Fitzwilly's

National Labor Relations Board - Board Decisions

Dec 11, 1979

246 N.L.R.B. 912 (N.L.R.B. 1979)

I)}l('ISIONS OF NA I IONAI LABOR RELATIONS BOARD
Joshua's, Inc. d/b/a Fitzwilly's and Loretta Lynn
Alper. Case -CA- 14334
December 11. 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPIY. ANI) TRUIiSI)AII
On January 26, 1979, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to dismiss certain alleged 8(a)( I) alle-
gations of the complaint and to remand the 8(a)(3)
and (I) allegations to the Administrative Law Judge
for further consideration and issuance of a supple-
mental decision thereon.
The complaint, as amended, alleged that Respon-
dent violated Section 8(a)(1) and Section 8(a)(3) and
(I) of the Act.
The Alleged Independent 8(a)(1) Violations
The Administrative Law Judge, though to some ex-
tent setting forth in his Decision facts relating to cer-
tain of the alleged independent violations of Section
8(a)(1), made no express findings concerning whether
or not such conduct violated the Act as alleged. No
exceptions were filed with respect to the Administra-
tive Law Judge's failure to find the alleged violations,
and we shall, therefore, dismiss the complaint insofar
as it alleges Respondent engaged in independent vio-
lations of Section 8(a)(1). m
The Alleged 8(a)(3) and (1) Violations
The complaint as amended alleged that Respon-
dent violated Section 8(a)(3) and (1) by initiating an
employee written warning system and an employee
job evaluation system, by issuing certain written
warnings to employees Rooke and Alper, by denying
Rooke and Alper certain pay raises, and by discharg-
ing Alper.
1. The vwiritten ,warning and joh evaluation .ystems.v.
The Administrative Law Judge found that the written
warning system was used to intimidate employees
I Specifically, we dismiss the complaint allegations designated as pars.
8(a). (b). (If), (g). (h). (i), (k), and (o) and the portion of par. 8(1 ) which alleges
a threat to give a written warning.
concerning, and to retaliate against employees for,
their union activities, and that the job evaluation sys-
tem was invoked in retaliation against employees fior
such activities. He further adverts to Respondent's
use of' these systems in an unlawful manner and rec-
ommends by way of' remedy that Respondent cease
and desist from implementing or enforcing the writ-
ten warning system or instituting or enforcing the job
evaluation system in order to discourage union ac-
tivity. The Administrative Law Judge does not specif-
ically find that by its conduct with respect to these
"systems" Respondent violated Section 8(a)(3) and
(I) of the Act. However, it would appear and Re-
spondent in its exceptions and brief seems to agree
that the Administrative Law Judge did find Respon-
dent's conduct vis-a-vis the "systems" to be unlawful.
Nevertheless, in view of the various matters discussed
below which necessitate remanding this proceeding to
the Administrative Law Judge, we make no final deci-
sion with respect to these matters at this time.
2. The written warnings to Rooke and Alper: The
Administrative Law Judge in his Decision adverts to
all written warnings being "tainted" with the unlaw-
ful motivation lying behind the written system. He
further notes that Rooke received two written warn-
ings for tardiness at a time tardiness was easily toler-
ated. He also finds that several warnings given to
Rooke and Alper were tor just cause yet apparently
in the circumstance "clear evidence" of unlawful mo-
tivation. However. he makes no specific finding that
any written warnings were a violation of Section
8(a)(3) and (1) and he recommends no remedy with
respect to the allegedly unlawfully given written
warnings.
3. Denial o/raisesv lo Rooke atnd A Iper. The Admin-
istrative Law Judge stated that Rooke and Alper were
denied pay raises, not so much because of their work,
but because of the warnings each had received. He
made no specific finding that the denial of pay raises
was a violation of Section 8(a)(3) and ( I ) or that, ab-
sent unlawful motivation, Rooke and Alper would
have been entitled to and/or received pay raises. His
linking of a denial of raises to the written warnings is
not enlightening in view of the unsatisfactory nature
of his consideration of their written warnings. How-
ever, he did recommend that Alper and Rooke be
made whole for the "sums of the raises they were not
granted." But to repeat, there is no unambiguous con-
clusion that the raises were unlawfully withheld.
4. Alper's discharge: Alper was discharged. the Ad-
ministrative L.aw Judge concluded, as a consequence
of Respondent's "retaliatory intent" and as a way to
take indirect action against Rooke Alper assertedly
being Rooke's "girl friend." There is, however, no
possible way to review these conclusions of the Ad-
ministrative Law Judge for at no point in his I)ecision
246 NLRB No. 147
912
t ITZWII.tY'S
does he set forth the facts or make credibilit3 find-
ings-if necessar 3 -concerning Alper's discharge and
upon which he bases his inference concerning the mo-
tivation lying behind that discharge.
It should be apparent from what we ha\e stated
above that we find the Administrative I.as Judge's
consideration of the 8(a;)(3) and ( I ) allegations of the
amended complaint whollb unsatislfactory and inad-
equate. The Board's Rules and Regulations. Series 8.
as amended. Section 102.45. provide that after a hear-
ing the administrative law judge shall prepare a deci-
sion containing "'findings of fact, conclusions. and the
reasons or basis thereflor, upon all material issues of
fact, law, or discretion presented on the record. and
... recommendations as to what disposition ot the
case should be made .... " Obviousl' the Administra-
tixe L.aw Judge's Decision in this proceeding dioes not
fultill these requirements with respect to the 8(a)(3)
and (I ) allegations of' the complaint. 2 Accordingl>. we
shall remand this case to the Administrative l.au
Judge for purposes of' his issuing with respect to the
8X(a)(3) and (I) allegations of the complaint a supple-
mental decision setting forth in full his findings of fact
aind the conclusions to be drawn therefrom the spe-
cific iolations found, the reasons for his determina-
tions with respect to all material issues of fact and
laxw. and his recommendations as to what action
should be taken with respect to these allegations of
the complaint, including appropriate remedies for
any violations he may find. In so remanding the case,
we are not suggesting, much less requiring, that the
Administrative Law Judge find or not find any cer-
tain facts or violations. We are simply directing him
to consider fully all aspects of the 8(a)(3) and ( 1) alle-
gations of the complaint, and thereafter to prepare an
appropriate supplemental decision based thereon.
Contrary to our dissenting colleague. the absence
of exceptions from the General Counsel (who prop-
erly may have concluded he had prevailed with the
Administrative Law Judge) imposes no due process
or other limits on our disposition of the case. Also.
encouraging, or more accurately, requiring exceptions
from prevailing parties is hardly an effective alloca-
tion of our time or that of practitioners before us.
ORDER
It is hereby ordered that the independent 8(a)(1)
allegations of the complaint be. and they hereby are.
dismissed.
II IS FURIII.R ()Rl) RI I) that this proceeding be,
and it hereby is, remanded to Administrative l.aw
Judge George F. Mclnerny for purposes of his issuing
'(lea rl itI nill.srls talls vllh respect Ito the Independent 8(aH II alleg.a-
ton,: bhul. as held hbove, in the ablence i relevant excepllons e are con-
stralncd Io dismiss Ihos aillegations oI the complaint.
with respect to the 8(a;1)(3) and ( I ) allegations of' the
amended complaint a supplemental decision con-
forming to the requirements of' the Board's Rules and
Regulations. Series 8. as amended. Section 102.45,
and our decision herein. Such supplemental decision
shall be served on the parties, and following such ser-
,ice the provisions of Section 102.46 of the Board's
Rules and Regulations. Series 8. as amended, shall he
applicable.
Mi:Iil R Mt RPlIY', dissenting in part:
T'he Administrative .aw l Judge's Decision, as the
nmajority here explains was inadequate. With respect
to the alleged independent iiolations of Section
8(a) I ) of the Act, no violations were found, no rem-
edN proxided. and no exceptions filed. (Consequentl,
the majorit. as it must and I wholly agree dis-
misses those allegations of' the complaint.
As for the alleged 8(a)(3) and (1I) violations, the
Administrative l.aw Judge did provide a cease-and-
desist remedy with respect to Respondent's warning
and job evaluation systemls and affirmatively ordered
that discharged employee Alper be reinstated with
backpay and that Alper and Rooke be made whole
for the "sums of the raises the, ere not granted
..... No specific findings of 8(a)(3) and (I) violations
were made which serve as a basis fo)r these remedial
provisions. Ilowever. the Administrative law Judge
did apparently find the warning and evaluation sys-
terns were unlawfully applied: he does seem to have
found that Alper was unlawfully discharged---but no-
where does he set forth the fcts concerning the dis-
charge underlying his conclusions. and with respect to
Alper and Rooke's losses from raises not granted he
never found the denial of' the raises unlawful.
Respondent. faced with a remedial order as to
these matters-unlike the independent 8(a)( I) allega-
tions-filed exceptions and a brief pointing up var-
ious asserted inadequacies and patent omissions of
the Administrative Law Judge's Decision and re-
quested that the complaint be dismissed in its en-
tirety. Despite the obvious grievous shortcomings of
that Decision with respect to the factual presentation.
the findings and conclusions of law, and the remedial
provisions concerning the 8(a)(3) and () violations.
the General Counsel filed an exception. If initially-
and despite the blatant errors and omissions of the
Administrative Law Judge's Decision-the General
Counsel felt that exceptions were unnecessary to sal-
vage his case. he surely must have been made aware
of the obvious when Respondent filed its exceptions
anid brief) But even so he failed to respond by way of
('o(nsequentil. there is little hasis for the majolrit, statement that the
General (ounsel "properls mav hase .oncluded he had prevailed with the
Administrative l.aw Judge." Indeed, the dismissal oI lhe alleged independent
gXlil)) .iolatiions hecause no tinding had been made ith respect IIo them
(( Iontnuedl
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-exceptions or an answering brief or a brief in
support of the Administrative Law Judge's Decision.
However, my colleagues have stepped in to fill the
void left by the General Counsel's silence, have out-
lined at least some of the problems of the Decision,
and are remanding the case to give the Administra-
tive Law Judge another try at a decision. But it seems
to me that parties adversely affected by an adminis-
trative law judge's decision have no obligation, which
indeed I believe Section 102.46 of our Rules and
Regulations imposes, to point out failings in that de-
cision and to suggest corrective action (whether it be
by a remand, by references to additional record facts,
indicating findings that are warranted, and so forth)
before this Board takes steps to salvage such parties'
case.
Further, here in remanding, my colleagues will be
proceeding of necessity on Respondent's exceptions
which are all they have---but in a manner inconsistent
with, if not wholly contrary to, Respondent's inter-
ests. At best this seems inequitable to me and unwar-
ranted under applicable Rules and Regulations: it
turns filing exceptions into a rather risky business a
real "damned-if-you-do-and-damned-if-you-don't"
situation.
Consequently, in the absence of exceptions here by
the General Counsel and Charging Party, the Board
should not, as the majority is in essence doing, pro-
ceed as if those parties had indeed filed exceptions. It
is-to labor the point-Respondent's exceptions that
are before us and they seek no remand, no chance for
a strengthened or revised decision. Rather, in re-
sponse to those exceptions and in view of the inad-
equacies of the Administrative Law Judge's Decision
as vividly described in the majority's opinion, the
Board, I believe, should: (I) reverse the putative find-
ing that Respondent unlawfully discharged Alper,
there being no facts set forth in the Decision to sus-
tain such finding; (2) dismiss the allegation that cer-
tain written warnings were unlawful, as there are no
clear findings on that issue; and (3) reject the make-
whole remedy with respect to delay in raises for
Rooke and Alper as there is no finding the raises were
unlawfully withheld and the facts such as they are
tend to support at best only a suspicion here.
and its remand of most of the other issues of the case because they had not
been properly considered and/or resolved rather vividly shows the General
Counsel had not prevailed before the Administrative Law Judge. Thus, the
majority's further comment to the effect that I am unnecessarily requiring
exceptions from "prevailing parties" is obviously unwarranted where as here
there is no prevailing party.
And, finally, I find it somewhat presumptuous for the majority to suggest
my position here would be inconsistent with "an effective allocation of our
time or that of practitioners before us" where the majority is directing a
remand, and both the Administrative Law Judge and the Board will have to
make supplemental decisions, neither of which any party has requested and
which will certainly require ultimately the "allocation" of considerable time
by this Board and the "practitioners before us."
As for the apparent 8(a)(3) and (1) violation based
on the alleged abuse of the employee warning and
evaluation systems, I would reverse here, too, for a
number of reasons. To mention several, with respect
to the warning system, it was set up before the Union
appeared on the scene; there was, contrary to the Ad-
ministrative Law Judge's statement, no great spurt in
the number of warnings given after the Union did
appear: and, with the possible exceptions of one or
two warnings to Rooke, there was no showing that
any of the warnings were undeserved. The Adminis-
trative Law Judge's statement that the whole warning
system in its application and all warnings were
tainted is little more than an unsupported, unrational-
ized assertion. As for the employee evaluation system,
it fares no better. There is no showing that anyone
deserving a raise was denied one: there is no evidence
that the system in application discriminated against
union supporters; and there is no basis for the claim
that the evaluation system, set up after the Union lost
the election, was established for the purposes of re-
taliating against the employees who supported the
Union. The Administrative Law Judge's contrary
suggestion, assertions, and finding are largely unsup-
ported.
In sum. I would dismiss the whole complaint. The
absence of exceptions by the General Counsel or
Charging Party compels such a result both as matters
of law and of equity.
DECISION
SIAIMiNI OFl l II. CASL
GE()RGE F. MlINERNY, Administrative Law Judge:
Upon a charge filed April 7, 1978, by Loretta Lynn Alper,
an individual, the Regional Director for Region I of the
National Labor Relations Board, herein referred to as the
Board, issued a complaint on May 10, 1978, alleging that
Joshua's Inc., d/b/a Fitzwilly's, herein referred to as Re-
spondent, or Fitzwilly's. had violated and was continuing to
violate the National Labor Relations Act, as amended,
herein referred to as the Act, by discharging Alper and re-
fusing to reinstate her because of her activities on behalf of
Hotel, Restaurant Employees & Bartenders International
Union. AFL-CIO, Local 116, herein referred to as the
Union. Under date of August 25, 1978, the complaint was
amended to allege further violations of the Act.' Respon-
dent had denied the commission of any unfair labor prac-
tices. Pursuant to notice contained in the complaint, a hear-
ing was held in Northampton, Massachusetts, on
September 18 and 19, 1978,2 at which time all parties pre-
sented evidence, examined and cross-examined witnesses,
and were given the opportunity to argue orally. Following
I The complaint as further amended at the hearing.
Respondent has moved to amend the transcript in two places. Since there
was no opposition to this motion, it is allowed.
914
and good humor between the employees, described as
"agents of' atmosphere" and himself as the master of the
revels. "Captain Funn." All this resulted in a relationship
between Kirwood and his employees which, while not
really democratic, was much more open and less formal
than is usual between workers and management. The evi-
dence shows that employees always referred to Kirwood
and other supervisors by their first names: that Kirwood
was both available for discussions with employees and sym-
pathetic if those discussions concerned personal or financial
problems: that Kirwood retained final authority on em-
ploNee discipline despite the e.istence of a management
hierarchy in case the erring employee was a "friend" of his.
Even in the absence of such a personal relationship. the
record shows that Kirwood. at least before he became
deeply involved in the planning and preparation for the
opening of the New Haven restaurant earl) in 1978. partici-
pated closely and personally in employee relations. includ-
ing the granting of paid vacation and sick leave: ameliora-
tion of discipline: and in discussions concerning the union
campaign.
The complement of 70 to 75 employees. at least from my
observation of those who appeared as witnesses in this case,
was young in age and, apparentl), transitory in habit. The
record shows that an employee with 3 years of service was
considered a long-time employee. Whether this transitori-
ness was the result of the type of shift work required b5
Respondent. or the working conditions. including wages, or
because of Fitzwilly's location in the college town of North-
ampton with a shifting, restless youthful population. is not
clear. The attitude of the employees who testified in this
proceeding indicates that they liked and respected Kirwood
and had participated willingly in what was a cooperative.
open, and friendly atmosphere.
This, then, is the background for a series of' events which
occurred in late 1977 and early 1978.
B. The Union Organizing Campaign and Respondent's
Response
About the middle of October 1977. an employee named
Donald Rooke, a kitchen supervisor,7 together with a few
others contacted the Union and commenced passing out
union authorization cards among Respondent's employees.
One of the employees approached by Rooke was a prepara-
tion cook named Loretta Lynn Alper. Alper signed her card
and returned it to Rooke late in October 1977. Rooke con-
tinued his union activity thereafter, and Alper testified that
she had attended union meetings and also passed out union
literature to other employees in the fall and winter of 1977-
78.
At or about this same time Respondent hired Thomas
Wooster' as an understudy for, and eventual replacement
for, General Manager Daniel Yacuzzo, who took charge of
the New Haven operation in mid-November 1977. Wooster
then took over as general manager, responsible to Kirwood
for all aspects of Respondent's Northampton operation.
: This was a low-level supervisory job. There is no contention that Rxoke
was a supervisor within the meaning of the Act.
s Respondent admitted at the hearing that Wooster was a supervisor as
alleged in the complaint but did not admit that he was "necessarily at all
times" acting on behalf of Respondent. I find that Wooster is a supervisor
and at all times material herein was acting in the interests of Respondent.
the close of the hearing, Respondent and the General
Counsel filed briefs which have been carefully considered.
Upon the entire record. including my observation of the
witnesses and their demeanor, I make the following:
FINDIN(iS () FA(CI
I. rtil BUISINESS OF RiSP()NI) NI
Joshua's, Inc., is a Massachusetts corporation which has
its principal office and place of business in the cit of
Northampton, Massachusetts, where it operates a restau-
rant under the name and style of Fitzwilly's.l Respondent.
in the course of its business, receives an annual gross vol-
ume in e.cess of $500,000 and annually purchases goods
and supplies valued at more than $50,000 directly from
points located outside the Commonwealth of Massachu-
setts. The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. TIlE I.ABOR OR(;ANIZAO()N INV()I VED
The complaint alleges, the answer, as amended at the
hearing, admits, and I find that Hotel, Restaurant Employ-
ees & Bartenders International Union, AFL CIO. Local
116, is a labor organization within the meaning of Section
2(5) of the Act.
Ill. TIE ALI.EGEI) UNFAIR ABOR PRACII('ES
A. Background
In reviewing the substantive facts of this case it will be
instructive to e.amine the background and operations of
Respondent, since in this way the actions and words of the
participants may be evaluated from the perspective of the
arena in which these actions and words took place.
The Respondent here, Joshua's, Inc., is wholly owned by
one individual, Roger Kirwood.4 Kirwood. by his own ad-
mission, has had some 12 years' e.perience in the food and
beverage business. In November 1974 he opened the restau-
rant involved here, Fitzwilly's. It is evident from the record
that Kirwood attempted to impress on the organization a
highly personalized, even idiosyncratic, style and manage-
ment. Kirwood set out his philosophy clearly and succinctly
in an employee handbook,' indicating the purpose of Fitz-
willy's to be "interesting"; to provide "appetizing and mod-
erately priced" food; and, to create an atmosphere "in
which one can feel completely at ease with his surround-
ings." The handbook continues by pointing out that the
growth of Fitzwilly's.5 and the realization of Kirwood's phi-
losophy, depends on the cooperation of all employees in
providing superior service to the customers. To encourage a
cooperative spirit, Kirwood fostered a spirit of camaraderie
Respondent, on April 4. 1978, opened another Fitzwilly's restaurant in
New Haven. Connecticut. but that operation is not involved here.
The complaint was amended at the hearing to correct the spelling of
Kirwood's name.
Although this ooklet "Fitzwilly's and You" was not issued until April
1978, I find that it accurately reflects Kirwood's philosophy and method of
operation from the time the restaurant opened in 1974.
6 The Northampton facility was e.panded in 1977. and on April 4. 1978 a
second Fitzwilly's. somewhat larger than the original, opened in New Haven,
Connecticut. The New Haven operation is not involved here.
FITZWILLY'S 915
I)DE('ISIONS OF NAIIONA. I.ABOR RI.A IIONS BOARK[)
In mid-Noveember 1977. about a week before 'Thlanksgiv-
ing. Alper approached Wooster and informed him that
"there is something going on in the restaurant .... here
are people organizing to form a union." Wooster asked
what she meant and who was involved but Alper refused to
give details or to name names.'
Wooster immediately reported the convsersaltio to Kir-
wood who, in turn, conltacted the law firm of Sullivan and
Ilaves. 'hle lawyers gave instructions on "how to deal with
a union situtation."
Probably as a result of his conversation with his lavwyers,
Kirwood set up a meeting at the Hotel Northanpton on the
Sunda atter Thanksgiving. The employees were paid. and
all were expected to attend the meeting. The meeting ap-
parently was. if not stormy, at least productive of vigorous
exchanges betvween Kirwood, who was trying to cosnduct
the meeting to) attempt to find out what the employees'
prohlerns w'ere and to convey to the employees his position
on unionzation. and certain employees (not including
Rooke and Alper) who first protested the holding of the
meetingi at all. because of' the "emerging collective bargain-
ing unit.''" and then took issue with some of' Kirwood's state-
ments. There is some conflict in the testimony concerning a
remark Kirwood made concerning the availtbility of the
employees' union authorization cards to management. Al-
per intiallv testified that Kirwvood "brought up the lact that
manaCement could seek union authorization cards, and he
didn't explain it at that time." On cross-examinatiomn hotw-
ever, she modified this account to admit that Kirwood had.
in icIt, said that he could see the cards "if a public hearing
w;as held andl eniployees w'ere called to testify about those
cards." This last is in accord with the testimony of Kirwood
and Wooster. Rooke did not testilfy about this meeting.
Based on my prior discussion on credibility. I find that the
incident occurred as described by Wooster and Kirwood.
At this point it is appropriate to set down my impressions as t the
credibility of the key witnesses I find that Wooster was an open, candid. and
truthful witness. I find the same to be true of Kirwtoid (Certainly the admis-
sions both made against Respondent's interest would lead to the conclusion
that they were speaking the truth in other areas as well. Indeed Kirwood's
testimony, as well as the evidentiary materials in the record showing his
attitude in communication with his employees and in reported discussions
during the union election campaign, is consistent with his philostoph of
openness and candor, noted above, and in keeping with the ambiance oir
atmosphere which he had striven to create and maintain at Fitzwilly's. I find
Rooke to be a candid and forthright witness. His version of events corrobho-
rates that of Wroster and Kirwxood and, as with theirs, reflects the inherent
probabilities of' the various contacts they had with each other.
Alper. ton the other hand. I do not find entirely credible. Her direct testi-
mony contains two critical statements concerning two allegations in the com-
plaint which she later contradicted on crtoss-examination. She was secretive
about revealing the names of other employees first. when questioned by
Wooster when she informed him of the union activity second, when she
alleged at the time of her discharge that a number of employees were stealing
from Fitzwilly's; and, third, in the witness stand at this hearing. when asked
fior the names of other people who had been late to work and had not
received warnings TIhese Incidents persuade me that Alper is capable of
sliding over the truth, or even of fabricating events, ito improve her own
situation. The revelation iof he existence of unison activity to Woosster was
obvsiusly designed to curry lvor with the new general manager. tier indict-
ment (it unnamed ellow employees engaged in thievery was an attempt tt
nllnimize her aow n flfense and keep her job. The generahzation about oIther's
tardiness was an attempt to influence the decision in this case cotncerning her
discharge Thus I do not credit Alper unless her testimony is corrobsorated by
others (as it is in nilst instances] oir is otherwise supported by the evidence in
this case.
Ihe meeting apparently became more disorganized and
was finally adjourned by Kirwood. 'Ihere were no more
general meetings, but on December 16. 1977. a petition was
filed b the Union in ('ase I R(' 15510 seeking to repre-
sent certain employees of Respondent. 'he parties stipu-
lated a unit and a time and place for an election, which was
held on March 2. 1978, at Respondent's premises in North-
ampton.ll
m The Unlion lost the election, no objections were
filed, and the results were certified on March 10, 1978.
Following the Sunday meeting. Respondent undertook
an intensive campaign in opposition to the Union. A num-
ber of newsletters, entitled "Payroll ('hats" or "Fact
Sheets," were issued to employees." In addition, the Union
and the employees' organization efforts were topics of con-
stant discussion among the employees and between employ-
ees and management. Wooster testified that the Union was
discussed ever day between November and March and
that he was frequently approached by employees seeking
intormation about the Union or about labor laws. lie fur-
ther stated that Respondent made no effort to restrict union
talk or the flow of union literature in the restaurant during
working hours.
Among these conversations were several which are al-
leged by the General Counsel to demonstrate antiunion
feelings or animus by Respondent, or which show indepen-
dent violations of' the law.
Aside from Kirwood's remarks to the assembled employ-
ees at the November meeting, the first of these incidents
occurred sometime in December when Wooster approached
Rooke and Alper, who were sitting in a car in the restau-
rant parking lot, and attempted to engage them in a conver-
sation about the Union. When they declined to dicuss it.
Wooster struck his hands together and told them they were
"fools" for wanting the Union. Alper's testimony as to this
incident is to some extent corroborated by Wooster, but he
stated that he merely told Rooke and Alper that it was
"foolish" to want the Union without emphasis. Wooster
further testified as to another conversation or two with Al-
per until she told him she did not want to discuss the Union
any more.
Alper also testified as to a conversation in Februarv 1978
when Wooster came up to Rooke and Alper in Fitzwilly's
dining room and said to Alper that her only problem was
that she was Don Rooke's girl." Neither Rooke nor Woos-
ter was questioned about this incident. As noted above I
have difficulty crediting Alper's unsupported word, and I
specifically do not credit this story.
Another incident involving Alper occurred in December
19771' when she returned to work after having been out
0 Donald Rooke served as one of the Union's observers at the election.
The other observers were not identified.
11 The testimony of Donald Rooke and reference In one of these Payroll
('hats It> the Union News ndicate that literature was handed out on the
union side as well.
I! Alper's feelings toward Rooke mas hase had something to do with her
metalmorphosls ronm company inf:)rmer in November 1977 to union maid in
Febhruary 1978. Rooke testified that he had known her since early 1977. but
she did not become his "girl" until January 1978. In any event. the two were
ihsrig together in an apartment in Northampton as March 4. 1978.
' I he record does not show whether this happened before or after Wo>s-
ler confronted Alper and Rooke In the restaurant parking lot. rom which
imLe. I infer Respondent would list Alper as a union supporter.
916
These were all the conversations adduced bN the General
Counsel involving discussions of the union campaign b,
management officials. The record shows. however. that
there was a great deal of discussion among emploees. with
and without management's presence, and a lot of debate hb
all concerned over the issues raised in the campaign.
As noted above. Wooster arrived at Fitzwilly's in mid-
October 1977. He had had experience with Hloward John-
son's and had been a food and beverage director with the
Holiday Inn chain. lie testified. credibly. that he had in his
previous positions utilized a system of written warnings in
order to preserve employee discipline. Shortly after his ar-
rival at Fitzwilly's, Wooster had a meeting with Kirwood
and the other managers at which time, Wooster noted, the
other managers indicated the apparent failure of the verbal
warning system. Wooster explained the benefits to manage-
ment of a system of written warnings. As a result, a written
warning system was then instituted. Since Wooster arrived
at Fitzwilly's in the middle of October and almost immedi-
ately implemented the written warning system, and since he
did not find out about the Union until he was informed by
Alper about a week before Thanksgiving, I find that, at
least in concept, the written warning system was put into
effect before management had knowledge of the employees'
union activities.
However. between this mid-October period and Respon-
dent's knowledge of the employees union activities, which I
have found to hae occurred in the conversation between
Alper and Wooster about a week before Thanksgiving 1977
(between November 14 and 18). only one written warning
was issued, on October 25. 1977, to one Cynthia Johnson. It
is also true that the employees generally were not notified of'
the imposition of this system until the payroll chat No. 2 in
the second week of December 1977. The next written warn-
ing. after October 25. was given on November 21 to one
Craig Tyler. and between November 21, 1977. and March
4, 1978, a total of 13 was issued. In this same November
March period, which roughly corresponds to the timespan
between Respondent's first knowledge of union activity and
the election of March 2. 1978. three employees were dis-
charged for infractions of company rules.
Moreover, of the 13 warnings given out in this period. 4
were given to Rooke, admitted by Respondent to be the
intellectual leader of the prounion forces. ' and 3 to Alper.
who was identified in the record as Rooke's girlfriend.'8
Following the election on March 2. the warnings contin-
ued. on much the same pattern, and two more employees,
in addition to Alper. were discharged in the period from
March until August 1978.
" That intellectual leadership. in addition to force of will or personaihty,
was of critical importance in this particular organizational campaign is clear
from a reading of the record. The location. n the midst of five colleges and
universities; the tenor of the conversations between Rke, Wooster. and
Kirwood the irreverent and even impudent responses made hb some em-
ploees on the warning notices issued to them: and Respondent's campaign
literature are all indicators that the work force at Fltzwillss was more so-
phislicated and better educated than is usual in this kind of case Respon-
dent's recognition of this. and of Rtooke's position in the organizational cam-
palign. must he considered in m esaluation of Respondent's treatment of
Rooxke.
8 While Rke testified that Alper became his girlriend in Januarsy. the
incident In the parking lot in D)ecember must have alerted Respondents
officials to the relationship between their erstwhile nlormant and one of the
U'nion's chiet adherenis
sick. She did not look well,' and Wooster discussed her
condition with Kirwood who went to speak to her. She ad-
mitted that she was not feeling well but insisted that she
could not afford any time off. Kirwood then consulted his
attorneys and returned to tell Alper she could have 2 days
of paid sick leave, hut to keep the matter confidential be-
cause of the union situation. Alper, however, told another
employee, and the news was soon "all over the restaurant."
Kirwood, on hearing of this, was furious and confronted
Alper to inform her of his concern. This concern was, in his
own words, in part due to his feeling that the incident could
have a "complicating effect on the union election," and he
was "quite certain that the pro-union people would take
this and blow it out of the context it was intended." While
he did not testify as to what he said to Alper, and while
Wooster denied having heard the conversation, I find that
in these circumstances some reference to the Union was
made in that conversation with Alper. In these circum-
stances I infer and find that such reference, impelled by
anger at this betrayal. was hostile and derogatory toward
the Union. Certainly, Wooster's later apology to Alper is
indicative that Kirwood went further than merely to inform
Alper of his concern.
Rooke had several conversations with Wooster and Kir-
wood during which the Union, and Rooke's involvement
with it, was discussed.' The first of these took place some-
time in November in the back booth at Fitzwilly's after the
place had closed, and continued for about 2 hours. Wooster
and Rooke had a wide-ranging discussion about the Union,
collectivism in general, management. Rooke's ambitions,
whether to pursue collectivism in the political area and run
for president, or to seek his fortune on the management
ladder at Fitzwilly's. Wooster also talked about himself.
feeling that they did not need nor want a union at Fitz-
willy's and indicating that he would resign as manager if
there were a union at Fitzwilly's.
The second conversation took place on December 13.
1977, when Rooke was given a written warning for his ad-
mitted unauthorized use of Respondent's telephone to make
a long distance call. He was told by a supervisor to report to
the general manager's office to receive the warning and,
reporting as directed, met with Kirwood. Wooster, and Ya-
cuzzo. Kirwood gave Rooke the written warning, and, after
some explanation on Rooke's part, Kirwood stated that
"you know this is against company policy and you are try-
ing to screw us over."' He continued by saying, "This is
what bothered us about the union, this attitude of trying to
screw us over. It's well known that you support the union
and a lot of people in the restaurant who don't know any
better are probably going to vote for the union just because
you are supporting it." Kirwood went on to say that if the
union won he would be a loser, and that he had a feeling he
would be "a very bad loser." Kirwood also said that unions
were good in some places. but it would not be a good idea
at Fitzwilly's.
14 My findings on this incident are drawn from the credible testimony of
Wooster and Kirw(xd. I credit Alper's version onl, where corroiborated
' These conversations were reported b Rooke's own estimon and gen-
erally corroborated by Wtooster and Klrwold.
It The meaning of the particular Juxtaposition of words n this last expres-
sion eludes me. hut I assume that Klrx ood was accusing Rooke of tring to
get something from him by unfair or unjust means.
FIIZWIL.LY'S 917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Discrimination Against Emplqoees
Having found that the written warning system was imple-
mented as a part of Respondent's campaign against the
Union, I further find that a careful analysis of the written
warnings issued in the period from October 1977 to Sep-
tember 1978 and the employee evaluations beginning in
March 1978 show that the system was administered, and
warnings issued, in a haphazard and totally subjective fash-
ion. The record shows situations where a prior warning is
noted on a written warning, but none is found; and the
converse, where a written warning appears in the record,
but the next warning bears no record of it. Oral warnings or
written warnings were handed out indiscriminately, some-
times for the same types of offenses. Joan Bolduc, dis-
charged for falsifying her time record, was reinstated after a
talk with Kirwood. Marc Davis, having been late repeat-
edly in March 1978, was given only an oral warning. San-
dra Pfeifer, late on March 4, was given no further warnings
until August 16, when her record shows this second warn-
ing as a third warning, for which she was not discharged.
These examples out of many show that the written warn-
ing system itself was operated on a subjective, hit-or-miss
basis. The record also shows that the application of the
system to employee conduct was similarly subjective and
spotty. Even disregarding the testimony of Alper in this
regard, the testimony of Rooke and former employee David
Lemaire is credible and undenied and shows without doubt
that lateness, including lateness of supervisors, was so com-
mon as to almost constitute a regular habit at Fitzwilly's.
Further, an examination of the written warnings in this case
shows that, out of 15 warnings issued from October through
February," only 6 were issued for lateness, and of these 6, 2
were given to Rooke and I to Alper. Two other warnings
were given, one to Rooke and one to Alper, for unautho-
rized use of the telephone.
During the union election campaign, Respondent, again
due to Wooster's urging, approved an employee evaluation
system to be used in granting wage increases. On advice of
counsel, implementation of this system was delayed until
after the election. The system was articulated through the
use of a mimeographed evaluation form with boxes for a
numerical ranking of employees against certain specified
standards, together with blank spaces for narrative com-
ments by supervisors.
A review and analysis of the evaluation forms received in
evidence here, stipulated by the parties as all the evaluation
forms in the possession of Respondent, shows the following
interesting facts. First, only 37 employees out of an em-
ployee complement of 70 to 75 were evaluated at all in the
period beginning March 22, 1978, and running through
September 11, 1978.7' Second, a number of the forms sub-
mitted bear only first names, or first names and an initial,
or, in one instance, a nickname, so that it is difficult if not
impossible to determine who is being evaluated. Third, al-
though there are provisions for numerical rankings based
19 Including two undated warnings for different offenses issued to Sean
Doyle.
20 Even allowing for Wooster's testimony that there were instances where
no form was used, that testimony limits the number of times that situation
happened to 10 or 12.
on stated criteria on the forms, the final determination
seems to depend not on those rankings, but on Wooster's
own subjective. indeed sometimes whimsical, personal com-
ments, in some instances in disagreement with the recom-
mendations of other supervisors. Comments such as "has
proved his usefulness many times over"; "probably one of
our best employees and cooks"; "generally speaking, no
real complaints"; "not approved, has gotten merits al-
ready" are typical of Wooster's remarks concerning em-
ployees.
It further appears that a number of employees who had
been given warnings" were given raises, although it must be
said that no one who had received as many as three warn-
ings was given an immediate raise. In some cases it was
indicated on the forms that those employees would be re-
evaluated in a 2-week or some similar period.22
Finally, it is noted that of the 37 employees rated (ex-
cluding Rooke and Alper) only 9 did not receive raises. Of
these, John DeFazio was rated twice, once on August 18
when it was noted that he had one verbal warning and he
received no raise, and once when he was also rated in an
undated form and, despite the notation of a warning, he
was given a 25-cent raise. Another employee, Terry Dup-
rey, had no warnings but was denied a raise in an undated
rating with the notation that she had already received a
merit raise.23 Both DeFazio and Duprey were named by
Wooster as employees who had opposed the Union. Of a
number of employees cited by Wooster as having supported
the Union, only one, Beth Holt, is listed among those evalu-
ated."
All of these factors lead me to the conclusion that this
employee evaluation system bears very little relation to any
legitimate business interest of Respondent. The reasons are
these: It is just not credible that this system was used over a
period of almost 6 months, in an establishment employing
70 to 75 people, and only 37 of those people were evaluated
(47 to 49 if one accepts Wooster's estimate of rejections
without evaluations). Further. Wooster's use of the evalu-
ations, just as in the case of the written warnings, shows
that there was no system here, but only a random, haphaz-
ard, and subjective approach taken in this alleged "system."
Lastly, the system operated to the detriment of known
union adherents. Only one of these, aside from Rooke and
Alper, was rated at all, and her ratings are annotated with
remarks about militancy and attitude which, while she got
the raises, indicate management awareness of problems
with her.
Both Alper and Rooke were rated under this system and
both were denied wage increases, not so much because of
their work, but because of the warnings each had received.
Rooke was advised that he would be reconsidered in 60
days, Alper was told she would be reconsidered in I month.
21 Including some whose warning records are not included in the series
supplied by Respondent.
12 There is no record of such reevaluation.
21 There is no other rating for Duprey and no indication of when she
received her ment raise.
24 Holt received a 10-cent raise on March 30. despite Wooster's observa-
tion that she had a "militant attitude." Holt received another raise on June 7.
At that time her form reflects a comment from Supervisor Nancy Long that
Long had questioned Holt's "slowness and general attitude."
918
FITZWIA LY'S
D. .4 nausis and Concluions
Respondent's campaign against the Union was carefully
constructed and, from the testimony of Wooster and Kir-
wood, closely monitored by counsel." However, through
the fanfaronade of literature issued during the campaign
there runs a thread of subtle but unmistakable menance.
"Captain Funn," as Kirwood archly described himself, was
letting the employees know that he could also play the part
of Captain Bligh.
In Payroll Chat No. 2. issued in the second week of De-
cember, Kirwood noted the "owner-employee problems."
that is, the union organizing campaign, and closed with ex-
pressions of concern about the restaurant and, significantly,
the sentence "I can't work with enemies." From the whole
tenor of this document it is clear that the "enemies" are the
Union and its supporters.
In Payroll Chat No. 3, issued about the third week in
December, Kirwood emphasized that with a union the at-
mosphere of "delightful flexibility would be gone." This is
accompanied by a veiled but nonetheless plain threat that
the costs of the union campaign would inevitably result in
the loss of benefits. Further, Kirwood attempted to create
the impression that, if the Union won, he might very well
end up "doing less" for the employees.
Payroll Chat No. 9 dated January 12, 1978, concludes
with an anecdote that can only be construed as a prediction
that tips would be distributed on a different basis if the
Union came in.
Payroll Chat No. 12, dated February 2, 1978, apparently
prompted by charges made in union literature, goes on in
the same vien, alleging that "It has been this union activity
which has26 separated us for the first time since we started."
Finally, Information Handout No. 3, issued February 16,
1978, again pointed out the polarization between Respon-
dent and the employees, emphasized the prediction that the
"strain and tension" caused by the Union would "get
worse" if the Union won, and contained two plain misstate-
ments; first that Respondent would no longer be able to
"talk to" the employees if the Union came in: and, second.
that the "Labor Board" would supply the job security pro-
tection offered by the Union.
Through all this Kirwood's concern, worry, and frustra-
tion are evident. This reaction is perfectly understandable.
As I have noted above. Kirwood had expended great efforts
to create a restaurant with a distinctive atmosphere. coop-
erative and happy employees, and satisfied customers.
Whether or not he had succeeded, I cannot say, but he
thought that he had. In these circumstances he could not
help displaying his dislike and resentment of the Union.
which, these documents show, he regarded as a threat to all
that he had labored so hard to create. Further, the testi-
mony of General Manager Wooster shows Kirwood's dis-
like of and animus toward the Union.
25 The fact that the Union did not see fit to file objections to the conduct of
Respondent in this campaign is indicative of the Union's judgment and does
not influence my decision here.
2 In this Payroll Chat one can also observe a marked change of style.
Gone is the hip, "with-it" tone of earlier communications. The tenor is adult
and serious, reflecting what obviously is growing concern on Kirwood's part
about the progress of events.
I find that this hostility and animus toward the Union
extended also to employees known to favor the Union. In
this the evidence shows that Respondent utilized the warn-
ing system introduced by Wooster late in October 1977.
The issuance of two successive warnings to Rooke for tardi-
ness at a time when such conduct was not generally so
treated, coupled with the fact that Respondent was aware
that Rooke was the intellectual leader of the prounion
forces. indicates a desire to place him in a vulnerable posi-
tion in his job and, hopefully, to neutralize him in his lead-
ership role. In addition, as I have noted above, the warning
system was applied in a most arbitrary manner. particularly
as regards the inordinate number of warnings issued in
March 1978. immediately following the union election.
These facts lead inescapably to the conclusion that the
warning system was used by Respondent, both during and
after the campaign, to intimidate its employees during the
campaign. to retaliate against them after the campaign was
over, and to demonstrate the reality of Respondent's pre-
diction that the era of "delightful flexibility" was over,
Kern's Bakeries, Inc., 228 NLRB 1462 (1977).
It follows that the employee evaluation system, instituted
after the Union lost the election and administered, as I have
found, in a manner discriminatory to union adherents, was
likewise invoked in retaliation and reprisal for the employ-
ees' exercise of their rights under Section 7 of the Act. and
to insure against further activities of that sort. Westpoini
Transport, Inc., 222 NLRB 345 (1976).
Having found that both the warning system and the
evaluation system were used by Respondent in an unlawful
manner, the actions taken by Respondent pursuant to these
systems are tainted with illegal motivation. The first two
warnings to Rooke were, as I have found. the result of Re-
spondent's hostility toward his position of leadership in the
prounion group. The warnings to Alper and the others.
prior to the election on March 2. 1978, 1 find to be the result
of these tainted motives, to demonstrate to the employees
the truth of Respondent's predictions of change in the rela-
tionship between them. Aside from this factor, I do not
believe that the subsequent warnings to Rooke and Alper
for using Respondent's telephone to make personal long-
distance calls, or for oversleeping at their newly acquired
apartment in Northampton. indicate disparate treatment or
discrimination other than that afforded others. Both in-
dependently and voluntarily admitted doing wrong in using
the telephone and offered to compensate Respondent for
the cost of the calls. There can be no question, in the ab-
sence of evidence of an established practice, of the impro-
priety of such use of another's telephone, rule or no rule.
But despite this, the evidence shows that Respondent made
an issue out of Rooke's use of the telephone, informing him
that this could have cost him his job, and voicing the anti-
union sentiments referred to above.
Similarly, the oversleeping incident in March, 2 days af-
ter the union election, does not show disparity of treatment
in regard to Rooke and Alper but, together with the inordi-
nate number of warnings issued at or around that time, is
clear evidence of retaliation for the employees' union ac-
tivity. Westpoint, supra,, Mississippi Tank Conmpan. Inc.,
194 NLRB 923 (1972); Schwah's Foods, Inc.. 197 NLRB
1068 (1972).
919
D[)ECISIONS OF NAIONAI. I.ABOR RIlATI()NS BOARI)
Turning to the discharge of Alper on March 30. 1978. it
seems clear that Respondent was determined on that date
to terminate her. Whatever the merits of the alleged falsifi-
cation of the timesheet. it is evident that, when Alper came
up with a plausible explanation of the timesheet matter.
Wooster immediately swung over to her lateness that morn-
ing as the reason ftr her discharge.
Respondent's motivations for this discharge certainl_ de-
rive, in part., from the retaliatory intent I have found in the
implementation of the warning system and the institution of'
the evaluation system. But there is another motive here as
well. Respondent's anger and frustration over the Union is
evident from the campaign literature and from the conver-
sations between Rooke on the one hand, and Wooster and
Kirwood on the other. Rooke was a leader, rather the
leader. of the union forces. Respondent had set him up with
two, then three and fbur. written warnings but, on advice of
counsel, could not take direct action against him. In this
situation I conclude and find that Respondent determined
to take indirect action against Rooke through Alper, his
roommate, who had delivered herself into its hands by her
accumulation of warnings by March 30. The combination
of these two motives, when viewed in the light of my find-
ings of subjective and disparate enforcement of the warning
and evaluation systems, and my finding of discriminatory
intent in the enfircement of both systems, leads to the con-
clusion that the only reason for the discharge of Alper was
her relationship with the Union, through her attachment to
Rooke." N. L. R. B. v. Long Island Airport Limousine Service
Corp., 468 F.2d 292 (2d Cir. 1972); N.L.R.B. v. Fibhers Inter-
altional Corporation, 439 .2d 1311 (Ist Cir. 19711:
27 While ii is not essential Ito this finding, it is interesting to note that
Rooke left Respondent's employ in April 1978 within a month after Alper's
discharge.
. I.R.B. . (irclh Binderlr. Inc.. 536 .2d 447 (Ist (ir.
1976).'
I. 11 R[)Y
Ilasing found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action, including the reinstatement of' .oretta Lynn Alper.
together with hackpay, and the payment to Alper and to
Donald B. Rooke, Jr.. of sums of money equivalent to the
sums of' the raises they were not granted in March 1978.
computed in the manner prescribed in F. If'. Woolworth
Companv, 90 NL.RB 289 (1950), with interest thereon to he
computed in the manner prescribed in Florida Steel Corpo-
ration 231 NLRB 651 (1977). (See also l.i.s Plumbing
Heating Co., 138 NLRB 716 (1962).)
(CO()N(ltrSIO()NS 01 LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described in section II111.
above. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(I) and
(3) of the Act.
[Recommended Order omitted from publication.]
28 General ('ounsels allegation that Respondent viol;ated the law by granl-
ing Alper two days of paid sick leave is not supported by the evidence
Kirwt*xd's action in granting Alper the sick leave was an act f humanity
having no relation to the issues here. tlis reaction to her betrayal of confi-
dence. of course. I have coinsidered in concluding that Respondent was angry
and hostile oser the organizing efforts of its employees.
920