NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,427, RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO., (Aug. 08, 1994), National Labor Relations Board, (Aug 8, 1994)

RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO.

314 NLRB No. 113.Case Nos. 20-CA-24136 and -24137. August 8, 1994 James M. Kennedy, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Margaret Dietz, for General Counsel. A. Cal Rossi, San Francisco, California, CEO, Ristorante Donatello, Inc., for Respondents Ristorante Donatello, Inc., and Stanford-Carlton Hotel Restaurant Co. Matthew Ross and Beth Ross (Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Remar), Oakland, California, for Charging Party.

Interference--Coercive Remarks--Antiunion Sentiment.--In a display of its antiunion sentiment, an employer committed several unfair labor practices designed to interfere with its employees’ right to select a bargaining representative. These coercive unlawful acts included informing an employee that his chances of being hired by a successor employer were slim because of his unionism, informing an employee that he had not been rehired because of his union involvement and interrogating an employee regarding her union involvement. Section 8(a)(1).

Back reference: ¶3770.082.

Affiliated Companies--Alter Ego--Evasion of Labor Responsibilities.--Two employers were alter egos of each other because there was common business ownership, they shared the same business purpose and the same management. Further, the transaction by which the second employer took over operations was not at arm’s length. Further, the NLRB specifically determined that the entire sale and transfer of operations was designed to allow the former employer to evade its responsibilities under the Act. Section 2(2).

Back reference: ¶1630.031.

Refusal to Bargain--Fact Finding--Withdrawal of Recognition.--On the facts, by withdrawing recognition from a union that had a collective bargaining agreement with its alter ego, an employer violated its bargaining duty. Section 8(a)(5).

Discharges--Fact Finding--Antiunion Animus.--On the facts, an employer unlawfully discharged 20 employees of its alter ego because of their union affiliation in order to avoid its obligations under the Act.

From Text of Board’s Decision

The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs, and has decided to affirm the judge’s rulings, [1] findings, [2] and conclusions as modified and to adopt the judge’s recommended Order as modified.

In her cross-exceptions, counsel for the General Counsel argues that the judge ignored uncontradicted testimony in support of three complaint allegations that the Respondents engaged in independent violations of Section 8(a)(1). We agree. [3]

1. First, the General Counsel contends that the Respondents violated Section 8(a)(1) when Respondent Ristorante Donatello’s general manager. Zoran Matulic, informed an employee that his chances of being rehired after the sale of the restaurant to Respondent Stanford-Carlton Restaurant Company were very slim because of his union involvement.

The pertinent uncontradicted testimony is as follows. On July 25, 1991, Respondent Ristorante Donatello informed its employees that the Company was being sold to Respondent Sheraton-Carlton and that they would have to apply with Respondent Sheraton-Carlton if they wanted to continue their employment.

According to employee Saulo Diaz, a waiter with 10 years’ experience with the Respondent Ristorante Donatello, General Manager Zoran Matulic conducted an interview with him on July 25. When Diaz asked Matulic what his chances of being rehired were, Matulic replied they were very slim. When Diaz inquired why, Matulic responded, “Because of the union relations that you have.” According to Diaz, Matulic further explained:

[H]e would be very happy to have me back, but they were going to hire just one or two persons. ... Because if they hire all of us back again, they would still have the same problem with the union.

Waiter Eric Mendez, who was working nearby, corroborated Diaz’ testimony. He testified that he overheard Diaz ask Matulic what chance he would have of being rehired and that Matulic’s answer was, “[I]t was not too many chances, because we were union people, we belonged to a union.”

We agree with the General Counsel that Matulic’s statement that Diaz’ chances of being hired were poor because the new employer wanted to avoid a bargaining obligation with the Union violated Section 8(a)(1). [4]

2. The General Counsel also contends that the Respondents violated Section 8(a)(1) when General Manager Zoran Matulic informed an employee he was not hired because of his involvement with the Union.

According to the undisputed testimony of employee Saulo Diaz, on August 6, 1991, he went to the executive offices of the hotel to pick up his final check. At that time, Diaz asked Matulic why he had not been rehired. According to Diaz, Matulic replied:

Saulo, we’d love to have you back. You are one of my best waiters, but there were some unfavorable comments about you.

When Diaz asked Matulic for more details, Matulic explained, “Because of your relation with the Union and because you’ve been here too long.”

We agree with the General Counsel that Matulic’s statement to Diaz, that directly links an employer’s refusal to hire with Diaz’ union activity, violated Section 8(a)(1).

3. The General Counsel further contends that the Respondents violated Section 8(a)(1) when General Manager Zoran Matulic interrogated an employee about her union activities.

The undisputed evidence shows that Matulic interviewed Carol Lee, an employee of Respondent Ristorante Donatello, on July 25, 1991, for employment with Respondent Stanford-Carlton. During this interview, Matulic asked Lee if she was a member of a union.

We agree with the General Counsel that Matulic’s questioning an employee in the context of a job interview about her union sympathies is inherently coercive and in violation of Section 8(a)(1). [5]

¹	The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶16,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
²	In adopting the judge’s findings that the evidence clearly supports the General Counsel’s theory that Respondents, Ristorante Donatello and Respondent Stanford-Carlton Hotel Restaurant Company, are alter egos, we find it unnecessary to pass on the judge’s statement that the evidence does not support the theory that Respondent Stanford-Carlton is the successor of Respondent Ristorante Donatello.
³	Member Devaney would remand to the judge those issues raised by the General Counsel’s cross-exceptions. The complaint alleged certain violations of Sec. 8(a)(1) but the judge neglected to discuss these allegations and to set out the evidence in support of them. Although, as noted by his colleagues, the evidence regarding these allegations is “uncontradicted,” Member Devaney notes that it does not necessarily follow that the evidence is credible. In Member Devaney’s view, it would be better to permit the judge to review this evidence, assess its credibility, and thereafter make appropriate findings. Member Devaney notes further that because the judge did not address these issues, the Respondents did not address them in their brief. In sum, noting also that the General Counsel requested as an alternative position that this matter be remanded to the judge for findings on all those issues addressed by the judge. See Harris-Teeter Super Markets, [1992-1993 CCH NLRB ¶17,345] 307 NLRB 1075 (1992).
⁴	See A.J.R. Coating Division Corp., [1988-89 CCH NLRB ¶15,364] 292 NLRB 148, 163 (1988); Honda of Hayward, [1992-93 CCH NLRB ¶17,242] 307 NLRB 340, 349 fn. 9 (1992).
⁵	See, e.g., Service Master, [1983-84 CCH NLRB ¶15,852] 267 NLRB 875 (1983).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,427, RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO., (Aug. 08, 1994), National Labor Relations Board, (Aug 8, 1994)

RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO.

314 NLRB No. 113.Case Nos. 20-CA-24136 and -24137. August 8, 1994 James M. Kennedy, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Back reference: ¶3770.082.

Back reference: ¶1630.031.

From Text of Board’s Decision

[H]e would be very happy to have me back, but they were going to hire just one or two persons. ... Because if they hire all of us back again, they would still have the same problem with the union.

2. The General Counsel also contends that the Respondents violated Section 8(a)(1) when General Manager Zoran Matulic informed an employee he was not hired because of his involvement with the Union.

Saulo, we’d love to have you back. You are one of my best waiters, but there were some unfavorable comments about you.

When Diaz asked Matulic for more details, Matulic explained, “Because of your relation with the Union and because you’ve been here too long.”

We agree with the General Counsel that Matulic’s statement to Diaz, that directly links an employer’s refusal to hire with Diaz’ union activity, violated Section 8(a)(1).

3. The General Counsel further contends that the Respondents violated Section 8(a)(1) when General Manager Zoran Matulic interrogated an employee about her union activities.

We agree with the General Counsel that Matulic’s questioning an employee in the context of a job interview about her union sympathies is inherently coercive and in violation of Section 8(a)(1). [5]

¹	The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶16,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.
²	In adopting the judge’s findings that the evidence clearly supports the General Counsel’s theory that Respondents, Ristorante Donatello and Respondent Stanford-Carlton Hotel Restaurant Company, are alter egos, we find it unnecessary to pass on the judge’s statement that the evidence does not support the theory that Respondent Stanford-Carlton is the successor of Respondent Ristorante Donatello.
³	Member Devaney would remand to the judge those issues raised by the General Counsel’s cross-exceptions. The complaint alleged certain violations of Sec. 8(a)(1) but the judge neglected to discuss these allegations and to set out the evidence in support of them. Although, as noted by his colleagues, the evidence regarding these allegations is “uncontradicted,” Member Devaney notes that it does not necessarily follow that the evidence is credible. In Member Devaney’s view, it would be better to permit the judge to review this evidence, assess its credibility, and thereafter make appropriate findings. Member Devaney notes further that because the judge did not address these issues, the Respondents did not address them in their brief. In sum, noting also that the General Counsel requested as an alternative position that this matter be remanded to the judge for findings on all those issues addressed by the judge. See Harris-Teeter Super Markets, [1992-1993 CCH NLRB ¶17,345] 307 NLRB 1075 (1992).
⁴	See A.J.R. Coating Division Corp., [1988-89 CCH NLRB ¶15,364] 292 NLRB 148, 163 (1988); Honda of Hayward, [1992-93 CCH NLRB ¶17,242] 307 NLRB 340, 349 fn. 9 (1992).
⁵	See, e.g., Service Master, [1983-84 CCH NLRB ¶15,852] 267 NLRB 875 (1983).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,427, RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO., (Aug. 08, 1994), National Labor Relations Board, (Aug 8, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,427, RISTORANTE DONATELLO et al. and LOCAL 2, HOTEL & RESTAURANT EMPLOYEES UNION, HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO., (Aug. 08, 1994), National Labor Relations Board, (Aug 8, 1994)

From Text of Board’s Decision

Footnotes