Iron Griddle Restaurant

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1234 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
Linda Lewis and Roger Weekly, Individually and as a
Partnership, d/b/a Iron Griddle Restaurant and
Lynette Ferrari. Case 6–CA–28767
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On November 6, 1998, Administrative Law Judge
James L. Rose issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
and a motion to admit additional evidence. The General
Counsel filed an answering brief in opposition to the
Respondent’s exceptions and an opposition to the Re-
spondent’s motion. The Respondent filed a reply brief.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We deny as untimely the Respondent’s motion to
submit the transcript of the hearings dated March 19,
1997, and April 10, 1997, before the Unemployment
Compensation Referee. We do, however, take judicial
notice of the Opinion of the Commonwealth Court of
Pennsylvania in Ferrari v. Unemployment Compensation
Board upholding the latter body’s denial of benefits to
the charging party in the instant case.2 We find that al-
though the determination of that forum is entitled to con-
sideration, it is not binding on the Board when, as here,
the issues differ. Trayco of S.C., 297 NLRB 630, 636
(1990).
We remanded this case to the judge to reconsider his
credibility findings in view of his misstatement that
Linda Lewis, the Respondent’s majority partner, had not
raised as a defense before the Pennsylvania Unemploy-
ment Compensation Board her claim that insubordination
had been a reason for the discharge of Lynnette Ferrari,
the charging party. The judge, after reviewing the re-
cord, found that although Lewis offered that defense in
the hearing before the Commonwealth, it was not credi-
ble. In support of his credibility determination, he
stressed that Ferrari’s alleged refusal to meet with Lewis
was not raised as a reason for her discharge on any of the
forms Lewis had submitted to the Unemployment Com-
pensation Board in defense of Ferrari’s claim. The judge
also emphasized that Lewis did not include the alleged
act of insubordination on the list of Ferrari’s shortcom-
ings that she intended to read to Ferrari when she fired
her. The judge further noted that although Lewis had
kept an extensive file of notes she had made about Fer-
rari during the course of her employment, she was unable
to produce the written reprimand she claimed to have
prepared for the meeting that Ferrari allegedly refused to
attend. He reiterated that the timing of the discharge
contributed to the incredibility of Lewis’s testimony.
Specifically, the judge found that the Respondent had
offered no plausible explanation for allowing Ferrari to
work the entire next day if the discharge decision had
been made, as the Respondent claimed, the previous day
after her alleged act of insubordination. He also found
that the Respondent gave no plausible explanation for
Lewis’ discussion with Ferrari of Ferrari’s claim for ad-
ditional pay for herself and another employee if the deci-
sion had already been made to fire Ferrari. Thus, the
judge reaffirmed his conclusion that the Respondent had
discharged Ferrari for engaging in protected concerted
activity, i.e., pursuit of a pay adjustment for herself and
another employee.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Memorandum Opinion was filed on April 22, 1998, before the
Board’s remand of the instant case to the judge on July 29, 1998. The
Respondent did not seek its admission into the record either while the
instant case was initially before the Board or while it was before the
judge on remand.
We have, as noted earlier, carefully reviewed the re-
cord and agree with the judge that the credited testimony
does not support the belated rationale the Respondent has
offered for dismissing Ferrari. Thus, we affirm the Find-
ings of Fact and Conclusions of Law in the judge’s initial
decision and adopt the recommended Order in his Sup-
plemental Decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Linda Lewis and Roger
Weekly, Individually and as a Partnership, d/b/a Iron
Griddle Restaurant, Waynesburg, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.

David G. Shepley, Esq., for the General Counsel.
Thomas G. Lemons, Esq., of McMurray, Pennsylvania, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was remanded to me by Order of the Board dated July 29,
1998, to reconsider certain credibility resolutions I made in my
decision of October 16, 1997.1
1 Counsel for the General Counsel filed a motion to submit a brief on
this remand, to which he attached a brief. Counsel for the Respondent
objected and moved that counsel for the General Counsel be sanctioned
for having submitted a brief without authorization to do so. Both mo-
tions are hereby denied. I have not considered the brief submitted by
327 NLRB No. 205
IRON GRIDDLE RESTAURANT 1235
As more fully set forth in my initial decision, this matter
principally involves the discharge of Lynette Ferrari on January
23, 1997. Early that day Ferrari had approached Linda Lewis,
the Respondent’s principal partner, to discuss a pay issue on
behalf of herself and another employee. On consideration of
the whole record, including my observation of the witnesses, I
concluded that Lewis terminated Ferrari because of this pro-
tected, concerted activity; and I discredited the assertion by
Lewis that she had made the discharge decision on January 22.
In addition to a multitude of problems Lewis professed to
have had with Ferrari from the time she bought the restaurant in
1995, Lewis testified that the final act meriting termination was
Ferrari’s refusal to meet with her as directed on January 22.
It is, of course, critical whether the discharge decision was
made on January 22 and before Ferrari engaged in the pro-
tected, concerted activity. In discrediting Lewis (and crediting
Ferrari where there were factual disputes) I relied in part on
demeanor. In addition, I stated, with regard to the asserted
failure of Ferrari to meet with Lewis on January 22:

However this alleged act of insubordination was not given as
a reason on any of the forms Lewis filled out in defense of
Ferrari’s unemployment compensation nor testified to by
Lewis at the unemployment compensation hearing.

The Board found that in fact Lewis did testify about Ferrari’s
alleged refusal to meet her on January 22. The Board therefore
remanded the case that I “reconsider (my) credibility determi-
nations and to prepare a supplemental decision in light of the
erroneous basis (I) asserted for discrediting Lewis’ testimony.”
The statement in my decision that the alleged act of insubor-
dination was not “testified to by Lewis at the unemployment
compensation hearing” was probably incorrect. Although a
transcript of the proceedings was not offered into evidence,
certain portions were read into this record. In answer to a ques-
tion by the Referee, Lewis said, “I waited until the shift was
over and then I wanted to talk to her. I was going to give her a
written reprimand.” Further, Ferrari did testify in this proceed-
ing that “the first (she) ever knew” about the Respondent’s
contention that Supervisor Melba Custer (then Nichols) had
told her to report to Lewis on January 22 was at the unemploy-
ment hearing.
Nevertheless, the rest of my finding concerning this issue
was correct—that the refusal to meet was not given as a reason
on any of the forms Lewis filled out in defense of Ferrari’s
unemployment compensation. Further, Lewis offered into evi-
dence a paper on which she had written a list of Ferrari’s many
faults and which she claims she intended to read to Ferrari on
January 23 when discharging her. Not meeting with Lewis on
January 22 was not listed. Finally, Lewis testified that her pur-
pose in wanting to see Ferrari on January 22 was to give her a
written reprimand she had prepared (or possibly discharge her).
She did not produce the written reprimand at the hearing in this
case because, she testified, she threw it away, notwithstanding
that she kept a file of every other note she had made concerning
Ferrari. I do not believe there was ever such a document.
Ferrari testified that near the end of her shift on January 22
she told Custer that she needed to leave promptly at 1 p.m. as
she had “some place I have to go. And she said no problem.”
Ferrari testified that Custer did not tell her to see Lewis after

Counsel for the General Counsel as the only issue on remand concerns
reevaluating credibility resolutions.
her shift. This version was corroborated by then cashier Heidi
Conrad, who appeared credible, who is no longer an employee
of the Respondent and who has no apparent stake in the out-
come of this matter. Conrad did testify that earlier on January
22, following appearance at the restaurant by Ferrari’s husband,
Lewis told her to tell Ferrari she wanted to see Ferrari. In fact
Ferrari did meet with Lewis as requested.
It is unclear exactly when the Respondent first raised Fer-
rari’s alleged failure to meet with Lewis as a defense to the
unemployment claim (and the allegations here). While Lewis
did testify, in answer to a question by the Referee, that she
wanted to see Ferrari to give her a reprimand, Ferrari’s failure
was not addressed in the Referee’s decision, suggesting it was
not asserted as a defense at that stage. Only at the appeal level
was this alleged act of insubordination considered. The appeal
panel found this defense credible and dispositive.
Regardless, the fact that Lewis may have testified to this al-
leged act of insubordination at the unemployment hearing, and
raised it as a defense even before the Referee, does not prove it
happened. I conclude it did not. I credit Ferrari and Conrad
and discredit Lewis and Custer.
Having reviewed the record, I find no basis to revise my
evaluation of the demeanor of the witnesses, to reverse my
credibility resolutions or to change my ultimate conclusion that
Lewis discharged Ferrari on January 23, 1997, because Ferrari
wanted to discuss a pay issue on behalf of herself and another
employee. Specifically, I discredit Lewis’ testimony that she
made the decision to discharge Ferrari on January 22, after
Ferrari failed to meet with her as directed. I believe this was
false testimony offered for the purpose of proving that the dis-
charge decision was made prior to Ferrari having engaged in
protected concerted activity on January 23. Again, I base this
in part on my perception of Lewis’ demeanor, but also on the
inherent incredulity of her testimony. For instance, Lewis gave
no plausible explanation of why, if the discharge decision was
made on January 22, Ferrari was allowed to work a full shift on
January 23; or why, as Lewis admitted, she even discussed the
pay issue with Ferrari on January 23; or why this alleged act of
insubordination was absent from the list of misdeeds Lewis
intended to read to Ferrari when discharging her and the unem-
ployment compensation forms.
I therefore adopt and reaffirm the Findings of Fact and Con-
clusions of Law in my initial decision and recommend that the
Respondent be ordered to cease and desist from engaging in the
unfair labor practices found and take certain affirmative action
designed to effectuate the policies of the Act, including
reinstating Lynette Ferrari to her former job, or if that job no
longer exists, to a substantially identical position of
employment and make her whole for any loss of wages or other
benefits she may have suffered in accordance with the formula
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950) and
New Horizons for the Retarded, 283 NLRB 1173 (1987).2
ORDER
The Respondent, Linda Lewis and Roger Weekly, Individu-
ally and as a Partnership d/b/a Iron Griddle Restaurant, their
officers agents, successors and assigns, shall
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees because they engage in concerted activity protected by the
National Labor Relations Act.
(b) Threatening employees with discharge should they en-
gage in concerted activity protected by the National Labor Re-
lations Act.
(c) Interfering with employees rights under the National La-
bor Relations Act by telling them that an employee has been
discharged for contacting the National Labor Relations Board.
(d) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Offer Lynette Ferrari immediate and full reinstatement 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 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 this decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against her in any
way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked “Appendix.”3 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed its facility involved in these proceedings, the

3 If this Order is enforced by a judgment of a United States court of
apeals, 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.”
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since the date of this
Order.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has 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 con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against
employees because they engage in concerted activity protected
by the Act.
WE WILL NOT threaten our employees with discharge
should they engage in concerted activity protected by the Act.
WE WILL NOT interfere with our employees rights under
the Act by telling them that an employee has been discharged
for contacting the National Labor Relations Board.
WE WILL NOT in any like or related manner, interfere with,
restrain or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Lynette Ferrari immediate and full rein-
statement to her former job, or if that job no longer exists, to a
substantially equivalent position of employment and WE WILL
make her whole for any loss of wages or other benefits she may
have suffered as a result of our discrimination against her, with
interest.

LINDA LEWIS AND ROGER WEEKLY,
INDIVIDUALLY AND AS A PARTNERSHIP,
D/B/A IRON GRIDDLE RESTAURANT