusts relating to the afore- said unilateral benefit changes; and (4) they have, at all times subsequent to the alleged January 1974 oral settlement , recognized and bargained in good faith with the Union, and abided by the terms of their collective -bargaining agreements with the Union. I Similarly, the General Counsel's exceptions assert, on information and belief, that subsequent to the issuance of the complaint in this proceeding Respondents and the Union entered into a new collective -bargaining agree- ment covering the unit of restaurant -lounge employees . With regard thereto, the General Counsel states that Respondents ' action in entering into the new agreement should not be considered as being inconsistent with their duty to honor the prior contract of June 27, 1972. We leave for the compliance procedure to determine the extent , if any, to which Respondents ' obligations under the Order herein shall be affected by the aforementioned agreements alleged by Respondents and the General Counsel. 213 NLRB No. 101 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Act. ORDER circumstances , my colleagues choose to go through an exercise in futility by a meaningless expansion of the findings and recommended order of the Administra- tive Law Judge , I do not understand . I would affirm his findings and conclusions and adopt his recom- mended order in its entirety. 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 Respondents , Cimar- ron Motel Corporation; Ron Bergquist and Sharon Ray d/b/a Fancy Dan's Jet Inn Restaurant ; and Wil- liam F . Brenner and Wilson J. Hutcheson, d/b/a Hutch, Inc., Seattle , Washington , their officers, agents, successors, and assigns , shall take the action set forth in the said recommended Order, as so modi- fied. 1. Reletter the present paragraph 1(c) as 1(d), and insert the following as paragraph 1(c): "(c) Refusing to honor the collective-bargaining agreement of June 27, 1972, and otherwise refusing to recognize and bargain with the Union as the exclusive representative of all restaurant -lounge employees of Respondents employed at 3000 South 176th Street, Seattle , Washington , excluding all office clerical em- ployees , professional employees , guards, and supervi- sors as defined in the Act." 2. Insert the following paragraphs as 2(b) and 2(c) and reletter the subsequent paragraphs accordingly. "(b) Recognize the Union as the exclusive bargain- ing representative of all restaurant-lounge employees of Respondents employed at 3000 South 176th Street, Seattle , Washington , excluding all office clerical em- ployees, professional employees , guards, and supervi- sors as defined in the Act, and honor the collective-bargaining contract dated June 27, 1972. "(c) Make whole all employees in the bargaining unit described above for health and welfare, vision and dental care , pension fund contributions, and other benefits and wages lost due to Respondents' unilateral discontinuance of the benefits provided for in, and refusal to honor, the contract of June 27, 1972." 3. Substitute the attached notice for the Adminis- trative Law Judge' s notice. CHAIRMAN MILLER , dissenting: The answer herein alleges , in effect , that all matters regarding the alleged discontinuance by Respondent of benefits have been resolved by the settlement of court litigation , and further alleges that Respondent is now recognizing the Union and dealing with it in good faith . General Counsel, so far as I can de- termine , does not claim otherwise . Why, under these APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence , it has been decided that we, Cimarron Motel Corporation; Ron Bergquist and Sharon Ray d/b/a Fancy Dan's Jet Inn Restaurant; and William F. Brenner and Wilson J. Hutcheson d/b/a Hutch, Inc., violated the National Labor Rela- tions Act , and we have been ordered to post this no- tice . We will carry out the order of the Board, the judgment of any court enforcing the same , and com- ply with the following: The Act gives all employees these rights: To organize themselves To form, join , or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all these things. WE WILL NOT unilaterally change the wages, hours , or any term or condition of employment of any of our employees in the unit for which Seattle Local Joint Executive Board is the collec- tive-bargaining representative. WE WILL recognize Seattle Local Joint Execu- tive Board composed of Bartenders Local 487, Cooks Local 33, Waiters Local 239, Waitresses Local 240 , and Hotel , Motel and Club Service Employees Local 551 as the exclusive collective- bargaining representative of all restaurant- lounge employees employed at 3000 South 176th Street , Seattle, Washington , excluding all office clerical employees , professional employees, guards , and supervisors as defined in the Act, and WE WILL honor the collective -bargaining agreement dated June 27, 1972. WE WILL make employees whole for any losses suffered by them by reason of our unilateral dis- continuance of health and welfare, vision and dental care, pension fund contributions, and other benefits and wages provided for in the con- tract of June 27, 1972. As the National Labor Relations Board found FANCY DAN'S JET INN RESTAURANT 711 that we violated the law when we discharged James Taylor and Charles Pepitone, WE WILL of- fer each of them his old job back, if the same exists, and if not, a substantially equal job, with- out any loss in seniority or other rights and privi- leges, and make up to each of them the pay he lost, with 6-percent interest. CIMARRON MOTEL CORPORATION (Employer) Dated By (Representative) RON BERGQUIST AND (Title) SHARON RAY d/b/a FANCY DAN'S JET INN RESTAURANT (Employer) Dated By (Representative) (Title) WILLIAM F. BRENNER AND WILSON J. HUTCHESON d/b/a HUTCH, INC. (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 compli- ance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532. DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This pro- ceeding heard by me at Seattle, Washington, with all parties present and duly represented, on April 18, 1974, involves a consolidated complaint I pursuant to Section 10(b) of the 1 As originally issued the consolidated complaint included Case 19- CA-6784, and named as a Respondent Jim Hemstreet , d/b/a Hemstreet Development Company. That portion of the complaint was predicated on a charge filed December 5, 1973, and amended December 7, 1973. By order dated April 17, 1974, the Regional Director severed Case 19-CA-6784 from the remainder of the complaint, continuing the last mentioned case before himself , and withdrew from the consolidated complaint all allegations deal- ing with Case 19-CA-6784. Hence , this decision deals only with those allega- National Labor Relations Act, as amended (herein the Act), which alleges that, by conduct hereafter detailed, particular Respondents violated Section 8(a)(1), (3), and (5) of the Act. The General Counsel's contentions in that regard, the theo- ry of the alleged violations, and the Respondent that com- mitted the same, are set forth in the section hereof entitled "Background." At the hearing on the complaint as modified by the sever- ance order, and the answer thereto, all parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. Oral arguments by the General Coun- sel and Respondents, respectively, are contained in the tran- scripts. The right to file briefs was waived by all parties. Upon the pleadings, evidence,2 stipulations of counsel, and the entire record in the case, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 3 A. Background Cimarron Motel Corporation (herein Cimarron) operates the Jet Motel in the Seattle area . The restaurant and bar portions of this operation were operated by Cimarron until about March 15, 1973, at which time Ron Bergquist and Sharon Ray, copartners d/b/a Fancy Dan's Jet Inn Restau- rant (herein called B & R), took over the operation of the restaurant and bar apparently on a concession basis. They operated until about August 1, 1973, and beginning about October 1, 1973, this operation was conducted by William F. Brenner and Wilson J. Hutchinson, d/b/a Hutch, Inc. (herein Hutch). 4 The admitted allegations of the complaint also shows that, following the usual procedure in a represen- tation case , Seattle Local Joint Executive Board (herein the Union) was certified by the Board on January 31, 1972, as the collective-bargaining representative of "all employees employed by Jet Inn Motel and Restaurant."5 On June 26, 1972, Cimarron executed a contract recognizing the Union as the representative of the motel employees, and on June 27, 1972, another contract recognizing the Union as the representative of the restaurant-lounge employees. Al- though the evidence introduced by the General Counsel deals only with unfair labor practices allegedly committed by B & R (the discriminatory discharges of two bartenders, tions that are predicated on the charge in Case l9-CA--6440, in which the charge was filed May 25, 1973, and amended on July 27, August 21, and December 10, all in 1973. 2 The General Counsel has filed with me, and served upon counsel for Respondent, a motion to correct the transcript of evidence in certain particu- lars in said motion set forth. No objection to said motion has been made by Respondent and, perceiving no appropriate basis for objection, said motion is made a part of the record herein , and the same is now granted. 3 No issue of commerce or labor organization is presented . The complaint alleges and the answer admits facts which establish those jurisdictional ele- ments . I find those facts to be as pleaded. The complaint also refers to a period of operation by one Hemstreet, d/b/a Hemstreet Development Company, but this was the subject of the charge in Case 19-CA-6784, which, as above indicated, was severed from this case. 5 Excluding office clericals, guards, supervisors , and professional employ- ees. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and unilateral changes in working conditions of waitresses), employment agency." 9 his theory of liability-not contested by Respondents-is that, during the period of operation by B & R, the latter was a joint employer with Cimarron of the restaurant-lounge employees, and that Hutch was an alter ego of Cimarron with respect to its operations.' All Respondents now con- cede that they are responsible for, and have the duty to remedy, any and all unfair labor practices found in this proceeding. B. The Facts 1. The discharge of James Taylor Taylor, a member of Bartenders Local 487, began work- ing in the Jet Inn lounge in February 1972, and was so employed when B & R took over at 2 a.m., March l6.7 During the late afternoon of March 17, Taylor received a telephone call from Sharon Ray, a partner in B & R, asking that Taylor come to see her regarding continued employ- ment at the lounge. Taylor agreed and met with Ray at approximately 7 p.m., in the coffee shop. Ray told Taylor that they needed help badly and would like for him to continue on the job. Taylor replied that whether he contin- ued or not depended on the answer he got to two questions he would put to Ray. He stated that he had heard that B & R intended to discharge all the union employees and oper- ate nonunion, and asked if this was true.8 Ray replied that this was untrue. Taylor then asked what his hours and wage rate would be. Ray replied that these would remain as they were and that he was earning $4 an hour and this would remain the same. Taylor then agreed to and did report for duty that day and worked without incident until March 26. Taylor credibly testified that, on the afternoon of that date, Bergquist telephoned him at his home and told Taylor not to report for duty again saying, "we decided to replace the whole crew." Taylor asked the reason, and Bergquist re- plied, "I've never seen a $4 an hour bartender." Taylor retorted, "Have you ever seen a bartender?" At this point the conversation concluded. Taylor returned to the lounge that evening and observed Ray instructing two new barten- ders in the performance of their duties. Taylor then accused Ray of having lied to him, and Ray replied, "Well, we needed help We didn't realize at that time that nonunion help was that hard to get." Taylor asked, "Well, where did you get these things?" and Ray replied, ". . . through an 6 As stated, neither Cimarron, B & R, nor Hutch challenge the General Counsel's theory of liability In their initial answer said Respondents denied the material allegations of the complaint in that regard , but at the trial amended their answers to admit those allegations of the complaint 7 Taylor in fact had last worked on Wednesday , March 14 Thursday and Friday, March 15 and 16, were his days off and he was not scheduled to work again until Saturday, March 17 His hours of work were from 6 p in to 2 a in 8 Taylor's question in this regard was prompted by a letter he had seen, dated March 13, 1973, from one Pat Blair, a labor relations consultant for Jet Inn, to the secretary of the Seattle Joint Board, giving notice of contract termination and the intention to terminate all employees except those work- ing the motel portion of the enterprise , as of the close of business March 15, and also referring to the fact that the new owner , Don Bergquist , should be on the premises by March 16 Although the letter did not so state, Taylor interpreted it as notice that Bergquist intended to terminate the employees in the bar and thereafter operate nonunion 2. The discharge of Charles Pepitone Pepitone began working in the bar at Jet Inn in Novem- ber 1972 and was working there when B & R took over in March 1973. At the end of the shift that day Pepitone in- formed Ray that he was quitting because B & R had dis- charged Falk,10 and he (Pepitone) did not like the way B & R was conducting the business. Pepitone admitted that, when he left the Inn on March 16, he had no intention of returning there to work. The following day (Saturday, March 17), Pepitone visited the bar as a customer or observ- er, at which time Ray asked if Pepitone would be willing to work. Pepitone replied that he could not answer until he had discussed some important matters with her, and pursuant to agreement they met for that purpose the following day. In this conference Pepitone asked if his rate of pay would be the same as it was before, namely, $4 an hour, and Ray said it would. He then asked if there would be any changes in the hours of the shifts, and Ray stated that there would. He then asked if he might have Saturdays and Sundays off, and to this Ray agreed. Pepitone then asked if the bar would operated as a union house, and Ray replied that it would not. With this information Pepitone agreed to return for the Monday shift (March 19), and worked through Friday of that week (March 23). About 5:30 p.m. on March 26 (Mon- day), Pepitone called the bar to say that he would be about 10 minutes late in reporting for work and was told that Bergquist wished to speak with him. When Bergquist took the phone he told Pepitone that he need not come to work any more. Pepitone asked if this was permanent, and Bergquist replied in the affirmative." Bergquist testified that he discharged Taylor and Pepi- tone solely because of their refusal to accommodate them- selves to his modification in the use of the precheck machine.12 Several days after B & R took over, Bergquist decided that the practice of the waitress giving the bartender her order orally, made it possible for too many errors to 9The findings in this section are based on the uncontradicted testimony of Taylor Ray did not testify and Respondent gave no explanation for the failure to call her Bergquist did not deny the telephone conversation con- cerning which Taylor testified As his explanation for the discharge of Taylor is the same for the discharge of Pepitone , the other discrimmatee involved, I defer discussion of his testimony in that regard until after the facts concern- inq the discharge of Pepitone have been stated 0 Although the charge in this case names Falk as a discriminatee, the complaint does not so allege Presumably , this is because the General Coun- sel concluded that Falk was a supervisor within the meaning of the Act, as Falk's testimony before me quite clearly indicates 11 The findings in this section are based on the uncontradicted and credited testimony of Pepitone As above indicated Ray did not testify Bergquist did not deny the telephone conversation concerning which Pepitone testified. Respondent 's testimony dealing with the reasons for the discharges is hereaf- ter set forth 12 A precheck machine is in effect a cash register without a cash drawer, which had initially been installed by the prior operator Under the system a waitress who receives an order from a customer, for which the charge is, for example , $ 1 50, rings that amount on the machine under her key and obtains a ticket for that amount The waitress gives this ticket to the bartender, and, at the time of the takeover, tells the bartender orally what the customer has ordered When the order has been filled by the bartender, the waitress serves it and collects the change from the customer , which she retains until the end of her shift At that time she accounts for the total represented by the tickets bearing her key symbol FANCY DAN'S JET INN RESTAURANT 713 occur, and installed the practice of requiring that such or- ders be in writing. Before doing so, Bergquist discussed his proposal with both Taylor and Pepitone, both of whom urged against it,13 but he insisted that the new system be placed in effect at once. 14 Taylor and Pepitone both testified that after the new system had been in effect they demon- strated to Ray that it was not working and was in fact causing the house to lose business, and that she directed that the use of the precheck machine continue, but that the waitresses would call in orders vocally, as in the past, rather than use the written ticket which Bergquist had initiated. There is no denial of this testimony nor did Bergquist refer to it in any way in his testimony. The only reason he gave for the discharges was that his observation of the operation of the bar convinced him that on some occasions his rule was complied with, and on others it was not, and that the root of the problem was the resistance to it by Taylor and Pepitone. The dismissal of Taylor and Pepitone would, so Bergquist testified, give him "a crew in pretty good shape," and that the dismissals were for lack of their cooperation with his program. Credibility Resolutions and Concluding 8(a)(3) Findings I am unable to credit Bergquist's testimony that he termi- nated Taylor and Pepitone solely because of their alleged lack of cooperation with his program of modifying the pre- check system. Rather, upon consideration of the entire re- cord, I am convinced, and therefore find and conclude, that he dismissed them because of his determination to operate on a nonunion basis. I reach this conclusion upon a totality of the following factors: 1. Bergquist's demeanor while testifying was not such as to inspire my confidence in the accuracy of his testimony. 2. The admissions by Ray that it was Respondent's pur- pose to operate nonunion. Under the circumstances it was Respondent's responsibility to produce Ray, a partner in the Respondent enterprise, as a witness in this proceeding, or at least to explain why she could not be called as a witness, and its failure to do so appropriately gives rise to the inference, which I draw, that had she been called as a witness she would not have supported the testimony of Bergquist, nor the position of Respondent, as to the reason for the discharges. Holliday v. United States, 315 U.S. 94, 99 (1942); Interstate Circuit v. United States, 306 U.S. 208, 225-226 (1939); N.L.R.B. v. Reed & Prince Manufacturing Company, 130 F.2d 765, 768 (C.A. 1, 1942). 3. Bergquist makes no claim that he ever found it neces- sary to reprimand Taylor or Pepitone for failure to comply 13 Pepitone admitted that after the new system was put into effect he urged its abandonment because it was not working and was causing the house to lose money. Taylor was even more emphatic. He testified that not only did he disagree with the proposal , but on "several occasions" expressed his "strong disagreement " to both Bergquist and Ray . None of this testimony is denied. 14 Just how the waitresses were supposed to give their written orders to the bartenders , the record does not clearly disclose . Bergquist testified that at the beginning of her shift a waitress was given 50 tickets , and when she obtained an order from a customer she would prepare a ticket for it, and give that ticket to the bartender who would fill the order, and the waitress would then enter the ticket in the precheck machine . Just how this made any practical change in the procedure is not clear. with his orders. All he testified to was the broad uncorrobo- rated conclusion that they offered "resistance" to his plan. There was no detailing of the nature or form of such resis- tance. 4. When Bergquist discharged Taylor and Pepitone he did not tell them that the reason therefor was their failure to comply with his orders. Rather, when Taylor asked the reason , Bergquist said he had "never seen a $4 an hour bartender," a statement which Bergquist did not deny and which stands uncontradicted on the record. 5. What all this adds up to is an employee, whose perfor- mance had not theretofore been criticized, is discharged without prior notice or warning, at the inception of a work- week, based on a decision to thereafter operate as a non- union employer. These factors are the classic indicia of a discriminatorily motivated discharge. And when there is added the fact that the reason for the discharge is false, it is appropriate to infer, as I do, that such reason was not the real motive for the discharge, but that the true motive is one which Respondent denies and seeks to conceal; namely, to avoid employment of a union member. As the Court of Appeals for the Ninth Circuit said in Shattuck Denn Mining Corporation, 362 F.2d 466 at 470 (1966): If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. Accordingly, and for the reasons stated , I find and con- clude that the discharge of Taylor and Pepitone by B & R was discriminatorily motivated and, hence, was violative of Section 8(a)(3) and (1) of the Act. 3. The alleged unilateral changes in terms and conditions of employment In the week following the takeover by B & R, Ray told employee Candice Hart, a food waitress in the coffee shop portion of the enterprise which B & R operated, that the waitresses should police the ladies' restroom. Hart asked what Ray meant by "police," and Ray replied, "Well, I would like you to go in and periodically check and make sure that they're clean and if they aren't clean them up." Hart replied that their duties were those of food waitresses and not janitors.15 Hart completed her shift that day and did not again return to the job. Hart additionally testified credi- bly that prior to her aforementioned conversation with Ray she had never been called upon to perform any duty with respect to the restroom, and to her knowledge no other waitress had done such work, or been asked to do so. The 15 The findings in this section are based on the uncontradicted and credited testimony of Candice Hart. As heretofore stated, Ray was not called as a witness, nor was the failure to call her explained . Bergquist admitted that he talked with Ray and with employee Jo Weinke, about having the waitresses look after the restrooms . According to Bergquist he did not mean that the waitresses were to clean the restrooms ; only that when they were there and saw paper on the floor they were to pick it up . I do not regard his testimony as being in conflict with that of Hart, but, to the extent that it may be so regarded , I credit Hart. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties of a food waitress were , according to Hart , to take care of food , prepare salads , and serve customers . They did not include doing floors or cleaning restrooms , the latter being done by a janitor who worked evenings. 16 Contentions and Conclusions on Alleged Unilateral Changes Bergquist admitted that at the time B & R took over he was aware that there existed a labor contract covering the employees of the operation . While feeling at the time that this fact did not concern him, he admitted by his answer and testified that he now recognizes that he is a successor em- ployer with respect to that contract and bound by its terms. There can be no question but that an employer's obliga- tion , imposed by Section 8 (d) of the Act, to bargain con- cerning "wages , hours and other conditions of employment," as well as the duty to confer subsequently regarding "any question arising thereunder," encompasses the duty to give notice and an opportunity to the Union to bargain concerning any material, substantial , and signifi- cant changes in the job content of its employees, and a failure to do so is a violation of the obligation imposed by Section 8(a)(5) of the Act . In the instant case , as I have found , Respondent, through Ray, a partner in the enter- prise , and for whose conduct Respondent is responsible, without notice to or affording the Union an opportunity to bargain on the subject , ordered the waitresses to clean the ladies ' restroom , work which was not therefore a part of their job assignment . That some employees would not look with favor upon such an assignment is made clear by Hart's response when the assignment was given her, that she was a waitress not a janitor. Accordingly , and for the reasons stated , I find and con- clude that by assigning the waitresses the ditty of cleaning the restrooms , without having given the Union notice of its intention to do so , and an opportunity to bargain concern- ing that subject , Respondent made material , substantial, and significant unilateral changes in terms and conditions of employment of its employees, and thereby violated Sec- tion 8 (a)(5) and (1) of the Act. Murphy Diesel Company, 184 NLRB 757 (1970), enf. 454 F .2d 303 (C.A. 7, 197 1).17 CONCLUSIONS OF LAW 1. Respondents are each employers within the meaning of Section 2(2) of the Act and are engaged in commerce 16 As stated , the union contract is not in evidence , and I have no way of knowing whether there is a management right provision that would bear on the issue . As the existence of such a provision would be a matter of defense which Respondent would have to prove, I conclude no such provision exists. 17 Indeed counsel made no real effort to persuade me to the contrary. At oral argument when asked to state why the facts as above found should not be regarded as a proscribed unilateral change in terms and conditions of employment , the following appears: Ma. NEisor:.. . It just irks me to no end to have to discuss this at all and I would prefer to discuss this before the Court of Appeals quite frankly. Before we ever post any notice on such a trifle. Junoa NACHMAN : All right . If you don' t care to discuss it, I'll have to treat with it myself . I can't tell you where I [will ] come out. Ma. NEnson : You may have the pleasure of dealing with that. I decline. within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Taylor and Pepitone because of their assistance to and support of the Union, Respondent B & R discriminated against each of them in regard to their hire, tenure of employment, and the terms and conditions there- of, discouraging membership in a labor organization, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. By unilaterally changing the terms and conditions of employment of the waitresses, without giving the union no- tice thereof and an opportunity to bargain with respect to the same, Respondent B & R engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent B & R engaged in and is engaging in unfair labor practices proscribed by the Act, it will be recommended that it be required to cease and desist therefrom and that Respondents take the affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. Having found that Taylor and Pepitone were discrimina- torily discharged, it will be recommended that Respondents be required to offer them immediate, full, and uncondition- al reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent ones, without preju- dice to their seniority or other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered, respectively, by paying to each a sum of money equal to the amount he would have earned as wages from the date of discharge to the date he is offered reinstate- ment by Respondents, less any amount earned as wages during said period. Such backpay to be computed in accor- dance with the Board's formula set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Additionally it will be recommended that Respondents be required to preserve and, upon request, make available to authorized agents of the Board all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due. Having also found that Respondent B & R made materi- al, substantial , and significant unilateral changes in the working conditions of employees without giving the Union notice and opportunity to bargain concerning such changes, Respondents will be required to cease and desist from mak- ing such unilateral changes.18 The unfair labor practices found being of a character which goes to the very heart of the Act, I shall recommend that Respondents be required to cease and desist from in 18 At the trial the General Counsel conceded that such was the only relief he sought on this aspect of the case. FANCY DAN'S JET INN RESTAURANT 715 any manner interfering with, restraining, or coercing their employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Com- pany, 120 F.2d 532 (C.A. 4, 1941); California Lingerie Inc., 129 NLRB 912, 915 (1960). Upon the foregoing findings of fact, conclusions of Law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 19 Respondents Cimarron Motel Corporation, Ron Bergquist and Sharon Ray, d/b/a Fancy Dan's Jet Inn Restaurant, and William F. Brenner and Wilson J. Hutche- son, d/b/a Hutch, Inc., Seattle, Washington, their officers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Encouraging or discouraging membership in Seattle Local Joint Executive Board, or any other labor organiza- tion, by discriminatorily discharging, or in any other man- ner discriminating against any employee in regard to his hire, tenure, or any other term or condition of employment. (b) Unilaterally changing any term or condition of em- ployment of any employee in the unit for which Seattle Local Joint Executive Board is the exclusive collective-bar- gaining representative. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own 19 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 , 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. choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Offer James Taylor and Charles Pepitone immediate, full, and unconditional reinstatement to their former jobs or, if the same jobs no longer exist, to substantially equiva- lent jobs, without prejudice to their seniority or other rights, privileges, or working conditions, and make each of them whole for any loss of earnings suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary or useful in determining compliance with this recommended Order or in computing the amount of backpay due. (c) Post at their premises in Seattle, Washington, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director of Re- gion 19,, after being signed by an authorized representative of each Respondent, shall be posted as herein provided immediately upon receipt thereof, and be so maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by each Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondents have taken to comply herewith. 30 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 Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."