Bouley

National Labor Relations Board - Board Decisions

Feb 26, 1992

306 N.L.R.B. 385 (N.L.R.B. 1992)

385
306 NLRB No. 78
BOULEY
1 The Respondent and the General Counsel 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 the evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
2 In light of our disposition of the 8(a)(4) and (1) discharge find-
ings, we find it unnecessary to pass on the Respondent’s motion to
reopen the record.
3 All dates are 1989.
4 The Respondent’s brief to the judge requested reopening the
hearing for consideration of additional evidence on these issues. The
judge denied this request.
Bouley, Inc., d/b/a Bouley and Hotel Employees and
Restaurant Union, Local 100, of New York,
New York and Vicinity, AFL–CIO. Case 2–
CA–23851
February 26, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 29, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent and the General Counsel filed exceptions
and a supporting brief, the Respondent filed a motion
to reopen the record and an answering brief, and the
General Counsel filed a brief in opposition to the Re-
spondent’s exceptions and motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
We affirm the judge’s findings that the Respondent
unlawfully interrogated an employee about union ac-
tivities and unlawfully threatened to close the res-
taurant. We find merit, however, in the Respondent’s
exceptions to the judge’s finding of an 8(a)(4) and de-
rivative 8(a)(1) violation based on David McGrath’s
discharge because those violations were not alleged in
the charge or complaint nor litigated at the hearing.
Accordingly, we reverse the judge’s 8(a)(4) and (1)
findings.2
With respect to McGrath’s discharge, the complaint
alleges only that the Respondent violated Section
8(a)(3) and (1) by issuing a warning to him on Sep-
tember 12, 1989,3 and by thereafter discharging him in
retaliation for his known union organizing activities.
The Respondent’s answer asserts, inter alia, that it ter-
minated McGrath for lawful, nondiscriminatory rea-
sons. Neither the General Counsel’s theory of the case,
nor the Respondent’s asserted defense, addresses the
issue of whether McGrath’s discharge violated Section
8(a)(4) of the Act, which protects employees against
discharge or discrimination for filing charges or giving
testimony under the Act.
Undisputed evidence adduced at the hearing shows
that McGrath, the initiator of a contemporaneous union
organizing campaign among the Respondent’s res-
taurant employees, received a written disciplinary
warning from his supervisor, Maitre d’ Olivier
Daubresse, on September 12. The next day McGrath
delivered the following letter to the Respondent:
My lawyer is looking at the letter of reprimand
from Olivier wherein he claims I called him an
‘‘asshole.’’ I totally deny this charge and hope
that Olivier has witnesses other than persons on
the management team to verify this claim.
I will not stand by and have my character assas-
sinated without pressing charges . . . both against
the restaurant and Mr. Olivier.
I will accept a retraction within 24 hours with the
assurance that Mr. Olivier . . . will end his perse-
cution campaign against me or I will find it nec-
essary to subpoena the entire service staff to
verify the reality of his actions towards me in the
past few weeks.
David Bouley testified that McGrath’s discharge on
September 14 was based solely on his ‘‘gross insubor-
dination’’ as manifested in the above-quoted letter.
The Judge’s Decision
The judge found, and we agree, that the General
Counsel failed to prove either that McGrath’s written
warning or his discharge was motivated by antiunion
considerations, despite his crediting testimony showing
that Bouley had prior knowledge of McGrath’s union
activities. However, the judge, citing Garment Work-
ers, 295 NLRB 411 (1989), sua sponte advised the
parties after the hearing to brief McGrath’s discharge
as an 8(a)(4) and (1) issue in that, based on the text
of his September 13 letter, the discharge may have
been motivated by a perception that McGrath would
file charges with the Board. Following the submission
of the parties’ briefs,4 the judge found, based on the
existing record, that the purported insubordinate con-
duct for which McGrath was discharged was an inten-
tion to file Board charges. The judge concluded that
the discharge therefore violated Section 8(a)(4) and
(1). In so holding, the judge noted that, although the
letter did not explicitly state that McGrath intended to
file charges under the Act, Bouley clearly was aware
that ‘‘pressing charges’’ meant filing unfair labor prac-
tice charges, because Bouley knew of McGrath’s union
activity and Bouley was familiar with NLRB proce-
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Affidavits attached to the Respondent’s motion proffer testimony
by David Bouley and the Respondent’s corporate counsel regarding
Bouley’s understanding of McGrath’s letter as being accusatory and
insulting rather than indicative of an intention to file charges with
the Board.
6 See Indianapolis Mack Sales & Service, 288 NLRB 1123 fn. 5
(1988).
7 An affidavit by the Respondent’s counsel, attached to its motion
to reopen the record, asserts that he was advised by the General
Counsel prior to trial that the 8(a)(3) complaint was premised on this
theory.
Although, as the General Counsel now points out, the primary
holding of Spartan Equipment was that the discharge was unlawful
because it was premised on a threat to file a legal action, the Gen-
eral Counsel did not advert to this holding until the filing of her op-
position to the Respondent’s motion to reopen the record. Both at
the hearing and in her posthearing brief to the judge, she character-
ized McGrath’s conduct in writing the letter solely in terms of his
dures as a result of his settlement of 8(a)(3) allegations
filed against the Respondent a year earlier. The judge
relied on Pergament United Sales, 296 NLRB 333
(1989), enfd. 920 F.2d 130, 135 (2d Cir. 1990), as au-
thority for his finding that McGrath’s discharge vio-
lated Section 8(a)(4) and (1), even though only Section
8(a)(3) and (1) was alleged, because both theories
focus on the legality of the Respondent’s motivation.
Contentions of the Parties
The Respondent, in its exceptions and motion to re-
open the record, reiterates that it had no notice or op-
portunity to present evidence and related legal argu-
ment on whether McGrath’s threat to ‘‘press charges’’
implicated Section 8(a)(4) and (1), because that theory
was neither alleged nor litigated.5 The Respondent
contends that it cannot be expected to raise, nor should
it be penalized for failing to raise, a defense to a claim
of which it has never received notice, citing Quality
C.A.T.V. v. NLRB, 824 F.2d 542 (7th Cir. 1987).
The General Counsel’s opposition to the Respond-
ent’s exceptions and motion urges that unless it can be
shown that the Respondent was precluded from offer-
ing exculpatory evidence or that it would have changed
its conduct at the hearing as a result of notice of the
8(a)(4) allegation, the Respondent has not shown a de-
nial of its due process rights. The General Counsel
contends that the Respondent had notice of the critical
importance of whether McGrath’s letter was the cause
of his discharge and that the degree to which this had
been fully litigated is manifested by its attorney’s ex-
tensive questioning of McGrath and Bouley on the
subject of the letter.
Discussion
We conclude that the judge’s 8(a)(4) and (1) dis-
charge finding was improper. Because no 8(a)(4) or (1)
theory for McGrath’s discharge was alleged in the
complaint or advanced at the hearing, the Respondent
had no notice or opportunity to prepare and present a
defense to it. If Respondent had known during the
hearing that an 8(a)(4) issue was involved, it would
have had an opportunity to present evidence as to (1)
whether Respondent’s representatives perceived that
the references to ‘‘pressing charges’’ and ‘‘subpoenas’’
reflected an intention to resort to the Board; and (2)
whether these references in the letter were the motive
for the discharge. Respondent was not given this op-
portunity because the judge injected the 8(a)(4) issue
into the case after the close of the hearing. In addition,
the judge denied Respondent’s motion to reopen the
record to receive a defense to the 8(a)(4) contention.6
Thus, it is clear that the judge’s finding of an 8(a)(4)
and (1) violation in these circumstances constitutes a
prejudicial denial of due process to the Respondent.
Our dissenting colleague asserts that ‘‘notice of an
8(a)(3) discharge complaint is closely connected to an
8(a)(4) finding’’ inasmuch as both involve the issue of
motivation. However, the fact is that Section 8(a)(3)
and (4) are different allegations which raise different
issues presented by different defenses. Indeed, our col-
league would remand this case to receive further evi-
dence on the 8(a)(4) issue event though the 8(a)(3)
issues were fully litigated.
This case is markedly differently from Pergament,
supra, on which the judge relied. In Pergament, the re-
spondent admitted that it failed to hire its licensee’s
former employees because unfair labor practice charges
had been filed, and the Board therefore concluded that
the alternative 8(a)(4) theory was fully litigated. No
such admission is present in this case. The Respond-
ent’s chief witness in the instant case merely testified
that he discharged McGrath for his insubordinate con-
duct, in the form of McGrath’s September 13 letter,
and that such conduct, rather that union activity, was
the basis for his discharge. It is true that the letter’s
contents are such that the Respondent could have un-
derstood the letter as a threat to file an unfair labor
practice charge. However, Respondent certainly did not
admit that this was so. The Respondent had no reason
to adduce additional evidence at the hearing as to its
understanding of the letter’s language, because at no
time during the hearing did the General Counsel allege
or argue an 8(a)(4) theory of violation. As noted
above, the General Counsel spoke solely in terms of
union activities, and, indeed, expressly relied on a
provocation theory like that set forth in Spartan Equip-
ment, 297 NLRB 19 (1989). More particularly, the
contention was that McGrath’s letter—even assuming
that its contents would form a lawful basis for dis-
charge—was the result of an employer provocation that
was itself motivated by antiunion discrimination, and
that a discharge based on the letter was therefore un-
lawful as the result of prior discrimination in violation
of Section 8(a)(3).7
387BOULEY
union activity and made no reference at all to any threat to invoke
Board processes.
8 See Waldon, Inc., 282 NLRB 583 (1986). The dissent attempts
to distinguish Waldon on the basis that the letter was introduced into
evidence and ‘‘speaks for itself.’’ However, the fact is that the letter
does not establish that Respondent understood ‘‘charges’’ and ‘‘sub-
poenas’’ to relate to an intention to resort to the NLRB and does
not establish that the discharge was based on that understanding. In-
deed, these matters were not even litigated.
1 See also Grand Rapids Die Casting v. NLRB, 831 F.2d 112, 118
(6th Cir. 1987); AMC Air Conditioning Co., 232 NLRB 283 fn. 10
(1977); Coca Cola Bottling of Buffalo, 811 F.2d 872 (2d Cir. 1987).
2 Contrary to the majority, I find Waldon, Inc., 282 NLRB 583
(1986), inapplicable in these circumstances. In that case, no evidence
of the unalleged violation had been adduced, whereas here the docu-
mentary and testimonial evidence discussed above constitute the un-
derpinning of the judge’s finding.
3 See NLRB v. Jones Dairy Farm, 909 F.2d 1021, 1028–1029 (7th
Cir. 1990) (no due process problem where respondent cited a zipper
clause in its defense and Board found that clause established, rather
then refuted, unfair labor practice allegation).
4 The Board interprets such statements broadly, e.g., Oakes Ma-
chine Corp., 288 NLRB 456, 457 (1988) (an intention to testify ‘‘in
court’’ if necessary); Lustrelon, Inc., 289 NLRB 378, 383 (1988)
(‘‘going to go to the U.S. Labor Department and complain what they
were doing to [him]’’); Book Covers Inc., 276 NLRB 1488, 1490–
1491 (1985) (he was going to the Labor Department). See also
NLRB v. AA Electric Co., 405 U.S. 117, 122 (1972) (discharge of
four employees for giving statements to a Board field examiner).
5 Unlike my colleagues, I view a remand for further hearing as a
benefit for the Respondent rather then a second bite for the General
Continued
Based on the above, we would not find an 8(a)(4)
violation on the present record. Thus, the only issue
left for resolution is whether this case should be re-
manded. We would not do so. In our view, the General
Counsel, having chosen to proceed exclusively on an
8(a)(3) theory, without so much as a hint of reliance
on the possibility of an 8(a)(4) violation based on
McGrath’s September 13 letter, should not be given a
posthearing opportunity to recast the theory of the
case. A remand to ‘‘cure’’ the denial of due process
would unnecessarily give the General Counsel another
bite at the apple.8
The dissent asserts that Respondent would be the
beneficiary of a remand. This assertion begs the issue.
If the dissent were correct in its contention that the
General Counsel should be given an opportunity to
make a belated 8(a)(4) contention, then Respondent
would indeed ‘‘benefit’’ from a remand that would
give it an opportunity to present a defense to the
8(a)(4) contention. However, the issue is whether the
General Counsel should be permitted to make the be-
lated contention. As discussed above, we would not
permit the General Counsel to do so. Accordingly, we
shall dismiss the judge’s 8(a)(4) and (1) discharge
findings, and make the appropriate modifications to his
recommended Order and notice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent,
Bouley, Inc., d/b/a Bouley, New York City, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in the recommended Order, as
modified.
1. Delete paragraphs 1(a), and 2(a), (b), and (c) from
the Order and reletter the remaining paragraphs.
2. Substitute the attached notice for that of adminis-
trate law judge.
CHAIRMAN STEPHENS, dissenting in part.
Although I agree with my colleagues that the Re-
spondent’s interrogation and threat violated Section
8(a)(1), I cannot join in their decision to reverse the
judge and dismiss the 8(a)(4) and (1) violations relat-
ing to McGrath’s discharge. Unlike my colleagues, I
would remand and reopen this proceeding, in accord-
ance with the Respondent’s request, to avoid any fur-
ther contention by the Respondent that it has not been
accorded a full opportunity to provide a defense to the
determinative issues in this proceeding.
Notice of an 8(a)(3) discharge complaint is closely
connected to an 8(a)(4) finding at least to the extent
that both go to the critical issue of the Respondent’s
motivation. Pergament United Sales, 296 NLRB 333
(1989), enfd. 920 F.2d 130, 135 (2d Cir. 1990).1 It is
particularly so in this case where the Respondent’s de-
fense to the discharge allegation consisted of the fol-
lowing testimony by Bouley in response to his own
counsel’s questions: (1) that he found McGrath’s letter
‘‘a threatening letter [containing] language that I’m not
familiar with,’’ e.g., the phrase ‘‘To subpoena the
staff,’’ (2) that he faxed the letter to, and discussed it
with, his corporate attorney prior to discharging
McGrath, and (3) that he would not have discharged
McGrath on September 14 were it not for that letter.2
It was the judge’s evaluation of the specific language
of McGrath’s letter and Bouley’s admitted reaction
thereto,3 which led him to find that the Respondent un-
derstood McGrath’s reference to ‘‘pressing charges’’
as a threat to file unfair labor practice charges,4 and
that it discharged him for that reason in violation of
Section 8(a)(4) and (1).
In my view, the judge’s finding reflects a reasonable
judgment that the General Counsel has established a
violation of Section 8(a)(4) and (1). However, as the
Respondent contends it was deprived of a full oppor-
tunity to defend its discharge of McGrath on the basis
of the contents of the September 13 letter, I would re-
mand this proceeding for the consideration of any
other relevant information which the Respondent may
introduce to explain the basis for McGrath’s dis-
charge.5 Accordingly, I would grant the Respondent’s
motion and reopen the record for that purpose.
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel, because without any further evidence from the Respondent
then it has thus far adduced I would affirm the judge.
1 When viewing the record in this case, it should be kept in mind
that the Respondent is rated by the New York Times as a four star
restaurant. Thus, standards for service are expected to be correspond-
ingly higher than at most other New York restaurants.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate any employee
about union support or union activities.
WE WILL NOT threaten to close our business because
of the union activities of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
BOULEY, INC., D/B/A BOULEY
Margit Reiner Esq., for the General Counsel
Jerrold Goldberg, Esq. (Epstein, Becker & Green, P.C.), for
the Respondent.
Harold Ickes, Esq. (Meyer, Suozzi, English & Klein, P.C.),
for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York City on May 22 and 23, l990. The
original charge, filed on September 20, l989, alleged that the
Respondent violated Section 8(a)(l) and (3) of the Act when
it discharged David McGrath on September 14, l989, because
of his support or membership in the Union, or because he
‘‘exercised other rights protected by the . . . Act.’’ A first
amended charge was filed on October 31, l989. In addition
to repeating the allegation regarding the discharge of
McGrath, the amended charge also alleged that on September
12, l989, the Respondent issued a written warning to
McGrath because of his support or activities on behalf of the
Union. On April 16, l990, the Union filed a second amended
charge alleging that the Respondent violated Section 8(a)(1)
and (3) of the Act. Realleging the previous allegations re-
garding McGrath, the amended charge also contended that
the Respondent violated the Act when in September and Oc-
tober l989, it solicited employee grievances and when, in
November l989, it threatened to close the restaurant if the
Union won an election.
The complaint was issued on April 23, 1990. In essence,
it alleged:
l. That the Respondent on September 12, l989, issued a
warning to David McGrath because of his union activity.
2. That the Respondent on September 14, l989, discharged
McGrath because of his union activity.
3. That the Respondent interrogated employees concerning
their union activity.
4. That the Respondent solicited employee grievances and
impliedly promised to remedy them.
5. That the Respondent threatened to close.
The Respondent denied the allegations of the complaint
and contended that the allegations contained in paragraphs 3,
4, and 5 above, were untimely under Section 10(b) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. It also admits and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE DISCHARGE OF DAVID MCGRATH
This same Union unsuccessfully tried to organize the em-
ployees of the Respondent in early l988. In February l988,
the Union filed a petition for an election. Also, in l988, there
was an unfair labor practice charge filed against the Re-
spondent involving the discharge of another employee. That
charge was resolved through an informal settlement con-
taining a nonadmissions clause.
The prior proceedings before the Board are not in any way
considered by me as evidence of antiunion animus. Rather,
they are mentioned because the Respondent by virtue of
those proceedings retained labor counsel, and was familiar
with some of the types of proceedings that may take place
before the Board. It certainly was aware of what an unfair
labor practice charge was.
David McGrath was hired as a waiter in November l988.
Therefore he had nothing to do with the prior attempt by the
Union to organize the employees. McGrath came to the res-
taurant after being employed by a number of other fancy res-
taurants. Notwithstanding the testimony of David Bouley that
his service was not fully satisfactory, McGrath was, in or
about April or May l988, promoted to a position of captain.1
(Bouley is the chef and one of the principal owners of the
restaurant.)
389BOULEY
2 Although the evidence shows that Dayton probably was a super-
visor within the meaning of the Act, the evidence also shows that
she actively solicited on behalf of the Union. Accordingly, her
knowledge of union activities is not attributed to management.
3 Daubresse testified that after criticizing McGrath on several occa-
sions, McGrath said that Daubresse was too young to be explaining
things to him.
According to McGrath and Sous Chef Susan Dayton, they
and other employees began talking about a union in May or
June l989. However, there does not appear to be any evi-
dence that management knew of this talk. No effort was
made to obtain union representation until August l989.2
In early June l989, Bouley hired Olivier Daubresse to be
the new maitred and Sommelier. Although Daubresse is a
young man, his hotel and restaurant background is impres-
sive. One of the reasons that Daubresse was hired, was to
shape up the service which Bouley thought was a bit sloppy.
It is conceded by McGrath that from the moment that
Daubresse was hired he was criticized by the latter more than
any of the other captains and waiters. Coming in for par-
ticular criticism was the way McGrath poured wine and the
assertion that his service was too rushed.3
McGrath took his vacation during the month of July l989.
According to Daubresse and Bouley, they discussed in July
whether to have McGrath come back to work. They testified
that although Bouley wanted Daubresse to hire someone else,
a replacement was not found because other waiters would be
taking their vacations in August and McGrath would be
needed.
On or about August 7, l987, McGrath called Albert Ste-
phenson of the Union. Stephenson explained the Union’s
benefits and told McGrath that the Union had recently tried
to organize the employees of the Respondent. About a week
later Stephenson mailed union authorization cards to
McGrath and McGrath proceeded to solicit employees to
sign them. McGrath handed out union cards in August and
September.
According to Dayton and McGrath, Bouley’s attitude to-
ward McGrath changed for the worse in August l989. From
about August 10, to September 5, l989, Daubresse was away
from the restaurant on his vacation.
Dayton testified that on an occasion at the beginning of
September, she was about to enter the downstairs office
when she overheard Bouley on the phone saying that
McGrath was handing out union slips. (Bouley denies having
any knowledge of McGrath’s union activities until after his
discharge.)
According to Daubresse, at the daily meeting on Sep-
tember 11, l989, he told the staff that lobster was not avail-
able and therefore no one should take such an order. He
states that later in the day, he criticized McGrath for taking
a lobster order and also for spilling wine. According to
Daubresse, McGrath thereupon called him an asshole and
stepped on his shoes. Daubresse states that when he told
Bouley that he wanted to fire McGrath, Bouley told him to
issue a warning instead. McGrath denies that he cursed at
Daubresse or stepped on his shoes. He does state that Bouley
did speak to him about spilling some wine and did criticize
him for taking a lobster order.
On September 12, l989, Daubresse handed McGrath a
written warning which read:
On the night of September 11, l989, the nightly serv-
ice staff meeting was conducted at which time it was
announced that the ‘‘lobster special’ would not be
available that evening. During the course of service I
noticed that the table cloth on table #34 had many
stains of red wine. Upon inquiring about the stains you
ignored my question and walked away. You later pro-
ceeded to take an order for the ‘‘lobster special’’ which
was not available. I questioned you as to why such an
order was taken at which time you became very defen-
sive and called me an ‘‘asshole.’’
Your actions were clearly acts of insubordination to
management and is grounds for dismissal. Please be ad-
vised that this letter serves as a warning to you that any
further display of insubordination will result in termi-
nation.
After being handed this warning, McGrath asserted that it
was not true that he called Daubresse an asshole. He also in-
dicated that as far as he understood, the lobsters were
brought up at the daily meeting so as to sell them. McGrath
refused to sign the document and retained it in his posses-
sion.
On September 13, l989, McGrath delivered a letter to the
Respondent which, in pertinent part, read as follows:
My lawyer is looking at the letter of reprimand from
Olivier wherein he claims I called him an ‘‘asshole.’’
I totally deny this charge and hope that Olivier has wit-
nesses other than persons on the management team to
verify this claim.
I will not stand by and have my character assas-
sinated without pressing charges . . . . both against the
restaurant and Mr. Olivier.
I will accept a retraction within 24 hours with the as-
surance that Mr. Olivier . . . will end his persecution
campaign against me or I will find it necessary to sub-
poena the entire service staff to verify the reality of his
actions towards me in the past few weeks.
After Bouley received the above letter, he called his cor-
porate lawyer and then discharged McGrath on September
14. In this respect, Bouley testified that but for the receipt
of this letter, McGrath would not have been discharged at
that time.
III. THE OTHER ALLEGATIONS
Employee Jacques Williams credibly testified that around
September 17, l989 (after the discharge of McGrath), Bouley
asked him which kitchen employees were involved in union
activity. When Williams made no reply, Bouley said that a
union would be detrimental to the kind of restaurant that he
wanted run.
Williams also testified that in November l989, Bouley held
a meeting with the entire staff and said that the Union would
be detrimental. Williams testified that when Bouley asked the
kitchen staff about grievances, the employees complained
that the work load was heavy and that a 6-day week was too
long. According to Williams, Bouley responded that he was
trying to to make a 5-day schedule. In response to a leading
question, Williams also testified that subsequent to this meet-
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, a couple of employees (unnamed) were changed to a 5-
day schedule.
Employee Jay Cohen testified that at a full staff meeting,
Bouley said that the Union wasn’t a panacea and that he was
open to the idea of the kitchen staff having a representative
to list grievances. Cohen recalled that during a question and
answer period, one of the employees reminded Bouley that
back in January there had been a discussion about changing
from a 6-day to a 5-day schedule. Cohen also testified that
at this meeting one of the kitchen employees suggested that
he would be the person who would work on a list of griev-
ances.
With respect to the work schedule question, Cohen testi-
fied that at a staff meeting in January l989 (well before any
union activity), Bouley said that he wanted to work out a 5-
day schedule. Cohen further stated that some of more senior
kitchen people including himself, had gone to a 5-day sched-
ule before September l989, and that as far as he knew, no
one had their schedules changed from the date of the October
meeting through the date of the election which was on No-
vember 17, 1989.
Cohen further testified that on one occasion in October
l989, Bouley, possibly in the presence of Ray Bradley, stated
in a flippant manner that he was fed up with the proceedings,
the expensive lawyers and giving statements to the NLRB.
According to Cohen, Bouley then said that he would just as
soon close as have a union. Cohen states that he did not
think that Bouley meant that he would actually close the res-
taurant, and that the comment did not influence his vote in
the election.
Regarding the alleged threat to close, Bouley recalled dis-
cussing the Union with Bradley, a close friend for 26 years,
and saying that all this business destruction was not worth
it and that it was difficult to run a restaurant on those terms.
Bouley testified that he did not remember saying that he
would close the restaurant.
On November 17, l989, an election was held and the
Union lost.
IV. DISCUSSION
The Respondent contends that it did not discharge
McGrath because of his membership or support of the Union.
Rather it asserts that it discharged him because of his ‘‘gross
insubordination.’’ Indeed, the Respondent demonstrated that
the proximate cause of McGrath’s termination was the re-
ceipt of the letter he wrote on September 13, l989. And in
this respect, the evidence shows that but for the writing of
this letter, McGrath would not have been discharged. Assum-
ing that I adopt all of the facts relied on by the Respondent
in defence of the decision to discharge McGrath, I must
therefore conclude that it violated Section 8(a)(1) and (4) of
the Act.
Section 8(a)(4) of the Act prohibits an employer from dis-
charging or otherwise discriminating against any employee
because he has filed charges or given testimony under the
Act. This provision of the Act has been interpreted to bar
discrimination against an employee who is discharged be-
cause of his or her threat to file a charge under the Act.
Grand Rapids Die Casting, 279 NLRB 662, 667 (1986),
enfd. 831 F.2d 112 (6th Cir. l987). Further, even if there is
some ambiguity as to whether the intent is to file an unfair
labor practice charge, there will be a violation of the Act if
it is concluded that the Respondent understood or interpreted
the employee’s statement as a threat to file a charge under
the National Labor Relations Act. Garment Workers of
America, 295 NLRB 411, 414 (1989). Finally, such conduct,
in addition to being violative of Section 8(a)(4) constitutes
an independent violation of Section 8(a)(1) of the Act. Gar-
ment Workers, supra.
In the present case, after receiving a written warning,
McGrath wrote a letter to the Respondent on September 13,
l987, wherein he stated that his lawyer was looking into the
reprimand and that he would not stand by without pressing
charges against the restaurant and Bouley.
Although the letter does not explicitly state that McGrath
intended to file charges under the National Labor Relations
Act, it seems to me that Bouley understood that this was
what McGrath was talking about. For one thing, I credit the
testimony of Dayton that in early September she overheard
Bouley talking on the phone about McGrath’s solicitation of
union cards. Second, Bouley was no stranger to Board pro-
ceedings as he was involved in a previous election campaign
and had settled a prior unfair labor practice charge back in
l988. Thus, Bouley was not a novice to Board proceedings
and it seems to me that he clearly was aware that ‘‘charges’’
means unfair labor practice charges. Accordingly, it is my
opinion that the gross insubordination relied on by the Re-
spondent in discharging McGrath was his threat to file
charges. Accordingly, I conclude that the Respondent vio-
lated Section 8(a)(1) and (4) in this regard. Respondent ar-
gues that the Board is precluded from finding an 8(a)(4) vio-
lation because such an allegation was neither alleged in the
charge or the complaint. This argument is rejected. In
Pergament United Sales, 296 NLRB 333 (1989), the Board
held that the Respondent violated Section 8(a)(4) even
though there was no 8(a)(4) allegation in the complaint and
even though the administrative law judge had dismissed the
8(a)(3) allegation. In pertinent part the Board stated:
It is well settled that the Board may find and remedy
a violation even in the absence of a specified allegation
in the complaint if the issue is closely connected to the
subject matter of the complaint and has been fully liti-
gated. This rule has been applied with particular force
where the finding of a violation is established by the
testimonial admissions of the Respondent’s own wit-
nesses.
With respect to the connection between the 8(a)(4)
and 8(a)(3) allegations, both allegations focus on the
same set of facts, i.e., the lawfulness of the Respond-
ents’ motivation for failing to hire the employees. In
this regard, the ultimate issue in both allegations is the
same: whether the Respondent failed to hire the em-
ployees for reasons that are unlawful under the Act. We
also note that no party objected to the introduction of
any of the relevant evidence. This further supports our
conclusion that the Section 8(a)(4) allegation is closely
related to the Section 8(a)(3) allegation included in the
complaint. Second, as the record recited and described
above amply demonstrates, the Respondent’s failure to
hire these employees because of the filing of the instant
charges was fully litigated. Indeed, the Respondent’s
own witness corroborated the General Counsel’s wit-
nesses and admitted that the employees were not hired
391BOULEY
4 In Pergament, supra, the Board rejected the employer’s motion
to reopen the record. I reject a similar motion to reopen the record
in the present case.
5 See also Mariposa Press, 273 NLRB 528, 529 (l984) (statements
about an open door policy held not violative); and Ace Hardware
Corp., 271 NLRB 1174 (l984), where the Board held that the Re-
spondent impliedly promised benefits in conjunction with the solici-
tation of grievances.
because of the pending unfair labor practice charges.
[Citations omitted.]4
The warning issued to McGrath presents a different situa-
tion. As to that allegation, I credit the testimony of
Daubresse regarding his assertion that after criticizing
McGrath for spilling wine and taking the lobster order,
McGrath acted in an insubordinate way by encompassing his
response with an expletive. Thus, it is my opinion that the
written warning which was issued to McGrath on September
12, was not motivated by his union activities.
The amended charges and the complaint also allege that
the Respondent interrogated an employee, threatened to close
and solicited grievances. The Respondent notes that the latter
two allegations were put in the amended charges which were
filed more than 6 months after the events allegedly occurred.
The interrogation allegation is not contained in any of the
amended charges. Accordingly, the Respondent asserts that
these allegations are barred by the 6-month statute of limita-
tions set forth in Section 10(b) of the Act.
In Nickles Bakery of Indiana, 296 NLRB 927 (1989), the
Board held that 8(a)(1) allegations in a complaint must be
‘‘closely related’’ to the allegations of the underlying charge
and cannot simply be added by virtue of the boilerplate ‘‘by
these and other acts’’ phrase contained at the bottom of
every unfair labor practice charge. In Redd-I, Inc, 290 NLRB
1115, 1116 (1988), the Board in setting forth what would be
considered closely related stated:
In deciding whether complaint amendments are closely
related to allegations in the charge, the Board and the
courts have looked at whether the amendments are fac-
tually and legally related to the charge. In National Lic-
orice the Supreme Court held that various complaint al-
legations were related to the charge when the violations
alleged in the complaint were ‘‘of the same class of
violations as those set up in the charge and were con-
tinuations of them in pursuance of the same objects.’’
The Second Circuit has said that ‘‘the complaint issued
by the Board must deal with the same subject matter
and sequence of events . . . although the specific
events stated in the complaint may precede or follow
those stated in the ‘charge.’’’ Finally the Board has
found complaint allegations closely related when they
‘‘arise from the same factual situations are of the same
class as, and clearly related to, the [allegations] . . . set
forth in the charge.’’ [Citations omitted.]
Where new allegations in a complaint are part of an
‘‘overall plan to resist organization’’ the courts have held
that they are closely related. See NLRB v. Braswell Motor
Freight Lines, 486 F.2d 743, 746 (7th Cir. l970); NLRB v.
Central Power & Light Co., 425 F.2d l3l8, 1321 (5th Cir.
1970). For a comprehensive discussion of the closely related
test, see Red Food Store, 252 NLRB 116, 117–124 (1980).
In my opinion the three allegations which were not part
of the initial charge are closely related to the allegation of
that charge. Thus, the initial charge alleged that the Respond-
ent, on September 14, l989, discriminated against an em-
ployee because of his support and activities for the Union.
The other allegations of interrogation, a threat to close and
the solicitation of grievances all arise within a month or two
of the initial allegation; are alleged to be part of the Com-
pany’s response to the Union’s organizational campaign; and
are alleged to be actions taken by the Respondent to discour-
age employee union support. That is, although the alleged ac-
tions would constitute separate violations under Section
8(a)(1) of the Act if proven, they arise in essentially a single
context and involve basically conduct which would be com-
monly motivated by a desire to convince employees to vote
against the Union.
Based on the credited testimony of Jacques Williams, I
find that on or about September 17, l989, Bouley asked him
which of the kitchen employees were involved in union ac-
tivity and stated that a union would be detrimental to the
kind of restaurant that he wanted to run. In my opinion this
constituted prohibited interrogation within the meaning of
Rossmore House, 269 NLRB 1176 (l984), affd. 760 F.2d
1006 (9th Cir. l985).
I also conclude based on the credited testimony of Jay
Cohen that Bouley threatened to close. It may be that this
statement was made in a moment of frustration and was not
perceived by Cohen as a threat. However, this does not mili-
tate against a finding that it constituted a violation of Section
8(a)(1) of the Act. El Rancho Market, 235 NLRB 468, 471
(l978). Sagapo Restaurant, 257 NLRB 1212, 1219 (1981).
As noted, the General Counsel also contends that the Re-
spondent unlawfully solicited grievances from its employees.
In my opinion, this allegation has not been proven.
In Uarco Inc., 216 NLRB 1, 2 (1974), the Board in dis-
cussing whether the solicitation of grievances constituted a
violation of Section 8(a)(l) of the Act stated:
[I]t is not the solicitation of grievances itself that is co-
ercive and violative of Section 8(a)(l), but the promise
to correct grievances or a concurrent interrogation or
polling about union sympathies that is unlawful; the so-
licitation of grievances merely raises an inference that
the employer is making such a promise, which infer-
ence is rebuttable by the employer. [Citations omitted.]5
In the present case, the General Counsel adduced evidence
that at a meeting before the election, the employer asked the
employees to set forth their grievances, after which one or
more employees asked about changing from a 6- to a 5-day
schedule. Bouley’s response, at most was that he had been
working on this problem. In fact, the evidence shows that
employees had been told that the company was trying to
make a change to a 5-day schedule well before the Union’s
current organizing campaign and some of the more senior
employees had been shifted to a 5-day schedule before this
meeting. Although the General Counsel asserts that the em-
ployer changed the schedules of some of its employees after
this meeting, this is not supported. One witness called by the
General Counsel (Williams) said that a couple of unnamed
employees moved to a 5-day schedule after the meeting. On
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the other hand, another of the General Counsel’s witnesses
(Cohen) testified that no one’s schedule was changed be-
tween the time of the meeting and the election.
In my opinion, the discussion of changing the work sched-
ule, after Bouley asked the employees about their grievances,
did not imply any new promise of benefit. Rather, this dis-
cussion was essentially a reiteration of an old promise made
before the union campaign and involved a change which had
been undertaken before any union activities commenced.
CONCLUSIONS OF LAW
1. By discharging David McGrath because he threatened
to file charges, the Respondent has violated Section 8(a)(1)
and (4) of the Act.
2. By interrogating an employee about the union activities
of other employees, the Respondent violated Section 8(a)(1)
of the Act.
3. By threatening to close the restaurant because of the
Union, the Respondent violated Section 8(a)(1) of the Act.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Except as found above, the Respondent has not violated
the Act in any other manner encompassed by the complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (l987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Bouley Inc., d/b/a Bouley, New York
City, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for threatening to file charges under the National
Labor Relations Act.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to close its business because of the em-
ployees’ union activities or support.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer David McGrath immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify McGrath in writing that this has been
done and that the discharge will not be used against him in
any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in New York City, New York copies
of the attached notice marked ‘‘Appendix.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.