Baja's Place, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 881 (N.L.R.B. 1982)

BAJA'S PLACE, INC.
Baja's Place, Inc. and Hotel, Motel, Restaurant Em-
ployees, Cooks and Bartenders Union, Local 24,
Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO. Case 7-
CA-18656
August 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On April 6, 1982, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in
this proceeding. Thereafter, Respondent 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 adopt his recommended Order, as modified
herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Baja's Place, Inc., Dearborn, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
I. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Marilyn Drean on December 12, 1980,
and notify her in writing that this has been done
and that evidence of this unlawful discharge will
not be used as a basis for future personnel actions
against her."
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Producta
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
a We shall modify the Administrative Law Judge's recommended
Order so as to require Respondent to expunge from its files any reference
to Marilyn Drean's discharge, and to notify her in writing that this has
been done and that evidence of this unlawful conduct will not be used as
a baaia for future personnel actions against her. See Sterling Sugars, Inc,
261 NLRB 472 (1982).
Member Jenkins would compute interest on Drean's backpay in the
manner set forth in his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
263 NLRB No. 120
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate em-
ployees regarding their union activities.
WE WILL NOT threaten employees with clo-
sure of our business if they choose to be repre-
sented by Hotel, Motel, Restaurant Employ-
ees, Cooks and Bartenders Union, Local 24,
Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, or any
other labor organization.
WE WILL NOT create the impression of un-
lawful surveillance of our employees' union
activities.
WE WILL NOT discourage you from mem-
bership in or activities on behalf of Hotel,
Motel, Restaurant Employees, Cooks and Bar-
tenders Union, Local 24, Hotel and Restaurant
Employees and Bartenders International
Union, AFL-CIO, or any other labor organi-
zation, by discharging or otherwise discrimi-
nating against you in any manner in regard to
your rates of pay, wages, hours of employ-
ment, hire, or tenure of employment or any
term or condition of your employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you under
Section 7 of the Act.
WE WILL offer Marilyn Drean immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent position, without prejudice to her
seniority and other rights and privileges previ-
ously enjoyed, and make her whole for any
loss of earnings she may have suffered by
reason of our discrimination against her, with
interest.
WE WILL expunge from our files any refer-
ences to the disciplinary discharge of Marilyn
Drean on December 12, 1980, and WE WILL
notify her that this has been done and that evi-
dence of this unlawful discharge will not be
used as a basis for future personnel actions
against her.
BAJA'S PLACE, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This
case was heard at Detroit, Michigan, on November 18
and 19, 1981. The charge was filed on December 16,
1980, by Hotel, Motel, Restaurant Employees, Cooks and
Bartenders International Union, AFL-CIO, herein called
the Union, against Baja's Place, Inc., herein called Re-
spondent. The complaint was issued on January 22, 1981,
and alleges that Respondent violated Section 8(a)(1) and
(3) of the Act by the discharge of employee Marilyn
Drean, and by other conduct violative of Section 8(a)(1)
of the Act.
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel and Respondent filed post-hearing
briefs.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation with its only
office and place of business located at 23955 Michigan
Avenue, Dearborn, Michigan, is engaged in the retail op-
eration of serving food and alcoholic beverages as a
public restaurant, and meets the appropriate jurisdictional
standards required by the Board for an appropriate
period of time. It is admitted, and I find, that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1. LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's president and chief executive officer is
John Baja who operated a restaurant on the same leased
premises from 1959 to 1969. After a period of operation
under the name of "Sun Dog," by a well-known Detroit
restaurateur, the premises succeeded to the control of
Respondent which opened its business in August or Sep-
tember 1980. At the reopening Respondent hired, chiefly
through Assistant Manager Sue Zukovich, 30 waitresses
on 2 shifts. Subsequent business demonstrated that Re-
spondent was overstaffed and the number of waitresses
was reduced ultimately to 12. In addition to John Baja,
Respondent maintained a manager, Jack Panzer, a day-
shift chief cook Craig Brown, a night-shift cook, and
kitchen employees of whom three were on the day shift,
a second cook, a pantryperson, a dishwasher, and a
storeroom and food preparation person. A similar kitch-
en crew served the night shift. During peak seasons, i.e.,
Christmas or on busy days when private parties were
scheduled, a second dishwasher was added.
The General Counsel alleges that Craig Brown, who
was employed as head cook until he quit in the summer
of 1981, was a supervisor within the meaning of the Act.
Respondent contends that Brown, as head cook, merely
exercised routine, repetitive direction of the kitchen staff
and was therefore not engaged in such exercise of re-
sponsible judgment and discretion as to qualify him as a
supervisor. Brown's direction of the kitchen staff, indeed,
was routine in nature.' However, he was responsible for
work in the kitchen, i.e., the quality of food preparation,
and consulted with Baja as to this objective. He was also
responsible for the procurement and maintenance of sup-
plies. His chief supervisory discretion was exercised in
the hiring of kitchen personnel. Because of the high
degree of turnover, Brown was solely responsible for the
hiring of dishwashers. As to other kitchen personnel, on
occasion he resorted to Respondent's office file of writ-
ten job applications. After he filtered out applicants who
in his judgment were deficient in experience, he recom-
mended to John Baja certain applicants and Baja, with-
out conducting his own independent investigation, ac-
cepted the recommendation and authorized Brown to
hire the new person.
The record does not clearly reveal that any kitchen
person was discharged or reprimanded during Brown's
tenure. In addition to the daily repetitive tasks, Brown
instructed his employees when and where to clean the
facilities. Thus he could assign a person cleaning duties
rather than food preparation. He consulted with John
Baja in determining the work schedule of kitchen em-
ployees. In that process he would inform Baja of what
area needed a particular person, at a specific time. Baja
accepted or rejected these recommendations and thereaf-
ter Brown composed and posted a schedule. Upon occa-
sions when the kitchen staff unexpectedly was shorthand-
ed, Brown, upon his own initiative and judgment, com-
municated with off-duty employees and asked them to
report to work.
My findings are based essentially on the testimony of Craig Brown,
Respondent's witness who appeared credible, fonhright, and certain in
his testimony regarding his job duties as chief cook. Where it conflicts in
certain areas with that of John Baja, as to supervisory indicia, I credit
Brown. I also credit the testimony of employee witnesses adduced by the
General Counsel, whose testimony was virtually uncontradicted as to
Brown's authority.
882
BAJA'S PLACE, INC.
John Barbee was hired by Brown as a dishwasher.
One month later, Brown asked him whether he desired
to move up the kitchen job classification scale to the
next step of stock and food preparation person. Upon an
affirmative response, he was immmediately assigned by
Brown to the job of stock and food preparation person.
Although Panzer and Baja were to be seen passing
through the kitchen, there is no evidence that either of
them became directly involved in the details of running
the kitchen or supervising the personnel therein. Al-
though the night cook directed the work of the night-
shift kitchen employees, much of the night-shift food was
prepared in advance by Brown. The night-shift cook,
unlike Brown, did not meet and consult with Baja, and
there is no evidence that the night-shift cook hired or
promoted any employee. Thus, Respondent conferred
Brown with the appearances of managerial authority, as
he appeared to be the chief conduit of managerial deci-
sions to all kitchen employees; i.e., hiring, promoting,
calling in employees for extra duty when shorthanded,
posting the schedule, participating in managerial meet-
ings, etc.
I conclude that the General Counsel has adduced suffi-
cient evidence to establish the supervisory status of
Brown.
Marilyn Drean was one of several witnesses who had
previously been employed at the Sun Dog and who were
hired to work for Respondent upon its commencement
of business. The employees of the Sun Dog were repre-
sented by the Union as had been the employees of the
restaurant previously operated by Baja at that location.
Drean had been a union member at the Sun Dog. There
is no evidence of past union animus of Baja in the oper-
ation of the predecessor restaurant, or in the hiring of
employees for the new operation. Most of the hiring,
however, was done by Assistant Manager Sue Zukovich.
Saturday, November 22, 1980, proved to be a fateful
day for several persons employed at Respondent's restau-
rant. Employees were advised in a meeting of employees
held by John Baja of the retrenchment of certain prom-
ised benefits. Assistant Manager Sue Zukovich was dis-
charged on that date. Drean learned of Zukovich's dis-
charge on Monday, November 24. She was to tell John
Baja later that the employees perceived Zukovich's dis-
charge as a threat to their own security as Zukovich was
considered by the employees to be a hard worker, and
also that Drean herself considered Panzer's managerial
abilities to be deficient. According to Drean, she and 20
or 30 other employees in groups of 4 or 5 persons, at the
nearby Kernin Steakhouse Restaurant, engaged in union
representation discussions several times a week com-
mencing on November 22. Kernin's was a favorite after-
hours gathering place of Respondent's employees. Robin
Ross, who was employed as a waitress at Respondent's
restaurant from the opening until February 14, 1981, tes-
tified that she also engaged in union discussions with a
"few" of her coworkers, including Drean, on about four
occasions at Kernin's Steakhouse which commenced in
September and continued in October and November. Her
testimony therefore conflicts with Drean as to the com-
mencement of union discussions, and thus detracts some-
what from the impactive nature of the November 22
events. However, Respondent conceded Drean's union
activities.
L. E. Martin, a witness called by Respondent and one
of Respondent's regular customers, testified that late in
the evening of Monday, November 24, after returning
from a 3-week trip, she patronized the restaurant and ex-
perienced the following encounter with Drean who had
worked earlier and who had greeted her off duty prior
to midnight. At or about 1:15 a.m., Drean had departed
and returned later in the evening. Drean approached the
bar where Martin was located, staggered, stumbled, and
fell against chairs, screamed at Martin with profanity,
and accused her of an explicable betrayal of her friend-
ship and an interference in her affairs. Martin, who had
known Drean from her patronage at Respondent's res-
taurant and at other restaurants where Drean had
worked, concluded that Drean was intoxicated and
walked with her to the outside lot where she attempted
to dissuade Drean from driving her own car and offered
to drive her home. Drean refused and drove off at or
about 2:45 a.m. The next day, i.e., November 25, Martin
complained to John Baja about the incident. Manager
Panzer testified in vague and generalized terms that he
had observed Drean create scenes in the restaurants on
two occasions, the first of which involved Martin.
Panzer testified that on the first occasion he observed
Drean acting and talking "out of character" and moving
about uncontrollably and loudly criticizing the restau-
rant's food, its kitchen operations, and its management in
a "blur of statements." Panzer conceded that it was diffi-
cult for him to segregate his own recollection from what
others had told him had occurred. However, he testified
that Martin and he walked Drean out of the restaurant
and Martin offered a ride home to Drean. In her testimo-
ny, Martin made no reference to Panzer's participation in
the incident.Drean denied the foregoing conduct of No-
vember 24-25 attributed to her by Martin. She at first
denied that any argument had occurred between herself
and Martin, but later testified that she did have a con-
frontation or "words" with Martin, not on November
24-25 but sometime earlier when Zukovich was still em-
ployed. Drean testified that on this earlier occasion she
had appeared in Respondent's parking lot after 2 a.m.
with Zukovich's husband where they attempted to locate
Zukovich. However, when Drean encountered a locked
rear door to the restaurant she tried to rouse someone
within by knocking on the door. According to Drean,
this raised the concern of Martin who happened to be
the only person in the lot at the time and who ques-
tioned her conduct by stating, "What are you guys
doing?" After Drean explained, Martin purportedly
stated, "Do you know I have control over your job and
I can tell Mr. Baja you are knocking on his door after
hours and making a scene." When Drean said "no,"
Martin then asked, "Don't you give a damn about your
job?" Drean testified that she responded, "Frankly, no."
There is no evidence that Martin is anything more
than a regular patron at the restaurant with whom Baja
regularly converses as he does with other customers, and
apparently she is favored with the unusual convenience
of being served fresh strawberries with her usual bever-
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age, and for whom a turkey was once prepared in the
restaurant kitchen. Assuming that Martin is a favored
customer, there is nothing adduced by the cross-examina-
tion or other testimony upon which I can conclude that
Martin is obliged to Respondent in any way so as to
maintain a strong bias in favor of Respondent. On the
contrary, Respondent appears to be indebted to her for
regular patronage. Thus Martin appears to have no inter-
est in the outcome of this proceeding, and I must consid-
er her to be an indifferent and therefore credible witness
as I find nothing debilitating inherent in her testimony or
in her demeanor as a witness. I therefore credit her testi-
mony as to the conduct of Drean in the early morning
hours of November 25, which conduct appeared to be
that of a person in an agitated, unruly, and intoxicated
condition, and that Martin subsequently complained of
such conduct to Baja. I also credit Panzer's testimony to
the effect that he observed Drean's conduct of Novem-
ber 24-25, and that thereafter retained in his mind an im-
pression that Drean had complained about conditions in
the restaurant, including the management and the oper-
ation of it.
Drean testified that she had learned of Zukovich's dis-
charge on November 24 and that accordingly she tele-
phoned union agent Dennis Tap, on November 25 be-
tween 10 and 11 a.m. (Tap had represented the Sun Dog
employees.) She advised Tap that the employees desired
to know more about union representation and invited
him to address the employees at a meeting at her home.
Accordingly, at 2 p.m. on November 25, Tap visited
Drean's house and remained for 2-1/2 hours where, he
testified, he spoke to 12 or 13 employees in small groups
spaced throughout that time as they came and departed
at different times. Tap obtained 12 signed union authori-
zation cards. In the evening Drean called and told Tap
that she had obtained 19 more signed union authoriza-
tions. On the morning of November 26, Tap retrieved
those cards from Drean at her house, and later in the
day filed a representation petition with the Board, as
well as with the Michigan Employment Relations Com-
mission. At 5 p.m., Tap hand-delivered to Manager
Panzer a letter addressed to John Baja wherein the
Union claimed majority status and demanded recogni-
tion.
Drean testified that she engaged in a conversation with
John Baja at the bar in Kernin's Steakhouse between 10
and 11 p.m., sometime between November 26 and De-
cember 5. She was very uncertain about the date. Baja,
however, with a high degree of certitude, recalled the
encounter and placed the date in relationship to the dis-
charge of Zukovich, the discharge of Drean, and
Thanksgiving Day, as occurring on Wednesday, a week
before Drean's discharge.2 I conclude that the encounter
did occur on December 3. According to Drean and
Ross, they had never seen Baja at Kernin's Steakhouse.
According to Baja, he often stops there on his way to his
home which is located two blocks away. According to
Drean, after a casual encounter near or at the bar which
arose as Drean was passing Baja, who was seated and
' Baja testified that he had already received a copy of the union peti-
tion filed with the Board and had obtained legal advice prior to this con-
versation.
who had greeted her, the two exchanged pleasantries.
Then Baja asked Drean whether she knew anything
about the "union getting involved in his establishment."
When Drean denied such knowledge, Baja purportedly
asked her if she knew what were the employees' com-
plaints or what was wrong with the way the restaurant
was run. Drean testified that she responded that, without
Zukovich, Panzer was not running the "front of the
house" as well and that the waitresses felt insecure of
their positions because Zukovich, who was a good
worker, nevertheless, was discharged. To that Baja alleg-
edly responded that if the Union were to come in he
would be forced to close the restaurant. The conversa-
tion lasted, according to her, 15 minutes and, although
there were other customers, there were none immediate-
ly nearby.
Baja testified that the December 3 conversation with
Drean occurred between 11:30 p.m. and midnight and
was initiated by Drean after he had entered, walked
three-fourths of the way along the bar, noticed an ac-
quaintance at a point beyond, and was about to walk
toward that person. According to Baja, Drean, with
drink in hand, approached him and stopped him in the
aisle and commenced a conversation described as fol-
lows. After a few brief irrelevant comments, Drean
stated that she wished to talk about problems at Re-
spondent's restaurant, i.e., it was operated improperly by
Panzer whom she characterized as a "jerk," that Zuko-
vich should not have been terminated, that she (Drean)
found her job desirable, that she (Drean) was on Baja's
"side" and "not part of this union bit or nothing." Baja
declined to discuss the Union, and testified that he had
already received notification of the Union's demand for
recognition and election and had obtained legal advice.
According to Baja, Drean persisted and stated, "I
haven't even signed a card." Baja testified that he told
her that it was fine but it was her own decision. He testi-
fied that he also told her that he approved of Panzer de-
spite his failings and that he kept trying unsuccessfully to
back away from her. Finally, he abruptly terminated the
conversation and proceeded to visit with another person
at the bar. According to both Baja and Drean, there
appear to have been no witnesses within hearing range of
this encounter although Baja recognized one of his bar-
tenders and an excook as customers at the bar. They did
not testify. Baja testified that Drean told him upon in-
quiry during the encounter that she had been drinking a
"stinger," and that she appeared to be intoxicated. Drean
denied having had a "stinger" in hand, that she had dis-
cussed certain specific complaints regarding Panzer at-
tributed to her by Baja relating to sizzler steaks, that she
had stated explicitly that she was not involved in the
union activities, that Baja had attempted to "pull away"
from her, i.e., he was seated, and that she was intoxicat-
ed.
Waitress Ross testified as to a conversation with
Brown which she placed at an unknown date after the
union cards were signed but prior to Drean's discharge.
The conversation occurred at a point between the bar
area and the kitchen entrance. Ross testified that, while
they were alone, Brown asked her whether she knew
884
BAJA'S PLACE, INC.
anything about the Union. She responded that she did
not know much and that Brown then stated that John
Baja would close the restaurant if the Union "came
through," and that he enjoyed his job and that he was
well paid. Brown testified that he did have a conversa-
tion with one employee in that area and, within that con-
versation, the context of which he cannot recall, he did
tell the employee that the restaurant could not "put up
with the burden of having a union . . ." He could not
recall what initiated the conversation but that, after he
made his comment, the employee appeared "dumbfound-
ed." In light of Brown's testimony and his inability to ex-
plicitly deny the balance of the conversation attributed
to him, I credit Ross. Brown testified that he had made
these remarks without having had any prior conversation
with John Baja relative to the unions and that his com-
ments were his own opinion. He did not, however, tell
the employee that his remarks were merely his own
opinion.
Drean testified that she engaged in a conversation
alone with Brown at some time during the first week of
December in the kitchen of the restaurant wherein
Brown approached her and told her that he had heard
that she was the "ringleader" of the "whole union con-
troversy," and that she responded with a denial, and that
he nevertheless persisted in asking her what were the
employees' complaints. Drean thereupon told him that
the employees desired job security and better fringe
benefits, according to what she had heard from the
"grapevine." She added that Brown then stated that Baja
would be forced to close if the Union were successful.
Brown testified that other than the previously described
conversation, and another on or about the day of the
subsequent Board-conducted election concerning the
election (not alleged violative nor as evidence of
animus), he could recall no other conversations. As his
demeanor was uncertain and as he did not explicitly
deny the aforesaid conversation with Drean, I credit her
testimony.
Subsequently, Drean was discharged purportedly for
her off-duty conduct in Respondent's restaurant on the
evening of December 11. With respect to this incident,
the General Counsel adduced the testimony of Drean,
Ross, and nonemployee Debra Celski. Respondent ad-
duced the testimony of Baja, Panzer, bartender Gary
Wood, and Brown.
On the evening of December 11, Brown worked past
his day-shift hours and joined Baja at the bar near the
kitchen entrance, according to Baja to discuss "prob-
lems" in the kitchen. Drean, who was off duty, had
taken her friend and neighbor, Celski, out to celebrate
Celski's birthday. Celski testified that she and Drean cus-
tomarily went "out drinking" three or four times a
month. Drean testified that, on the evening of December
11, they had commenced drinking at or about 7:30 p.m.
at another restaurant and that she had imbibed two or
three scotch and sodas by 9:45 p.m. and that she had a
"buzz" on but was not intoxicated. At 9:50 p.m. she and
Celski departed the other restaurant. At or about 10 p.m.
Drean and Celski arrived at Respondent's restaurant.
Baja testified that Drean and Celski entered and pro-
cured the table along the metal railway that was adjacent
to the bar about 10 feet away. Brown, Wood, and Baja
testified that Drean came over to talk to Baja. Brown
testified that Drean greeted Baja in a tone of voice that
indicated "just a little like she was very, very happy or
something," and that her words "eventually" began to
slur "a little bit." Baja, Brown, and Wood, who passed
them as he serviced the length of the bar, testified that
they concluded that she was intoxicated. Wood and Baja
gave no specific foundation for this conclusion. The bar
was long enough to accommodate 17 stools. Wood
claimed that he could not hear the conversation that
ensued, but he testified nevertheless that it was "heated,"
but he heard no profanity. Brown, who was seated next
to Baja, testified that he did not hear the "whole" con-
versation. Baja testified that Drean initiated the conver-
sation by reiterating the same comments she made to him
on December 3, that she also told him that, in the ab-
sence of Zukovich, Baja had "lost control" of his oper-
ation, that it was now badly run, and that Panzer was a
"lousy manager." Baja testified that he then stated, "Will
you get the fuck away from me? You've had enough to
drink. Just go someplace else, or go back where you
came from where you had your drinks." According to
Baja, she responded, "What if I don't," and he then
threatened to remove her bodily, at which point she re-
turned to her table. At this point Baja's testimony is con-
fused as to how a drink was delivered to Celski at the
table, but it is clear that he had ordered waitress Ross
not to serve Drean. When Drean had returned to her
table, she took Celski's drink and commenced to sip it.
Baja testified that, when he observed that, he became en-
raged, walked over, grabbed the drink from Drean, and
asked her to leave. He testified that she suggested that
she might not leave whereupon he threatened to remove
her bodily, and then urged her companion to remove
Drean. He testified that at that point everyone in the res-
taurant turned to observe. Baja again told Celski to
remove Drean and stated that she was embarrassing him.
Celski offered to pay for her drink, but Baja told her that
she need not pay. At that point he testified that Drean
then walked over to the tables of several regular custom-
ers, including Tom Flynn and Ed Hughes, two tables
away, and started to talk to them. Baja testified that he
became "madder than hell," that at that moment Panzer
entered the lounge from the "back," and that Baja or-
dered Panzer to remove that "S.O.B.," i.e., Drean.
Panzer then went and nudged Drean away out of the
restaurant.
Brown testified cryptically that, after the initial meet-
ing between Drean and Baja at the bar, the next thing
that he recalled occurring was that Drean insisted upon
having a drink, that she went to a table to obtain a drink,
that she got up and started to talk to customers, that he
did not hear what she said, and that next "they" re-
moved her from the restaurant. Brown testified that
there were 12 customers present, at 3 tables, that a
"couple" of loud words were uttered between Baja and
Drean which he did not hear although Baja and Drean
were talking at a distance of only 4 or 5 feet away.
Wood could only recollect in generalized testimony that
Drean was asked to leave, that she refused, that words
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were exchanged between Baja and Panzer and Drean.
When asked whether he saw Drean talking to customers,
he testified that he believed that Drean merely sat at one
table and only talked to Baja at the bar. Panzer testified
that he observed Drean and Celski enter on December
11. However, he gave no account of his vantage point.
His testimony seems to conflict with Baja who testified
that Panzer entered the lounge at a later point. It is also
inconsistent with the foregoing testimony as to the se-
quence of events. Panzer was also given to generalized
and conclusionary testimony, which at times was con-
fused and accompanied by a hesitant and uncertain de-
meanor. He suggested that Drean's behavior was not as
"out of line" as had occurred in the L. E. Martin inci-
dent. He testified that Drean and Celski entered the
lounge and that Drean then immediately proceeded to
talk to other guests wherein she loudly criticized Re-
spondent's owner, the chef, and "possibly" Panzer, that
she was thereafter requested several times to leave. He
testified that, although he assisted in the process of re-
moving Drean, Baja did not actually request him to do
so. He testified that Drean had been told previously not
to "be there," i.e., to come into the place. It was not
clear who told her that or when or where she had been
so instructed. Baja made no reference to any such prior
instruction.
According to Drean, she and Celski entered the res-
taurant and immediately proceeded to a table near the
railing adjacent to the bar, and both were seated and re-
mained seated until Ross took their orders and returned
with a drink only for Celski. Ross corroborated Drean
and Celski and testified further that she, Ross, proceeded
to the bar but was instructed by Baja not to serve a
drink to Drean. Ross then delivered one drink and told
Drean of Baja's order. Only at that point then, according
to Drean, Celski, and Ross, did Drean proceed to the bar
to talk to Baja.
According to Drean, she went to the bar and asked
the reason for Baja's prohibition and was told that she
had drunk "too much already," which she denied and
that Baja then stated, "I would like you to get out of my
mother fucking establishment." Drean testified that she
was "shocked and upset" and protested to Baja his use of
the obscene language. 3 Baja then repeated his request
without the offending adjective. Drean testified that she
became "choked up" and walked back to her table,
where she disregarded a glass of water on the table and
proceeded to "sip" from Celski's alcoholic beverage. As
she did so she started to cry. She then, on request, ex-
plained to Celski what had happened. Drean testified
that it was her intention to leave at that point but that
she hesitated in order to get her "bearings." At that
moment, she testified, Baja came up and grabbed the
drink out of her hand and ordered her to leave immedi-
ately, whereupon Celski's offer to pay for the drink was
declined by Baja and they thereafter left, unescorted.
Celski, who generally corroborated Drean, testified
that slhe and Drean sat only 5 or 10 feet away from Baja,
but that she did not hear any of the conversation be-
tween Drean and Baja at any point. She also testified
$ Baja vehemently denied the "mother" part of the adjective.
that after Baja grabbed the drink from Drean, the two of
them departed. Celski's inability to hear any conversation
between Baja and Drean is as curious as Brown's similar
testimony, in light of Ross' testimony that from a dis-
tance of 18 feet she heard Baja's use of the word "fuck"
(but not "mother fuck"), and that Baja was loud enough
to have been heard by several waitresses and to have
caused customer Flynn to have looked up from his table.
In rebuttal testimony, Drean, Celski, and Ross all testi-
fied to Drean's sobriety on December 11, i.e., she did not
stumble, fall, or engage in loud or abusive conduct, nor
did she address the customers. However, Drean and
Celski, in rebuttal, testified that they did not immediately
leave when Baja assumed the cost of Celski's drink.
They testified that Flynn came to their table and en-
gaged them in a short conversation by asking Drean
what had occurred. Despite her testimony as to Drean's
sobriety of December 11, Ross testified that, after she
told Drean of Baja's prohibition, she, Ross, went to Baja
and protested that she had seen other restaurant custom-
ers "more drunk" and that she could not understand why
she should not serve Drean. To that Baja responded that
the other intoxicated persons had not been employed by
the restaurant. Ross does not explain why she engaged in
a discussion of disparate treatment of persons of varying
degrees of inebriation if Drean had in fact been com-
pletely sober. In any event, Ross corroborated Baja to
the effect that at the end of the incident Baja appeared
genuinely enraged to the extent that he was physically
shaking.
I conclude that Drean, Celski, and Ross testified with
greater consistency and certitude than did Baja, Wood,
Brown, and Panzer. Although Celski may have been sub-
ject to a possible bias as a personal friend of Drean, Ross
was not shown to have manifested any bias or animosity
toward Respondent that would have seriously jeopard-
ized her credibility. As a former employee, she had noth-
ing to gain by her testimony except the alienation of her
former employer and future job reference source al-
though Brown, as a former supervisor, also appeared to
have no direct immediate interest in this proceeding
except to cultivate a potential job reference source.
However, his testimony was too vague and generalized,
and failed to corroborate Baja on critical details; e.g., the
substance in whole or at least in part of the alleged con-
versation between Baja and Drean. Had Drean hectored
and harangued Baja as he testified, I find it inconceivable
that his companion at the bar, Brown, would not have
heard and recalled at least part of it. I therefore credit
Drean and discredit Baja's account of their conversation
of that night. Wood was even more generalized in his
testimony and failed to corroborate, if not contradict,
testimony as to Drean's alleged conversations with cus-
tomers. Both Wood and Brown manifested an uncertain
demeanor in testimony. Panzer was inconsistent, con-
fused, uncertain, and vague. His testimony contradicts,
and is inconsistent with, that of Baja.
I conclude that the events and sequence of events on
December 11 occurred as testified to by the witnesses for
the General Counsel. However, I also conclude that
Drean was not as sober as their testimony suggests. I
886
BAJA'S PLACE, INC.
credit Brown's testimony that Drean, who admitted to
having a "buzz" on, did give the appearance of being
somewhat affected by alcohol in that she slightly slurred
her speech and spoke in a slightly altered tone of voice.
However, I conclude that she did not behave in a gross-
ly intoxicated manner nor was she unruly, nor did she in-
terfere with Respondent's customers, nor did she cause
Respondent any embarrassment by her behavior. I find
that any "scene" that was created was that attributed to
Baja's heated reaction to Drean's failure to display alacri-
ty in removing herself from the restaurant, e.g., his loud
vulgarity, the grabbing of a drink from Drean's hand, the
threat to employ physical force, etc.
With respect to the conversation of December 3, I
credit Drean in part because of the credibility resolutions
concerning the December 11 incident. That is to say, al-
though I have discredited Drean as to the L. E. Martin
incident, I found her to be more credible than Baja, in
large part due to the corroboration of Celski and Ross in
regard to the December 11 events. Additionally, I find it
improbable that Drean, who initiated and who largely
organized employee support for the Union, would have
on two occasions thereafter voluntarily and loudly pro-
claimed her loyalty to Respondent and her disconnection
with the union effort, while she simultaneously criticized
the management of the restaurant. I find it more prob-
able that Baja, having recently been made aware of the
union activities, seized the opportunity to interrogate an
employee concerning the Union within the context of an
ostensible, casual social encounter. His conduct, as testi-
fied to by Drean, is in accord and concurrent with the
conduct of his subordinate chief cook, Brown; i.e., inter-
rogation and threat. Finally, I found Drean's demeanor
to have been more certain and to have possessed more of
that quality of spontaneity characteristic of candor than
the demeanor exhibited by Baja. Thus, I conclude that
John Baja did interrogate and threaten Drean on Decem-
ber 3, as testified to by Drean.
IV. ANALYSIS
A. The 8(a)(1) Allegations
Based upon the foregoing findings of fact, I conclude
that on December 3, 1980, Respondent, by its president
John Baja, violated Section 8(a)(l) of the Act by coer-
cively interrogating employee Drean and by threatening
closure of the business if the employees chose to be rep-
resented by the Union. 4
I further conclude that Respondent, by its supervisor,
Craig Brown, on a date between December I and 7,
1980, violated Section 8(a)(1) of the Act by coercively
interrogating employee Drean and by threatening closure
of the business, and by creating the impression that it
had engaged in surveillance of employee union activities
by the statement that he had heard that she was the
"ringleader" of the union activities. Keystone Pretzel
Bakery, Inc., 242 NLRB 492 (1979).
It is also concluded that Respondent on a date be-
tween November 26 and December 11, by Supervisor
4 Although the issue of threat of closure by Baja was not alleged in the
complaint, it was fully litigated at the hearing.
Craig Brown, violated Section 8(a)(l) of the Act by co-
ercive interrogation of employee Robin Ross, and the
threat to close the business if the Union were successful
in becoming the employees' designated bargaining agent.
B. The 8(a)(3) Allegation
The General Counsel contends that Drean was dis-
charged because of her union activities. Respondent
argues that the General Counsel has failed to prove that
Respondent was aware of and was hostile to Drean's
union activities. Rather, it argues that Drean was dis-
charged for justifiable business reasons; i.e., insubordina-
tion. Knowledge of union activity, however, can be in-
ferred from the circumstances; e.g., prevalence of rumors
in the plant, size of unit, timing of the discharge, and
pretextual nature of the reason proffered for the dis-
charge. Wiese Plow Welding Co., Inc., 123 NLRB 616
(1969); Famet, Inc., 202 NLRB 409 (1973); Tayko Indus-
tries, Inc., 214 NLRB 84, 88 (1974); The Huntington Hos-
pital, Inc., 229 NLRB 253 (1977); Speed-O-Lith Offset
Co., Inc., 241 NLRB 928 (1979).
The court stated in Shattuck Denn Mining Corporation
(Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th
Cir. 1966):
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be availa-
ble that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact-here the trial examiner-required to
be any more naif than is a judge. If he 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 em-
ployer desires to conceal-an unlawful motive-at
least where, as in this case, the surrounding facts
tend to reinforce that inference.
The Board in reevaluating the burden of proof in dual
motivation cases has recently explicated and announced
the following causation test for cases alleging violations
of Section 8(a)(3) or violation of Section 8(aXl) turning
upon employer motivation:s
First [the Board] shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established, the burden will shift to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct.
In the instant case I conclude that there is sufficient
credible evidence to infer that Respondent was aware of
' Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083. 1089
(1980).
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drean's union activities prior to her discharge and that it
was hostile to those activities.
During the December 3 interrogation of Drean, Baja
was exposed to a critique of the restaurant's operations
from which it could be reasonably inferred that Drean
supported, if not instigated, the union effort. During the
first week of December, chief cook Brown revealed his
awareness that Drean was the union "ringleader.'" I find
it incredible that Brown, who consulted with Baja on
managerial matters, would not have reported this infor-
mation to Baja.
Finally, as the court of appeals noted in the Shattuck
Denn case, supra, an inference of unlawful motivation
can be raised if the proffered reason for discharge is
found to be false. As found above, Drean's conduct on
December I was not unruly or obstreperous. Baja ex-
hibited an exaggerated response to conduct of an off-
duty employee that was not shown to have been detri-
mental to Respondent's business.
Although Drean had engaged in disorderly conduct on
the evening of November 24, preceding the union activi-
ty, she was not reprimanded for that conduct, and there
is no evidence of any concern of either Panzer or Baja
being raised for that earlier behavior. Rather, it was si-
lently condoned. However, after Drean had in fact
become the "ringleader" of union activities, conduct of
far less significance evoked first an order of eviction
from the premises and thereafter discharge. From such
sequence of events, it can be inferred that Respondent
was motivated because of its hostility toward Drean's
union activities. I conclude that the General Counsel has
sustained the burden of establishing a prima facie case of
discriminatory discharge for union activities. I conclude
that Respondent has failed to adduce sufficient evidence
that Drean would have been discharged for misconduct
regardless of the existence of an inferred unlawful moti-
vation. The evidence is barren of any evidence that Re-
spondent treated Drean in accordance with past practice
or policies regarding employee work or off-work con-
duct. Nor is there any evidence in the record of past be-
havior indicative of Respondent's tolerance level of in-
subordination or lack thereof. Accordingly, I find that
Respondent violated Section 8(a)(3) of the Act as alleged
in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
of the Act by coercively interrogating employees regard-
ing their union activities, by threatening employees with
closure of its business if they chose to be represented by
the Union, and by creating the impression of unlawful
surveillance of their union activities.
4. Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section
8(a)(3) and (1) of the Act by discriminatorily discharging
employee Marilyn Drean on December 12, 1980.
THE REMEDY
Having found that Respondent engaged in an unfair
labor practice, I recommend that it be required to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Marilyn Drean, it is recommended that Re-
spondent be ordered to offer her immediate and full rein-
statement to her former or substantially equivalent posi-
tion, without prejudice to her seniority or other rights
and privileges, and to make her whole for any loss of
pay she may have suffered by reason of the discrimina-
tion against her. Any backpay found to be due shall be
computed in accordance with the formula as set forth in
F W Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).6
Upon the basis of the entire record, the findings of fact
and conclusions of law, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER7
The Respondent, Baja's Place, Inc., Dearborn, Michi-
gan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding their
union activities.
(b) Threatening employees with closure of the business
if they choose to be represented by the Hotel, Motel,
Restaurant Employees, Cooks and Bartenders Union,
Local 24, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, or any other labor
organization.
(c) Creating the impression of unlawful surveillance of
employees' union activities.
(d) Discouraging membership in or activities of its em-
ployees on behalf of Hotel, Motel, Restaurant Employ-
ees, Cooks and Bartenders Union, Local 24, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other labor organization, by
discharging them or otherwise discriminating against
them in any manner with regard to their rates of pay,
wages, hours of employment, hire or tenure of employ-
ment, or any term or condition of their employment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them under the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Marilyn Drean immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority and other rights and privileges, and make
her whole for any loss of earnings she may have suffered
by reason of the discrimination against her in the manner
6 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
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 find-
ings, 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.
888
BAJA'S PLACE, INC.
set forth in the section of this Decision 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, time-
cards, personnel records and reports, and all other docu-
ments necessary and relevant to analyze and compute the
amount of backpay under this Order.
(c) Post at its place of business in Dearborn, Michigan,
copies of the attached notice marked "Appendix."8
a In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to any alleged violations of the Act not found
herein.
889