Edward's Restaurant

National Labor Relations Board - Board Decisions

Jan 9, 1992

305 N.L.R.B. 1097 (N.L.R.B. 1992)

1097
305 NLRB No. 170
EDWARD’S RESTAURANT
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Contrary to the Respondent’s assertions, this is not a ‘‘dual motive
case.’’ The evidence is clear and uncontradicted that Bradford, the
Respondent’s corporate food and beverage director, directed Bou-
cher, Respondent’s manager, to discharge Delaney because she was
‘‘a disruptive force in the workforce,’’ a reference to her protected
concerted activities. Boucher not only told Delaney this, but added
that she was also being fired for going over his head to Bradford,
itself a protected concerted activity in this context. But, even if this
were a ‘‘dual motive case,’’ we find that the General Counsel has
clearly established a prima facie case that Delaney was discharged
for unlawful reasons and therefore the burden shifts to the Respond-
ent to prove that it would have discharged Delaney even in the ab-
sence of her protected concerted activity. There is no evidence in the
record to support the Respondent’s contentions that Delaney was dis-
charged for engaging in a yelling match on November 19, 1990, or
that she disparaged Boucher to the Respondent’s customers. Even if
those incidents did occur, neither Bradford nor Boucher testified that
these were the reasons for Delaney’s discharge. Therefore, we find
that the Respondent has failed to carry its burden under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), of proving by a preponderance of the
evidence that Delaney’s discharge would have occurred even in the
absence of her protected concerted activity.
Skyline Lodge, Inc. d/b/a Edward’s Restaurant &
Lounge and Phyllis Delaney and Brenda Lack-
ey and Karen Watts. Cases 9–CA–28122–1, 9–
CA–28122–2, and 9–CA–28122–3
January 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 30, 1991, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answer-
ing briefs in opposition to the Respondent’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Skyline Lodge, Inc., d/b/a
Edward’s Restaurant & Lounge, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
James Schwartz, Esq., for the General Counsel.
Robert F. Staun, of Cincinnati, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Cincinnati, Ohio, on May 13 and 14, 1991,
based on unfair labor practice charges filed on December 13,
17, and 18, 1990, by Phyllis Delaney, Brenda Lackey, and
Karen Watts, respectively, and a complaint issued by the
Acting Regional Director of Region 9 of the National Labor
Relations Board (the Board) on January 25, 1991. The com-
plaint alleges that Skyline Lodge, Inc., d/b/a Edward’s Res-
taurant & Lounge (Respondent) coerced and discriminatorily
discharged the charging parties because they had engaged in
protected concerted activities in violation of Section 8(a)(1)
of the National Labor Relations Act (the Act). Respondent’s
timely filed answer denies the commission of any unfair
labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the General
Counsel’s brief, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
Respondent, a corporation with offices and places of busi-
ness in the Cincinnati, Ohio area, is engaged in the operation
of motels and public restaurants, providing food, beverages
and lodging, with a facility located in Harrison, Ohio. In the
course and conduct of its business operations at its Ohio fa-
cilities, it annually derives gross revenues in excess of
$500,000 and purchases and receives products, goods, and
materials directly from points outside the State of Ohio
which are valued in excess of $5000.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates four restaurants in the Cincinnati
area; the events in this case took place at one of them, Ed-
ward’s Restaurant & Lounge. Edward’s provides both a la
carte fine dining and banquet services. One group of servers
work breakfast and lunch and a separate group of about
seven work the dinner shift, approximately 4:30 to 10 or 11
p.m., depending on the night. On any given night, about four
of these servers are on duty. The servers are not represented
by a labor organization. The night manager when the rel-
evant events occurred was Peter Boucher.
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein are 1990 unless otherwise specified.
2 Banquet servers have less customer contact and receive a flat 15
percent of the food and beverage charges, sometimes earning as
much in a few hours of work as they would in an entire evening
in the dining room, where the tips are paid by the individual diners.
3 If done, this would place the tax liability for gratuities upon the
server whose number was used rather than upon the server who had
earned those tips.
4 General Counsel alleged these statements as independently viola-
tive of Sec. 8(a)(1). I agree. Such statements, made to one who is
still an employee, with the likelihood that she would tell others,
clearly interfere with the right of employees to engage in concerted
activity.
B. Protected Concerted Activity
In early November 1990,1 Brenda Lackey, Phyllis
Delaney, Karen Watts, and Marlene Scheidt, all dinner serv-
ers, discussed among themselves certain problems which they
perceived in the operation of the restaurant and in the treat-
ment they received. Among their concerns were the alleged
unfair distribution of banquet work and other examples of fa-
voritism by the manager, Boucher, improper recording of
sales and tips by attributing them to servers who were not
present, and lack of support by the bus boys on Sundays.
After they had unsuccessfully attempted to present these con-
cerns to Boucher, Lackey suggested that they meet with Gary
Bradford, at that time Respondent’s corporate food and bev-
erage director.
Delaney called Bradford and they met him at one of the
other restaurants. Delaney did most of the talking. She told
him that Boucher was not assigning dining room customers
or banquet work equitably; the latter was of particular con-
cern to Lackey, who had been promised that she would be
trained to serve these functions as well as ala carte dining.2
She also complained that he was favoring two other wait-
resses by permitting them to leave the floor, do less setup
work, and by giving them free food and drinks. She told
Bradford, additionally, that the bus boys who were supposed
to assist them in serving customers were goofing off, particu-
larly on Sundays.
Scheidt complained that another server was permitted to
ring up sales under her number when she was not there.3 She
testified, without contradiction, that a dinner check was im-
properly rung up on her number and she was accused of fail-
ing to ring up properly and taking someone else’s tip money.
Lackey, too, was concerned that her number could be im-
properly used. It would be difficult to do when both servers
were working, she acknowledged, and an experienced server
would have an idea of her gross sales at the end of a week
when she signed for her paycheck. However, it was conceiv-
able for one server to use another’s number when the second
server was not working.
Bradford promised to look into their concerns and directed
them not to discuss these matters until he had a chance to
do so. Thereafter, he claims, he was unable to substantiate
their complaints except for the bus boy issue. With respect
to Scheidt’s concerns, he testified that under their cash reg-
ister system, it would be very difficult, if not impossible, for
a server and cashier to use another’s number. The incident
to which Scheidt referred, he said, was merely a training ex-
ercise when the sales figures were not actually recorded.
In the course of looking into the complaints, Bradford
heard that Delaney was continuing to discuss these problems
with other employees. He heard this, he said, from kitchen
help, the day supervisor and a customer. Delaney denied dis-
cussing these complaints with any customers. There is no
evidence that she was ever reprimanded or ordered not to
discuss such matters with, or in the presence of, customers.
On November 19, Bradford called a second meeting. He
went through the various complaints, stating that he could
find no support for them; he said that he wanted them to
stop. Bradford said that he was tired of the divisions and of
servers telling customers that Boucher and other servers were
bad. Pointing at each individual, he then asked each server
whether she was interested in working at Edward’s. All re-
plied affirmatively. However, Delaney qualified her reply,
saying, ‘‘Yes, but I don’t think things are fair.’’ She per-
sisted in discussing her complaints.
Delaney continued talking after the meeting ended; as she
was walking out the door, Bradford heard her say that the
issues were not resolved and were not going to end there.
She said something to the effect that she was ‘‘going to get
to the bottom of it.’’ Bradford believed, from this, that the
problem was going to continue. Without any proof to their
allegations, he stated, ‘‘I couldn’t let it go on.’’
Section 8(a)(1) protects employees who act concertedly
with regard to wages, hour and other terms and conditions
of their employment. The evidence here is clear and
uncontradicted. These employees acted together to: (1) pro-
test the distribution of work; (2) the support they were re-
ceiving from the bus boys and other servers; (3) perceived
cheating in regard to the recording of their sales and tips;
and (4) generally, the quality and fairness of their super-
vision. These matters directly affected their earnings and the
amount of work required of them. This concerted activity
was therefore for their mutual aid and protection with respect
to wages and other conditions of employment. It clearly
came under the Act’s protection. Management could not dic-
tate when it would end and it is irrelevant some of their
complaints may have been without merit. See NLRB v.
Mackay Radio & Telgraph Co., 304 U.S. 333, 344–345
(1938); Spinoza, Inc., 199 NLRB 525 (1972).
C. Phyllis Delaney’s Discharge
Following this meeting, Bradford directed Boucher to dis-
charge Delaney as soon as possible because, he said, she was
‘‘a disruptive force in the work force . . . [and he] felt that
she was not going to let these matters drop. There was no
proof.’’ Bradford admitted that he believed that Delaney was
the leader of the faction because she had done most of the
talking. Boucher agreed with Bradford that Delaney was a
disruptive force.
In both a telephone conversation and in person, Boucher
told Delaney that she was being discharged; he said that they
were coming into the busy season and they could not have
a disruptive force like her in the work force, Boucher had
heard, he claimed, that she was complaining about him not
being fair to some servers. He also told her, according to
Delaney’s uncontradicted testimony, that she was being fired
for going over his head to Bradford.4
This is one of those rare cases where the conclusion flows
from undisputed events; neither a legal nor a factual deter-
mination is required. Delaney was engaged in protected con-
certed activity. Respondent perceived this as being disrup-
1099EDWARD’S RESTAURANT
5 Noting Scheidt’s animosity toward Boucher and the improbability
of Boucher admitting his motivation to Scheidt, who was included
in the faction which brought its complaints to Bradford, I must credit
Boucher. Accordingly, I shall recommend that General Counsel’s al-
legation that Boucher’s statements to Scheidt independently violated
Sec. 8(a)(1) be dismissed.
6 The servers declare a set percentage of their gross sales as tips
for IRS purposes.
tive, believed that she would continue with this activity un-
less removed from the work force and work place, and ad-
mittedly discharged her because of her activity and the threat
that she would continue it. Her discharge violated Section
8(a)(1) of the Act and I so find.
D. Karen Watts’ Termination
Karen Watts was hired on October 3 and generally worked
the dinner shift. When she was hired, she made it clear to
Boucher that she was required her to pick up her children
at 3 p.m. and could not be in the restaurant before 4. Watts
is Delaney’s sister.
On the day after Delaney was terminated (alleged in the
complaint as November 21), a 3 p.m. meeting was scheduled
by the payroll department to clarify tip procedures for the
servers. Terry Hartzell, the day supervisor, was directed to
inform them.
According to Watts, when Hartzell called, she protested
that Boucher knew that she could not come in before 4 p.m.
Hartzell replied that she would be there, or else. Hartzell said
that she was fired and should not report the next day if she
did not attend. Watts did not come in and considered herself
terminated.
A week later, according to Watts, Boucher called to ask
that she come in to sign her pay slip. He asked why she had
not come in. When Watts replied that she had been fired, he
told her that she knew she could have come in and worked.
She asked whether the conditions which they had protested
would change and he hung up on her.
Hartzell and Boucher tell a different story. Hartzell testi-
fied that she reluctantly called Watts to inform her of the
meeting, knowing that Watts’ sister had been terminated only
the day before. She was relieved when Watts indicated that
she would attend. Subsequently, the meeting was cancelled
because an insufficient number were available to attend and
Hartzell left word at Watts’ home.
After she had failed to show up for some days, Boucher
claimed, he called Watts and asked whether she still wanted
to work. She told him that she believed that she had been
fired and described her conversation with Hartzell. Boucher
replied that he could not believe that Hartzell told her this
and, when Watts said that she wanted to work, worked out
a schedule for her. Before she reported back, however, she
told him that she had changed her mind, because of her sis-
ter’s discharge. Boucher, who considered her one of his bet-
ter servers, wished Watts well.
Both Boucher and Hartzell presented credible demeanors.
Boucher, in particular, was candid about his termination of
Delaney. That termination, although for a patently unlawful
reason, was done openly, with no effort to conceal Respond-
ent’s motivation. Given the lack of subterfuge in Delaney’s
discharge, it is unlikely that Boucher would have stooped to
a subterfuge, such as Watts’ testimony would indicate, to
eliminate Watts, her sister.
Accordingly, I find that General Counsel has failed to sus-
tain his burden of proof with respect to the discharge of
Karen Watts and I shall recommend dismissal of that allega-
tion.
E. Brenda Lackey’s Termination
Brenda Lackey started at Edward’s in September. Prior to
that time, she had 20 years, off and on, of restaurant experi-
ence. However, it had been 17 years since she had served
in fine dining. Boucher considered her a good server, but not
one of the stronger ones who were capable of handling more
patrons and tables at a single time. Lackey did not dispute
this assessment, which is corroborated by her gross sales fig-
ures, even those before the protected activity.
Guests are assigned to waitresses by the hostess or the
manager. According to her testimony, Lackey had been get-
ting 15 to 20 guests per night prior to the November meet-
ings. After those meetings, she claimed that she would have
as few as four or five and that her tip earnings dropped from
as much as $60 per night to as little as $7 or $8. Addition-
ally, she was still assigned little or no banquet work. Finally,
on Saturday night, December 15, in frustration over the lack
of earnings, she checked out early and quit.
Marlene Scheidt saw Lackey leaving and heard Boucher
ask the cashier where she was going. When told that she was
leaving, Scheidt claimed, Boucher said, ‘‘Good riddance . . .
I’m glad that she is going.’’ Boucher allegedly told Scheidt
that he was going to take Lackey ‘‘down little by little until
she got the message and quit.’’ When Scheidt asked why he
didn’t just fire Lackey, Boucher stated that he ‘‘knew Phyl-
lis’ game plan’’ and ‘‘didn’t want to make their case.’’ He
claimed to have a little black book which told him what he
could or could not do with respect to firing someone or get-
ting them to quit.
According to Scheidt, the tally sheet showed that Lackey
had only eight customers between their starting time and
when she left at about 9:30. Before she left, Lackey reg-
istered upset at her lack of earnings and said that she could
not ‘‘stick around.’’ One waitress, Shellie, allegedly had 46
customers that evening, Scheidt had served 21, and 2 servers
hired that month had 15 and 11, respectively.
Boucher denied that the conversation attributed to him by
Scheidt occurred. As he testified, Scheidt told him that he
better not discharge Lackey because Lackey would think that
she, Scheidt, was part of it and would get her.5 He also de-
nied reducing Lackey’s work in order to force her to quit.
In assigning customers, he said, he tried to be fair but had
to consider the guests’ needs ahead of the servers.
Respondent’s payroll records, which appear to be genuine,
fail to support Lackey’s claims as to what her sales and tips
had been or even as to when she quit. Thus, with no substan-
tial changes in the number of hours she worked from pay pe-
riod to pay period, both her gross sales and declared tip earn-
ings6 stayed essentially consistent throughout her employ-
ment. Her sales, per pay period, ranged from a low of $934
to a high of $1304. For her last pay period, they were $1214.
The two pay periods preceding the last one were her lowest
in sales, although not in tips declared. Her sales for the last
few nights of her employment were consistent with, or better
than, her sales on earlier nights.
According to the timecards, Lackey left work on Saturday,
December 15, at 9:46 p.m.; however, she returned and
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I cannot accept Lackey’s supposition that both her time cards and
her sales and tip records were falsified to indicate that she worked
on those days. On cross-examination, Lackey had admitted that she
worked on December 18 and attempted to explain away the substan-
tial sales and tips. It was not until she was recalled on rebuttal, after
Scheidt testified, that Lackey claimed that her last day had been De-
cember 15.
8 The same records indicate that James worked many more ban-
quets, some of which appear to have been very lucrative.
9 Shellie and Delaney worked the most banquets. Lackey worked
at least one after November 19 (R. Exh. 2(f), banquet sales for the
pay period beginning November 29).
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
worked on Sunday and Tuesday.7 Those same records show
that Shellie James worked far more hours per pay period
than did Lackey; she also had substantially higher daily gross
sales and correspondingly greater tip earnings.8 Boucher tes-
tified that she was one of his best servers.
Given the apparently genuine payroll records and the ani-
mosity toward Boucher which was apparent from Scheidt’s
testimony and demeanor, I cannot credit either Lackey or
Scheidt with respect to the circumstances of Lackey’s termi-
nation. Lackey may well have perceived that she was being
short-changed in the assignment of customers as a result of
her participation in the protected concerted activity. The evi-
dence, however, indicates that while she may always have
been assigned fewer guests and banquets than other servers
deemed stronger by Boucher, that situation did not change
after November 19.9
Moreover, Lackey returned to work on the Sunday and
Tuesday following December 15, and had fairly decent sales
on both days ($155 on Sunday and $324 on Tuesday). Both
her returning on those days and her sales figures on them
tend to negate any contention that her working conditions
had been made so intolerable that she was coerced into quit-
ting and was thereby constructively discharged. I shall, there-
fore, recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Phyllis Delaney because she engaged in
protected concerted activities, and by telling her that she was
being discharged because she had engaged in such activities,
the Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
3. Respondent has not, in any other manner alleged in the
complaint, violated the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer her reinstatement and make her whole
for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Skyline Lodge, Inc., d/b/a Edward’s Res-
taurant & Lounge, Harrison, Ohio, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging any employee because of his or her pro-
tected concerted activities.
(b) Telling any employees that they or anyone else has
been or will be discharged for engaging in activities pro-
tected by the National Labor Relations Board.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Phyllis Delaney immediate and full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify Phyllis Delaney in writing that this has
been done and that the discharge will not be used against her
in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its restaurant in Harrison, Ohio, copies of the
attached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
1101EDWARD’S RESTAURANT
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in concerted activities protected by
the National Labor Relations Act.
WE WILL NOT tell any of our employees that they are or
will be discharged for engaging in activities protected by the
National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Phyllis Delaney immediate and full rein-
statement to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously en-
joyed and WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less any net
interim earnings, plus interest.
WE WILL notify Phyllis Delaney that we have removed
from our files any reference to her discharge and that the dis-
charge will not be used against her in any way.
SKYLINE LODGE, INC., D/B/A EDWARD’S RES-
TAURANT LOUNGE