Brennan's, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1545 (N.L.R.B. 1964)

BRENNAN'S, INC. 1545
All our employees are free to become or remain members of any labor organiza-
tion , or to refrain from such action.
CERTAIN-TEED PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of,posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Meacham
Building, 110 West Fifth Street , Fort Worth , Texas, Telephone No. Edison 5-4211,
Extension 2131 , if they have any question concerning this notice or compliance with
its provision.
Brennan 's, Inc. and Hotel , Motel and Bartenders Local 166,
AFL-CIO. Case No. 15-CA-311. June 30, 1964
DECISION AND ORDER
On February 12, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
dismissal of these allegations . Thereafter , the General Counsel and
the Respondent filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the entire
record in the case, including the Decision , the exceptions , and briefs,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner with the additions and modifications noted
hereafter in our opinion and Order.'
We concur in the Trial Examiner's conclusions that Respondent,
through members of the Brennan family and other supervisors, en-
gaged in a campaign to defeat union organizational attempts at its
restaurant and engaged in such illegal conduct as : threatening em-
ployees Crooks and La Fleur with bodily harm; threatening to fire
employees if they supported the Union ; promising employees either
I Contrary to the majority , Member Jenkins would find the evidence insufficient to es-
tablish that La Fleur 's discharge was attributable to his union activity , and, accordingly,
would not find a violation of Section 8(a)(3) in this regard.
147 NLRB No. 164.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lifetime jobs or jobs at other restaurants if they would not support the
Union; interrogating employees about union activities or beliefs; sug-
gesting to employee Vidrine that he leave town so that he would not
have to act as a union observer at an election and that, if he did act as a
union observer, he would be listed in the records of the hotel association
as a union observer; and suggesting to employees that the Respondent
would forgive them if they would no longer push for the Union.
The General Counsel contends, however, that numerous other inci-
dents were also violative of Section 8 (a) (1). We agree with the Gen-
eral Counsel that statements to employee Lamke by Ella Brennan
Martin and Richard Brennan in March and May 1963 that Lamke
was on the Respondent's union list was implicitly-coercive in view of
Respondent's known antiunion attitude and because, whether true or
not, it created the impression that employees' union activities were
under close surveillance by the Respondent. We therefore find such
statements violative of Section 8(a) (1). We find it unnecessary to
consider whether certain other incidents alleged by the General Coun-
sel are also violative of Section 8(a) (1) inasmuch as such additional
findings are merely cumulative and the conduct will be reached by
our remedial order herein.2
REMEDY
As we have found that Respondent illegally discharged Wilbur La
Fleur, we shall order his immediate reinstatement to his former posi-
tion as service captain in the main dining room, without prejudice to
his seniority or other rights and privileges, with full backpay for any
loss of pay he may have suffered because of Respondent's discrimina-
tion toward him by payment to him of a sum of money equal to what
he would have earned in the main dining room from the date of his
suspension to the date of an offer of reinstatement less his net earn-
ings.' The amount of backpay and interest due shall be computed ac-
cording to the Board policy set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Pay,
roll and other records in possession of the Respondent are to be made
available to the Board or its agents to assist in such computation.
Having found that Respondent independently violated Section
8 (a) (1) of the Act, we shall order Respondent to cease and desist from
such conduct. Based on Respondent's prior conduct, it may be antici-
pated that Respondent may commit other violations of the Act in the
future and we shall, therefore, issue a broad cease-and-desist order 4
2 As there were no exceptions to the Trial Examiner 's findings with respect to Guilbeau
and Lamke, we adopt such findings pro forma.
3 Contrary to the Trial Examiner's recommendation, we conclude that since La Fleur
was constructively discharged, lie is entitled to full backpay and not merely the difference
he would have earned between his job in the "A" room and his regular job in the main
dining room.
4 N.L.RB. v. Entwistle Mfg. Co, 120 F. 2d 532, 536 (C.A. 4).
BRENNAN'S, INC.
ORDER
1547
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, Brennan's, Inc., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed under Section 7 of the Act.
(b) Discriminating against Wilbur La Fleur or any other employee
because he engaged in or engages in union activity on behalf of Hotel,
Motel and Bartenders Local 166, AFL-CIO, or any other union.
(c) Telling employees that Respondent will forgive and forget their
union activities if they will quit pushing the Union.
(d) Questioning employees about their union membership, desires,
and activities or threatening employees with discharge for engaging
in union activities by telling the employees that Respondent will find
out which employees are for the Union and will fire all employees
found to be in favor of the Union.
(e) Creating the impression among employees that their work shifts
have been changed because of their union membership, desires, and
activities.
(f) Cautioning employees against talking to other employees about
the union or asking some employees to use their influence to have other
employees reject the Union.
(g) Creating the impression among employees that they are being
spied upon and other employees are being interrogated about their
union activities or telling employees that Respondent has their names
set forth on a list as union sympathizers.
(h) Asking employees to leave town so that they will not have to
serve as union observers in an election or 'threatening to enter the
names of union observers in elections in the books and records of the
Hotel and Restaurant Association.
(i) Offering employees lifetime employment or employment with
other restaurants if they agree to reject the Union or threatening em-
ployees with bodily injury because of their union membership, desires,
and activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the . National Labor Relations Act, as
amended :
(a) Offer to Wilbur La Fleur immediate-and full reinstatement to
his former position as service captain in the main dining room, without
prejudice to his seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason of the dis-
crimination against him by payment to him of a sum of money equal
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that which he would have earned as a service captain in the main
dining room from the date of the discrimination against him (June 8,
1963) to the date of the offer of reinstatement, less his net earnings
during such period, in accordance with the procedure described in
the section of this Decision entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary and appropriate to facilitate the checking
of the amount of backpay due under the terms of this Decision and
Order.
(d) Post at its restaurant in New Orleans, Louisiana, copies of the
attached notice marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by a representative of Respondent, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT tell our employees that we will forgive and forget
their union activities if they will quit pushing the Union, nor
will we, question our employees about their union membership,
desires, and activities.
BRENNAN'S, INC. 1549
WE WILL NOT threaten to discharge our employees for engaging
in union activity, nor will we caution our employees not to talk
to other employees about the Union.
WE WILL NOT create the impression among our employees that
we are spying and interrogating employees about other employees'
union activities, nor will we ask any employee to use his influence
to have other employees reject the Union.
WE WILL NOT create the impression among our employees that
we have changed an employee's work shift because of his union
membership, desires, and activities.
WE WILL NOT tell our employees that we will fuid out which em-
ployees are for the Union and threaten to fire all employees who
are in favor of the Union.
WE WILL NOT ask any employee to leave town so that he will
not have to participate in an election 'as a union observer, nor
will we threaten to list the names of the union observers in any
election in the books and records of the Hotel and Restaurant
Association.
WE WILL NOT tell any of our employees that we 'are aware that
they are for the Union and that we have their names set forth on
a list of union sympathizers.
WE WILL offer our employees life-time employment or offer
them employment with other restaurants if they will agree to
reject the Union.
WE WILL NOT threaten to commit bodily harm to any employee
because of union membership, desires, and activities.
WE WILL offer to Wilbur La Fleur immediate sand full reinstate-
ment to his former job as a service captain in the main dining
room, without prejudice to his seniority or other rights and priv-
ileges, and we will make him whole for any loss of pay suffered
by him because of our discrimination against him.
BRENNAN'S, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana, Telephone No. 529-2411, if they have any ques-
tions concerning this notice or compliance with its provisions.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Hotel, Motel and Bartenders Local 166, AFL-CIO, herein called the Union, filed
charges against Brennan's, Inc., herein called the Respondent, on June 23 and
August 2, 1963.1 Under date of August 23, 1963, the General Counsel of the Board
issued a complaint against Respondent. The complaint alleged illegal conduct in the
nature of threats, interrogation, and the creation of the impression of surveillance,
as well as the discharge of three named employees. In its answer, Respondent denied
the commission of unfair labor practices.
A hearing was held before Trial Examiner Ramey Donovan in New Orleans,
Louisiana, on October 14, 15, and 16, 1963. All parties were represented at the
hearing and thereafter the General Counsel and Respondent filed briefs with me.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Louisiana corporation that is engaged in the operation of
Brennan's French Restaurant in New Orleans, Louisiana. During the past 12 months,
a representative period, Respondent, in the course of its business, had gross sales in
excess of $500,000. In the same period, Respondent purchased food and supplies
valued in excess of $40,000 which were shipped directly to it in Louisiana from
points outside the State.
Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 2
The union organizational campaign among Respondent's employees commenced
in the forepart of 1963, probably early in March. In this period employees La Fleur
and Crooks were prounion and were active in the organizational effort. La Fleur
had distributed about 40 union application cards among his fellow employees.
While Crooks did not testify at the hearing,3 Richard and Owen Brennan testified
that, in April 1963, Crooks informed them that he had started the union activity
but that he regretted having done so and was prepared to leave town .4
On March 16, 1963, La Fleur accompanied Crooks to the latter's home, having
been advised that Dore would be there and wished to see La Fleur and Crooks.
Dore was the maitre d' at the restaurant and an admitted supervisor. Crooks and
Dore were brothers-in-law and together with La Fleur and their respective wives the
three knew each other socially.
Like most of the testimony in this record there is much controversion regarding
what was said on March 16 at Crooks' home. Dore testified that "I was trying to
get some information who was the pusher [for the Union] over there and all that
and they were trying to get some information off of me what good the Union would
be . ... The witness stated that he told the two men that he did not think that
the Brennan could give them any better wages than they were presently receiv-
ing, ". . . and that is when I was trying to find out who was the guy pushing the
union and how many signed up, and different things which was my job to do. I
worked for the Brennans. I worked for 13 years and I think I had the right to try
to find out as much as I could for them." 5
In considering the testimony of La Fleur and Dore regarding March 16, I believe
that Dore's conversation was more precise, and more direct than his testimony would
i At the inception of the hearing Respondent stated that its name had been changed from
Old Absinthe House, Inc, to Brennan's, Inc The pleadings were changed accordingly.
2 As requested by the General Counsel, I have taken official notice of a prior proceed-
ing involving the Union and the same employer. The case is Mrs. Owen E. Brennan, Sr.,
d/b/a Brennan's French Restaurant, 129 NLRB 52.
8 The record indicates that the General Counsel sought unsuccessfully to subpena Crooks
as a witness In the Instant hearing.
4 The restaurant is an enterprise of the Brennan family. Richard and Owen Brennan
and Mrs. Ella Brennan Martin actively manage and operate the restaurant. The three
Brennans aforementioned are frequently referred to as Dick Brennan, Pip Brennan, and
Miss Ella, respectively.
5 Dore also testified that "If I knew somebody was for the Union, sure, I reported him."
BRENNAN'S, INC. 1551
indicate. I credit La Fleur's testimony that Dore said that Miss Ella had asked him
to talk to them about the Union and that he wanted to discourage them from union
activity. Dore expressed chagrin that it should be his brother-in-law and his best
friend who were starting the Union.6 Dore advised La Fleur and Crooks that they
were attempting something that they could not accomplish; he also stated that "the
guys that were working there before, that had started it [the Union), they were no
longer working there. They had got in trouble there." The two employees were
also advised by Dore that Miss Ella said that she would forget about the matter of
the Union and forgive them if they would no longer push for the Union.
I find that on March 16 Dore's conversation with La Fleur and Crooks exceeded
the permissible limits of Section 8(c) of the Act and was, in significant aspects,
violative of Section 8(a)(1) of the Act.7
Joel Guilbeau had worked for Respondent for 3 years. He had started as a bus-
boy and then had become an apprentice waiter. At the time of his discharge on
March 29, 1963, Guilbeau was a waiter in Respondent's Red Room.8 Guilbeau had
signed a union application card on March 12, 1963. He testified that about a week
before his discharge, he was passing by Dore on the stairs inside the restaurant when
Dore asked him if he was a union pusher. Guilbeau states that he replied that he
was not and kept on going. Dore denies that he ever said anything to Guilbeau
about the Union and testified that he believed that Guilbeau was proemployer and
not a union adherent. Dore states that on several occasions Owen Brennan had
asked him how Guilbeau felt about the Union. There is no evidence that Dore had
ever told his superiors that he suspected Guilbeau of union sentiments or that Dore
himself believed or knew that Guilbeau was a union adherent. The one occasion
when Dore, as I find, did ask Guilbeau about his union position, Guilbeau denied
that he was a union man. Insofar as Dore is concerned, there is nothing in the
record to show how or why Dore would know that Guilbeau was for the Union.
The extent of Guilbeau' s union activity appears to have been the signing of a union
card, with no evidence of employer knowledge thereof.
Other evidence relating to Guilbeau consists principally of the testimony of Owen
Brennan , Guilbeau, and Service Captain Ambrosini. Before setting forth my find-
ings thereon, however, I will consider the status of Ambrosini, whom the General
Counsel alleges, and Respondent denies, is a supervisor.
Aside from busboys, who need not here concern us, the tables in Respondent's
dining rooms are serviced by teams of three men. One member of the team wears
a red coat and he is the service captain. The other two waiters wear black coats.
The service captain receives $5 from the Employer and the other two men receive $3.
All three split evenly the tips, which are their principal source of income .9 The
service captain, as far as appears, occupies his position by reason of his greater
experience and knowledge as a waiter. All three men assist in supplying the wants
of the customers at the tables. The service captain is in general charge of his team
and is responsible for the proper discharge of their duties. He does direct the team
in its work and in its conduct on the job. There is no evidence that a service cap-
tain can hire or discharge employees. I am of the opinion that a service captain's
position is comparable to a group leader or gang pusher in industrial type organiza-
tions and that he is not a supervisor within the meanng of the Act. It is true that a
service captain can recommend disciplinary action as to the members on his team
and that Respondent's supervisors will pay heed to such recommendations. But
this appears to be nothing more than a matter of commonsense considering the na-
ture of the restaurant operation. I believe that the record indicates that manage-
ment evaluates recommendations from a service captain but does not take definitive
action, such as discharge or layoff or transfer, based solely on the recommendation
of the service captain.io
G Dore acknowledged at the hearing that La Fleur was one of his best friends.
7 On March 15, 1963, the Union filed with the Board a petition for certification as bar-
gaining representative of Respondent's employees. A hearing was held on the petition on
April 4, 1963 Thereafter, the Board conducted an election among the employees. The
election, which was lost by the Union, was held on May 17, 1963.
s One of several different dining rooms in the restaurant.
6 Apparently there is also a commission on wine sold and served to the customers
Io As we shall see, Service Captain Ambrosini had recommended to Owen Brennan on
several occasions in the past that Guilbeau be removed from his team Brennan did not
effectuate these recommendations. When Guilbeau was discharged, Owen Brennan was
the one who discharged him. Ambrosini personally had recommended the action but
Brennan was familiar with past conduct of Guilbeau and was a participant, albeit near
the ultimate stage, in the alleged precipitating incident.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find confirmation of the finding that Ambrosini, a service captain, was not a
supervisor, in the following related factors. La Fleur, one of the alleged discrimi-
natees, was also a service captain and the record shows no distinction between his
duties, responsibilities, and authority, and those of Ambrosini and other service
captains. La Fleur was a union observer at the May 1963 Board election and there
is no showing that he was not a voter in that election. The Board's practice is that
observers at an election are to be nonsupervisory employees." In the prior unfair
labor practice case (Mrs. Owen E. Brennan, Sr., d/b/a Brennan's French Restaurant,
129 NLRB 52, 61), the restaurant complement was described as "45 waiters; 18 to
20 busboys; between 75 and 85 described as kitchen help . .. There were two
"captains," one of whom was Dore. In the instant case it also appears that the term
"captain" was used to describe acknowledged supervisors but there is no dispute that
the term was used to describe a "captain" other than a service captain. The non-
service captains were salaried persons who were in fact or in function the maitre d'
and the assistant maitre d' who handled such things as the reception of guests at the
front door, the seating of guests, and the taking of reservations. In the cited case the
following statement appears: "It was stipulated that the two captains are super-
visors of the waiters and busboys . ... " No reference was made to any distinc-
tion between waiters and waiters who were service captains and there is no finding
that the latter were supervisors.
In the representation case (Case No. 15-RC-2692), wherein the hearing was held
on April 4, 1963, the unit consisted of all employees, excluding office employees,
watchmen, guards, and supervisors. In the course of the hearing the parties stipulated
concerning the supervisory status of certain employees and the Union amended its
petition to exclude certain other named individuals whom it considered to be super-
visors. Ambrosini was not one of those so named. La Fleur was a union witness and
he described himself as a red-coated waiter. Neither party sought to exclude the
service captains as supervisors.
Returning now to Guilbeau, I am satisfied that Ambrosini, in the period of Decem-
ber 1962 through February 1963, was critical of Guilbeau's work as a waiter on his
team. He had asked Owen Brennan on several occasions to remove Guilbeau from
his team but Brennan had advised him to be patient. Ambrosini testified to in-
stances of complaints from customers about Guilbeau's service and about a somewhat
rebellious or independent attitude adopted by Guilbeau from time to time when he
was given instructions by Ambrosini. Guilbeau admits that he had been admonished
by Ambrosini at various times and that the two had arguments about the work.
Ambrosini also had spoken to Guilbeau from time to time about his clothes and
physical appearance. Owen Brennan admittedly had admonished Guilbeau on
several occasions during the same period about his work and his appearance, in-
cluding the need of a haircut, condition of fingernails, wearing frayed shirts, and so
forth.
On March 26, 1963, Mrs. Martin addressed the employees in the restaurant on
the subject of the Union. Ambrosini's team, which consisted of himself, Guilbeau,
and a waiter named Sergio, were not scheduled for work on that day. Ambrosini was
in the restaurant to pick some clothes for cleaning. He heard the speech. Ap-
parently on the following day, Ambrosini testified that he told Guilbeau and Sergio,
. . we had a wonderful meeting here and I wish you fellows could be present be-
cause Miss Ella could have given you some information about the union which can't
help you boys none at all because they [the Union did] not help me [Ambrosini]
as a union member . . . [when I was a union member]." Ambrosini stated that
neither Guilbeau nor Sergio made any comment.
Guilbeau testified that on March 25 he had an argument with Ambrosini in the
restaurant. He could not recall the subject of the argument but states that he told
Ambrosini, "Well, things are going to change around here." According to the- wit-
ness, Ambrosini then said, "If you are speaking of the Union, the Union is not going
to do a damn thing for you because I know. I was in the Union myself."
It is difficult to determine whether Guilbeau and Ambrosini had one conversation
on March 27 or 28, which I believe are the appropriate dates, or whether there were
two exchanges. Each witness testifies to one conversation. I am inclined to believe
11 In its brief, Respondent states that Ambrosini voted in the election without challenge.
Although there is no citation to the instant record to support such a statement, I note that
the General Counsel made no contention nor did he introduce evidence that Ambrosini,
La Fleur, or other service captains were ineligible to vote in the election because of their
supervisory status, or that the unit excluded service captains.
BRENNAN'S, INC. 1553
that there was one conversation, either on the 27th or 28th, and that if the two fore-
going versions of Ambrosini and Guilbeau are added together, the sum is substantially
what was said. The credited testimony indicates that Ambrosini was not a union
adherent and was proemployer. His remarks to the effect that the Union would not do
the men any good indicates that he believed that Guilbeau was either a union adherent
or favorably disposed to the Union. Guilbeau's reference to changes that would
occur confirms this. In view of Ambrosini's nonsupervisory status I can attach no
legal significance to the aforementioned evidence insofar as Respondent is concerned.
According to Guilbeau, on March 29, the day of his discharge, he had told a
busboy named Mario that Ambrosini was the one who was responsible for Mario's
discharge. Later that day, Guilbeau states that Ambrosini upbraided and started
arguing with Guilbeau about what the latter had told Mario. Ambrosini told Guil-
beau that he talked too much and had a big mouth. Guilbeau told Ambrosini that
if he did not stop "bugging" him he would break Ambrosini's neck. About this point
Owen and Richard Brennan appeared and asked Ambrosini what was going on.
Guilbeau testified, "So he [Ambrosini] told him" and Ambrosim had a notebook
or list of misconduct by Guilbeau. Ambrosini said to Owen Brennan that the matters
listed on the list were the reasons why Guilbeau should be terminated. Owen Brennan
then said to Guilbeau that it appeared that Ambrosini no longer wanted to work
with him and that Guilbeau had better punch out his card. Apparently Guilbeau
repeated his threat about breaking Ambrosini's neck.
Ambrosim testified that Mario had not been discharged but had voluntarily quit
and that Ambrosini had recommended his promotion and had given Mario a letter
that helped him secure a $125 job in New York. Ambrosini says nothing about an
argument with Guilbeau about the latter's remarks to Mario about Ambrosini.
I believe that such an argument did ensue as recounted by Guilbeau but the incident
indicates no more than additional strong friction between Ambrosini and Guilbeau.
In view of Ambrosini's specific testimony about Mario's status, the resentment about
Guilbeau's remarks would be understandable. But the merits of the Mario matter are
not crucial to our consideration. The fact is that there was strong personal hostility
between Guilbeau and Ambrosini on matters unconnected with union activity.
Aside from the foregoing, Ambrosini's version of the events resulting in the
termination are as follows: When he came to work on March 29 he was reprimanded
by a floor captain, his superior, because the Red Room was not ready for customers.
Ambrosini then admonished Guilbeau and Sergio about getting the room ready.
Guilbeau talked back to Ambrosini despite the latter's warning, "Look, you have
to get that room ready or else." Guilbeau said, "Else what?" and Ambrosini replied,
"Else you can't keep your job here." Guilbeau said, "If you get me fired I'll take you
in the street and beat the living hell out of you." Words went back and forth between
the two and Ambrosini sent another employee to get the Brennans. Owen and
Richard then appeared and heard part of the argument. Guilbeau was admittedly
excited. Ambrosini told Owen Brennan about the dispute. A consideration of
Guilbeau's and Owen Brennan's testimony persuades me that Guilbeau said or re-
peated in Brennan's hearing the physical threat to Ambrosini aforedescribed or in
words of the same substance. Although, as additional evidence in this record and in
the previous case demonstrate, the Brennans were strongly hostile to the Union, I am
unable to conclude that the General Counsel has sustained the burden of proof with
regard to Guilbeau. The latter's union activity was meager and Respondent's knowl-
edge thereof is tenuous or nonexistent. These factors, coupled with the situation
between Ambrosini and Guilbeau as described hereinabove, require a recommenda-
tion that the Guilbeau discriminatory discharge allegation be dismissed
Employee Brown testified to a conversation with Mrs. Martin in the latter part of
March 1963. Brown had signed a union card on March 11 and this was apparently the
extent of his union activity. I have considered the testimony of both Brown and
Mrs. Martin regarding the conversation and find that in substance the following
ensued: Brown asked Mrs. Martin why he had been placed on a split shift whereas
formerly he had been on a straight shift. She told him that she did not make the
schedule and pointed out that he still had the opportunity to talk to management about
something he did not like and did not have to pay a union representative to talk to
management. Mrs. Martin said that he could come directly to management with a
problem but that it would be different with a union in the place. I believe that Mrs.
Martin said something about Brown having been pretty anxious to sign a union card
and that the union activity was costing her $8,000 in lawyer's fees.
756-236-65-vol. 147--99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Martin testified , inter alia, that in the course of the above conversation Brown
had volunteered that he was not interested in the Union . In May 1963, shortly before
the election , both Brown and Mrs. Martin agree that she initiated a conversation
with him in the restaurant . Mrs. Martin testified:
I asked him to sit down and talk , and I went on . to restate my feelings
regarding the union and tried to explain to him , I knew he had never been
involved in this sort of thing before and I didn 't think he was very famiilar with it,
and I told him anything he would like to know about it perhaps I could find the
answer for him, and very emphatically told him my feelings about not wanting
a union in the restaurant . There again he volunteered the information he was
not interested in the union.
Mrs. Martin testified that she then told Brown , after the last-mentioned second dis-
avowal of the Union , that she was very glad to hear it. When asked, at the hearing,
Mrs. Martin said that "as far as I can remember " nothing more was said in the
conversation.
It appears unlikely to me that Mrs . Martin would have gone to the foregoing trouble
unless she believed or knew that Brown had signed a union card or was favorably
disposed to the Union. Brown 's initiation of the second conversation in May is
more consistent with the finding previously made regarding the March conversation
than it is with Mrs . Brennan's statement that Brown , in March , had told her that
he was not interested in the Union. To me , it is highly doubtful that a personalized
conversation by one of the Respondent 's top officials with one employee would have
appeared necessary on the subject of the Union if that same employee had previously
disclaimed any interest in the Union and if Respondent had no reason to know or
suspect otherwise.
Brown states that in the May conversation , aforementioned , he told Mrs. Martin
that he "had turned against the Union and that I didn't want to have anything to do
with it." According to Brown , Mrs. Martin then stated , "I didn't think you were
stupid enough to be for it because I am going to find out who is for it and I am
going to fire them all."
In its brief , Respondent argues that since Mrs . Martin was familiar with the pro-
scriptions of the Act, it is highly unlikely that she had made the last-mentioned state-
ment, particularly to an employee who had just disclaimed interest in the union.
I have carefully considered all aspects of the evidence . Mrs. Martin admittedly
told Brown "very emphatically" her feelings "about not wanting a union in the
restaurant," but without describing for the record exactly what this "very emphatic"
expression and presentation was.12 There is no doubt in my mind about Mrs.
Martin's opposition to the Union . She impressed me as a person who spoke rather
directly and bluntly and I believe Brown's testimony that her emphatic opposition
and hostility was expressed as described in his testimony . It is found that in March,
in her conversation with Brown , Mrs. Martin conveyed the impression that she
was aware of or suspected Brown of being a union adherent and that much of her
conversation in May conveyed the same impression . It is also found that the
statement, previously credited , uttered by Mrs. Martin to Brown in May 1963 was
coercive . Based on the foregoing a violation of Section 8(a)( I) of the Act is found.
Dupre, a former waiter at the restaurant , testified that, in April 1963, Richard
Brennan spoke to him in the restaurant kitchen. Brennan told Dupre not to talk to
Johnny Crooks about the Union and Dupre assured Brennan that he, Dupre, was
not for the Union . At the hearing Brennan denied such a conversation. I have
considered , among other things, the fact that Dupre had been discharged by Re-
spondent for misconduct around the end of April 1963 . This might , as Respondent
argues, make him hostile to Respondent . However, it would appear that if a former
employee had decided to injure an employer by fabricating out of the whole cloth an
event and conversation , he would, while he was about it, attribute some rather strong
antiunionism to the employer . Dupre's testimony regarding Richard Brennan's
conversation is of relatively little significance but I credit Dupre . Brennan 's state-
ment constituted interference with the rights guaranteed to employees under Section
8(a) (1) of the Act . Absent particular circumstances or rules, an employer may not
admonish one employee not to talk to another employee about the Union, especially
during a union organizational effort among employees , a fact known to Respondent.
A former service captain at Respondent 's restaurant , Petitfils, testified to a conversa-
tion with Mrs. Martin at the restaurant in April 1963. Petitfils, like other captains,
12 According to Mrs. Martin's testimony , it was at the conclusion of her talk to Brown,
and her strongly expressed opposition to the Union , that Brown again, as in March,
asserted that he was not interested in the Union
BRENNAN'S, INC. 1555
customarily had a regular day off. In this particular week in April he became aware
that the work schedule had been changed so that he would not have his regular day
off that week. Petitfils knew that Owen Brennan handled the work schedule and he
knew that Brennan was out of town at the time. Petitfils went to Mrs. Martin, there-
fore, and asked about the change. Mrs. Martin told him in substance that Owen
Brennan took care of such matters and that Petitfils would have to wait until his
return. Petitfils, on direct examination, also stated that Mrs. Martin said that the
reason Owen did not give him his day off was "because I must have not been with them,
just words like that .. . While Mrs. Martin was not asked whether or not she
had made the above-quoted statement and hence did not specifically deny it, her
version of the entire conversation was that she simply told Petitfils that she did not
handle such matter and that Owen (Mr. Pip) arranges the schedule and Petitfils
should see him on his return.
I find Petitfils' testimony rather obscure, unsatisfactory, and unconvincing with
respect to the portion quoted above. As far as appears, Petitifils had nothing to
do with the Union and had never signed a card. At one point, he testified that he
was discharged the day following this conversation. At another point he testified
that he was given 2 days off in the following week, presumably to make up for the
day he had not previously received. Elsewhere, Petitfils stated that he was dis-
charged about a week later. In the course of cross-examination, the witness stated:
I spoke with Miss Ella in the kitchen about the day off and I didn't get the day
off. She told me about Owen being in Washington and that is the statement
I want to put down. That is the only statement I remember. [Emphasis
supplied.]
At the time of the hearing employee Fontenot had worked for Respondent as a
waiter for 3 years. He testified that early in May 1963 Dore spoke to him in the
restaurant and told him that Mrs. Martin would like Fontenot to speak to employee
Vidrine and to attempt to change Vidrine's mind about the Union. Dore admits to
such a conversation but denies mentioning Mrs. Martin's name. Dore testified that
he enlisted Fontenot's help because the latter had known Vidrine a long time and
"it was about two weeks before we had the election and we were all trying to get
Vidrine to give it [the union] up because we knew it was just a waste of time and he
was going to lose his job ... " 13 The witness, Dore, also testified that prior to
enlisting Fontenot's help in speaking to Vidrine he himself had asked Vidrine why
he was for the Union. I credit Fontenot's testimony above described.
Vidrine, an employee of Respondent, was injured in an accident early in April 1963
and this necessitated his absence from work. On April 15 Vidrine went to the
restaurant to inform Respondent that his doctor had directed him to stay away
another week. When he entered Mrs. Martin's office, she said that she was sur-
prised at him and that Soileau 14 had told her that he thought that Vidrine had learned
his lesson at the Roosevelt Hotel 4 years ago. Mrs. Martin also stated that a person
employed in the restaurant had informed her that Vidrine had signed a union card.
Mrs. Martin's version is not dissimilar from the foregoing account of Vidrine. She
states that he told her that he would have to be off an additional week. Mrs. Martin
asked him if he knew about the union activity at the restaurant; she then stated that
she knew that he had worked at the Roosevelt Hotel when they had union activity
there and that she hoped that he had learned his lesson there.
Crediting Vidrine and also finding that Mrs. Martin said, inter alia, that to which
she testified, I find no violation of the Act in the foregoing conversations. There is
no evidence that Mrs. Martin did engage in or indicated that she had engaged in
surveillance or procured another person to report on Vidrine's union activity.
If someone informed Mrs. Martin of Vidrine's past union activity and of his cur-
rent activity, her mentioning of this fact, in my view, was not illegal. I do not
find the reference to the Roosevelt Hotel matter nor the reference to having
learned a lesson to be illegal. If there was any evidence that Vidrine had been
discriminated against, e.g. discharged, at the Roosevelt ibecause of union activity,
Mrs. Martin's remark might have some legal significance. But about the only lesson
that Vidrine might have learned from the Roosevelt affair 15 was that the Teamsters
Union in early 1959-60 sought to organize the hotel's employees and sought a Board
election; a 1-day strike to force the employer's agreement to a consent election was
unsuccessful in closing down the hotel and subsequently the employer was found to
23 At the hearing Dore, a few lines later, denied having made the statement about loss
of a job.
14 Respondent's personnel manager.
"Now Orleans Roosevelt Corporation, 132 NLRB 248.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have discriminated against certain employees when they applied for reinstatement;
other striking employees had been previously replaced. Vidrine was, as far as ap-
pears, in neither of ,the foregoing categories.
On May 15, 1963, Soileau informed Vidrine that he and La Fleur would have
time off during the election since they were to be the union observers. Shortly there-
after, Vidrine went to see Owen Brennan in his office in the restaurant. Present
during the ensuing conversation were Owen and Richard Brennan, Soileau, and
Fannin.'6 I find that the substance of the conversation was that Vidrine said to
Owen Brennan that he was sorry about all the commotion; that, although he had
signed a union card and had purchased a union book, he had not started the union
activity and was not fighting the Brennans. Owen Brennan said, "You are not
fighting me but you are for the union?" and Vidrine said, "Yes." Owen Brennan
mentioned to Vidrine specific instances of past favors and consideration shown to
him by Brennan; Vidrine acknowledged that this was so. Brennan asked if the
Union had promised Vidrine anything and received a negative answer. Brennan
said, "You are going along with no promises?" and Vidrine acknowledged that this
was so. Under the circumstances described, I do not agree with the General Counsel
that the foregoing constituted illegal interrogation or that the above conversation
was otherwise illegal.
However, thereafter, in the course of *the subsequent conversation, I find that
Richard Brennan suggested to Vidrine that he leave town for a time, at least
on May 17, the day of the election, so that he would not participate in the elec-
tion as a union observer. Brennan stated that Vidrine's name would go down
in the records of the Hotel and Restaurant Association as a union observer. I be-
lieve that the plain implication of the reference to the aforementioned recording
in the books of the Association was that such recording would be detrimental to
Vidrine as a worker in the restaurant trade. It is found that the statement was
violative to Section 8 (a) (1) of the Act.17
Robert Lamke was a waiter who worked for Respondent from October 1962 to
May 28, 1963, when he was discharged. Apparently, for some months prior to
1962, Lamke had worked for Respondent but had been laid off together with some
other employees. Lamke impressed me as a nervous individual and this is con-
firmed by some of Lamke's own statements on the subject. He also had personal
family problems and some background of physical ill health. Lamke had signed a
union card on March 8 and states that he had attended a number of union meetings.
Around March 15, 1963, Lamke, realizing that he was going to be late for work
on that particular day, telephoned the restaurant and advised Mrs. Martin of the
foregoing. Mrs. Martin told him to come in to work but to first report to her
office. According to Lamke, when he came to Mrs. Martin's office she turned to
Paul Braudshay who was present and said, "You see this man here, we have to make
him favors every week and he is on the union list, he is for the union, we got him
on the list." Around this point, Owen Brennan came into the office and Mrs.
Martin told him that Lamke had reported to work late. Owen Brennan said to
Lamke, substantially, that this was the second time he had been late within a short
period, and, the next time you are late, do not bother coming in, you are automati-
cally fired.18
The Owen Brennan interlude, above, is one of the few incidents over which there
is not a conflict between Lamke's testimony and that of Respondent's witnesses. Mrs.
Martin agrees that she had told Lamke to report to her after he called about being
late. After Lamke came in, he explained his family problems to Mrs. Martin and
she told him, in effect, that Owen Brennan took care of schedules and lateness and
such things. She then states:
I took this opportunity to bring up the union activity that was going on in the
restaurant, and I didn't want to have anything to do with the union in the
restaurant. I explained to Robert [Lamke] that he had many problems we
tried to go along with him regarding his problems and I expected him to go
along with the family in our feelings against the Union. He said that he was
not at all interested in the Union.
"An assistant maitre d' at the restaurant.
"The complaint erroneously attributes the remarks about leaving town and the Hotel
and Restaurant Association, on May 15, to Owen rather than to Richard Brennan-on that
date. Neither Richard nor Owen Brennan nor Soileau admit that such remarks were
made by anyone during the May 15 session. Respondent is a member of the Louisiana
Hotel and Restaurant Association and Richard Brennan was an officer therein.
ie It was true that Lamke was late previously and he had also been absent for various
periods because of illness or family problems.
BRENNAN'S, INC. 1557
While Mrs. Martin's version of what occurred differs from that of Lamke and in
that sense controverts his testimony, she did not refer to or deny his specific testi-
mony as to exactly what he claims she said. Mrs. Martin admits that she initiated
the union topic and referred to past favors and indulgence to Lamke. This jibes
with Lamke's testimony. She admits to expressing hostility toward the Union but
I am not satisfied that Mrs. Martin's testimony reflects the exact or approximate
phraseology that she used. In my opinion she did not speak to Lamke in the im-
personal conclusionary terms of her testimony at the hearing. Mrs. Martin gives
no direct explanation why she deemed it necessaryto raise the union topic with Lamke
or why she deemed it necessary to impress upon this individual her expectation that
he should not support the Union. The legitimacy of the reference that this par-
ticularized approach to an individual, Lamke, was prompted by suspicion or knowl-
edge of his union disposition is apparent. Upon close consideration, Lamke's
version of the conversation gains in plausibility. Finally, Mrs. Martin makes no
reference to the presence or absence of Paul Braudshay. If Braudshay was not
present, it would be an obvious point on which to controvert Lamke.19
After careful consideration, I have concluded that Lamke is to be credited regard-
ing his testimony describing the conversation with Mrs. Martin. It is to be noted,
however, that, on direct examination, Lamke was not asked and did not say what,
if anything, he had said to Mrs. Martin when she made the statement to Braudshay
about Lamke in the latters' presence. I am satisfied that Lamke said something,
since silence, under the circumstances, would have been a tacit admission of the
truth of Mrs. Martin's statements. I credit Mrs. Martin in her testimony that on
that occasion Lamke told her that he was not interested in the Union. In fact,
Lamke, on cross-examination, had admitted that he had told Mrs. Martin at the time
that he was for the house (the Employer). On subsequent occasions, as we shall
see, Lamke also disclaimed any interest in the Union.
Around the first week in May, about a week before the Board election, there
occurred the wine cellar incident. Lamke testified that he was tending a bar in the
patio room when Fannin, the assistant maitre d', advised him that a bottle of wine
was wanted at one of the tables and he asked Lamke to accompany him to the wine
cellar to get the wine. They went to the wine cellar, Fannin knocked on the door,
and Richard Brennan opened it. Fannin then walked away. Brennan locked the
door behind himself and Lamke and took a bottle of wine from the rack. Brennan
then said that this was why he called Lamke, that he wanted to talk to him about
the Union; he said that Lamke was on the union list. Lamke queried why he should
be on the list since, he said, at the first general meeting that Mrs. Martin had held
in opposition to the Union he had told her in front of Jerry, the upstairs captain,
that he was "for the house" (the Employer) and not against them because of the
favors they had done for him 20 Brennan said that Lamke was nevertheless on the
union list. About this time there was a knock, and Brennan admitted Soileau and
again locked the door. Brennan told Soileau that Lamke said he was for the house
but his name was on the union list. Soileau said he did not know but said, "We
are going to fight this." Lamke reminded Soileau of the time they had both worked
at the Roosevelt Hotel and said, "You know what happened to me then. I was
fired because of the union, you think I want the same thing to happen again?" Lamke
testified that he also reminded Soileau that he had tried to get Lamke to vote for
19 Braudshay was referred to by Lamke as a former head chef at the restaurant Al-
though the parties and many people are no doubt aware of the caliber of Brennan's in
New Orleans, it is appropriate that it be stated that Brennan's is generally regarded as
a distinguished French restaurant in the French Quarter of New Orleans. In such an
establishment a chef or head chef is quite high in the restaurant hierarchy and is not to
be equated with a rank-and-file restaurant employee. A head chef would probably be a
supervisor Braudshay was not called as a witness
20 Presumably a reference to tolerance of Lamke's personal domestic problems and his
health problems The reference to the meeting held by Mrs. Martin apparently refers to
one of two meetings that Mrs Martin conducted The record shows that one meeting was
on March 26, 1963, but does not show the date of the other meeting. I believe that both
meetings were held sometime between March -16 and before the wine cellar incident In
early May. If, as was apparently the fact, Lamke had disclaimed the Union at one of
these meetings and if the meeting had been prior to March 15, he would, it seems, have
reminded Mrs Martin of the fact on March 15 when she accused him of being on the
union list Further, It is apparent that the meeting, to which Lamke referred to in the
wine cellar in May, had taken place prior thereto. Lamke's reference to an upstairs cap-
tain named "Jerry" may refer to Gerald Barrios, a captain, who is the only "Gerald" on
Respondent's payroll worksheets that are in evidence.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Teamsters Union at the Roosevelt when that union was seeking to organize the
hotel. Soileau, in the wine cellar, denied the foregoing, according to Lamke. Then
there was another knock on the door and Owen Brennan came in, with the door again
being relocked behind him. Richard Brennan and Soileau said to Owen Brennan
that Lamke claimed he was for the house. Owen then asked, ". . . how come
you have him on the union list?" Soileau said he did not know but then said to
Lamke, "This is the first time we called you in here to talk to you about the union
but this is not the last time we will call you. We will call each one individually,
one by one, to try to change your minds and to protect your jobs." Lamke testified
that he then excused himself and returned to work at the bar. Thereupon, he
observed Fannin take "Davis" Vidrine to the wine cellar "and kept him one hour
in the wine cellar." 21
Owen Brennan and Soileau deny that they were present on any occasion at a con-
versation with Lamke in the wine cellar. Richard Brennan testified that he was
doing some work in the wine cellar when the door opened and Fannin and Lamke
came in . Brennan states that when anyone is in the wine cellar the door is not
locked, that the lock works with a key and is not an automatic lock. Brennan
asked the two men what they wanted and Fannin said he needed some wine.
Brennan said that he would get it and Fannin left. When Lamke went with Brennan
for the wine, according to Brennan, "Lamke caught me and told me, he said, `I am
glad you are here. I just want to tell you that I am not for the union and I want to
have nothing to do with the union. The last time I was at the Roosevelt Hotel they
blamed everything on me over there and I don't want to be blamed for everything
over here."' Brennan told Lamke that he was glad he was not for the Union and
if he felt that way he should just stay away from "them." The witness said that was
the extent of the conversation and that no one else had come into the cellar. He
was asked specifically whether anything was said about a list of people and he re-
plied, "No, I don't think so."
Credibility resolution is rarely easy and the wine cellar incident is no exception.
Lamke's testimony and the General Counsel's theory is, in effect, that Lamke was
conducted by Fannin to a prearranged type of star chamber where he was in turn
confronted by the two Brennans and Soileau. The implication is further that Vidrine
was later conducted to the same situs, where he was kept for an hour and pre-
sumably subjected to similar treatment. In support of the foregoing theory the
General Counsel believes that it is strange that Fannin did not either go for the
wine himself or send Lamke or that Fannin left without obtaining the wine. I have
considered this entire matter from every aspect. Some of the factors are as follows:
The rather elaborate prearrangement and the participation of the two Brennans,
Soileau, and Fannin in the "plot" would seem unnecessary; any one of the fore-
going supervisors could have called Lamke aside in the restaurant at any time to say
what they wished to say to him; he could have been called to the office and con-
fronted with one or more of the foregoing persons; it was unnecessary to fabricate
the wine episode, presumably at a particular time, so that Richard and Owen Brennan
and Soileau would either be at the chosen situs or converge upon it according to
plan; Lamke's testimony that he told his inquisitors in the wine cellar that he had
been discharged at the Roosevelt because of his union activity is dubious; there
were approximately 50 employees ordered reinstated because of discrimination
against them in the Roosevelt case and there were additional discriminatees alleged
in the complaint; Lamke is not mentioned in either the Trial Examiner's Decision nor
in that of the Board; there were 6 days of hearing in that case and a host of em-
ployees testified, quite presumably including anyone who was or might have been
illegally treated; coincidentally, I was the Examiner in the Roosevelt case and al-
though I have not reread that voluminous record of May and June 1960, I have no
recollection of anything involving Lamke therein; Lamke's reference to Vidrine,
since it was apparently the same Vidrine who testified at the instant hearing and
who had been a union observer at the election, is of some significance; if Vidrine was
conducted to the wine cellar by Fannin right after Lamke's return and presumably
confronted by the Brennans and Soileau and kept there for an hour under the same
conditions as described by Lamke, his failure to testify thereto, either in the General
Counsel's original presentation, or in rebuttal, is very difficult to understand; his
a There are two Vidrines in Respondent's employ. One Is Dorris and the other is
Ellis. It was Dorris who was one of the union observers at the election and who testified
at the instant hearing. Although the transcript of testimony shows Lamke referring to
"Davis" Vidrine, I believe that the individual referred to, and as intended by Lamke, was
probably Dorris. In any event, no employee by the name of Vidrine or otherwise corrobo•
rated Lamke's testimony about the wine cellar and Fannin
BRENNAN'S, INC. 1559
testimony would have been significant corroboration and its absence is also signifi-
cant; in the absence of evidence to the contrary, I believe that the wine cellar in a
place like Brennan's would contain a wide variety of wines of various types and
vintages; it would appear doubtful that the wine cellar was customarily left open
when no one was in it or that every waiter had a key to the wine cellar or was
familiar with the location of every wine in the cellar; I do not believe that it would
be highly unusual for Fannin to take a waiter to the wine cellar in order to locate a
certain wine; the waiter would normally be the one to carry and serve the wine and
we should bear in mind that some waiters wore red coats and some wore black coats
and Fannin, as assistant maitre d', was higher in authority and higher in the internal
protocol rank than a red-coated service captain, and still higher than a waiter such
as Lamke.
I am not entirely satisfied as to the accuracy of the testimony from both sides re-
garding the wine cellar. Richard Brennan is credited in his testimony as to the
circumstances in which the conversation with Lamke occurred. I do not believe
that Owen Brennan and Soileau were present. It is my opinion, as both Richard
Brennan and Lamke's versions agree, that Lamke strongly professed his nonunion
position and referred to his experience at the Roosevelt Hotel. I substantially credit
Richard Brennan's description of the conversation but with one qualification. I was
unfavorably impressed by Brennan's response to the question, on his direct examina-
tion, as to whether any mention had been made of a list, a list of people, during his
conversation with Lamke. Up to this point, Brennan had testified quite precisely and
without hesitation as to the events and conversation in the wine cellar. But his de-
meanor and response to the question about mention of a list was less than convinc-
ing.22 If a list was or was not mentioned, it is my opinion that the witness would
know and remember the fact precisely and without hesitation, particularly since he
described everything else quite confidently. A "list of people" does not come up in
every conversation. It was either mentioned or it was not. I believe that while
Lamke was in the wine cellar Richard Brennan did bring up the subject of union
activity among the restaurant employees. The record shows that this was a vital
topic to the Brennans, including Richard Brennan. Respondent had also undertaken
to ascertain the identity of union adherents.23 I believe that Brennan said something
about Lamke being on the list and that Lamke then made the statements adjuring
the Union as attributed to him by Brennan and, in substance, admitted by Lamke.
The stimulus and response pattern was the same as on two other occasions. On
March 15, Mrs. Martin referred to Lamke's interest in the Union, his prounion
alignment, and this evoked from Lamke a nervous and beset individual, a protesta-
tion that he was not interested in the Union 24 A second occasion when the stimulus
and response pattern took place was when Mrs. Martin addressed the employees and
expressed opposition to the Union.25 Immediately after the speech, Lamke in-
formed Mrs. Martin, in the presence of a captain, "Jerry [Barrios]," that he was
against the Union. There is no instance of Lamke adjuring the Union absent a
proximate stimulus from one of Respondent's representatives. I am persuaded that
this was also the pattern in the wine cellar in May 1963.
A breakfast party had been scheduled in the restaurant for 9 a.m. on May 28,
1963, and La Fleur was the service captain of a team consisting of himself, Lamke,
Briley, and a busboy. The above group of employees were scheduled to report at
8 a.m. Lamke came in at 7 a in. but did not punch his timeclock. All employees
are required to punch a timeclock when entering or leaving.
The number of persons who appeared for the breakfast party was very much less
than had been planned for. As a result, there were a substantial number of unused
table settings. According to La Fleur and Lamke, the team of waiters removed
butter, jelly, and other items that had been set at the unused tables but left the tables
and silverware in place. Since individual tables had been moved together for the
party, it is admitted that Lamke and the others had not restored the tables as
originally found or as the tables would be used for the next meal.
22 "No, I don't think So"
23 E g ., Dore's testimony, supra
241 have previously discussed my crediting of Mrs Martin's testimony that Lamke had
told her, on March 15, of his lack of interest in the Union
25 The record does not show exactly what Mrs. Martin said in her speech but it was on
the topic of the Union. In view of Mrs Martin's opposition to the Union it is a fair ref-
erence that her speech on the union topic reflected this opposition. Moreover, Ambrosini's
testimony, supra, as to what he told his team about Mrs. Martin's speech was, in effect,
that he wished that they had heard what Mrs. Martin had said about the Union. This
was in the context of Ambrosini's opposition to the Union since he had just told his team
that the Union would have nothing for them.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lamke states that he and the other members of the team that had served the
breakfast party left the restaurant about 9'30 a.m. They met Soileau at the kitchen
door, told him that they were leaving, and that they would return at the usual time.
Lamke states that La Fleur asked Soileau it Mrs. Martin would make up the differ-
ence since the number at the party had been less than anticipated.26 Soileau said he
would speak to Mrs. Martin.
Lamke states that, when he returned at 11:30 a.m. to start his split shift, Soileau
asked him why he had not replaced the tables as he had found them. Lamke re-
plied that it would be easier for the other waiters when they came to work since the
tables already had the silver on them. Soileau told him to clear off the silver and
replace the tables as he had found them. Lamke asked, "You want me to strip
them, too, and take the tops off, the way I took them?" Soileau said, "Look, don't
get smart with me." Lamke then took the silver from the tables and separated and
replaced the tables.
Around 2:30 p.m. on May 25, according to Lamke, he was setting up a table for
a party scheduled that evening. The party was to be in the Patio Room and in the
L Room which are adjacent rooms separated by a fireplace. Brignac was service
captain in the Patio Room and Sedran was service captain in the L Room. Lamke's
station was the Patio Room. As Lamke was setting up the table aforedescribed,
Sedran told him that he was boss of the party that night and to be sure the silver is
clean. Lamke told Sedran to go back to the L Room and let Brignac give Lamke his
orders, observing ". . . I think you are taking advantages of that red coat." Lamke
testified that Brignac spoke up and said that he was captain in the Patio Room and
that Lamke was responsible to him. Brignac accused Sedran, in effect, of exceeding
his authority then and as on prior occasions. Sedran said that he would see about
that and went for and returned with Soileau.
Soileau said that he had heard that Lamke and Sedran had an argument. Lamke
said yes, and recounted the details. Soileau said he had heard that Sedran was boss-
ing and picking on the Patio Room waiters and that he would have to see about it.
But he told Lamke, "Just tell the man [Sedran] all right and go about your busi-
ness." Lamke asked Soileau if he was going to discharge him because of what
Sedran had said. Soileau did not reply.
Lamke states that he then completed setting up tables for the evening party and
left about 3.30 p.m. When he returned to work at 5:30 he went about his work
and around 7 p m. he was in the kitchen. He saw Soileau near the door, and Mrs.
Martin and Owen Brennan was standing near a table in the kitchen. Soileau called
Lamke aside and said, "You know, the more I think about it the more I believe you
don't believe in this business. Why don't you punch your card and go pack your
clothes and go?" Lamke asked if that meant that he was fired and Soileau said,
"Yes " Lamke turned to Mrs. Martin and said, "This is pretty damned dirty to be
a woman" and then left.
Soileau testified that on May 28 he entered the restaurant about 11 a.m. A floor
captain asked him to check the condition of the dining room. Soileau did so and
found that the tables had not been cleaned or set up properly. He then waited in
the kitchen until Lamke and the other members of the team came in. Soileau
talked to the men about the condition of the room. He testified that "Mr. Lamke
got a little huffy with me and said that only half the party showed up and they
made so little money it was not even worth the trouble coming." Soileau said that
the restaurant could not control how many showed up but it expected the men to do
their work properly. He warned Lamke never to leave the room in that condition
again. According to Soileau, Lamke got mad and huffy and said, "Looks like you
want to fire me. Why don't you go ahead and fire me if that is what you want."
Soileau said that he did not wish to fire anyone and that he simply wanted them to
do their work.
Lamke's testimony on direct examination indicated that Soileau had singled him
out to reprimand 'him about the condition of the dining room after the breakfast
party. Soileau's testimony was that he spoke to the entire team. La Fleur, the
service captain of the breakfast party team, was called in rebuttal to state that
Soileau singled out Lamke. However, it is apparent from La Fleur's testimony that
all three members of the team were present when Soileau spoke about the condition
of the tables. I am not persuaded that Soileau focused his reprimand solely on
Lamke. The entire matter of the tables not being left in a proper condition arose
not from any machination on Soileau's part but 'because of the dereliction of the men
involved. I believe that Soileau's account of the foregoing incident is the more
credible and that such focusing on Lamke as did occur arose by reason of his rather
26 A practice frequently followed by the restaurant.
BRENNAN'S, INC. 1561
argumentative rejoinder to Soileau. I believe that Lamke was quite upset by the
paucity of guests at the breakfast party and that this was reflected in his conversa-
tion with Soileau.27
Soileau states that after his conversation with the men he went in the kitchen.
Mrs. Martin asked him if he had spoken to the men and the said he had.28 Mrs.
Martin said that she wanted to speak to them also. Soileau testified that Mrs. Mar-
tin told the men that she expected them to do their work properly and then she
asked Lamke why he had not punched his timecard when he came to work. Lamke
said that he had been busy and concerned with the customers. Mrs. Martin re-
minded him of the rule about punching the timecard and Lamke said in words or
in substance that he was not concerned about that. Mrs. Martin told him that
he had better obey the rules if he wanted to continue to work there.29 I credit the
foregoing testimony.
Soileau testified that Lanike worked during the lunch period and then returned
to work around 5 in the evening for the party in the Patio and L Rooms. Shortly
thereafter Sedran sent for Soileau and told him that Lamke had refused to do what
he told him about setting things up for the party and had told Sedran that he was not
going to do what he told him. Soileau then went to Lamke and asked him what
happened. Lamke said that he had refused to follow Sedran's instruction and that
he did not have to take orders from Sedran. Soileau said that Sedran was a
captain on this particular party and that Lamke was to do what Sedran told him.
Lamke said he would not follow Sedran's instructions. Soileau said he was telling
Lamke to do so. Lamke again refused. Soileau testified that he, Soileau, walked
away and after thinking the matter over he went back to Lamke and told him that
he had better punch out and that he was finished. Lamke said, "Do you mean to
tell me you are going to fire me for that?" Soileau said, "Don't you think that is
enough. You absolutely refused to do what I told you and you've got the wrong
attitude toward the whole thing, toward the job and the business, and I think you
had better leave."
Soileau's testimony does not indicate that Sedran and Brignac, the two captains
on the party, were present during the foregoing. Lamke states that both were
present. His version, previously set forth, indicates that Brignac spoke in his sup-
port and that Soileau said in effect that Sedran had been assuming too much au-
thority but Lamke should tell Sedran, all right, when told to do something "and go
about your business" (in effect ignore Sedran's instructions). I believe that it is
highly unlikely that Soileau would deprecate and fail to back up Sedran under the
circumstances 30 There is no testimony from Brignac, who is Lamke's uncle, to
corroborate Lamke on anything. Lamke's testimony in this case is strongly con-
troverted on practically every point and there is almost a total lack of corroboration
on any aspect of his testimony. There is nothing to corroborate his reference to
the alleged discrimination against him at the Roosevelt Hotel and the available
evidence controverts him. There is no corroboration from Vidrine relating to the
wine cellar affair. None of the members of his team on May 28 corroborates his
testimony on important aspects of the events and La Fleur's testimony on one aspect
of the matter is not convincing. While I am fully cognizant of Respondent's
hostility to the Union, there is doubt about Lamke's prominence in that activity.
27 La Fleur gave no testimony in corroboration of Lamke's to the effect that, prior to
the reprimand incident, they had spoken to Soileau as they were leaving the restaurant
about 9:30 a in. and La Fleur had asked Solleau to see Mrs. Martin about compensating
them because so few guests had appeared for the breakfast party.
29 Mrs Martin testified that she had been informed of the condition of the room when
she came to the restaurant
ZB Soileau and Mrs Martin's testimony is in substantial agreement. Although he did
not refer to this incident on direct examination, Lamke admitted it on cross-examination.
He states that he, La Fleur, and the other waiter were spoken to by Airs Martin and that
she did speak to him about not punching his timecard. He states that he told her in
substance that he had been too busy to do so. La Fleur and the other waiter did not
testify regarding this matter
w Aside from testimony in this record about the authority and responsibility of the
service captains, we have La Fleur's testimony in the representation case on April 4,
1963, that Mr Brennan told the service captains in a meeting that "anybody doing any-
thing wrong he will back us up one hundred percent." I am satisfied that in a joint
party served by two teams of waiters, the authority of either captain was expected to be
paramount over any individual waiter on the two teams.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent apparently knew or suspected that Lamke had signed a card but , on every
occasion when the subject of the Union came up , Lamke , on three occasions, un-
equivocally repudiated any interest in the Union . The record would indicate that
Respondent , without resorting to pretext , had many opportunities to rid itself of
Lamke if it had been so disposed . 31 I find , on the whole , that the burden of proof
has not been sustained regarding Lamke. Dismissal is recommended.
The evidence with respect to Respondent 's relationship with Wilbur La Fleur is
in some respects not in material dispute but in other respects there is a sharp conflict
in testimony.
Around midnight on April 22 , 1963 , La Fleur came out of the restaurant as it was
closing for the night . He saw Owen and Richard Brennan talking with Crooks
and joined the group . Since Crooks did not testify, we have only the Brennans'
version of the initial conversation before La Fleur came up. According to the
Brennans, Crooks volunteered to them that he had started the Union; he was sorry
about it; and he was leaving town. This may be the fact or not. What concerns
us is the conversation between La Fleur and the Brennans . I find that Owen Bren-
nan asked La Fleur why he was trying to harm him. La Fleur said he was not
trying to hurt him but that he believed that the Union would be good for the restau-
rant . Brennan explained about the family investment in the business and said that
La Fleur could get a job some place else, mentioning various cities and the fact
that he knew most people in the restaurant business . Brennan referred to Antoine's,
a famous New Orleans restaurant , and said that he could get La Fleur a job
at that restaurant . Brennan told La Fleur that he had the best station in the house
at Brennan 's and that most of the people Brennan knew sat at La Fleur's station.
La Fleur acknowledged this to be true. La Fleur was then offered a lifetime job
at Brennan 's restaurant if he would forget about pushing the Union . Richard Bren-
nan also spoke critically about the union representatives in the city. Richard
Brennan spoke about the situation as "war . . . we have just started to fight .
Johnny [Crooks], one day I could be upstairs and I could shoot you between the
eyes . . Wilbur [La Fleur], I could be upstairs and I could kick you all the
way down." Owen Brennan asked La Fleur to consider their proposition and not
push the Union . La Fleur said that he would think it over 32 I find that the various
offers made to La Fleur by Owen Brennan in order to have him forsake the union
movement , as well as the statements of Richard Brennan, constituted violations of
Section 8 (a) (1) of the Act.
On May 13, 1963, La Fleur was talking in favor of the Union to an employee
named Anderson . The conversation was in the restaurant . The exact time is in
dispute but it was either at 6:30 or just before that time.33 La Fleur testified that
Richard Brennan came up and told him that he had already lost the election and
that he then called La Fleur "a big bum ." La Fleur said that Richard Brennan
was a "bigger bum." Brennan testified that he had come up and had told La Fleur
to quit "bumming" around and to get back to his station . La Fleur replied that
he was "not a bum" and Brennan said that he had not said that he was. I find
no violation of the Act in this conversation under either version . Even under
31 Some indication of the general relationship of Lamke with Respondent is found in the
following Lamke states that he was in the hospital for a nervous disorder in March 1963
for about 5 days He states that this was after Mrs. Martin 's speech on the subject of
the Union . He could not recall whether or not he had been off sick in April for 3 days
The witness states that in May he went to the doctor with a nervous breakdown after
the wine cellar incident He testified that the doctor thought that he should have treat-
ment "for my nerves, psychiatric treatment . . . .. Lamke stated that, generally, when
he wanted a day off, when he was not scheduled for leave , he went to Soileau and asked
him and "sometimes he could fix me up and sometimes he couldn ' t." Soileau testified that
Lamke often came to him and told him "he was not feeling well , that he was very nervous,
and the fact is, I recall what he told me 'a few days ' [ before May 28] his doctor had ad-
vised him if he did not get attention real soon he would probably wind up in a mental
institution before the month was out."
as The General Counsel urges that Brennan 's story of Crooks ' voluntary abjuration of
the Union is not credible . Crooks ' alignment with the Union , his testimony for the Union
in the representation hearing in April, and his withstanding of an earlier proposition from
Dore, are pointed to. The General Counsel believes that the Brennans had propositioned
both Crooks and La Fleur and that Crooks thereafter accepted and La Fleur did not. A
subpena by registered mail to Crooks for the instant hearing is in evidence and shows,
"Delivery attempted, Addressee refused letter." I make no findings on the Crooks' aspect
aforementioned.
as La Fleur's shift started at 6.30.
BRENNAN'S, INC. 1563
La Fleur's version, there is no evidence of Brennan's awareness of the subject of the
La Fleur-Anderson conversation.34 I am inclined to believe that La Fleur probably
misunderstood Brennan on this occasion.
In the morning of May 14, 1963, 3 days before the Board election, La Fleur spoke
to Owen Brennan in the restaurant. He told Brennan that he, La Fleur, had not
started the Union but that it had been shoved on his back. Brennan said, "Well,
who started the union?" La Fleur said that Brennan would find out later or in due
time. During the conversation Brennan also said that he could not understand why
someone like La Fleur had gotten involved with people of the character of certain
union officials, whom Brennan named. La Fleur told Brennan about other union
officials whom Brennan had not met. Brennan 's version of the conversation is about
the same as the foregoing account by La Fleur except that when La Fleur told him
that he had not started the Union Brennan testified that he, Brennan, said, "What do
you mean?" and La Fleur replied that Brennan would find out later. Under the cir-
cumstances, I find no significant difference in the two versions. In words or in effect,
when La Fleur said that he had not started the Union, Brennan asked, who did. I
believe, in view of La Fleur's initiation of the topic on May 14 and in view of
La Fleur's own volunteering of information that he had not started the Union, that
La Fleur was practically inviting the query then made by Brennan . However, there
was no valid justification for Brennan's then seeking to find out the identity of the
union instigator and a violation of Section 8(a)(1) is found.
On May 18, 1963, the day after the election, La Fleur was told that Mrs. Martin
wished to see him in the kitchen. When La Fleur came into the kitchen, Mrs.
Martin said, "You lost, huh." La Fleur acknowledged this to be the fact. Mrs.
Martin said, "Yes, and you were trying to drag all my employees in the gutter with
you and the union officials." 35 Mrs. Martin introduced La Fleur to her 4-year-old
son who was with her. After La Fleur shook hands with the child, Mrs. Martin
told the latter to wipe his hands on a napkin. Mrs. Martin testified that her son had
been eating ice cream and that she therefore wiped his hands. La Fleur states that
there was no icecream on his hands. He states that Fannin, who was in the kitchen
when Mrs. Martin wiped her son's hands, said, "Aw, Miss Ella, you shouldn't have
done that." I find no violation of the Act in any of the foregoing. Mrs. Martin's
sentiments regarding the Union and its adherents appear elsewhere in the record and
it is highly doubtful that this disputed hand-washing incident involving a 4-year-old
child adds anything of significance to the record even if it was a deliberate gesture.
Moreover, I have the gravest doubts that a person like Mrs. Martin, who spoke
rather directly and bluntly, resorted to the symbolism of wiping a child's hands to
express her well-known views. Four-year-old boys quite customarily have dirty
hands and their mothers do a good deal of hand wiping.
In his brief, under the heading, "Respondent humiliates La Fleur and makes him
an object of ridicule," the General Counsel has included the above-described sym-
bolic hand-wiping incident as well as the following: On the day of the election,
May 17, La Fleur, who was a union observer, was in the restaurant dressing room with
the company observer. Owen Brennan told La Fleur that he did not belong there be-
cause he was working for the Government that day. La Fleur said the company ob-
server was with him and Brennan said that was because he, La Fleur, could not be
trusted. Later, La Fleur ran into Soileau in the restaurant and asked him if he
could have a cup of coffee. Soileau said, "No," because La Fleur was working for the
Government that day.36 While it is true that he had never been refused coffee before
while in Respondent's employ, it also appears that, as a waiter, La Fleur had never
found it necessary to ask Soileau about having coffee and, like other waiters, simply
went and drank coffee in the restaurant without clearing through the personnel
manager. The other incident in this series, referred to by the General Counsel, was
on May 29, 1963. While working in the restaurant, La Fleur had a customer who
had signed his bill but who did not have a credit card. As was not unusual, La Fleur
took the check or bill to Richard Brennan for his approval. Brennan was seated at
a table in the dining room with his brother and a guest. According to La Fleur,
Brennan said, "You know better than to talk to me or even ask me anything like
that." La Fleur states that it was quite customary to have one of the Brennans
approve a guest's credit or check under such circumstances. Richard Brennan testi-
fied that he was having dinner with his brother and a guest when La Fleur came up
a* If there was knowledge of the subject of the conversation, the circumstances render
the situation dubious as a violation of the Act.
35 This testimony of La Fleur is credited.
I" Soileau states that he simply told La Fleur that the latter had never asked him for
coffee before and why should lie ask now, and that La Fleur said, "All right."
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a check. Brennan testified , "This happens all the time ... and I said I didn't
want to be disturbed at this time , Aymor [ Dore, the maitre d'] could handle it."
While I believe that Brennan may have spoken with some annoyance , his testimony
regarding the incident appears quite plausible. In any event , I do not regard the
foregoing incidents as particularly material and do not believe that they establish a
pattern of humiliating and ridiculing La Fleur or that they constituted violations of
the Act. The May 18 incident involving Mrs. Martin 's comments concerning the
result of the election does show that the union subject and La Fleur's role in the
Union were still very much in her mind after the election and her remarks were bitter
in this area.
The General Counsel has pointed to the fact that Respondent was aware of La
Fleur's union role at least by March 16 , 1963.37 It is urged that La Fleur was work-
ing 5 days a week from January 1963 through March 12, 1963, but that from the
March 19, 1963, payroll period through the May 14 , 1963, period , he worked 57 days
or over 6 and a fraction days per week.38 The General Counsel states that La Fleur
was being penalized for his union activity by being worked excessively without ade-
quate time off. Then, it is asserted , Respondent scheduled La Fleur so that he did
not work on May 15, 16, and 17, the critical election and eve of election period
"when it would be in Respondent 's best interest to have this known union advocate
away from the restaurant ." 39 The General Counsel then contends that after the
May 17 election , Respondent began pressuring La Fleur by requiring him to work
12 out of the next 13 days and that, when La Fleur became ill and unable to work,
Respondent , upon his return , gave him 2 more days off although he had been
scheduled,to work on those days.
Various payroll record worksheets are in evidence . As to the General Counsel's
contention that Respondent worked La Fleur excessively in the period from the time
it learned of his union role up to the election , I am not satisfied that 'the picture is
as clear as the General Counsel asserts. In the March 19 -May 14 period La Fleur
worked 57 days, or an average of 61/3 days per week; in the same period Boeri 40
worked 56 days, Ambrosini 54 days , and Dorfman 55 days- all four captains
averaged 6 or 6 and a fraction days per week 41 If selected weeks are taken, there
is no discernible pattern of discrimination prior to the election. Taking the eight
captains used by me on the chart , infra, and the number of days worked by each
for the May 14 period just before the election , the figures are: 6, 5, 6, 6, 6, 51A
(La Fleur ), 6, 5; for the February 26 period the figures are : 7, 6, 7, 7, 7, 6 (La
Fleur ), 6, 6, 7; the March 19 period : 6, 5, 6, 6, 51/2, 7 (La Fleur ), 6, 5; March 21
period: 6, 5 , 7, 6, 6, 6 (La Fleur ), 4, 6. In the total period from January 1963 to
and including May 28, 1963, Ambrosini worked 110 days and La Fleur worked
98 days.42
11 This was the date Dore admittedly had a talk with La Fleur and Crooks in the latter's
home
^ May 17 was of course the date of the election.
se General Counsel's brief, p 27.
40 All persons referred to are service captains as was La Fleur.
41 For purposes of analysis I have prepared a chart from the payroll records that are
in evidence A representative number of service captains ' names were taken for purposes
of comparison , I e , Ambrosini , Brignac, Boerl , Dorfman, Jones , La Fleur , Rodriguez,
Sedran ; the days worked by such from January 6 , 1963, in the various payroll periods up
to June 1 18 were noted . " S" stands for "sick "
1/6 2/12 2/19 2/26 3/5 3/12 3/19 3/21 4/2 4/9 4/16 4/23 4/30 517 5/14 5/21 5/28 6/4 6/11 6/18
Ambrosini._ 5 6 7 7 6 6 6 6 6 6 6 6 6 6 6 6 6 6 6 5
Brignac__ ____ 6 4 5 6 5 6 5 5 7 534 6 6 5 5 5 634 5 6 6 6
Boeri________ 7 6 6 7 7 6 6 7 6 7 6 7 6 5 6 6 6 6 534 6
Dorfman---__ 6 6 6 7 6 6 6 6 7 6 6 6 6 6 6 6 6 534 6 6
Jones-------- 6 6 5 7 5 6 5% 6 6 6 6 6 5 6 6 6 5 6 5 3
La Fleur_____ 5 5 5 6 5 5 7 6 6 63/2 7 6 6 7 514 4 6 2 1 2
Rodriguez--- 6 614 6% 6 6 6 6 4 S S S S S S S S S S S S
Sedran_______ 414 6 5 7 5 514 5 6 6 534 6 6 6 6 6 6 6 634 5 6
42 If the June 4, 11, and 18 periods are added , Ambrosini has 17 days for those 3 weeks
and La Fleur has 5 The June 4-18 periods , because of other factors , are not properly a
part of an overall comparison . However, January to May 28 is a valid period for com-
parison between La Fleur, the union protagonist , and Ambrosini who was not in favor of
the Union.
BRENNAN'S, INC. 1565
The General Counsel's position that Respondent acted deviously in giving La
Fleur allegedly excessive time off before the election in order to remove him from
contact with the electorate is an arguable contention but it is by no means compelling.
Clearly La Fleur had to be given the day off for the election, May 17, since he was
one of the union observers.43 There is no evidence in this record that militates
against the argument that La Fleur's having 2 additional days off was not an ad-
vantage to the Union. It is true that he would have been in contact with the other
employees if he was at work but by not working he could devote his full time and
energy to the preelection matters. Most of the employees worked split shifts. They
were readily contacted before or after they left the restaurant or at their homes.
Contact in the restaurant while at work would be brief and basically secretive as
opposed to the sort of contact to be made by La Fleur when he was not working on
May 15 and 16. Neither the Union nor La Fleur protested against the preelection
time off given to the union observers. In any event the foregoing contentions appear
to be as valid as those which the General Counsel urges.
Respondent, after the election, did schedule and require La Fleur to work 12 of
the next 13 days, including 8 days in a row, May 23 through 30, inclusive. La Fleur
then became ill and was off sick from May 31 to June 4.44 He then called the restau-
rant and was told to come to work. When he arrived at the restaurant, La Fleur
testified, without contradiction, "The schedule was changed and I had 2 more days
off, so I had to go back home." This is confirmed by Respondent's work records which
show La Fleur as sick May 31 through June 4 and on authorized absence or days off
on June 5 and 6 .45
Without explanation, La Fleur's days of work ranged from one extreme to the
other in the period after the election. He worked 8 days in a row up to and including
Thursday, May 30.46 Apparently, he was also scheduled to work a ninth consecutive
day on Friday, May 31, since Respondent's records on La Fleur show an "S" (sick)
for May 31 and not an "0" (day off). Ordinarily, it would seem that La Fleur would
have known on May 30 or earlier if he was not to report for work on May 31, or if
May 31 was to be his day off, since schedules are customarily made up in advance.
Moreover, if May 31 was to be his day off, it appears unlikely that La Fleur would
have reported to Respondent that he was sick on his day off or that Respondent would
have shown May 31 as "S" rather than "0." If May 31 was La Fleur's day off, it
would appear that it would be an "0" on the records and whether an employee hap-
pened to be sick or well, intoxicated or sober, good or bad, on his day off, would have
meant nothing to Respondent. The designation "S" would be used to indicate that
the employee did not work (as he otherwise would have) because he was sick. If
the employee continued sick, the "S" would be used in succeeding days or weeks
since he would not have been scheduled for work or for days off until he had made
known that he was returning to work. In any event, when La Fleur was inundated
with work after the election, as aforedescribed, he became ill after working 12 out of
43 Although La Fleur's testimony, on the point of whether Vidrine, the other union ob-
server, had 2 or 3 days off for the election, is not as clear as it might be, I am satisfied
that both union observers had 3 days off.
44 La Fleur testified that he had his doctor's certificate regarding his illness.
45 The following are Respondent's five payroll workweeks in the period from May 15 to
June 18, 1963. The symbol "X" means that La Fleur worked that day, "0" means day
off or authorized absence , "S" means sick. The symbols are those used by Respondent
on its work records except that Respondent used "SS" to indicate a day in which an em-
ployee worked and I have used "X" instead of "SS."
May
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28;
W, T, F, S, S, M, T, W, T, F, S, S, M, T
0 0 0 X X X X O X X X X X X
June
29, 30, 31, 1, 2, 3, 4; 5, 6, 7, 8, 9, 10. 11, 12, 13, 14, 15, 16, 17, 18
W, T, F, S, S, M, T. W, T, F, S, S, M, T, W, T, F, S, S, M, T
X X S S S S S O O X 0 0 0 0 0 0 0 X X
46 Respondent's other service captains were not sick or absent during this period, thus
creating a shortage. Rodriguez is shown as sick but lie had been out continuously sick
since March.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13 days and 8 days in a row.47 After 5 days of illness, with no earnings at all, La Fleur
was scheduled for work, reported, and then was given 2 additional days off, without
requesting them.
On June 7, 1963, La Fleur worked at his regular station as a service captain in
the main dining room. During the second half of his split shift, about 8 p.m., La Fleur
asked two male guests, who were seated at one of his tables in the main dining room,
if they wished some wine with their meal. One of the guests told La Fleur to "See
Buzzy [Fannin], he knows the kind of wine I drink." La Fleur went to the entrance
hallway or foyer of the restaurant where Fannin was standing 48 Dore, the maitre d',
was standing about 5 feet from Fannin. Owen Brennan was standing alone at one end
of a bar that was on one side in the entrance hallway or foyer. Dore was standing
between the spot where Fannin and La Fleur stood and the end of the bar where
Brennan was standing. At the other end of this bar were two or three male guests
who were apparently drinking and talking together. The end of the bar where
Brennan was standing was the nearest point at the bar to Dore and to Fannin and
La Fleur.
The testimony relating to the ensuing events in the hallway was given by La Fleur,
Owen Brennan, and Dore. Fannin was not called as a witness. Basically, there is
not too much conflict regarding what occurred although some of the details are in
conflict. I find that, when La Fleur came up to Fannin in the hallway, La Fleur said
in a conversational tone, "Buzzy, what kind of wine does those two homos on table
two like?" or, possibly, something to the effect, "One of your fruity friends wants you
to get a bottle of wine for him." Fannin said, "What do you mean calling our guests
those kinds of names" or, possibly, "What do you mean using that kind of language
here." La Fleur testified, "I was shook," i.e. greatly taken aback or surprised, by
Fannin's reaction and he said, "Well, Buzzy, what is the matter. You never kid
[kidded] like that before in your life." Fannin said nothing further and La Fleur
returned to his station in the main dining room which was approximately 40 feet
away from the hallway. There is no evidence or indication that any person in
the dining room heard or could have heard the conversation aforedescribed or
could have seen, from the dining room, the participants talking in the hallway. No
guests entered or left the restaurant during the conversation. Brennan testified that
the only guests in the vicinity were the two or three men at the other end of the bar.
La Fleur refers to no guests in the area. Dore, for the first time, stated on cross-
examination that three ladies were coming out of the ladies' restroom at the time.
The record does not show the location of the last-mentioned room and Respondent's
Exhibit No. 3, a photograph of the entrance hallway from the restaurant entrance back
through the entire hallway, shows no doorway near the immediate situs of the con-
versation that might be the entrance to a restroom. The picture does show two
staircases leading to an upper floor from the hallway. I do not believe that at the time
there were any ladies in the proximate vicinity of the incident.
After La Fleur had returned to the dining room, Brennan called Dore over to
where Brennan was standing. According to Brennan, he instructed Dore to "tell
Wilbur [La Fleur] to go home for the night and be sure you call Ella [Mrs. Ella
Brennan Martin] the first thing in the morning because she will be down here early.
Call and report it to her and tell her to handle it because she will be down there."
About 10 minutes later Dore came up to La Fleur. Dore testified, and La Fleur is in
substantial agreement, that Dore said, "Go home, Wilbur, for the night." La Fleur
asked, "Well, am I fired?" Dore said "No" but to check the work schedule the next
day. La Fleur then went home.
When La Fleur came to the restaurant the next day Soileau told him to go to
Mrs. Martin's office. La Fleur suggested that Soileau tell him "what you have to tell
me" because La Fleur said that he did not relish being pilloried by Mrs. Martin.
But when Soileau headed for the office La Fleur followed him. Upon La Fleur's
arrival in the office. Mrs. Martin said, "It's bad enough, you started enough trouble
around here without starting with the guests." Mrs. Martin then told La Fleur
to repeat what he had told Fannin. He did so and Mrs. Martin said, "That kind of
47 At various times some of the captains had worked more than 7 consecutive days.
La Fleur had been a union witness in the representation case hearing on April 4, 1963,
on the Union's petition for certification by the Board Immediately following the hearing
La Fleur worked 18 consecutive days at the restaurant, from April 5 through 22, 1963,
inclusive. The captains, including La Fleur, worked split shifts, 11.30 a m. to 2:30 p.m.
and 6 B0 to 11,30 p in. An employee working these hours seven or more consecutive days
would appear to have little time to devote to his own affairs during such period.
48 As previously indicated, Fannin was an assistant maitre d' who received and seated
guests and performed related functions. He was a salaried employee.
BRENNAN'S, INC. 1567
language is used in a restaurant?" La Fleur said that the men in the restaurant used
that language commonly when speaking among themselves, that they kidded each
other, calling themselves sisters, mothers, fruits, and so forth. Mrs. Martin said that
she was not aware of it and that she did not approve of such remarks being made about
customers. She said the man about whom La Fleur had made the remark was a
prominent person and that he could sue La Fleur. She thereupon instructed Soileau
that La Fleur was laid off for 7 days and that, when he returned, his station was
changed to the A Room upstairs instead of the main dining room. She told Soileau
to prepare a schedule accordingly and directed La Fleur to look at it "because I
don't want you to say you didn't know you were working in the A Room." La Fleur
said, "Okay." Mrs. Martin ended the session by saying, "Now, I want you to take your
things out of this restaurant, your clothes out of your locker. Don't talk to anybody
in this restaurant what happened:" La Fleur left, heading for the dressing (locker)
room.
After his 7-day layoff, La Fleur was scheduled to return to work at 9:30 a.m.
on Sunday, June 16, 1963. He reached the restaurant about 12 minutes late and while
he was commencing work in the A Room, Ralph, a floor captain, came over and told
him that Richard Brennan wanted to see him in the office. When La Fleur came to
the office, Richard Brennan told him that he had been late and that he had it written
down in his little black book. Brennan stated that the rules required that employees
be on time. La Fleur told him that the reason he was late was that he was not used to
getting up so early. Brennan said that there would be no next time and that the next
time La Fleur was late he "was gone for good." 49
On June 16 La Fleur had a reservation sheet for a private party of guests in the
A Room. The reservation sheet listed the food items, wines, and other drinks for the
particular party. Floor Captain Ralph took this reservation sheet from La Fleur
when the latter returned from Brennan's office and gave it to Ambrosini. The party
was moved from the A Room to the Red Room, Ambrosini being service captain
in the Red Room.50 For the balance of the day it is not clear how many customers
or how much work La Fleur had in the A Room but the record does show that the
A Room was closed throughout the evening of June 16. After the A Room was
closed the two waiters on La Fleur's team were sent home and Richard Brennan
assigned La Fleur to work downstairs in place of a service captain named Jones.
This was the last that La Fleur worked at the restaurant. He did not report for
work the next day because he decided to quit and this he did.
La Fleur testified that he quit because he was conscious that he had represented the
Union during the election period and he felt that thereafter he was not being treated
properly by Respondent. Among the mistreatment, La Fleur first referred to Re-
spondent's action in removing him from his regular station in the main dining room
and transferring him to the A Room upstairs; he testified that he believed that he was
being mistreated in a variety of ways but was not specific as to the "different ways"
Respondent was mistreating him. He did refer to Respondent's making him come in
to work for breakfast as one of the things he did not like.51 His overall and general
motivation in quitting was his belief-he testified that he "knew"-that the man
49 La Fleur in the past had regularly had a starting shift of 11:30 a in. and the second
half of that split shift ran to 12 midnight The upstairs service captains had been re-
quired to report for work on Sunday mornings at 9 30 a in. for the past 5 or 6 years.
The downstairs service captains, however, were, for the first time, required to also report
at 9:30 a.m. on Sundays, on June 2, 1963. La Fleur therefore had apparently come in at
9:30 am as a part of his regular schedule on June 2 but since he had not worked since
Friday, June 7, June 16 was the second experience with this reporting time as a part of
his regular schedule. La Fleur testified that Ambrosini, an upstairs captain throughout
1963 or longer, had also been late on the morning of June 16, 1963. Richard Brennan
denies this but states that two other men were late.
60 La Fleur was service captain in the A Room. No explanation was given for the last-
minute shift of the party from the A Room to the Red Room.
51 On May 28, 1963, when La Fleur was still a captain in the main dining room and
working regularly on a split shift, 11 B0 a.m -2:30 p in. ; 5.30 p in -12, he was assigned
a breakfast party of high school students Lamke was one of the waiters assigned to
La Fleur's team for the party. La Fleur and his team were required to be at the
restaurant by 8 am for this party. This was the party at which only half the expected
number of guests appeared, with a corresponding loss of tips which were the principal
source of income to the service captain and his team on such an affair. While Respond-
ent, of course, was not responsible for the failure of guests to appear, it can hardly be
said that an early morning breakfast party of high school students was a choice assign-
ment incomewise from the standpoint of the waiters assigned to such a party.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leading a union movement among the Respondent 's employees "would have to go
sooner or later. They [ Respondent ] always had ways of making them quit or resign,
so I just decided to quit."
The alleged constructive discharge of La Fleur , which is the General Counsel's
allegation , must rest , it would seem , upon the theory that the Respondent illegally
discriminated against La Fleur regarding his conditions of employment with the
intended or the predictable and foreseeable consequence that he would quit his job
and that La Fleur's quitting of his job was a reasonable reaction to the illegal
discrimination against him.
The events of June 7, 1963 , and thereafter require major attention since if there
was no illegal discriminatory conduct in that period , a fatal fissure exists in General
Counsel's case regarding La Fleur's termination of employment.
We will consider first the language used by La Fleur on June 7. As an abstract
proposition , the kind of language that people should use from the moral, ethical,
clinical , or philosophical standpoint , is not before us . Nor is our province or concern
social etiquette in a general sense. We have a specific situation before us and
specific circumstances.
Dore, the maitre d', who expressly stated at the hearing that among his duties was
the supervision of all waiters and captains , testified that the had heard such terms as
fruits, homos, queers, and so forth, used on the restaurant premises prior to June 7.
These terms were used by employees in the restaurant areas when talking among
themselves . The terms were used with reference to other persons , including fellow
employees. Dore testified that he "tried to correct them every time I heard them
[such terms ] used." Dore had not heard such language in the customer areas of
the restaurant . There is ample uncontroverted evidence from many other witnesses
that employees used the same or same type of language above mentioned in speak-
ing among themselves about certain customers . Many of these exchanges appear
to have been in a spirit of banter since the employees also involved themselves
verbally in the situations they were describing . La Fleur testified that Fannin, on
various occasions , in referring to male guests , would say to La Fleur, "Take care of
them, those are my two sisters." While Dore testified that he had heard such lan-
guage only in the nonpublic parts of the restaurant , such as in the employees ' dress-
ing room, it is fairly apparent that every employee using such terms did not retreat
to the dressing room or some other such sanctuary before using such expressions.
Vidrine's uncontroverted testimony is that he had heard waiters or captains refer to
customers in such a manner as the customer walked into the restaurant . It seems
fairly obvious , aside from other specific testimony, that the circumstances indicate
that these terms were used not only in the dressing room or kitchen but when those
speaking were at various places in the public areas of the restaurant.
The evidence supports the conclusion that the waiters or captains in using such
terms for each other's ears did not address the customers in such terms or utter
such phrases for the customer 's ears. There is no evidence of a customer being
aware of such appellations on any occasion, including the June 7 incident. There
is no evidence that any of the employees used such language about customers or
about each other in speaking to any of the Brennans . Owen and Brennan and
Mrs. Ella Brennan Martin assert that they had never heard such terms used in their
restaurant.
Fannin , the salaried assistant maitre d' to whom La Fleur spoke on June 7, in sub-
stance, told La Fleur not to use such language in public. That was the extent of
Fannin's reaction to La Fleur 's remarks . While Fannin 's precise authority is not
clear, it is apparent that he outranked Service captains and waiters. He did rebuke
La Fleur about his remarks and there can be little doubt that if he was a witness
to improper conduct on the part of a service captain or waiter he could and would
be expected to report such action to his superiors , such as Dore or the Brennans.
Fannin, however, on June 7, did no more than tell La Fleur not to use such language.
Fannin probably suspected or believed that Dore or Brennan had overheard the
remark but he had no certainty that this was the fact. He did not tell La Fleur to
report to Dore or to report to Brennan . Fannin himself did not go over to his
superiors with La Fleur in tow nor did he go over to them when La Fleur went back
to the dining room.52 Likewise , Dore, a high supervisor with full authority over
"In view of the evidence of Fannin's use of and participation in such language with
respect to guests on other occasions there is some room to doubt that he would have re-
buked La Fleur at all but for the fact that Fannin, aware of Dore's and Brennan's
proximity, probably suspected that they had overheard La Fleur At most, Fannin would
probably have cautioned La Fleur about using such language where it might be overheard
Indeed , in the actual circumstances , this was the substance and extent of Fannin's
reaction
BRENNAN'S, INC. 1569
captains and waiters with respect to conduct and other matters, did not say anything
to La Fleur although Dore had heard his remarks. Apparently, Dore was satis-
fied, insofar as discipline was concerned, with the admonition given to La Fleur by
Fannin. It was only when Owen Brennan called Dore over to where he was stand-
ing that the affair did not end with Fannin's admonition and with La Fleur's return
to the dining room.
Owen Brennan, who overheard La Fleur's remarks to Fannin, was, of course, one
of the Brennans who owned and ran the restaurant. He participated actively in the
management of the enterprise including employee discipline. He record shows
that Owen Brennan made the decision to and did discharge Guilbeau. The discharge
was made on the spot when Brennan heard - he employees' remarks to a service
captain. When employee Lamke was late Mrs. Martin reported this to Owen Bren-
nan and it was the latter, and not Mrs. Martin, who warned the employee that the
next time he was late he would be discharged. Owen Brennan, assisted by Soileau,
made the assignments of waiters, service captains, and others to their various stations.
He made up the all-important work schedules and was the Brennan who determined
where, and when, and if, a service captain or waiter would work in any given period.
On June 7, Owen was the only Brennan in the restaurant and was clearly the
highest management official present. He was not busy before, during the time when,
or immediately after La Fleur spoke to Fannin. He did not say anything to La
Fleur about the latter's remarks although he testified that La Fleur's path between
the dining room and the point where Fanning was standing necessitated La Fleur
walking past Owen Brennan. If La Fleurs' remarks constituted such a capital
offense, Owen Brennan's failure to speak to La Fleur on the spot is not readily un-
derstood, particularly in view of his clear authority and responsibility and in view of
his personal initiative and action with regard to prior derelictions by Guilbeau and
Lamke.53 Further, if Brennan desired a more private setting to cope with an allegedly
major dereliction that was completely within his own jurisdiction, he could have told
La Fleur to report to him in his office or could have instructed Dore to follow La
Fleur to the dining room and pass on such an order. Instead, Brennan took only
one disciplinary action regarding La Fleur and gave only one instruction as to what
Owen Brennan wanted La Fleur to be told. The action and the instruction was that
Dore should tell La Fleur to go home for the night. Nothing was said about a
layoff or any other disciplinary action. There was no warning passed on about dis-
cipline, including discharge, if the offense ever occurred again. It is clear that Owen
Brennan, as he said to Dore, turned the entire matter over to Mrs. Martin for her
to handle. There is no evidence or intimation from Owen Brennan, Mrs. Martin,
or anyone else that Brennan discussed the matter with Mrs. Martin or made any
recommendation regarding the offense he had witnessed; nor is there any indication
that Mrs. Martin consulted Owen Brennan regarding her action,54 although the
major part of the discipline imposed upon La Fleur was particularly within Owen
Brennan's province 55
As a general proposition it is of no concern to me how Respondent's manage-
ment functions nor is there any requirement that one Brennan handle this or that
disciplinary function. The facts set forth previously, however, raise the question of
why Owen Brennan turned over the La Fleur incident so completely to Mrs. Martin
when the offense had occurred in his presence at a time when he was in sole charge
of the restaurant.
The evidence and the circumstances indicate that the La Fleur matter was turned
over to and handled by Mrs. Martin because it involved La Fleur. The only reason
^ It cannot be said that because an unfair labor practiee charge had been filed over the
earlier discharge of Gullbeau that Brennan, on June 7, was therefore seeking to act less
quickly and directly regarding La Fleur. The first unfair labor practice charge was filed
on June 27, 1963, after La Fleur's termination or quitting. The June 27 charge named
La Fleur and Lamke Guilbeau was not alleged to be a discriminatee until he was named'
in a charge on August 2, 1903.
64 Mrs. Martin and Dore testified that she learned of the incident on the following morn-
.ing when Dore telephoned her. She thereafter meted out her punishment to La Fleur
55 As has been shown, Owen Brennan had as much authority to lay off or discharge or
otherwise discipline employees as had Mrs Martin and he had exercised such authority in
the past. But with regard to scheduling and work station assignments, the area in which
Mrs Martin took action against La Fleur, this was preeminently within Owen Brennan's
jurisdiction Mrs Martin herself had told employees who complained about schedules and
assignments that she did not handle such matters and that they should see Owen Brennan
who had charge of this area.
750-230-05-v of 147-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
why La Fleur was "special" was because he was the leading union adherent among
the employees. Although all the Brennans actively opposed the Union, Mrs. Mar-
tin appears to have been the chief "ball carrier" for Respondent in the union matter.
The speeches made to the restaurant employees as a group during the 1963 election
campaign were made by Mrs. Martin and not by the other Brennans. Dore testi-
fied that he would have reported the La Fleur incident to Mrs. Martin even if not
so instructed by Owen Brennan. When asked why he would have reported the
matter to Mrs. Martin, Dore said, "She would like to know what happened" and
because Dore "wouldn't know what she wanted to do . . It will be noted
that Dore did not state that he did or would have reported the La Fleur incident
to Richard Brennan or any other Brennan except Mrs. Martin. Also, it would
appear that, in this matter of La Fleur, Owen Brennan, also turned over La Fleur to
Mrs. Martin because he did not know exactly how she wanted to handle La Fleur.56
Mrs. Martin testified that she was displeased, "very unhappy," about La Fleur's
remarks on June 7. She accordingly laid him off for a week and transferred him
to the A Room, effective upon La Fleur's return after his layoff.57 There can be
little doubt that the layoff and the transfer were intended to be and were punish-
ments for La Fleur's transgression. Mrs. Martin testified, however, that while the
transfer was a demotion, she believed that it was a promotion for La Fleur from
the financial standpoint, i.e., he would earn more money in the upstairs A Room
than in the main dining room. I have great difficulty in believing that Mrs. Martin,
whose opposition to the union movement and to La Fleur as the leader of the move-
ment among the employees is clear, was punishing him by transferring him to a more
lucrative station. The nearest that Mrs. Martin could come to coping with the fore-
going incongruous proposition was to state that she did not consider that La Fleur
could properly continue to handle the customers in the main dining room. She
went on to say that the restaurant's steady and regular clientele were served in the
main dining room and that she therefore transferred La Fleur to the upstairs A
Room where the customers were mainly transients or irregular customers. Even
if we disregard the fact that Le Fleur had been a service captain in the main dining
room since 1962, when the service captain system was instituted, and disregard the
fact that there is no evidence or intimation of any criticism of his conduct toward
customers by either Respondent or by any customer, Mrs. Martin's explanation, afore-
mentioned, is not overly convincing. If she was genuinely apprehensive of the possi-
bility that La Fleur, in spite of the speedy and rather strong punishment meted out
to him, and his awareness of Respondent's hostility toward him, would thereafter
refer to a guest disrespectfully and would do it where be could be overheard by the
guest (two unlikely possibilities), there would be little point to exposing any cus-
tomers, upstairs or down, to this sort of thing. Transients, irregulars or regulars,
upstairs or downstairs customers, would presumably resent being referred to in op-
probrious or slanderous terms and a transient customer could as readily institute an
action for slander as anyone else.
Mrs. Martin's statement that she believed that La Fleur would earn more money
working upstairs in the A Room than he did in the main dining room was unsup-
ported by any tangible evidence of earnings in the respective locations. If anyone
was in a position tohave or to offer such evidence it would appear to be Respondent
since the restaurant was Respondent's business and the employees were Respondent's
employees. Respondent had some basis on which it determined what it would pay to
its employees. Since it paid waiters and service captains $3 and $5 per day rather
than $6 or $10, it presumably knew or had a reasonably good idea of what its em-
ployees would average in tips. It paid its floor captains and higher supervisors a
straight weekly salary. The amount of such salaries would have to be geared to or
have a relation to the weekly earnings of waiters and service captains since the higher
salaried people would be ill content if their earnings were less than those of their
subordinates. If by no other method Respondent would have the food and beverage
checks of customers in its various rooms, such as the main dining room or the
A Room. The checks were probably identified by some room symbol or the number
se In the prior unfair labor practice case against Respondent, the Decision of the Ex-
aminer and of the Board indicate that it was Mrs. Martin who handled the termination
of the leading union advocate among the employees at that time. The findings in that case
also indicate that at that time Mrs. Martin sought to induce the employee aforementioned
to quit or to resign but it was found that he had been in effect terminated because of
Mrs. Martin's refusal to assign work to him
67 Exactly why Mrs Martin directed La Fleur to remove his things from the locker-
room on June 8 is not clear, unless she contemplated the possibility that he might not re-
turn to work after his layoff
BRENNAN'S, INC. 1571
or name of the waiter serving the particular customers in a particular room. The
amount of the checks would in turn be a reasonably accurate clue to the tips. Whether
tips were estimated as averaging 10, 15, 20 or 25 percent of the bill, they would be
an index of the tips received by the employees. This would seem to be true even if
,computed by a person inexperienced in Respondent 's business but the Brennans and
their bookkeepers and accountants would be particularly qualified to know such mat-
ters. Respondent offered no such data to support Mrs. Martin's statement. The sole
support for her conclusion about comparative earnings in the two rooms that Mrs.
Martin offered was her statement that the regular customers, who were principally
assigned to the main dining room, sat at the table longer than the people who were
sent up to the A Room to dine. This lingering at the table meant less turnover and
hence fewer persons served by the waiters.
I find the foregoing explanation unpersuasive. The regular clientele in a restaurant
like Respondent's were people of some substance, financial or otherwise. People
who dine regularly in the dining rooms of prominent hotels and restaurants have
to be able to afford it and the tips received by the waiters serving these people
bear a direct relationship to the total of the bill. It is a fair appraisal that the regular
customers not infrequently have cocktails, a bottle of wine, and liqueurs in addition
to such items of sustenance as oysters Rockefeller, trout amandme, quail under
glass, or similar sustaining victuals. Some lingering by the guests over the liqueurs
and coffee would appear to be tolerable to the house and to the waiters under such
circumstances. The transients, however, who are shepherded to a room upstairs like
the A Room, may regale themselves more modestly. The fact that the turnover is
greater upstairs is some indication of this. However, it seems quite possible that
some modest-eating transient diners who are in the restaurant for the first time might
wish to savor the experience and linger a bit over their coffee. But, assuming the
greater turnover upstairs, I am still not persuaded that captains and waiters in the
A Room earn more than these in the main dining room.
On the question of the comparative desirability and profitability of the main din-
ing room and the upstairs A Room, Respondent cites Ambrosini's testimony. Am-
brosio, except for a short time downstairs, had worked consistently in the Red
Room upstairs. Ambrosini stated that the Red Room is a "grand room . . . it is a
distinguished room . people request the room more often . It is more money to
be made there." This may be true of the Red Room but there is no evidence that
the A Room is a distinguished room that people request to be seated in. The
transients, referred to by Mrs. Martin, apparently are conducted to the A Room and
do not go there pursuant to request. Our concern is with La Fleur's station in the
main dining room as compared with his banishment to the A Room. La Fleur testi-
fied, without contradiction, that his actual earnings on the 1 day he worked in the
A Room were substantially less than his earnings in the main dining room.
More ingenious than persuasive is Respondent's statement in its brief that La Fleur
made more money in the A Room because he received 50 percent of the tips as con-
trasted to 331/3 percent of the tips when he was in the main dining room. Apparently
the foregoing is based on the fact that in the main dining room La Fleur had on his
team two waiters and the three persons split the tips evenly. In the A Room La
Fleur had one waiter and one apprentice waiter. Unlike a full-fledged waiter, an
apprentice is not entitled as a matter of right to any share of the tips. However, as
a practical matter, since he is performing a proportion of the work, the service cap-
tain does give the apprentice a share of the tips . In this same connection it would
appear that a service captain with two experienced waiters could handle more cus-
tomers, render better service, and hence obtain more tips , than could a service cap-
tain with a waiter and an apprentice . Also pertinent is the fact that the main din-
ing room is open all day and evening, from 9 a.m. to closing which is usually about
midnight. The A Room is open from 11:30 a.m. to 2:30 p.m. and from 6 p.m. to
about 11 p.m. The record shows that on occasion the A Room was closed entirely
in the evening but as far as appears the main dining room always remained open
during business hours.
Two more aspects merit comment. One is that La Fleur had not complained
to Respondent about his treatment. The futility of complaint under the circum-
stances is apparent . Respondent 's articulated hostility to La Fleur and the union
movement is amply demonstrated in the record. The union effort, led by La Fleur,
was "war" to Respondent and one does not receive or expect concessions in such
circumstances . Early in the union campaign, Dore , in attempting to dissuade La
Fleur and Crooks from their union adherence, had warned them that they did not
see any of the union activists in the prior campaign still employed by Respondent.
When Mrs. Martin , on June 8 , imposed her sentence upon La Fleur there was no
room for protest. Her pronouncement was in terms of a fait accompli.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second point upon which some comment may be made is that the alleged dis-
crimination against La Fleur occurred after the Union had been decisively defeated
in the election . In some situations there might be room to question that an employer
would , following such a result , seek to discriminate against an employee because of
his union activity. The instant case, however, affords ample evidence that the hos-
tility to La Fleur as the union leader among the employees was so deep rooted that
it did not abate with the election. On the day after the election Mrs. Martin took
pains to rub in the union defeat to La Fleur and manifested that her attitude was
not that of letting bygones be bygones . As previously mentioned , Dore 's statements
manifested that the expiration of any vestige of unionism was Respondent 's policy.
The victory was not complete if the potentiality of a future revival of union activity
existed by reason of the continued employment of the union leader.
I do not question the fact that neither La Fleur nor any other employee should'
use the language used by La Fleur June 7. Nor is there any question of Respond-
ent's right to take steps to prevent such conduct, including the disciplining of La
Fleur. Further , it is not for me to pass judgment upon an employer 's disciplinary
action with respect to its fairness or unfairness, its severity or leniency. I am
concerned with the question whether Respondent's action against La Fleur was
motivated in whole or in part by the fact of his union activity and his union role.
The evidence convinces me that, considering all the circumstances, Mrs. Martin's
disciplinary action against La Fleur was motivated by union animus and not by the
nature or scope of his offense. Viewed in the perspective of Respondent's state-
ments and conduct and the exaggerated treatment accorded La Fleur's offense of
June 7, it is found that the transfer of La Fleur to the A Room, following his 7-day
layoff without pay, was in violation of Section 8(a) (1) and (3) of the Act. It is
further found that in view of various statements made to La Fleur and to other em-
ployees and in view of the action taken against La Fleur that none but the most
obtuse could fail to comprehend that La Fleur was in a prejudiced position with re-
spect to continuing in Respondent's employ under conditions guaranteed by the
Act. La Fleur reasonably believed by reason of Respondent's statements and acts
that Respondent was illegally discriminating against him and would continue to do
so. Under such circumstances his quitting was attributable to Respondent and con-
stituted a violation of Section 8(a) (1) and (3) of the Act.58
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and operations of Respondent set forth above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that Respondent has violated Section 8(a)(1) and (3) of
the Act remedial action will be recommended. I am of the opinion that an offer of
reinstatement to La Fleur to his former position in the main dining room is in order.
While I believe that La Fleur's quitting was attributable to Respondent's discrimina-
tory conduct, it is recommended that the maximum backpay be limited to the differ-
ence between what La Fleur would have earned in the A Room and what he would
have earned in the main dining room.59 The A Room position of La Fleur has not
ss If a first-class machinist earning $3 65 per hour is transferred to the job of floor
sweeper at $1 35 per hour, because he is or was active In a union, be can be considered
as constructively discharged whether he refuses to accept the demotion and quits or
whether he takes the demotion and quits after a day on his job as sweeper. Respondent
asserts that although the General Counsel has alleged a constructive discharge, he did
not allege that the transfer to the A Room was discriminatory. I believe that implicit in
the concept of constructive discharge is discrimination in the transfer to the new job or
discrimination in the imposition of more onerous tasks in the existing job. In the example,
referred to above, the machinist in the actual job of sweeper was being treated like any
other sweeper and in that sense was not being discriminated against The discrimination,
inherent in the allegation that he was constructively discharged, occurred in the transfer
to the new job as punishment for his union activity. "The decisive question [in a con-
structive discharge situation] . . . Is whether the resignation . . . was voluntary or co-
erced." General Adjustment Bureau, Inc., a New York corporation v. N L.R B., 331 F 2d
913 (C.A 7).
69 E g If La Fleur would have earned $100 per week in the main dining room and $90 in,
the A Room and had no intermediate earnings or had earnings less than $90 per week
since his termination, the backpay would be the difference between $100 and $90 per week
INDEPENDENT METAL WORKERS UNION, LOCAL NO. 1 1573
been shown to have been so intolerable from the physical, mental, or financial
aspect, that La Fleur had no alternative but to quit after 1 day.so He could have
continued to work in the A Room unless it reached an intolerable point and could
have sought reinstatement, through the Act, to his former job in the main dining
room and with reimbursement for the difference in his earnings. Since La Fleur
elected to quit before a point of intolerability was reached, I believe, while recogniz-
ing this right to quit on the facts of the case and while recognizing the Employer's
basic responsibility for such action, that the limitation on backpay, heretofore men-
tioned, is appropriate in the circumstances of this case.81
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of the Act and is engaged in
interstate commerce.
2. The Union is a labor organization within the meaning of the Act.
3. Respondent, as found hereinabove in section III, has violated Section 8 (a) (1)
of the Act.
4. Respondent, as found hereinabove in section III, has discriminated against
Wilbur La Fleur in violation of Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]
60 Situations of the "intolerable type" described merit no limitation on the basis of
the backpay computation. Although "intolerability" need not necessarily be so extreme,
the following is an example of a situation where the discriminatee has no choice but to
quit forthwith: A 55-year-old clerk weighing 125 pounds is discriminatorily transferred
to a warehouse job where he Is to lift 100-pound bags from a conveyor and load them on
racks above shoulder level for 8 hours a day.
81 It is unnecessary to define precisely what a point of intolerability would have been.
Perhaps If La Fleur had worked a week or 10 days and if his earnings in the A Room
for that period were $10 or $15 per day less than those of his former job, the point of
intolerability would have been reached. If instead of being transferred to the A Room
La Fleur had been made a dishwasher or garbage man that might well have been without
more a point of intolerability in the circumstances herein.
Backpay is to include interest at 6 percent and is to be computed in accordance with
the principle of F. TV. Woolworth Company, 90 NLRB 289.
Independent Metal Workers Union, Local No. 1 and Independent
Metal Workers Union, Local No. 2 and Hughes Tool Com-
pany, Party of Interest
Hughes Tool Company and United Steelworkers of America,
AFL-CIO, Petitioner and Independent Metal Workers Union,
Locals Nos. 1 and 2. Cases Nos. 23-CB-429 and 23-RC-1758.
July 1, 1964
DECISION AND ORDER, AND ORDER RESCINDING
CERTIFICATION
On February 26, 1963, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in unfair labor practices and recommending
that it cease and desist therefrom and that it take certain affirmative
action, as set forth in the attached Intermediate Report. In Case No.
23-RC-1758, consolidated by the Board with the unfair labor practice
case, the Trial Examiner recommended that the joint certification
147 NLRB No. 166.