Colony Kitchens, Inc.

National Labor Relations Board - Board Decisions

May 1, 1975

217 N.L.R.B. 671 (N.L.R.B. 1975)

r
COLONY KITCHENS , INC. 671
Colony Kitchens , Inc. and Lionel Richman. Case
21-CA-12775
May 1, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 31, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions and a brief in support thereof and in
opposition to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the, rulings, findings,' and
conclusions2 of the Administrative Law Judge except
as modified herein.
We find, contrary to the Administrative Law Judge,
that a contributing cause of the discharge of employee
Connie McLaughlin was her prounion attitude and her
authorization of a union to represent her. In so finding,
we discount Respondent's various explanations that
she was discharged because she had not obtained an
alien work permit and was unqualified for her job.
McLaughlin, a young Irish girl, was hired early in
April 1974 as a dishwasher and transferred to the posi-
tion of bookkeeper trainee about 2 months later. Both
jobs were at Respondent's restaurant at Cathedral City,
California. On June 20, approximately a week after her
transfer, she was fired_' The record is silent as to
when McLaughlin, an alien, would legally have been
required to obtain a permit in order to continue
working,' and we have not been asked to take official
notice of the applicable law. Respondent has not con-
tended that it was required by law to terminate her
employment. McLaughlin, whom the Administrative
i General Counsel and Respondent have excepted to certain credibility
findings made by the Administrative Law Judge It is the Board's established
policy not to overrule an Administrative Law Judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544 (1950), enld. 188 F 2d 362 (C.A. 3, 1951). We
have carefully examined the record and find no basis for reversing his
findings except as appears infra
2 In affirming the Administrative Law Judge's conclusion that the allega-
tion that Donald Wiley was discharged in violation of Sec. 8(a)(1) of the Act
was not proved, we do not rely on his finding that Tom Sweeney, who
discharged Wiley, was not present during a crucial part of a conversation
between Wiley and Nancy Fredericks alleged to be the basis for the dis-
charge. Respondent concedes that Sweeney, who so testified, was present
3 All dates herein are in 1974.
Law, Judge found to be an impressive and credible wit-
ness, testified that after she experienced some difficulty
in obtaining a work permit from the Los Angeles office
of the Immigration and Naturalization Service she dis-
cussed the matter with the restaurant manager. She
told him that she had been informed it would take a
minimum of 6 months to a year because of numerous
documents apparently difficult to locate, and that pos-
sibly she would even have to leave the country in order
successfully to apply. The manager told her "that it was
okay, to leave it, to forget about it, not to worry about
it." He was replaced as manager on May 8 by his
assistant manager.
During the course of her employment, McLaughlin
told virtually everybody with whom she came in con-
tact that she was not an American citizen. Neverthe-
less, Respondent began in June to train her as a book-
keeper. About the same time, she had occasion to ask
the new manager about the job security because many
other employees were being discharged. He assured her
in effect that she had no cause for concern. The subject
of the work permit did not arise. McLaughlin did men-
tion to the manager, however, that Area Supervisor
Charles Swanson had criticized her bookkeeping work
and that she thought the trouble was the manager's
failure to train her. The manager agreed and promised
to so inform Swanson. This was about a week before
McLaughlin was discharged.
On the way to work on the morning of June 19,
McLaughlin was approached by discharged employee
Cheryl Romero,I who was picketing on a parking lot
adjacent to the restaurant and solicitingunion authori-
zation cards from Respondent's employees. McLaugh-
lin was about 12 to 20 feet in front of the doors at the
front of the restaurant when Romero spoke to her.
They talked for 5 to 10 minutes in front of the restau-
rant, then walked together about 100 yards to a trailer
(mobile home), where McLaughlin signed an authori-
zation card.' McLaughlin then left the trailer and
4 Although Respondent subpenaed certain documents pertaining to
McLaughlin's immigration status, its request for production of them was
withdrawn after General Counsel argued that such matters would be ger-
mane only to questions of compliance with the Board's Order, should a
violation be found
5 Employee Nicky Simmons, who had signed a similar card the previous
day and was described by the Administrative Law Judge as a convincing
witness, testified that Nancy Fredericks, a supervisor, had told her a day or
so earlier that any employee who spoke to anyone who was picketing would
be terminated. Fredericks denied this, but the Administrative Law Judge
indicated on the record a lack of confidence in her testimony as a whole
Respondent has taken the position in another connection that the Adminis-
trative Law Judge did not credit Fredericks' testimony throughout his deci-
sion except where it was corroborated or uncontradicted. We think this
observation is well taken, but are constrained to turn it against Respondent
in this instance In the circumstances set forth, we credit Simmons' tes-
timony in the absence of a specific credibility resolution by the Administra-
tive Law Judge.
217 NLRB No. 125
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to work . All this occurred approximately between
8 and 8:30 a.m.
When McLaughlin entered the restaurant , another
employee told her that Supervisor Nancy Fredericks
had been watching her go into the trailer and had said,
"Connie is a sympathizer.s6
Later that day, Area Supervisor Swanson ap-
proached McLaughlin at work and asked her to go over
to one of the restaurant booths where he wanted to
speak to her. She followed him and they were joined by
James O'Halloran , assistant manager for Respondent's
southern section, who was responsible for 16 restau-
rants including Cathedral City. O'Halloran began the
conversation by asking McLaughlin, "Why did you
sign the union card?" McLaughlin answered at length,
telling O 'Halloran and Swanson that she thought the
situation at the restaurant was very bad, that "they
weren 't doing anything about it, and that if they were-
n't going to do anything about it maybe the union
would , if -they got in." Some time thereafter, in the
course of the conversation , Swanson said to McLaugh-
lin, "What right do you have to judge?"
McLaughlin answered that "every human being had
a right to judge what was right and what was wrong."
She then asked O'Halloran why they didn 't want a
union . O'Halloran answered that if the Union got into
the Cathedral City restaurant "it also would then try
to get in all the branches and that would cost the com-
pany a lot of money ." Later in the conversation , O'Hal-
loran asked McLaughlin whether she was grateful that
the Company had given her a-job. She said she was, and
O'Halloran said, "Well, this is the way you show your
gratitude . You are stabbing us in the back ." The inter-
view ended with Swanson telling McLaughlin she
could go back to work.
The next morning O 'Halloran approached
McLaughlin &ad asked her if she had a work permit..
She said she did not , and O'Halloran said he would
have to check with the head office to see "if this was
all right ." About 5 hours later, McLaughlin was told
to see Swanson in the office. He told her that in view
of her not having a work permit the Company had to
let her go . He paid her wages in cash.'
6 As we have noted, the Administrative Law Judge specifically found
McLaughlin to be a credible witness McLaughlin 's credited testimony con-
cerning what another employee told her about Fredericks ' actions is, of
course, hearsay It was admitted without objection That part of the hearsay
testimony referring to Fredericks' comment when she saw McLaughlin with
Romero is made plausible by the testimony of Simmons regarding Fred-
ericks' warnings to her against talking to picketers and by Respondent's
interrogation of McLaughlin and Simmons on the same day as the events
-recited in the text Fredericks, although she testified , did not deny the
hearsay testimony In these circumstances it is of probative value NL.R.B
v. International Union of Operating Engineers, Local Union No 12
[Ledford Bros.], 413 F 2d 705 (C A. 9, 1969); NL.R.B. v. Imparato Stevedor-
ing Corporation, 250 F 2d 297 (C A 3, 1957)
We think all of this makes a rather strong prima facie
case, especially when considered in the context of Re-
spondent 's other unlawful conduct.
O'Halloran testified that he and Swanson had de-
cided on June 18 to discharge McLaughlin because she
was not qualified as a bookkeeper , and that, while they
talked about transferring her to another capacity, there
were no openings . As a second reason for terminating
her O'Halloran testified that he did not think she had
obtained a work permit . He said they decided to put
only the work permit reason on her termination slip so
as not to hurt her chances to get another job.
Swanson 's testimony was remarkably different. He
did not testify as to any discussion with O'Halloran on
June 18 , but did state emphatically and repeatedly that
the sole reason for the discharge was that McLaughlin
was unable to produce a work permit . He stated that
on June 19 , "probably between 8:30 and 9 :00" a.m., he
left company headquarters in Newport Beach, Cali-
fornia, for Cathedral City (a distance of approximately
100 highway miles) with a check, which is in evidence,
made to the order of the branch restaurant , to reim-
burse it for paying McLaughlin off in cash.'
Thus, both Swanson and O'Halloran , in their sepa-
rate ways, sought taestablish that the decision to termi-
nate McLaughlin was made before they had knowledge
of her union proclivities . To explain why he did not
actually discharge her until June 20, Swanson testified
that he was unable to do so on June 19 because she
finished work and left while he was talking on the
telephone.
The Administrative Law Judge believed both Swan-
son's testimony that he left Newport Beach with the
check when he said he did and O 'Halloran 's testimony
that he and Swanson discussed McLaughlin's dis-
charge on June 18 , on the basis that it "was not chal-
lenged or contradicted ." We find such reliance to be
prejudicial error in the circumstances presented here.
Needless to say , the fact that the General Counsel
was unable to provide witnesses to dispute this tes-
timony lends no stature to Swanson 's and O 'Halloran's
accounts since there were no other witnesses . That the
General Counsel was not able to undermine their ac-
counts through cross-examination is one factor to be
considered . But their accounts of the actions taken are
inextricably linked with the motives they assigned for
these actions . Taken as a whole, their stories are hope-
lessly contradictory and, in the light of other known
facts, incredible. It is also noteworthy that throughout
his Decision the Administrative Law Judge usually dis-
credited , and rarely relied on, the testimony of Swan-
7 June 20, the date of the discharge, was a Thursday The record does not
reveal when the applicable pay period ended
8 The check has McLaughlin's name typed in a margin at the top Swanson
engaged in a somewhat elaborate explanation of why it was necessary to use
such a roundabout way to effect this payment
COLONY KITCHENS, INC 673
son or O'-Halloran when it was contradicted or uncor-
roborated. Where they corroborated each other in the
case of the interrogation of McLaughlin, he discredited
them both.
That O'Halloran and Swanson each assigned a dif-
ferent reason for the discharge is itself a serious matter.
Their stories did not reflect a mere difference in empha-
sis. Swanson gave no hint to the discussion on June 18
which O'Halloran stated was responsible for the deci-
sion. And, although O'Halloran said the subject of a
work permit came up , any substantial reliance on this
ground is negated, in O'Halloran's account, by his lack
of certainty that she lacked a permit and by the discus-
sion of transferring McLaughlin to another job but
decided against it because there were no openings. Ex-
traordinarily, Swanson, who was firm in his testimony
that the lack of a permit was the sole cause for dis-
charge, agreed with O'Halloran's version on this one
point: that transferring McLaughlin back as a dish-
washer had been considered, but there were no
openings.' Respondent is thus in the peculiar position
of requiring a work permit for McLaughlin only if she
remained a bookkeeper.
Each of the two different reasons assigned for
McLaughlin's termination falls independently of its
own weight. McLaughlin's alleged shortcomings as a
bookkeeper trainee are hardly persuasive after 1 week
on that job, especially after the restaurant manager
acknowledged that, the fault was his in failing to train
her. O'Halloran's story that McLaughlin's inadequa-
cies were kept off her termination slip so as not to
jeopardize her future job opportunities does not explain
why the so-called "real" reason was concealed also
from her. And it strains the imagination that O'Hallo-
ran, a high management official, could have believed
that a termination for lacking an alien work permit
would hurt her less than one for being found unquali-
fied for a specialized job after 1 week. That McLaugh-
lia's lack of a work permit could hardly have been the
principal reason for her termination has already been
demonstrated. Suffice it to add that Swanson acknowl-
edged that prior to his action no one in management
had followed up in getting her to obtain a permit. Yet
he discharged her without warning her that it was nec-
essary for her to do so. And, while it was crucial for
Respondent to establish that the decision was made
before it learned of McLaughlin's union membership
and advocacy on June 19, O'Halloran asked her on
June 20 whether she had a permit and then told her he
would have to check with the head office about what
should be done.
9 In the light of the evidence in the record showing a considerable amount
of turnover in several job categories about this time, the contention that
there were no openings for her, standing on its own , strains credulity
Were all this not enough cause to discredit their
representations, it will be remembered that Swanson
and O'Halloran discussed employment conditions with
McLaughlin at length on June 19 and then sent her
back to work; She received no hint from them that they
had already decided to fire her and that Swanson had
a check in his possession to reimburse the restaurant for
paying her off)° Another facet of Swanson's story
that does not go down easily is that after going to the
trouble of arranging this elaborate financial transac-
tion, supposedly accounting for the exact amount of
money McLaughlin was due through June 19, he
managed to let her leave without paying her. Presuma-
bly the special financial procedure was "necessary" in
the first place only because Respondent could not wait
until the end of the pay period and pay her in the
normal way.
Going specifically-to the matter of the June 19 check,
Swanson's testimony is fatally improbable. He testified
that he left Newport Beach with the check, intending
to discharge her before she started work but to pay her
for the day anyway. When he arrived and she had
started work already, he decided to let her work out the
day and pay her the same amount as he had originally
planned. But, if Swanson left Newport Beach between
8:30 and 9 a.m., he knew well before he left that
McLaughlin would have started work before he ar-
rived. In fact, she was scheduled to start work before
he left Newport Beach. t l Since nothing changed be-
tween the time he left with the intention of paying her
off and the, time he arrived, there was no reason to
change his intended course of action of discharging her
when he arrived. Had there been such a reason, the
original plan could have been effectuated a day later,
before she started work. Instead, he let her work her
whole shift on June 20. All this delay, after Swanson
had been in such a hurry to get her off the job, is
incomprehensible. Although he have no way of know-
ing exactly when the check was issued, we cannot be-
lieve it was issued in its present form at any time before
Respondent knew that McLaughlin had signed a union
card and was thus, in its view, "stabbing us in the
back." We conclude that her discharge violated Section
8(a)(1) and (3) of the Act.
The Administrative Law Judge found that Respond-
ent violated Section 8(a)(1) by coercively interrogating
McLaughlin, Nicky Simmons, and Ronda Murphy.
These findings are supported by the record. He also
found that during the interview in which O'Halloran
interrogated Murphy he also threatened her by saying
that Respondent would shut down if necessary to stop
10 Aside from the session at which McLaughlin was interrogated about
why she had signed a union card, Swanson testified that he talked to her that
morning about how she should be keeping certain accounts No mention was
made, however, about any possible change in her employment status
11 He stated that her 4-hour shift ended at noon.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union . Unlike the testimony of McLaughlin and
Simmons, the Administrative Law Judge made no gen-
eral evaluation of the credibility of Murphy's tes-
timony. He credited her account of the alleged threat,
stating that it was not challenged or contradicted by
O'Halloran or Swanson , who was present at the inter-
view.
We believe the Administrative Law Judge erred in
finding no challenge or .contradiction to this testimony.
Respondent 's counsel attempted to ask O 'Halloran a
direct question as to whether he told Murphy that
Colony Kitchens would shut down . This question was
objected to,as leading and the objection was sustained.
We do not disturb that ruling . Thereafter O'Halloran
testified that he did not discuss with any employee what
would happen if the restaurant were unionized and
later that he did not explain to Murphy what would
happen if a union came in. Swanson also denied -that
any mention was made during that conversation about
what might happen if the Union came in. While one
could construe these denials as having no reference to
the alleged threat , we do not think that in the circum-
stances it would be fair to Respondent to do so.
This leaves us, however , with no resolution of the
conflict between the assertion that the threat was made
and the denials we have found in the record . Since we
have found other violations of Section 8(a)(1) and (3)
which make a broad cease-and-desist order appropri-
ate, we find it unnecessary to remand the issue of the
occurrence of a threat . We therefore must take the only
other available alternative and dismiss that allegation
of the complaint.
The Remedy
Board hereby orders that the Respondent, Colony
Kitchens, Inc., Newport Beach, California, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
union membership , activities, or sympathies.
(b) Discharging or otherwise discriminating against
any employee in regard to his or her hire, tenure, or
terms and conditions of employment , so as to discour-
age membership in, affiliation with, sympathy for, or
lawful activity on behalf of any labor organization.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Connie McLaughlin immediate and full
reinstatement to her former job or , if her job no longer
exists , to substantially equivalent employment , without
prejudice to her seniority or other rights-and privileges,
and make her whole for any loss of earnings she may
have suffered by reason of the unlawful action against
her in the manner set forth in the section in this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
Having found -that Respondent violated Section
8(a)(1) and (3) of the Act by discharging employee
Connie McLaughlin, we shall order that Respondent
offer her immediate and full reinstatement and make
her whole for any loss of earnings she may have suf-
fered as a result of the unlawful action against her, by
payment to her of a sum of money equal to what she
normally would have earned as wages from the date of
her discharge until Respondent offers her reinstate-
ment, to be computed in accordance with F W. Wool-
worth Company, 90 NLRB 289 (1950), with interest in
accordance with Isis Plumbing & Heating Co., 138
NLRB 716 (1962).12
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
12 In any compliance proceedings, it will be appropriate to raise the
question of the effect, if any , of McLaughlin 's alien status on the remedy
(c) Post at its premises at Cathedral City, California,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for, Region 21, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
COLONY KITCHENS, INC
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. We intend
to carry out the Order of the Board, the judgment of
any court, and to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything that interferes with or
restrains or coerces employees with respect to
these rights.
WE WILL NOT coercively interrogate employees
concerning their membership in, support of, or
activities for a union.
WE WILL NOT discharge or otherwise discriminate
against any employee because he or she has joined,
helped, or supported a union.
WE WILL offer Connie McLaughlin full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to her former rights and privileges,
and make her whole for any loss of earnings she
has suffered.
COLONY KITCHENS, INC
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This mat-
ter was heard at Palm Springs, California, on October 9, 10,
and 11, 1974.' The complaint,' issued August 16, is based
upon a charge filed June 19, and an amended charge filed
June 30 by Lionel Richman. The complaint alleges that
Colony Kitchens, Inc., hereinafter referred to as Respondent,
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, hereinafter called the Act.
Issues
The principal issues are whether Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Donald Wiley,
Cheryl Romero, and Julie Neale, because said employees
All dates are within 1974 unless otherwise stated
2 As amended at hearing Included among the minor amendments was
change of name of Respondent from Colony Kitchen, Inc., to Colony Kitch-
ens, Inc
675
engaged in protected, concerted activities for the purposes of
collective bargaining or other mutual aid or protection, and
by discharging Connie McLaughlin3 because she engaged in
union or other protected activity.
Additional issues are whether Respondent violated Section
8(a)(1) of the Act by interrogating employees concerning
their union membership, activities, and sympathies, and the
union membership, activities, and sympathies of their fellow
employees, and by threatening employees with loss of em-
ployment if they selected the Union as their collective-bar-
gaining representative.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been care-
fully considered, were filed on behalf of the General Counsel
and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
At all times material herein, Respondent is and has been
a California corporation engaged in the operation of approxi-
mately 55 restaurants, primarily located within the State of
California, including a restaurant at 69050 Highway 111,
Cathedral City, California. In the normal course and conduct
of its business operations, Respondent annually derives gross
revenues in excess of $500,000 and purchases and receives
goods and services directly from suppliers located outside the
State of California, valued in excess of $12,000. I find that
Colony Kitchens, Inc., is, and at all times material herein has
been, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Hotel Restaurant, Club Employees and Bartenders Union,
Local 309, Hotel and Restaurant Employees and Bartenders
International Union, herein referred to as the Union, is, and
at all times material herein, has been, a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
One of the restaurants, located at Cathedral City, Cali-
fornia is involved in this controversy. During the period in-
volved herein James O'Halloran was assistant manager of the
southern section of Colony Kitchens, Inc., with responsibility
for 16 restaurants, including the one at Cathedral City.
O'Halloran visited each of the 16 restaurants for which he was
responsible every 2 or 3 weeks, staying as long as necessary
to discuss management problems.
Charles Swanson is and has been area supervisor of Colony
Kitchens, Inc., since mid-April of 1974. His area of responsi-
bility covers eight restaurants, including the one at Cathedral
City. He visits each of the eight restaurants about once each
3 Sometimes spelled McLoughlin.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week, to observe and discuss operations . His immediate
supervisor during the period involved herein was O 'Halloran.
Management of the Cathedral City restaurant has been a
problem for the corporation from the time of its construction
in mid-1973. The first manager was Mike Kelly, followed by
Rick Lynch, then Tom Grant (March of 1974), then Roger
Steele (May 8, 1974). Steele was manager during the time
involved in this controversy. Working directly under Steele
during that time were two assistant manager trainees, Nancy
Fredericks, who was in charge of waitresses commencing
May 29, and Tom Sweeney, who was in charge of cooks,
busboys, and dishwashers commencing May 29. However,
Fredericks and Sweeney assisted in each other's area as re-
quired, and if Steele was not present in the restaurant, Fred-
ericks and Sweeney, or either of them if one was absent, was
in complete charge of operations.'
Undisputed testimony shows that the Cathedral City res-
taurant was a marginal operation , and a corporate headache,
from its inception . Even cleanliness was a problem . County
health authorities gave the restaurant a rating of B or C
(average or intolerable) in May of 1974. The frequent change
of managers reflects management 's attempts to solve the
problems of poor customer service, poor food preparation,
inadequate attention to cleanliness and appearance , pilferage,
breakage , excess food costs, and inadequate profit. The res-
taurant was substantially above company standards in costs'
of operation , and below standards in profits.
Swanson recognized the problems at Cathedral City upon
becoming area supervisor in mid-Apirl. He found that the
restaurant demanded more attention than other locations,
because of its problems and high employee turnover rate. He
discussed the situation with O'Halloran and Steele, and
O'Halloran suggested they hold an employee meeting. Such a
meeting was scheduled May 29 to be attended by the manage-
ment team and the employees . During the morning before the
employee meeting on May 29, O'Halloran, Swanson, Steele,
Fredericks, and Sweeney held a management meeting to dis-
cuss the pending employee meeting and to define the prob-
lems and responsibilities of management . The managers were
told by O'Halloran and Swanson that improvement was ex-
pected, and required, within a month . Fredericks was specifi-
cally instructed to improve waitress service.
The employee meeting lasted between 60 and 75 minutes
on May 29, during which time the employees were advised
in detail of the problems of the restaurant , the action and
cooperation that would be required by all, and some of the
measures that management would adopt, including the instal-
lation of Fredericks and Sweeney , who were introduced and
identified as part of the management group . Their duties and
areas ofresponsibility were explained . O'Halloran and Swan-
son read aloud all , or much of, the company handbook, and
rules relating to duties and responsibilities of waitresses and
busboys. Specific problems were discussed . O'Halloran in-
structed waitresses to consult Fredericks about their prob-
lems, and said Fredericks would refer problems to Steele
when she could not solve them . A postmeeting discussion was
held by the management group, to go over the events of the
' This managerial arrangement was explained to all employees at a meet-
ing May 29
meeting, and to review areas of responsibility held by Fred-
ericks and Sweeney.
On June 5, O'Halloran, Swanson , Steele, Fredericks, and
Sweeney again met and O 'Halloran advised the group that he
could see no improvement in conditions at the restaurant. He
instructed Fredericks to put more pressure on the waitresses.
He told the group they had 30 days to bring about improve-
ments, else there would be "some head chopping."5
In order to control and reduce pilferage, a better lock
system was placed on doors and refrigerators . A breakage
sheet system was begun , to help control breakage.
Following the meeting of May 29, a series of events oc-
curred which gave rise to the charges involved herein , Donald
Wiley, a busboy, was fired June 9. Cheryl Romero- and Julie
Neale were fired June 14. Romero instituted a picket line
outside the restaurant June 17. Respondent , through a meet-
ing between Swanson and Sweeney and two union representa-
tives, first learned of union interest in the Cathedral City
restaurant June 19. Two waitresses , Nicolle Simmons and
Ronda Murphy, had conversations with management person-
nel about unions on June 19 and 20 . McLaughlin was dis-
charged June 20.
General Counsel contends ' the discharges were for engag-
ing in union and other concerted activities , and that the dis-
charges and conversations were in violation of the - Act. Re-
spondent contends the discharges were for good cause, not
related to union and other activities, and that the conversa-
tions were outside proscriptions of the Act.
B. Discharge of Donald Wiley
Paragraph 8(c) of the complaint states:
Respondent discharged, and has failed and refused, and
continues to fail and refuse , to reinstate Wiley to his
former position of employment because he engaged in
protected concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
Wiley had been employed as a busboy about two months
as of the date he was discharged , June 9. As of that date
Romero, Neale, and McLaughlin still were employed by Re-
spondent , there had been no union activity at the restaurant,
and there had been no interrogation that later was the basis
for charges.
General Counsel argues that Wiley was discharged because
he complained to Sweeney and Fredericks, the evening before
his discharge, about work conditions. Respondent contends
Wiley was discharged for failure and refusal to do his work
properly and on occasion refusal to do it at all. '
Wiley testified that sometime in late May, after he learned
during the employee meeting of May 29 that Fredericks was
a management trainee, he overheard a waitress named Vickie
and waitresses Ronda Murphy and Nicolle Simmons com-
plaining"that Fredericks would not let them take a vacation
they had planned. Wiley also said he "heard Julie Neale
talking about outside work and Cheryl Romero talking about
the side work."
5 Fredericks later, was fired, because of her inability to bring about sub-
stantial improvements in her area of responsibility . In the interim , she had
fired several waitresses , and hired others.
COLONY KITCHENS, INC.
'Wiley stated that the night before he was fired , he talked
wit h Fredericks about waitresses and told her if she were a
little more lenient she would get a lot more out of them and
the place would run a lot smoother , otherwise it was going
to go down hill.
Finally, Wiley testified that he was given no prior warning,
and received no termination slip, when he was fired the next
day by Sweeney, who said the reason was his work was not
up to standard , and four waitresses had complained about
him.
Wiley stated that, a couple of days before he was fired,
Fredericks asked him to pick up papers and clean up around
the flowers outside, and he refused to follow her instructions
because he was not hired for outside work . He said he later
explained to her that he wasn 't going to do that sort of work
for $2.50 an hour. He said O 'Halloran once admonished him
to get to work, and that a waitress named Helen once com-
plained to him about his not doing certain work.
Sweeney testified that Wiley's work was not satisfactory;
that most of the time he was either on breaks or talking with
other employees. Sweeney said Wiley was reprimanded on
several occasions , once was instructed three times before he
did a routine chore he was told to do, and on another occasion
refused to perform a routine chore until he was threatened
with discharge.
Sweeney testified he told Wiley on June 9 to vacuum the
floor, which was part of Wiley's regular duties, but that Wiley
refused to do as he was told. Wiley allegedly told Sweeney,
"Fire me." Sweeney then recommended to Steele that Wiley
be fired , and Steele agreed . Wiley was fired in Steele's office,
after Sweeney told Wiley the reason . Wiley said he knew it
was coming . Sweeney said he had talked with Swanson about
a week before , and advised him of the advisability of firing
Wiley because he could not get Wiley to do his work.
Sweeney's recital of Wiley's consistent refusal to obey rea-
sonable and proper instructions was not contradicted and is
credited . Wiley denied talking with Sweeney at any time
during the day he was fired , thus it is necessary to make a
credibility resolution on this point. Based upon the demeanor
and conduct on the stand of Sweeney and Wiley, as well as
the record itself, Sweeney's version of the June 9 incident is
credited , and it is found that Wiley 's discharge and events
leading to that discharge are as related by Sweeney.
Wiley acknowledged that he was aware of the busboy rules
that applied to him. Wiley admitted that he refused to carry
out a simple task (picking up papers outside the restaurant)
after being instructed to do so by an acknowledged supervi-
sor. It is abundantly clear that, if ever an employee earned a
summary discharge, it was Wiley. His final refusal to do an
assigned task that was one of his duties-vacuuming the
floor-was followed by his challenge , "Fire me."
General Counsel rests his case upon a single pedestal, that
of "timing ." It is argued that Wiley complained to Steele a
week or so before his discharge , on behalf of the waitresses
who were having a problem ' with their vacation , but that
Steele just laughed ; further, that Wiley complained to Fred-
ericks on behalf of all the waitresses , the night before he was
fired.
Based on Wiley's demeanor on the stand , and the uncon-
vincing nature of his testimony , Wiley's statement about Steele's
laughing about the alleged complaint is not credited.
677
Even if it were to be credited, it would not be proof, or
persuasion, of anything ; most certainly , Wiley was not fired
or otherwise disciplined by Steele because of any such inci-
dent . The record is devoid of any intimation that Wiley was
fired by Sweeney wholly or partially because of the alleged
Steele incident.
So far as timing is concerned , it appears that Respondent
can make a more convincing case than General Counsel.
Sweeney told Wiley to carry out a regularly assigned task;
Wiley refused , and said , "Fire me." Sweeney immediately
talked with his supervisor , and within minutes, Wiley was
fired . Such insubordination should be , and was, dealt with on
the spot.
A further weakness of the timing argument is that the
record is devoid of any evidence that Fredericks talked with
Sweeney at any time between her conversation with Wiley
and Wiley's discharge . Although Wiley's testimony is not
clear on this point , it appears that Sweeney-was present only
during the first part of Wiley's conversation with
Fredericks-that part devoted solely to Wiley 's telling Frede-
ricks why he refused to carry out her instructions to pick up
papers in the outside lot. It seems likely that Sweeney was
gone during the rest of the conversation , since Wiley stated
on direct examination , "He might have left, I don 't know,"
and further, he said he had no conversation with Sweeney
while Fredericks was away from the booth the first time.
(Apparently she left several times, to take care of customers.)
In any event , the record shows increased attention to work
production at the Cathedral City restaurant , Wiley's poor
record as an employee , and the minimal impact of Wiley's
voluntary efforts on behalf of the waitresses . Sweeney's ver-
sion of Wiley's discharge is much more nearly consistent with
the record than that advanced by Wiley.
It is found that Wiley was discharged for good cause not
related in any way to concerted activity protected by the Act,
and that this allegation was not proved.
C. Discharge of Cheryl Romero
Paragraph 10(c) of the complaint states:
Respondent discharged , and has failed and refused, and
continues to fail and refuse , to reinstate employee
Romero to her former position of employment because
she engaged in protected concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection.
Romero was hired by Respondent as a busgirl the latter
part of September 1973, and later became a waitress. She
testified that she had no- complaints about or problems with
Respondent until after Fredericks became assistant manager
trainee in May of 1974.
Romero testified that she and the other employees attended
a general meeting called by management in May of 1974.6
She said they were told about the problems of the restaurant,
and told that management was trying "to get the place shaped
up and better than what it was already." She said there was
lengthy discussion of, and extensive reading from , the Com-
6 Romero said the meeting was held during the first half of May , but the
date was established as May 29.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's waitress handbook and the employee manual. A copy
of the waitress handbook was given to each waitress. Statis-
tics on breakage and food costs were explained as excessive.
Employees were told that failure to comply with rules and
instructions would result in "automatic discharge."
Employees were told at the meeting that Nancy Fredericks
had been made assistant manager trainee and "would be
looking over the girls' scheduling and so forth." She said
employees then were advised that Tom Sweeney also had
been made an assistant manager trainee.
At a date not fixed by testimony but probably in early June,
Fredericks told several waitresses and a busboy at a gathering
just outside Fredericks' office, that they were not to come to
Romero with complaints; they were to come to Fredericks,
and she would handle the complaints.
Romero stated that "all of the girls started complaining to
her" a week and a half or 2 weeks after the employees' meet-
ing, about improper or uncertain posting of work schedules
by Fredericks. She said waitresses began complaining to her
at approximately the same time, about side work not being
properly carried out,' and about Fredericks' "changing
around" the side work. Romero said Fredericks had hired
approximately nine new waitresses prior to the time com-
plaints started about scheduling and side work.
Romero testified that she communicated the complaints
she received to the then manager, Roger Steele, who said he
would talk with Fredericks and see if something could be
worked out. Steele did nothing about the complaints, so
Romero said she called Swanson in Santa Ana on the tele-
phone. She said she advised Swanson about the schedule and
side work complaints, and about "the girls" not feeling very
secure because some were being dismissed and "a new crew
was being hired" by Fredericks. Swanson told Romero he
would be at the restaurant the following week and would look
into the situation at that time.
Swanson did visit the restaurant the following week, and
spoke with Romero while he was there. He told Romero he
couldn't see too much going on at that time, and that he had
agreed to the discharge of one of the girls. He told Romero
he did not think there was anything that warranted a tele-
phone conversation to him, and that he would not mention
Romero's call to anyone.
On June 14 Romero received a telephone call from Julie
Neale, another waitress, who said she had been fired. Romero
called Tom Sweeney' to see if she, too, had been fired and
he said she had been.
Romero said she went to the restaurant and met with
Steele, Fredericks, and Swanson. She was given a termination
slip by Fredericks, which listed reasons for discharge as
"work does not meet company standards. Very unruly serv-
ice. Very poor. Attitude very bad. You can talk and she will
not listen. Wants to be her own boss. I feel that she will do
7 Side work is the miscellaneous work of waitresses such as cleaning and
filling salt, pepper, and sugar containers, cleaning booths and tables, stock-
ing condiment containers, cleaning juicers and other machines, and the like.
Some such tasks must be done on a scheduled basis, and all the work is
supposed to be done before going off work In addition, waitresses are
supposed to check the side work just after coming on to a shift
8 No reason was given by Romero as to why she called Sweeney, who was
in charge of cooks and busboys, rather than Fredericks, who was in charge
of waitresses.
the company more harm than good . Tries to keep hard feel-
ings between help and management."
Romero said she called Culinary Union No. 309 in Palm
Springs after her discharge , which was the first time she had
been in touch with the Union.
The following Monday, Romero set up a picket line that
lasted 1 week and 1 day.9 She talked others into picketing
with her . One of the restaurant customers set up a mobile
home in the restaurant 's parking lot for use of the girls on the
picket line . The mobile home could be seen from inside the
restaurant . The picket signs read "Colony Kitchens Unfair to
Management-Unfair to Employees , Unjust Treatment, Un-
just Firing for Colony Kitchen Employees , Poor Manage-
ment , Poor Management Trainee, Colony Kitchen Hurts
Girls Chances, Poor Food and Poor Service."
Romero testified that, prior to being fired , no management
representative or supervisor ever complained to her about her
work. She said she was an experienced restaurant worker who
was trusted to pick up cash at the bank , who did hostess work
for Respondent, and who gave advice to and trained other
waitresses. She said she got along with Fredericks , and had
never sworn at her. She said she had never complained about,
or discussed with others, the subject of scheduling and side
work , except to management . She testified that Fredericks
was "stepping between" her and the other waitresses, and
that Fredericks wanted the girls to come to her for advice and
assistance, rather than to Romero.
Swanson testified that he received a telephone call from
Romero at his home, on May 21 , during which she told
Swanson her feelings about "how the store was going and
how she felt that what we said at the meeting wasn 't being
enforced ." Swanson said he went to Cathedral City because
of the call from Romero.
Swanson said he was at the restaurant on June 14, and that
he reviewed Romero's proposed discharge with Steele,
Sweeney, and Fredericks. He said he felt there definitely was
hatred toward Fredericks , which made for a poor relation-
ship between management and employees , and, for that rea-
son, Romero should be terminated . Swanson said Steele told
him that he agreed with the proposed termination of Romero.
Swanson stated that he never had occasion to reprimand
Romero, but he he had received a complaint from a waitress
that Romero was pushy and bossy . He said Fredericks had
complained to him in June that Romero tried to cause trouble
among the employees by "bossing" them when it was Fred-
ericks ' responsibility to do so.
Swanson said Romero was terminated after Fredericks
suggested it, but that it was he who handed Romero her
termination slip. Fredericks explained to Romero the reasons
she was fired . Swanson testified that, as Romero picked up
her final pay , she turned to Fredericks and said, "You are a
lying bitch."
Helen Gessel , a waitress who worked with Romero, testi-
fied that Romero spent excessive time talking with customers,
and with employees in the kitchen , and that Romero did too
little work . She said that , on occasion, she had to get Romero
out of the kitchen to serve customers. She said she had heard
Romero on several occasions refer to Fredericks as "a lying
9 The Union took no part in the picketing
COLONY KITCHENS, INC. 679
bitch," a "son of a bitch," a "slut," and other things so
profane she did not want to repeat them.
Fredericks testified that Romero told her during a tele-
phone call about a week after Fredericks became assistant
manager trainee (on May 29), "No, you can't help me. There
is nothing you can help me with and I'd rather not discuss
anything with you." During another telephone conversation
about 10 minutes later, Romero allegedly told Fredericks "I
don't think I like to work with the type of person like you."
Fredericks said she asked to talk privately with Romero, after
Romero asked for 2 weeks off because she was having dif-
ficulty understanding the situation and working with Fred-
ericks. Fredericks said Romero told her she should be in
Fredericks' position and Romero swore profanely at her.
Fredericks said she made positive and definite efforts to work
with Romero, but that she was rebuffed.
Fredericks testified to several specific instances wherein
Romero gave poor service to customers, loafed in the kitchen,
talked excessively, conducted herself improperly with cus-
tomers, improperly did side work, failed to do side work,
issued instructions to waitresses against Fredericks' orders,
and cursed Fredericks personally and to others.
Fredericks said that before Romero was fired, her conduct
and susceptibility to discharge were discussed with Roger
Steele, Tom Sweeney, and Chuck Swanson. Fredericks said
she was not aware that Romero had complained to Steele and
others about Fredericks' changing of work schedules.
Tom Sweeney testified to one instance of improper cus-
tomer service on Romero's part that he had witnessed. He
said he discussed with Fredericks on June 13, Romero's pos-
sible discharge, and that Fredericks told him the reasons for
the discharge. Sweeney said he typed the termination slip as
a matter of convenience for Fredericks, who was busy.
James O'Halloran testified that he told two waitresses why
Romero was fired, and said to them that the restaurant had
to have people who would give proper service. He said
Romero was not giving that kind of service.
The record solidly supports Respondent's contention that
Romero was fired for reasons not related to any concerted
activity. It is clear that she was fired for good and proper
cause, and it is so found.
Aside from any credibility resolutions, Romero indicted
herself by her own testimony. She had-,no problems or com-
plaints until Fredericks became assistant manager trainee.
She immediately embarked upon a program to dethrone
Fredericks. Her alleged complaints were centered about three
things: (a) Fredericks was "changing around" the side work.
(b) Fredericks was inaccurately posting work schedules. (c)
Fredericks was trying to "step in" between Romero and the
waitresses.
No independent evidence was introduced in support of (a)
or (b).10 Further, as Romero admittedly knew, Fredericks
was in charge of waitresses and their work. So far as (c) is
concerned, Romero knew that Fredericks was the "boss"
rather than she, and, further, Romero's testimony included
only the sketchiest support of this complaint. Romero never,
by her own testimony, complained to Fredericks. It is inter-
esting that she called Sweeney, who was in charge of busboys
Io Julie Neale testified she and Romero, along with others, were "jumped
on" for not doing their side work
and cooks, rather than Fredericks, to find out if she had been
fired. She acknowledged that Swanson told her she called him
without good cause."
Aside from her own testimony, it is abundantly shown by
others that Romero earned her discharge.
It is established that all employees, including Romero,
were told in a meeting on May 29 that Fredericks was in
charge of all waitresses and their work, and they were told
what was expected of them-that discharge was the penalty
for not following the written rules. Fredericks later told sev-
eral waitresses and busboys that they were to bring their
complaints to her, rather than to Romero, pursuant to the
managerial heirarchy that had been established. Romero
deliberately ignored-this rule. Romero denied cursing Fred-
ericks, but the testimony of Helen Gessel and Charles Swanson
that Romero called Fredericks a "lying bitch," among other
names that Gessel said were so bad she did not want to repeat
them, is credited. That testimony supports Fredericks, who
testified that Romero frequently cursed her; based upon that
support, this testimony of Fredericks is credited.
The testimony of Swanson, Sweeney, and Gessel that
Romero was a poor waitress is credited- it is based upon
specific, uncontradicted instances. Fredericks also testified to
Romero's poor work; that testimony being supported by
Swanson, Sweeney, and Gessel, it is credited.
Fredericks' testimony that Romero told her she did not
like to work with the type of person Fredericks is, was not
challanged or contradicted. That testimony is, therefore,
credited.12
O'Halloran told two waitresses that Romero was fired be-
cause she did not offer proper service to customers. That
testimony is uncontradicted, and is credited.
Swanson testified that he felt there was a definite hatred of
Fredericks by Romero, and that Steele told him he agreed
Romero should be fired. That testimony is credited.
Two postfiring incidents indicate that Respondent was
serious and factual when it contended that it meant business
in its crackdown at Cathedral City, and that Romero was
caught in that housecleaning. First, Fredericks was fired after
she was unable to improve conditions within the 30 days she
was given. Second, the picket signs displayed by Romero and
her supporters clearly show a vindicative attitude directed
personally toward Fredericks and management, rather than
toward any concerted activity, as that term is used in the Act.
It is found that Romero was discharged for good cause not
related in any way to concerted activity protected by the
Act,13 and that this allegation was not proved.
11 Romero went to considerable length in her testimony to show her
seniority at Cathedral City, her experience as a waitress, her advice to and
training of other waitresses, and her position (until Fredericks' appointment
as assistant manager trainee) as a "mother confessor" to the other wai-
tresses A logical inquiry then is, did Romero substantially contribute to the
obviously poor condition (physical and economic) of the restaurant? Such
appears quite likely, and further supports her discharge
12 As pointed out by Respondent in its brief, Romero effectively placed
Respondent in the position of choosing between Romero and Fredericks It
chose to retain the latter, because of the poor work record of Romero Such
was Respondent's prerogative, N.L.R B. v Font Milling Company, Inc.,
d/b/a Gladiola Biscuit Company 308 F.2d 230 (C A 4, 1962), Standard
Brands, Incorporated, 196 NLRB 1006 (1972)
13 Joanna Cotton Mills Co v N.L.R.B., 176 F 2d 749 (C.A. 4, 1949)
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Discharge of Julie Neale
Paragraph 9(c) of the complaint states:
Respondent discharged, and has failed and refused,
and continues to fail and refuse, to reinstate employee
Neale to her former position of employment because she
engaged in protected concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion.
Neale was employed by Respondent as a waitress on July
29, 1973, and worked until her discharge June 14, 1974.
Neale testified that she attended the employees ' meeting of
May 29 and that Fredericks ' duties were "to assign work
schedules and tell us girls what to do."
Neale stated that Fredericks ' son, Jim (hereinafter Jim),
began working at the restaurant about the first of May. She
said Jim walked off his job once about the middle of May, and
again about June. (Neale was not present during the first
alleged walk-off, which was not testified to by any other
witness.)
General Counsel 's contention is that Neale complained
about Jim being allowed to return to work after walking off
his job in early June, that such action was against company
rules, and that Neale was fired for so complaining.
According to Neale, Jim walked off his job because his
mother had fired a waitress , Sally Manning , which upset Jim.
Allegedly Jim said , "Well, I have had it. I can't work with
my mother . I know how she is." Neale said Jim came back
to work the next day, as a prep cook , in violation of Rule 19
(G.C. Exh. 6).14 Neale testified that she complained to
O'Halloran, Steele, and Fredericks the following day, and to
Steele alone the day after that. She said no action was taken
on her complaint.
Neale testified that she previously complained to Steele
about side work not being properly done, and that Steele said
he ,would see what could be done, but nothing was done.
Neale was fired June 14; her termination slip reads: "Fail-
ing to comply to company standards , feels company cannot
do without her and keeps customers waiting unnecessarily,
attitude very poor, provokes discontent between help and
management " Neale contended that her work had never
been complained of, that her supervisors had praised her
work, that Fredericks told her a few days before she was fired
that she was doing a good job, that she did her work properly,
and that her dress and her conduct at work were proper. She
denied using profane language in reference to Fredericks,
having an improper work attitude , or ever having been repri-
manded or warned about her work . She stated that Fred-
ericks said nothing to her the day she was fired. She testified
that Sweeney gave her the termination slip and stated the
14 The rule reads as follows
Don't fail to report to work on time. We will accept legitimate emer-
gency only as an excuse. Arrangements mustbe made in sufficient time
so that we can make replacement. (If you do not show up for work and
have not made previous arrangements, it is the policy of this manage-
ment to dismiss you It is also the policy never to rehire anyone who
has been dismissed or who has quit without proper notice.)
reasons for it, after first saying, "Julie, this is the hardest
thing I've ever had to do." He allegedly stated to her that he
had nothing to do with the termination.
Neale testified that Fredericks- put much pressure on her
and the other waitresses about side work, which in fact was
not being properly done.
Swanson testified that Neale was too friendly with some of
her customers, with her work suffering because of that factor.
He said he had received complaints about Neale's work, and
that he had to reprimand Neale for selling a $1 09 breakfast
for 65¢.". He testified to instances in early June wherein he
corrected Neale on her personal appearance, and he set up
her tables because customers were waiting too long. He said
Fredericks consulted him before Neale was f red, ,and that he
concurred with Fredericks' recommendation because of what
he felt was Neale's definite hatred of Fredericks. Swanson
testified that he reviewed the termination with Sweeney,
Fredericks, and Steele, and that Steele told Swanson he
agreed with the termination.
Helen Gessel, a waitress for Respondent, testified that sev-
eral customers had complained to her after May 29 about
Neale's poor service and excessive talking and that she told
Fredericks and Steele about the complaints.
Fredericks testified that Neale's personal appearance was
below company standards, that Neale did not properly do her
side work, that other waitresses complained to her about
Neale's work, and that she discussed Neale's termination
with Swanson. She said she talked with Neale on many occa-
sions about the complaints . She denied complimenting Neale
on her work at any time.
Sweeney testified that he discussed Neale's proposed termi-
nation on the evening of June 13 with Fredericks, who sug-
gested the termination on the basis of Neale's improper work
and poor service
On the subject of Jim Fredericks, Sweeney said Jim had
talked with him prior to June 5, about becoming a prep cook.
He said that, on the day he left his work, Jim came to
Sweeney and said he had to "get out of here," and that "I've
had it," because the waitresses were harassing him due to his
mother's having fired Sally Manning. Sweeney said Jim was
extremely upset because of the girls' treatment of him, and
that because of Jim's condition, he felt it would be best to let
Jim "get out and cool off and then come back and discuss it."
That evening Jim apologized and asked Sweeney if he still
had his job. Sweeney said to see Steele about it, and Steele told
Jim to come back to work the next day. The prep cook did
not come to work the next day, and Jim was allowed to help
as prep cook, starting about 2 or 2-1/2 hours after he came
to work. He was promoted to prep cook, and given a raise,
June 22.
Sweeney testified that Nancy Fredericks could not author-
ize him to do anything about Jim's status as an employee;
only Steele could take or authorize final action.
O'Halloran said he looked into Jim's situation after Neale
complained, and found that it was Steele's decision to put Jim
back to work. O'Halloran said, he talked with Steele and
Swanson, and that in view of the circumstances he under-
stood why Jim walked off the floor.
15 The recipient later was alleged to be an elderly person on welfare
COLONY KITCHENS , INC. 681
O'Halloran said he explained Neale's firing to other wai-
tresses, saying she was not giving customer service required
by Colony Kitchens, Inc.
General Counsel bases his allegations upon two complaints
by Neale: (a) the complaint about Jim Fredericks, and (b) the
complaint to Steele about side work.
So far as (a) is concerned, there is not even a scintilla of
evidence that Neale was fired because of her complaint about
Jim. The testimony of Fredericks, Swanson, Gessel, and
O'Halloran about the nature of Neale's work, and the reason
for her discharge, is credited. There is nothing upon which to
base any other conclusion. Even if it is said, for sake of
argument, that Neale's discharge after she complained about
Jim is suspicious, that is not enough for finding a violation
of the Act. Banner Biscuit Company v. N.L.R.B., 356 F.2d
765 (C.A. 8, 1966); N.L.R.B. v.. South Rambler Company, 324
F.2d 447 (C.A. 8, 1963).
Another point of interest is the factual situation relative to
Jim. Regardless of how the situation is viewed, it is something
less than momentous. First, even the rule relied upon by
Neale does not cover the facts. It is not at all clear that Jim
quit his job. Even if he did quit, which is very doubtful, he
first talked with Sweeney, who fully concurred with Jim's
getting out of the restaurant "to cool off" from the heat the
girls obviously were trying to apply to his mother, through
Jim. Second, every member of management involved in the
incident agreed that Jim should be brought back to his
work-under the circumstances, it would be difficult to reach
an y other decision. Third, Nancy Fredericks was not directly
involved, and had no authority to take any action relative to
Jim, much less authority to order him brought back to work.
Finally, more than a week elapsed between Neale's complaint
and her discharge, and there is nothing in the record to show
that the complaint was mentioned during that time, other
than by O'Halloran, who looked into the matter at Neale's
suggestion.
So far as (b) above is concerned, there is no evidence that
Steele disciplined Neale in any manner because of her com-
plaints about side work. Nor is there any evidence, or even
suspicion, that Steele talked with any other member of man-
agement about the complaint, or that the complaint was a
basis for Neale's discharge.
It is found that neither of Neale's complaints discussed
above, nor the two of them together, was the basis, partially
or wholly, for the discharge of Neale.
Having found that concerted, protected activity was not
the reason for discharge, the true reason is immaterial. An
employee may be discharged by an employer for a good rea-
son, a poor reason, or no reason at all, so long as the provi-
sions of the Act are not violated. N.L.R.B. v. Condenser
C2rporation of America, et al., 22 NLRB 347 (1940); Associ-
ated Press v. N.L.R.B., 301 U.S. 103 1(1937).
Respondent's arguments in its brief that Neale's complaint
was advanced in bad faith, are persuasive, but those points are
not, and need not be, reached. The record simply does not
show, or permit an inference, that'Neale's complaints caused
her discharge, regardless of the nature of the complaints. In
fact, the complaints were not even mentioned by any em-
ployee or supervisor after they were made, other than during
O'Halloran's brief investigation. Respondent was troubled
about far more serious problems that struck at its -existence
and had, to be solved by a virtually complete turnover of
employees if necessary. Neale's termination because she was
not a good waitress is consistent with the picture of a deeply
troubled business. Her termination is not consistent with two
trivial complaints having been made by her about a busboy
and about side work.
It is found that Neale's discharge was not motivated,
wholly or partially, by her engaging in concerted activity
protected by the Act.
E. Interrogation of Simmons by O Halloran and Swanson
Paragraph 11 of the complaint states:
On or about June 18, 1974, Respondent, through
O'Halloran and Swanson, at Respondent's Cathedral
City, California, facility described in paragraph 2(a)
above, interrogated employees concerning their union
membership, activities, and sympathies, and the union
membership, activities, and sympathies of their fellow
employees.
Romero testified that her first contact with the Union was
by telephone, after she was fired June 14. She said she estab-
lished the picket line about 2 or 3 days, later, on Monday.
Those on the picket line used a mobile home, parked on the
restaurant lot, as headquarters. The record shows, and it is
found, that the mobile home was clearly visible, through glass
windows, from inside the restaurant . Romero solicited union
authorization cards while picketing, and she circulated a "pe-
tition" for signature, supporting the picketers.
Nicky Simmons, a waitress for Respondent from Septem-
ber 1973 until July 19, 1974, testified that she signed a union
card June 18 after the picketing had continued a day or two.
(G.C. Exh. 4.)
Simmons testified that Swanson and O'Halloran talked
with her during the lunch hour the day after she signed the
union card. The conversation was in the restaurant lobby,
with Simmons standing and the two supervisors seated. Ac-
cording to Simmons, the conversation was as follows:
A. He said to me, "Do you know what is happening
outside?"
And I said, "Yes." He said, "Do you agree with what
is happening -outside?" And I said, "Yes."
He asked me if I signed a union card and I said, "Yes,"
I had.
Then Chuck asked me, "Why?"
I said, "Because I need the benefits."
Chuck goes, "Well, Colony Kitchens has benefits."
And I said , "Well, I know it and when I was hired I
just filled out a form and they just asked me to start
working right then and they told me of no benefits that
I could receive. So when the union gave me an oppor-
tunity I took it."
Simmons also testified that, after lunch, there was another
short conversation:
A. . . . When I passed their table I asked them if,
because I had told them the truth, that I had signed a
card, if anything would happen to me, and I also asked
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them if they were questioning other people besides me,
and they said, "Yes."
Q. Who answered you?
A. Chuck did.
He said, "Yes," they were questioning everyone and
as soon as I left they sent for Denise Jefferson. And I
seen her working on the counter and then I seen her go
back to the table.' 6
pany, 487 F.2d 288 (C.A. 5, 1973); N.L.R.B. v. Associated
Mills, Inc., 474 F .2d 1351 (C.A. 7, 1973); Webb Tractor and
Equipment Company 167 NLRB 383 (1967); Blue Flash Ex-
press, Inc., 109 NLRB 591 (1954).
F. Interrogation of Murphy by O Halloran
Simmons testified on cross-examination that Swanson and
O'Halloran asked her if she signed a petition.
Swanson denied that he ever asked Simmons if she signed
a union card, but otherwise his recital of events was much the
same as that of Simmons.
O'Halloran's recollection of the conversation was some-
what the same as that of Simmons, other than the fact that
his version was considerably longer. O'Halloran said he asked
Simmons if she signed the petition being- circulated at the
picket line. Then:
A. She said she signed a union card.
JUDGE What was your-
THE WITNESS Or authorization card.
JUDGE What was your response to that?
THE WITNESS I asked her why, and if she knew what it
was, and then I went on from that point to try to, explain.
Q. (By Mr. Wolfram) What did she answer to those
questions before you went on?
A. Number one, when I asked her why, she said, "I
don't know." Number two, when I asked her if she knew
what the union was , she said she didn't know.
Q. Did you say anything after that to her?
A. Yes. I tried to explain from my point of view that
our company was not union and we had no union stores
in our organization and I tried to explain to her what our
benefits was and to show her that we had that
same-pretty close to the same benefits that the Local
Union had.
Simmons was a convincing witness, and her version of the
conversation is credited. Further, her version is largely, al-
though not entirely corroborated by Swanson and O'Hallo-
ran.
The questioning under the circumstances here involved
was inherently coercive . Simmons is a 16-year -old girl. Her
questioners were two mature supervisors well up the manage-
ment ladder of Respondent . They remained seated , while she
stood during the questioning . The questioners had learned
that morning that the union was involved in the dispute, and
they made it quite clear and specific to Simmons that they did
not want the restaurant unionized . This is a highly coercive
situation , and could have but one implication ; Simmons must
adhere to the obvious wishes of her questioners and forego
further union contact , or she could quit or be fired . Simmons
quit her job July 19.
It is found that Respondent coercively interrogated Sim-
mons as alleged in the complaint , in violation of Section
8(a)(1) of the Act. N.L. R.B. v. Birdsall Construction Com-
Paragraph 12 of the complaint reads as follows:
On or about June 18, 1974 , Rospondent , through
O'Halloran , at Respondent 's Cathedral City, California
facility described in paragraph 2(a) above, interrogated
employees , concerning their union membership , activi-
ties, and sympathies , and the union membership , activi-
ties, and sympathies of their fellow employees.
Ronda Murphy was a waitress for Respondent from mid-
May until the beginning of July 1974. Murphy signed a union
card June 18 (G.C. Exh.' 7).
Murphy testified that, on June 20, O'Halloran talked with
her in the presence of Swanson and Steele. Although Mur-
phy's testimony was largely limited to O'Halloran's alleged
threat that the restaurant would close rather than go
union ,17 O'Halloran went considerably farther in his tes-
timony; and stated:
Q. Did you make any statements to Ronda about
unions?
A. THE WITNESS We talked on the Union, yes.
JUDGE What did you tell her?
THE WITNESS If I recall, if I recall the conversation
right, she admitted that she signed an - authorization
union card and, of course, I asked her why again, and
she didn't know, and then I asked her if she knew what
the union was and she still didn't know what the union
was.
Q. (By Mr. Wolfram) You said "she admitted."
A. She admitted. I didn't have to tell her.
Q You said she admitted. Did you ask her?
A. About what?
Q. Did you ask her if she signed a union authorization
card?
A. No. No, I did not.
Q. Did she just volunteer that information?
A. Well, yes. Yes, I believe so.
As in the case of Simmons, discussed above, Murphy is a
young girl, and was confronted in close quarters by three
mature, experienced supervisors who spoke with the em-
ployer's authority. O'Halloran made it quite clear that the
Employer was prepared to fight the Union down to the wire,
and that Murphy would be well advised to avoid further
involvement with the Union. Such interrogation is coercive,
and in violation of Section 8(a)(1) of the Act. It is so found.
Birdsall Construction Co., supra; Associated Mills, Inc., supra;
Webb Tractor and Equipment Co, supra; Blue Flash Express,
supra I
16 On cross-examination, Simmons testified that Swanson and O'Hallo-
ran, when Simmons asked if her response to their questions would hurt her 17 Murphy also testified that O'Halloran asked her to get out of the Union
" 'Job, said, it wouldn t hurt at all " That testimony was not challenged, and is credited.
COLONY KITCHENS , INC. 683
G. Interrogation of McLaughlin by O'Halloran
Paragraph 13 of the complaint states as follows:
13. On or about June 19, 1974, Respondent, through
O'Halloran, at Respondent's Cathedral City, California,
facility described in paragraph 2(a) above, interrogated
employees concerning their union membership, activi-
ties, and sympathies, and the union membership, activi-
ties, and sympathies of their fellow employees.
Connie McLaughlin was employed by Respondent as a
dishwasher the first part of April 1974 and was transferred
to bookkeeper trainee about a week before she was ter-
minated, June 20.
McLaughlin testified that she signed a union authorization
card June 19, and that later the same day Swanson and
O'Halloran talked with her in a booth at the restaurant. She
said O'Halloran asked her why she signed the card, and she
told him. A general discussion about unions ensued, during
which O'Halloran stated that Respondent did not want the
Union in because the Union "would then try to get in all the
branches and that would cost the company a lot of money."
He also said, allegedly, that "it would cost me a lot of money."
Swanson testified that McLaughlin was not asked by
O'Halloran why she signed the union cards, and he said he
did not know, at the time of,the conversation, whether or not
she had signed.
O'Halloran said he thought the conversation was the 20th,
rather than the 19th, but he wasn 't sure. He said the conver-
sation was one of a general nature about unions, and that he
asked McLaughlin if she signed the petition being circulated
at the picket line.
Swanson's first indication of the Union's interest in this
matter's was on June 19 when two union representatives
asked at the restaurant to speak with Swanson . They told him
they were there because of a labor charge having been filed
against the Union by Colony Kitchens, Inc. (the Denise inci-
dent).
Sweeney first knew of union involvement in the contro-
versy June 20 or 21.
It is clear that O'Halloran and Swanson were fully aware
of union interest in the restaurant when they talked with
McLaughlin, and they knew she signed a card McLaughlin
was called to the booth, where the two supervisors questioned
her in detail about her union sympathies. McLaughlin is a
young girl, a native of Ireland . Her demeanor on the stand
and her manner of giving testimony were impressive. Her
testimony is credited in its entirety. The circumstances of the
questioning, and the questions, were coercive and are so
found. The interrogation was in violation of Section 8(a)(1)
of the Act. Birdsall Construction Co., supra; Associated Mills,
Inc., supra; Webb Tractor and Equipment Co., supra; Blue
Flash Express, supra.
15. On or about June 20, 1974, Respondent, through
O'Halloran, at Respondent's Cathedral City, California,
facility described in paragraph 2(a) above, threatened
employees with loss of employment if they selected the
Union as their collective-bargaining representative.
Murphy testified relative to her conversation with O'Hallo-
ran on June 20, attended by Swanson and Steele:
Jim O'Halloran said they weren't going to get into the
union and if they had to, they were just going to shut
down the doors and it was up to me if I wanted to be in
it or not, but they would like me to get out, but they
weren't forcing me to.
That testimony was not challenged or contradicted by
O'Halloran or Swanson,20 and is credited.
A threat such as this, made under circumstances similar to
those described in section F above, clearly is coercive and in
violation of the Act. It is so found. The Singer Company,
Friden Division, 199 NLRB 1195, Plastic Sealers, Inc., 200
NLRB 22 (1972).
1. McLaughlin's Discharge
Paragraph 7(c) of the complaint reads as follows:
7(c) Respondent discharged, and has failed and
refused, and continues to fail and refuse, to reinstate
employee McLaughlin to her former position of employ-
ment because she engaged in union or other protected
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection.
This charge presents an interesting set of facts.
McLaughlin said she went into the mobile home between
8 and 8:30 a.m. on June 19 at Romero's request, and, after
a discussion about unions, signed an authorization card. So
far as the record shows, this was the first time McLaughlin
talked about unions with anyone at the restaurant, employee
or supervisor or otherwise.
McLaughlin said Swanson and O'Halloran interrogated
her the afternoon of the 19th about unions (see sec. H above).
McLaughlin testified that, when she went to work at 7 a.m.
the following day (June 20), O'Halloran asked her if she had
a work permit (alien card), to which she answered "No."
McLaughlin said Swanson advised her about noon on the
20th that he would have to terminate her because she did not
have a work permit.
In explaining her situation, McLaughlin testified that she
told Tom Grant, the then manager, when she was hired that
she did not have a work permit. She said she later obtained
some forms for applying for a permit, and gave them to Grant
to fill out. She said she never received a permit, and that none
of her supervisors discussed the subject with her thereafter.
O'Halloran testified that he and Swanson decided on June
18 to terminate McLaughlin because they had learned she
H. O Halloran's Threat to Murphy
Paragraph 1519 of the complaint states as follows:
18 And probably O'Halloran's also
19 Paragraph 14 of the complaint alleges interrogation that is not covered
by testimony or argument It is, therefore, found not proved In any event,
the allegation is repetitious and an affirmative finding could not affect the
remedy recommended below.
20 Steele was out of the State, and not available for testimony.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
was not qualified to do the bookwork she had been assigned
to do, and no other job opening was available for her. He said
management also' was concerned because McLaughlin still
did not have a work permit. O'Halloran said he saw Swanson
leave Cathedral City June 18 to return to Newport Beach. He
stated that Swanson was supposed to bring McLaughlin's
termination pay to Cathedral City on the 19th, but he did not
arrive at the restaurant in time to terminate McLaughlin that
day.
Swanson testified that he, made the decision on June 19 to
terminate McLaughlin "because Connie was an alien and
couldn't produce a work permit." He said there was no other
reason. He said he left Newport Beach with McLaughlin's
termination' check (Resp. Exh. 7) between 8:30 and 9 a.m. on
the 19th. The check was for $109.56, payable to cash, and was
obtained from the home office at Newport Beach in accord-
ance with customary procedure, to preclude reduction of cash
at the restaurant. (McLaughlin was to be paid off in cash.)
Because McLaughlin was already at work when Swanson
arrived, it was necessary to pay her somewhat more than the
check.21 Swanson testified that McLaughlin left work on the
19th while he was making a telephone call, thus he was
unable to pay her off until the 20th. Her total pay was
$117.01-she was paid for 4 hours on the 20th. (Resp. Exh.
8.)
McLaughlin's credited' testimony shows that her first
union contact was between 8 and 8:30 a.m. on the 19th.
The termination check in evidence (Resp. Exh. 7) is dated
the- 19th. Swanson's testimony that he obtained the check at
Newport Beach between 8:30 and 9 a.m. on the 19th was not
challenged or contradicted, and is credited.
There is no- testimony or evidence that Swanson talked
with anyone at Cathedral City the evening of the 18th or on
the 19th before he arrived from Newport Beach. O'Halloran's
testimony that he and Swanson discussed McLaughlin's ter-
mination on the 18th was not challenged or contradicted, and
is credited.
There is some discrepancy between the testimony of O'Hal-
loran and that of Swanson, but that discrepancy does not
affect the ultimate question of whether McLaughlin was ter-
minated, wholly or partially, for union activity. Swanson said
he made the final decision, solely on the ground of McLaugh-
lin's not having produced a work permit. McLaughlin testi-
fied that the Immigration Service in Los Angeles told her of
a number of requirements to obtain a permit, and that she
told Tom Grant (then manager) "I didn't know whether I
wanted to do all those things because I wasn't sure whether
I was going to stay in America or not and he told me-to
forget about it-." McLaughlin's termination slip explained
the reason as lack of work permit.
General Counsel's case thus rests solely upon
timing-McLaughlin was terminated the day after she was
questioned in violation of the Act.
Respondent made a prima facie showing that the decision
to terminate McLaughlin was reached prior to the interroga-
tion, and before McLaughlin signed a union authorization
card.
21 The check shows on its face the date of June 19 and the fact that it was
drawn in the Newport Beach office.
There is no evidence or testimony to disprove Respon-
dent 's showing , or to prove that Respondent terminated
McLaughlin for any illegal reason.
Under such circumstances it must be , and it is, found that
McLaughlin was not terminated wholly or partially because
of her union activities , and that this charge is not
proved.22 N.L.R.B. v. Condenser Corp., supra; Associated
Press v N. L. R. B., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent and described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce. -
V THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) of the Act,
I shall recommend that Respondent be ordered to cease and
desist therefrom, and from in any like or related manner
infringing upon its employees' Section 7 rights, and, to take
certain affirmative action designed to effectuate the'policies
of the Act. -
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Colony Kitchens, Inc., Respondent herein,, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hotel-Restaurant, Club Employees and Bartenders
Union Local 309, Hotel and Restaurant-Employees and Bar-
tenders International Union , is a labor organization within,
the meaning of Section 2(5) of the Act.
3. By coercively interrogating and threatening employees
concerning their, union activities, Respondent interfered with,
restrained and coerced its employees in the exercise of their
rights guaranteed to them by Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
4. Respondent did not, through alleged conduct, violate
Section 8(a)(3) of the Act by discharging its employees Wiley,
Romero, Neale, and McLaughlin for engaging in union ac-
tivities as alleged in the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
22 It is noted that both O 'Halloran and Swanson testified they saw several
waitresses going in and out of the mobile home , clearly raising the probabil-
ity of concerted or union activity However, none of those covered by this
testimony was terminated