Rusty Scupper Restaurants

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 956 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borel Restaurant Corporation, d/b/a Rusty Scupper
Restaurants, and Patrick J. Passanante and
David Weber. Cases 6-CA-12419 and 6-CA-
12433
August 27, 1980
DECISION AND ORDER
BY' CHAIRMAN FANNING AND MEMBERS
PENF. I.IO ANI) TRUESDALE
On June 5, 1980, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and a motion to
reopen the record.'
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 affirm the rulings, findings,2
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Borel Restau-
rant Corporation, d/b/a Rusty Scupper Restau-
rants, Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
' We hereby grant the Respondent's motion to reopen the record for
the purpose of receiving into evidence the charge in Case 6 CA-11924.
also inolving the Respondent. The Administrative Law Judge errone-
ousl) stated that said charge was filed subsequent to February 16, 1979.
Whcn, in fact. it was filed on December 28, 1978. We find that the cor-
rection of this factual mistake has no effect on the findings and conclu-
ions of the Admilnistrative Law Judge in the instant proceeding, which
we mnow affirm.
2 Thile Respondent has excepted to certain credibility findings made by
the Administrative aw Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
,inces us that the resolutions are incorrect Standard Dry Wall Products,
In(.., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
: I the absence of exceptions, we hereby adopt, pro frirna. the Admin-
istrative Las Judge's dismissal f the complaint as to former employee
Dasid Weber Case 6-CA 12433
DECISION
STATEMEN O: THE CAStE
THOMAS'A. RICCI, Administrative Law Judge: A hear-
ing in this proceeding was held on December 17 and 18,
1979, at Pittsburgh, Pennsylvania, on complaint of the
251 NLRB No. 134
General Counsel against Borel Restaurant Corporation,
d/b/a Rusty Scupper Restaurants, here called the Re-
spondent or the Company. The complaint issued on July
19, 1979, based on separate complaints filed, one by Pat-
rick Passanante (Case 6-CA-12419), on May 31, 1979,
and another by David Weber (Case 6-CA-12433), on
June 4, 1979. The issues presented are whether both of
these two men were illegally discharged by the Respond-
ent in violation of Section 8(a)(3) of the National Labor
Relations Act, as amended. Briefs were filed by the Gen-
eral Counsel and the Respondent after the close of the
hearing.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. -rHE BUSINESS OF THE RESPONDFSNT
The Respondent is a California corporation engaged in
the operation of restaurants in various States of the
United States, including one in the city of Pittsburgh,
Pennsylvania, the one facility involved in this proceed-
ing. During the 12-month period preceding issuance of
the complaint, the Respondent derived gross revenues in
excess of $500,000 from the operation of its Pittsburgh
restaurant. During the same period it purchased goods
and materials valued in excess of $50,000 directly from
out-of-state sources for use in this facility. I find that the
Respondent is engaged in commerce within the meaning
of the Act.
11. rHE LABOR ORGANIZATION INVOLVED
I find that Hotel Restaurant Employees and Bartend-
ers International Union, Hotel, Club, Motel, Restaurant
and Bartenders Union, Local Union No. 59, AFL-CIO,
herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR I.ABOR PRACTICfI PICTURE
The essential question to be decided in this case is
whether a principal union activist was unlawfully dis-
charged by the Respondent 3 months after the Union
had failed to win majority status in a Board-conducted
election. When told of his summary dismissal, the reason
stated by the manager who discharged him was that he
had violated a working rule. The theory of complaint is
that this was but a pretext hiding an illegal motive-dis-
crimination against the employee in retaliation for his
prounion activities, and therefore a violation of Section
8(a)(3) of the Act. The proof for this allegation is said to
be a number of related facts, as will be listed below. In a
sense, it is an inference case: does the record in its entire-
ty suffice, by a preponderance of the substantial evidence
on the record as a whole, to support the complaint? See
NL.R.B. v. Gle,t Raven Silk Mills, Inc., 203 F.2d 946
(4th Cir. 1953).
Certain underlying and pertinent facts are clear on the
record and need not be discussed extensively here, de-
spite belabored and repetitive talk by witnesses at the
hearing. Self-organizational activities started in this res-
taurant in early December 1978, an election petition was
95(h
RUSTY~ SCUPPFR RE K~STAURAKNIS 7
filed by the Union on December 28, and an election was
held on February 16, 1979. Among the approximately 9()
eligible employees in all categories who voted. the most
active ones in the campaign were Joe Balsamo and Pat-
rick Passanante, two waiters. It was theC who initiall
contacted the Union. and theN arranged and conducted
meetings among the employees. At the Labor Board
hearing before the election Passanante was one of the
four employees present on behalf of the Union. He
talked up the Union among fellow employees, solicited
signatures to union cards, and posted prounion literature
on the bulletin board inside the restaurant. Together with
Balsamo he wrote letters to the employees, on which his
name appeared as one of the organizers.
Management representatives, including those who
were involved in Passanante's later discharge, knew of
these activities. David McGill, district manager, Robert
Hamilton, manager of this one restaurant, and Laurel
Fortin, an assistant manager, saw him post the union no-
tices and they tore them off the board right after he put
them up, telling him he should not do that because it was
private property.
The Respondent was opposed to having a union repre-
sent its employees, carried on a campaign to defeat the
Union, and even threatened-before the election-to dis-
charge employees if they persisted in their resolve. There
is the following testimony: (I) that, in December, Man-
ager Hamilton told an employee named Ken Maggard
"that the union was getting on his nerves, and with Mr.
Passanante's involvement with the union, he was going
to have to go whether the union got in or not"; (2) that,
also in December, Hamilton called Passanante to his
office and, among other things, asked was he going to
the union meeting, "if you bring a Union in here, you're
trying to talk for a hundred employees .... This res-
taurant would close down . . . all of these people would
lose their jobs . . . do you realize that often times Union
organizers like yourself have their eyes gauged out
.... (3) that the next day, after Passanante had attend-
ed the union meeting, Patrick Walt, another floor man-
ager, asked him to identify the waitresses who had at-
tended, adding, "If any of his girls had attended that
meeting . . . he was going to have them fired .... ";
(4) that, in late January, he had another talk about the
Union with District Manager McGill, who told him: "He
was surprised and disappointed that I was involved with
this . . . . He also told me that he was aware of these
letters that were being sent out and he had received
copies of them and that's how he learned about my in-
volvement . . . at this point he got real upset and he
threw his beer bottle down and smashed it and said that
he was tired of all this talk and it was his job to see that
this union didn't get in .... "; (5) that also in Decem-
ber, Assistant Manager Walt asked employee Weber did
he know anything about the Union, got a no in response,
and added, " . . if he found out that any of his girls
were involved in it, I believe in reference to his lunch
waitresses, that he would fire them."
After the Union lost the election, on February 16, by a
vote of 30-64, it filed unfair labor practice charges
against the Company, alleging restraint and coercion
before the voting; that case was settled, with a nonadmis-
sion clause, on March 20., l179. Ihe charges in the case
at bar were filed later, but that sclttleilent ,n as not st
aside. I therefore make nio fiidiri o illcgallity in all-
thing the Respondcnt. or ils agents. did before March 2()
But it is still a fact, if only hbecaus the tcsltimon is
credible, that the manaicgenlit relprL'seltatIXc ̀ s said lat
they said, did what thcx did. revxealed their state of mini
both with respect to the unilon movement anid it h re-
spect to Passanante. That these facts bear a direct rela-
tionship to the inference question raised by what came
later cannot be denied. orthern Ca/lijrria District Coun -
cil oj' Ilodcarrierx and C(ommonn I Laborers of .lriercn.
.4FL-CIO. tc. (Joseph .Mohamed. Sr.. an Individual, 1'h/.
a Josepih' Landscaping Service), 154 NlRB 1384 (1965)
The Discharge of Passanante; May 24 and 26
At or about 10:30 p.m. on May 24. a waiter and a
waitress-Passanante and Carol Sindell-sat awhile at
one of the dining tables having a drink ith two custoLm-
ers, visiting Englishmen who were intrigued by their
graduate student status and therefore in' ited them to
enjoy a drink with them. Night Manager Donald NMiang,
in charge that evening, saw them doing that. The tl o
employees went home that night in ordinary fashion.
Passanante worked a full shift the next night. Friday, and
again the following evening, Saturday. After midnight of
May 26, when work had been finished, he wvas called to
the office and discharged. There is conflicting testimony
as to what conversations went on among the employees
and managers both in the eveninig of May 24 and at the
discharge conversation. But there are certain facts, abso-
lutely clear either on the testimony or based on the Re-
spondent's contemporaneous records, that are immediate-
ly pertinent to what happened and to the eventual ques-
tion of motive.
Swindell and Passanante were doing exactly the same
thing on May 24 while drinking with the customers; if it
was a violation of any working rule for Passanante to
have been doing it, it was precisely the same offense
being committed by Swindell. Every night, when the
restaurant closes, the night manager makes a written
report of anything needing recording. For May 24,
Mang's report, received in evidence, includes the follow-
ing statement: "Pat caught sitting at table drinking wine
and smoking cigarette before signing out-severely repri-
manded-next strike 3 out." There are other reports
made out by the managers, these separately for each em-
ployee, or at least for the waiters. Such a report, limited
to Passanante and also ritten in Mang's handwriting,
reads: "... 5/24/79-Had cigarette and wine before
signing out--was reprimanded."
Mang testified that at the end of the May 26 shift he
told Passanante he was being fired because of the MNay
24 sitting and drinking with the Englishmen. Whether
Mang. or Hamilton, who was then with him, also said
anything else will be decided below. Not only was Sinl-
dell not discharged, but she was given not one word of
criticism for her own sitting and drinking with the cus-
tomers.
Why wsas Passanante discharged'? W'hy did the Re-
spondent "discriminate"--to use a ord fronl the statl-
R1'S'1'Y SCI!PPER RESTIRANI'S 5-,
')5X DECISIONS OF NATIONAL LABOR REI.ATI()NS O()ARI)
ute-against him, while ignoring like conduct by Swin-
dell'? In a very real sense this question of intent involves
an element of credibility. There is no direct proof against
the Respondent. as would be the case had Mang told
I'assanante he was being fired because of his union activ-
ities. But when his earlier written statements say one
thing, and his assertion, 2 days later, articulates some-
thing quite different as to what was in his mind, can he
be believed? There are facts pointing both ways and, of
course, the lawyers in their briefs take everything out of
context and rest exclusively upon those facts of record
which lend support to their conflicting contentions.
After careful consideration of all of the pertinent factors,
as well as the demeanor of the witnesses, I am con-
vinced, without doubt, that the Respondent's real reason
was to rid itself of a persistent union pusher who refused
to discontinue his activities in concert with the other em-
ployees.
1. In truth no fixed rule against drinking was enforced
either before or after the May 24 incident. The heart as-
sertion in the Respondent's defense is that Passanante
had violated a written rule of the house; and it is true
there does exist a manual of conduct, or a set of rules,
which does say there shall be no drinking while employ-
ees are "on duty." These rules are shown to employees
when hired, and are available in the office for frequent
reference. Not all the employees were shown precisely
the written rules, and some had recollection of seeing
them. But that there was a rule against drinking "on
duty" is admitted by all.
What did the phrase "on duty" mean in practical ap-
plication in this restaurant? The total testimony, includ-
ing that of the supervisors, is by no means clear on this
very important point. The clearest thing shown is that an
awful lot of drinking of all kinds went on right inside the
restaurant before the employees went home, the compa-
ny itself paying for a good deal of it. In plain language,
when employees are no longer "on duty" they go home.
This means there has always been a gray area between
still being "on duty" in the restaurant, and being in a
transient stage when drinking is permitted.
The Respondent makes a special point of saying that,
at a meeting of all employees held on May 22, the no-
drinking rule was specially reaffirmed. Actually, the
meeting was called as simply one of many the Company
regularly holds, and the drinking item was no more than
one of all sorts of working conditions that were re-
viewed. As employee Weber recalled it, Mang, the night
manager, in speaking of the rule said waiters should not
drink "until we were finished." The witness then ex-
plained that in practice this meant that when doing
"cleanup." also part of their work, the waiters were per-
mitted to have a drink. Later that same day, May 22, to-
wards the closing of business, according to Passanante's
testimony, Manager Hamilton bought drinks for three
employees although "I then continued my work until all
of the customers had gone .... " When this happened
Hamilton had not yet "signed Passanante out" for the
night. With this, employee Weber's statement at the
hearing, "there is a clarification between finished with
your tables, and finished with all your work," takes on
significant meaning. Weber added something else. He
said that that very night, while he was working on 25
setups [these are table preparations of silverware and
napkins for the next day], Manager Mang saw him carry-
ing and drinking a glass of beer, and told him no more
than not to do that. Weber just drank his beer more
quickly and continued on with his work. Mang's re-
sponse to this, in his later testimony, is very poor. First
he said the Weber beer incident came before the May 22
company meeting. In practically the next breath he said
that while Keller, another waiter, was working on setups
work, "after the meeting," Weber entered with the beer
in his hands and that he, Mang, then said only he did not
want to see the employees drink beer "prior to being
signed out." With this from Mang, what becomes of the
argument, by company counsel in his brief, that a final
warning of discharge must be read into the company
meeting of that very day?
There is evidence of other like instances of drinking
inside the restaurant before people "signed out," but it
would be pointless to reiterate it all here. Even the
method of signing out added to the vagueness and ambi-
guity of whatever the no-drinking rule may have been.
The employees have individual cards showing how many
hours they work each day; it is not a timeclock punch-
card. They bring it to the manager in charge who just
notes the number of hours the employee has worked.
Time and again the manager was not immediately availa-
ble and made no notation until the next day. Again. on
this record, it is not possible to say exactly when any
employee was "off duty." Finally, that there was much
drinking by employees is strongly indicated by the fact
that the Company keeps a record of all the free drinks its
managers give away to the waiters, waitresses, and
cooks. This is for business records, I suppose, as a regu-
lar expense of running the business.
2. There is persuasive evidence that no one, since the
very opening of the restaurant in 1976, was ever dis-
charged for violating a no-drinking rule-i.e., before Pas-
sanante in 1979. In defense the Respondent produced
about a dozen single sheets from its records; its managers
said all the rest, in the hundreds and dating back 3 years,
were all inadvertently thrown away or destroyed-a
very unlikely story. McGill, now the district manager
over a number of the Respondent's restaurants in several
cities, said he did fire a man back in 1976 when he was
manager here, but he had no record to prove it. Two
discharge records, both dated December 16, 1976, were
offered to prove others had been fired for drinking. On
their face they reveal, instead, that each man was let go
because he was "caught stealing beer." The total defense
being that Passanante was discharged for just cause, this
sort of document serves all the more to discredit the
entire defense.
3. To offset the compelling indication of a reversal of
position in management-first deciding with finality only
to criticize Passanante and 2 days later to discharge
him-Mang said he was only in training at the time and
therefore had to consult others before taking final action.
But the fact is he had worked in another of this Compa-
ny's restaurants for 3 months before coming here more
than a month before firing Passanante. He also said, with
RUSFY SCUPPER RESTAURA\NTS
absolute clarity, that in this restaurant he was alone in
charge during the evening shift except for perhaps "25
percent of the time." And the general manager also ad-
mitted, directly, that "any manager has the power to fire
a man alone." To me this means Mang not only had, but
in fact did exercise, the authority to decide what man-
agement's act should be in reaction to what happened on
his shift and under his jurisdiction. Therefore, his twice
having recorded just a critical comment about Passan-
ante means that, when higher management made a differ-
ent decision, it was based on something other than the
drinking incident.
4. Passanante had a good record in the course of his
employment. He started in June 1977 and was highly
thought of. In May 1978 he was chosen to go to New
Jersey to help open a new restaurant of the Company
and to train new employees. As late as October 1978,
before the union activities started, the district manager
complimented him and made him a gift of two bottles of
wine. He was late on occasion and even criticized for de-
livering food too slowly sometimes. But certainly the
hint in the Respondent's position, that Passanante's
record was in part a factor in the decision to discharge
him-not even claimed to have been stated at the time of
the discharge-is unconvincing.
One manager recalled an incident about a customer
"walking out"-i.e., not paying for his dinner-and said
it was Passanante's fault. But another witness, Supervisor
Fortin, asked about it, said "it was questionable" whether
Passanante had been to blame.
5. When Passanante sat at the Englishmen's table
having a drink, he had taken off his waiter's apron, as
even Mang admitted. This was the only item of clothing
that could be called work clothing among the waiters.
He said he was through with his work duties and had al-
ready been looking for the manager to sign him out on
his workcard. At the hearing Mang disputed Passanante's
insistence that the restaurant was already closed to out-
siders and that only incidental cleanup chores remained.
But Mang also admitted he was himself eating dinner at
another table. I doubt the manager of a restaurant of this
kind would have dinner so publicly while the regular
business is still going on.
More important, Swindell, the waitress, was still serv-
ing regular dinner to two other customers at still another
table, her own, during the very time she also sat and
drank-and smoked a cigar! Mang saw all this, yet did
nothing to punish her, not even making a paper record
of oral criticism. In an attempt to explain the disparate
treatment, he three times said flatly, "I did not see her
drinking." And then: "I believe there was a glass of beer
there in front of her."
Another tidbit. Passanante testified that, after Mang
had said something to Swindell about not drinking while
she had customers to serve, he, Passanante, got up and
asked was what he was doing all right, and that the man-
ager said only "next time make sure that you find me [to
sign out] when you're done with your work." Mang's
version of that talk is that there was "mention about
signing out" and that he told Passanate "don't try to in-
terpret the rules and bend them to your own advantage."
Shortly thereafter he made the record entry that Passan-
ante had been "reprimanded." Then came the following
on the record:
Q. (By Mr. Szuter) At the time that you wrote
that, had you already made a decision to terminate
Mr. Passanante'
A. My feeling was, that I was going to terminate
him, that was going to be my decision .
On this question of Passanante's discharge, wherever
Mang is contradicted on this record, he cannot be be-
lieved.
6. In addition to all the foregoing, there is the clear
truth, set out above. that throughout the union campaign,
before the election, management was antagonistic to Pas-
sanante's union activities and expressed the intent of get-
ting rid of him. The union animus, necessary, of course.
in any inference case, is unquestionably present.
7. Passanante's persistence in speaking out to further
the interest of the employees as a group-concerted ac-
tivities-continued despite the Union having lost the
election. Indeed, management's resentment of this actixi-
ty, as it had resented his earlier activities, was evidenced
again only 4 days before he was discharged. In the be-
ginning of April, at one of the regular meetings of em-
ployees, all the supervisors appeared and District Man-
ager McGill announced a certain increase in their take-
home pay, the details of which are not important here.
In the course of the general discussion. Passanante asked
McGill whether the Company intended to continue disci-
plining people by forcing the less desirable shift assign-
ments upon them, and McGill promised that would not
happen again. But later, almost a week before the May
22 meeting (called, according to the defense, to stress
obedience and compliance by the whole staff), a waiter
was put on the least desirable shift for 5 days strictly be-
cause he had been caught drunk while waiting on tables.
Again speaking directly to McGill, Passanante spoke up
at the May 22 meeting and protested, on behalf of all,
against this disregard of the Company's promise not to
do that. "I once again raised my hand and told them that
a lot of the night floor employees were upset because
Tony Klopotowski was reprimanded through the sched-
ule." This time McGill's reaction was: ". . . [he] stood
up, threw down his papers on his chair and said 'Passan-
ate, you raise my blood pressure, that's none of your
business .... " As to this incident, McGill's testimony
does not conflict with that of Passanante.
If the district manager's then revealed resentment of
Passanante's outspoken "attitude"--the word used by
Hamilton when firing the man, according to the employ-
ee-in speaking on behalf of the group, be put together
with Mang's story that, after closing the May 24 drink-
ing incident with a mere reprimand, he talked the matter
over with the district manager and decided to fire the
man instead, the conclusion of illegal motive in the dis-
charge becomes clearer.
With this, we come to the final discharge conversation
on May 26. Passanante testified that in the office Man-
ager Hamilton talked to him while Mang stood by. Ac-
cording to him, Hamilton began by saying. . . been
watching you and we don't like your attitude." When
Q 5 C
960 D[)CISIONS OF NATIONA. LABOR RELATIONS BO()ARD
the waiter asked "what did the manager mean by atti-
tude," Hamilton continued, "... we've been watching
you and we don't like your attitude and I'm afraid that
we're going to have to terminate you." As Passanante
persisted in knowing the reason, Hamilton spoke of the
drinking incident 2 days earlier and said Passanante
should not have done that. Passanante then protested
that he had not violated any rules, that he had been fin-
ished with his actual work, and called on Mang to admit
he had said "it was no big deal" when it happened. As
Mang said "yes", still according to Passanante, Hamilton
cut him off, saying: "I don't care . . . you're still termi-
nated," repeating the story about the drinking incident,
and then added, "I got rid of Joe Balsamo and now, I'm
rid of you."
Hamilton's story is that it was Mang who did the talk-
ing, not he. All he recalled is that at one point he said
the reason why it had taken 2 days to fire the man was
because Manager McGill had to be consulted first. As to
Mang, all he recalled was that he told Passanante about
"the severity" of his drinking offense on May 24, and
that he and Hamilton had decided to discharge him.
Mang also said there then "was a small discussion, which
started into a discussion," but could remember nothing
more. Both supervisors said there was no mention of Bal-
samo's name.
In the light of the entire record, the demeanor of the
witnesses, and the inherent improbability of the story the
managers told, I credit Passanante against both Hamilton
and Mang as to this conversation. Talk of "your atti-
tude," of course, is ambiguous, and could suggest any
number of unspoken reasons. Mention of Balsamo, the
other principal union activist who had quit voluntarily,
does add to the inference of antiunion motivation. But
ultimate decision on the basic question must rest on all
the related facts, as listed above. I must find that man-
agement's real purpose was to get rid of a union pusher,
and not merely to discipline an employee. I find that by
discharging Passanante the Respondent violated Section
8(a)(3) of the Act as alleged in the complaint.
I must add, however, that even were it a fact that Pas-
sanante had violated a rule of conduct while at work,
this record would support the complaint allegation of a
pretext and union animus. The disparate treatment of this
man, as distinguished from the many others who were
also seen drinking but were criticized only orally, par-
ticularly when compared to the indifference shown to-
wards the waitress Swindell, whose offense, if offense it
was, far outdid Passanante's, compels the finding of ille-
gality.
The Respondent called, as a witness, an electrical re-
pairman who, regularly employed elsewhere, some-
times-"in an emergency"-goes to this restaurant to
work on defective electrical equipments. He testified that
during the election campaign among the Respondent's
employees, while he was one night, or day, sleeping over
where Swindell lives with some other lady, he overheard
Swindell talk to some union agent on the phone "stuff
like" union activities, "joining the union," and holding
meetings. The witness continued that he later had occa-
sion to report this to McGill, who only "shrugged."
Swindell denied having received any such call at the
time this man stayed over with her friend, and the
record shows no evidence of particular union activity by
that waitress. I believe her against the Company's wit-
ness.
Was Weber Discharged?
The second allegation of wrongdoing in the complaint
is that the Respondent discharged David Weber also be-
cause of his union activities. Here the question appears to
be twofold-was he discharged, and what was the
reason?-but it is really only one. The whole case stands
or falls on the testimony of Weber, who said Manager
Mang discharged him and told him, while dismissing
him, that the reason was that the Company "didn't need
any more Union sympathizers." Mang denied both that
he discharged the man or that he said anything like that.
It is strictly a matter of credibility between the two.
Now, while it is true that, as to the discharge of Pas-
sanante Mang did not give a credible story, it does not
follow that weaknesses, and inherent credibility, in the
testimony of Weber must be ignored. As in any direct
issue of credibility between two witnesses at a Board
hearing all factors that bear a relation to it must be con-
sidered. If Weber's testimony in totality and in the light
of other very revealing elements rings too hollow, he
must be discredited even against Mang in this same case.
At midnight of May 26, when Passanante was fired,
Weber was finishing up his work on the same shift. With
him was still a third waiter, Ken Keller. Upon emerging
from the office after being dismissed by Mang, Passan-
ante told the other two what had happened, whereupon
they went into the office together to talk to the night
manager. The whole point of Weber's testimony is that
Mang then and there discharged both waiters, explicitly
to curb further union activities. He said it all took only a
few minutes and that as they came out they told Passan-
ante what had happened and the three then left for home
together. Passanante filed his charge against the Compa-
ny on May 31. Apparently Weber had to think it over,
for he did not file his charge until June 4. And Keller,
also fired on the spot according to Weber, does not
appear in the complaint and did not show up as a witness
at the hearing.' His failure to at least support the testi-
mony of his coworker, to say nothing of ignoring what
is now said to have been an absolutely illegal act against
him, is not convincingly explained by the assertion, at
the hearing, by his wife, that he needed a reference from
the Respondent for other employment. That was long
ago, and between issuance of the complaint, in July 1979,
and the day of the hearing in February 1980, the Compa-
ny either gave him a favorable recommendation or it did
not. If it did not, he would have come to the hearing,
and the General Counsel would have added him to the
complaint. If the Company did oblige him with a good
i Denise Keller, Ken Keller's wife (she apparently married him after
the discharge events of May 26) and also a night-shift wairess, testified
she called District Manager McGill oin Monday. May 28, and spoke to
him for an hour protesting hosw unfair it had been of the Company to)
have fired Passanante. She argued at length. and he rwas ympathetic o-
wards her But she never meniionled the now alleged discharge of her
boyffriend 2 days earlier! The explalation for this must he that she knc\:
Keller had lnot been discharged
RUSTY SCUPPER RESTAURANTS 961
reference it would indicate absence of any animosity to-
wards him.
When Weber entered Mang's office that night he was
an angry man, spoiling for a quarrel. Referring to before
he went into the office, he testified: ". . . we met Mr.
Passanante [as he emerged from the office], he had his
coat on and we asked where in the hell was he going."
When Passanante answered "they had used that drink"
as an excuse to fire him, Weber came back with ". . .
did they give you a real reason or what was the story,
did they just use that drink . . ." when Passanante again
related what happened, still according to Weber's recol-
lection, he said: "I went up to him [Mang] and I said
what the hell's going on with Passanante?" Mang said
Passanante had been fired. Again: "I said, you know
that's a shitty reason .... "
It was after this outburst that Mang, if Weber is to be
credited, "became red in the face and he said we're
going to get a new attitude on this night floor . . . he
said they didn't need any more Union sympathizers and
he looked at me and he said you two are fired also."
Mang's testimony is simply that Weber and Keller ap-
proached him, that Weber said, "I won't be in tomor-
row," that he asked, "Why, what's the problem," and
that Weber then said no more than "I quit." Mang added
that Keller then said only "me too." According to Mang,
not another word was spoken; he did not ask for any
other explanation and the two men gave no stated
reason.
As stated at the outset of this Decision, to prove the
commission of an unfair labor practice the General
Counsel carries an affirmative burden; it is a positive one.
When the question rests upon the credibility of a single
witness, as it does here, the man's story must be convinc-
ing, rationally believable in the circumstances of the
case. When the weight of the evidence is equally bal-
anced, as here, when the plausibility of two conflicting
stories is equally weak, the complaint must be dismissed.
Mang's story, that the men did not say why they were
quitting and that he did not ask, certainly seems wanting.
Yet it is a fact Weber was in a state of mind strongly in-
dicating an employee determined to throw his job into
the face of the boss. He was not a unioneer, and neither
was Keller. No reason appears, on this record, why
Mang should have viewed either of them as supporters
of Passanante's efforts. People have been known to quit
their own jobs in resentment of the mistreatment of their
fellow employees. These men believed, and had reason
to believe, Passanante had been wrongly discharged.
But there is something else that in my opinion touches
squarely upon the point at issue. Weber never received
payment for his last week of work until a month later.
He never came back to the Company to ask for it, just
waited until it was brought to him. If there is one thing a
man will do when he is summarily discharged, it is to
ask for his money immediately. In fact, this is what Pas-
sanante did.
I cannot credit Weber's version of his final conversa-
tion with the manager and, therefore, in the absence of
the necessary evidence that he was discharged, I shall
recommend dismissal of the complaint as to him.
IV. HE FlFFECIS OF iE UNFAIR I ABOR PRACI ICFS
UPON COMMERCE
The activities of the Respondent set forth in section
Ill, above, occurring in connection with the operations
of the Respondent described in section I, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCI.USIONS OF LAW
1. By discharging Patrick Passanante for engaging in
union and concerted activities, the Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER 2
The Respondent, Borel Restaurant Corporation, d/b/a
Rusty Scupper Restaurants, Pittsburgh, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because of their union or concerted
activities.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to join, form, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Patrick Passanante immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent one, without
prejudice to his seniority or other rights and privileges.
(b) Make Patrick Passanante whole for any loss of pay
or any benefits he may have suffered by reason of the
Respondent's discrimination against him, with interest
thereon to be computed in the manner prescribed in F.
W Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).1
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
2 In the eent no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National l.abor Relation HBoard. the find-
ings. conclusions, and recommended Order herein shall, as proslided in
Sec 102 48 of the Rules and Regulations. he adopted hb the Board and
become its findings, conclusions and Order. and all objectionl hercto
shall be deemed wkaived for all purposes
:' See, generally, Ii Plumbinhng & Heaung C(o. 138 NlRH 71t (9t62
RUSTY SCUPPER RESTAURANTS 61
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place of business in Pittsburgh, Pennsyl-
vania, copies of the attached notice marked "Appen-
dix. "4 Copies of said notice, on forms provided by the
Regional Director for Region 6, after being duly signed
by its representatives, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
WE wl.l. NOT discourage membership in Hotel,
Restaurant Employees, and Bartenders International
Union, Hotel, Club, Motel, Restaurant and Bartend-
ers Union, Local Union No 59, AFL-CIO, or in
any other labor organization of our employees, by
discharging any of our employees because of their
membership in, or activities with respect to, the
above labor organization.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
bargain collectively with representatives of their
own choosing, or to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
WE WtI.. make whole Patrick Passanante for any
loss of pay he may have suffered as a result of his
discrimination against him, with interest.
WE WILL offer Patrick Passanante immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed.
BOREI. RESTAURANT CORPORATION, D/B/A
RUSTY SCUPPER RESTAURANTS