Sambo's of Everett

National Labor Relations Board - Board DecisionsFeb 1, 1974

208 N.L.R.B. 886 (N.L.R.B. 1974)

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sambo 's Restaurants, Inc. d/b/a Sainbo's of Everett and Culinary Workers and Bartenders Local No. 451, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 19-CA-6389 February 1, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PET'. ELLO On October 29, 1973, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,I 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Everett, Washington, on September 18 and 19, 1973. The charge was filed May 2, 1973, and amended May 3 and 14, by Culinary Workers and Bartenders Local No. 451, Hotel and Restaurant Employ- ees and Bartenders International Union, AFL-CIO (herein called the Union). An amended complaint issued Septem- ber 9, 1973, superseding in all respects an original complaint that had issued June 12, alleging that Sambo's Restaurants, Inc. d/b/a Sambo's of Everett (herein called Respondent) had violated Section 8(a)(1) and (3) of the National Labor Relations Act. The parties were given opportunity at the trial to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and Respondent. Issues The issue is whether Respondent's discharge of its employee, Clifton Ward, on April 13, 1973, and its subsequent refusal to rehire him, were prompted by Ward's union sympathies, violating Section 8(a)(3) and (1) of the Act. FINDINGS OF FACT I. BUSINESS OF RESPONDENT Respondent, a California corporation, owns and/or exercises operating control over approximately 300 restau- rants in the United States, including the one in question in Everett, Washington. Respondent realizes an annual gross income exceeding $500,000, and annually purchases and causes to be transported into Washington directly from suppliers outside that State goods and materials of a value exceeding $50,000. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's Everett restaurant had 20 or so employees at all relevant times , about three-fourths of whom were employed as part of distributive education or work-study programs in collaboration with Mariner High School. The Union began organizing the employees in March 1973.1 On April 4, it petitioned for an NLRB election.2 Withdrawal of that petition was approved by the Regional Director for Region 19 of the NLRB on April 30. On August 30, the same Regional Director approved an agreement in partial settlement of the present charge requiring that Respondent recognize the Union as the bargaining representative of an all-employee unit of Respondent's Everett employees. Clifton Ward, the alleged discriminatee, began working for Respondent as a busboy on January 2, 1972. He was promoted to cook in the summer of 1972, a position he held until the discharge in question, on April 13. He received at least one wage increase , signifying improved performance, during his tenure-12-1/2 cents per hour on i All dates are 1973 unless otherwise indicated. 2 Case 19-RC-6613 208 NLRB No. 143 SAMBO'S OF EVERETT March 28. At the time of his discharge, he was a high school junior, participating in the aforementioned distrib- utive education program. B. Facts Immediate to Ward's Discharge and the Refusal To Rehire Him Ward worked the graveyard shift the night of Thursday- Friday, April 12--13. With him on that shift were busboy Dennis Weaver and waitresses Sandra Carmack and Dianne Wells. As the only cook on that shift, Ward was "in charge." He also was the highest paid employee on the shift and, as the cook, was uniquely vital to the food-dispensing process. About 3 a.m., April 13, business being slow, Ward and Weaver went to Ward's car in the restaurant parking lot and listened to some music on the tape deck. That completed, Weaver got a frisbee from his car, and the two played catch with it in the parking lot.3 After an absence of 15 to 20 minutes, the two returned to their work stations in the restaurant. Neither ever before had played frisbee while on duty. About 3:30 a.m. the same night, Pam Coleman, wife of the restaurant manager and herself a comanager of sorts, was awakened by a telephone call to the Coleman home. The caller, whom Mrs. Coleman could not identify, reported that he had just waited several minutes for an order to be filled while the cook played frisbee, finally leaving without being served. The caller said he would not patronize the restaurant again .4 Mrs. Coleman did not then disturb her husband, Gregg, but did mention the call to him before he left home to relieve Ward at 6 a.m. Upon arriving at the restaurant, Coleman told Ward of the telephone call and asked for his version of the frisbee incident. Ward related that he and Weaver had been outside the building for a few minutes, that he had positioned himself while playing frisbee to be able to see if any orders came in requiring cooking, and that no such orders were placed. Coleman called Ward "a liar" regarding the length of his absence from the building and expressed displeasure generally with what had occurred. He did not, however, take any definitive action against either Ward or Weaver at that time. Rather, as Ward left, Coleman stated that he was "ping to look into this some more," and that Ward might be out of a job. Coleman also talked to waitress Dianne Wells about this time, as she was leaving her shift. Wells told of the frisbee playing and that a customer had gone away mad because Ward's inattention to the cooking had caused an order to be burned. Wells expanded that Ward's attitude was poor generally and that he frequently neglected his cooking.s 3 A fnshee is a plastic disc Ward testified that he and Weaver were 40 or 50 feet apart while throwing it to-and-fro. 4 The record not only fails to establish the identity of this caller, but how he knew to call the Colemans or their telephone number The employees were under orders not to release the Coleman 's home number to customer- No inquiry was conducted by them in this instance to ascertain how it happened. 5 Ward admitted in his testimony that he may not have been able to see if orders were placed requiring cooking while in his car playing the tape deck Ward further testified that not all orders require cooking, explaining that Respondent offers such items as sodas , pies, and coffee ; hence, the mere entry of customers would not have alerted him that he had work to do 6 Perhaps unknown to the Coleman -, Wells was with her boyfriend in a 887 The other waitress , Sandra Carmack, by then had left her shift, as had Weaver. Coleman inquired of Carmack, by telephone later that morning, what she had observed. Carmack described the frisbee playing and reported that Wells had complained to her that Ward's neglect of the cooking had resulted in an unhappy customer. Carmack herself had not observed any such customer incident.? Carmack also described to Coleman longstanding friction between Wells and Ward. Coleman's investigation did not include obtaining Weaver's version. That same morning , according to Coleman, he received two additional complaints about the preceding night. He testified that one unidentified person telephoned to say his steak had been burned, causing him to leave without eating or paying for it. Coleman conceded, without giving reasons, that he believed this to be the same person that had called his home. Coleman further testified that another unidentified person came to him personally at the restaurant, and said that he had refused to wait for his order filled because the cook was playing frisbee and that he never would come back. Coleman, as manager of the restaurant, had made all past discharge decisions without consulting higher authori- ty. This time , however, because of the pendency of the Union's election petition, he telephoned Respondent's personnel director, Harold Staub, at Respondent's head- quarters in Santa Barbara, California. This, too, happened the morning of April 13. Staub assured Coleman that the frisbee incident provided ample grounds for discharging Ward and Weaver without violating any laws. There is no evidence that Ward's or Weaver's union sympathies were discussed during this conversation. Thus bulwarked, Coleman decided to discharge both employees. Ward learned of the decision at school April 13 from Mr. Bailey,8 his distributive education teacher. Bailey told him that he and Weaver had been fired for playing frisbee, mentioning that Respondent has received two customer complaints. Ward in turn told Weaver. Bailey was simply a conduit of this information, apparently having no part in the underlying decision.9 The next morning, Saturday, April 14, Weaver asked Coleman for his job back. After explaining his rationale for the discharges-the frisbee playing and the customer complaints-Coleman raised the possibility of rehiring Weaver. He suggested that Weaver call him the following Monday or Tuesday to see if he had been scheduled for work. Coleman told Weaver that, if he were hired back, he would be a busboy exclusively and no longer would be permitted an occasional turn of cooking. Hearing from Weaver that Coleman had shown signs of car in Respondent's parking lot while the frisbee game was being played A misthrown frisbee hit the car once. 7 Testimony of Coleman and Carmack that Ward neglected his cooking duties this night , causing customer disgruntlement, was received for the limited purpose of showing possible motivation for Respondent 's ensuing treatment of Ward, and not for the truth of the assertions that Ward in fact failed properly to service customers. In the absence of testimony from waitress Wells or any such customer , there is no nonhearsay evidence that this was so. X Sometimes in the transcript erroneously called "Dailey " 9 Pam Coleman did testify, however , that Bailey had told her "over and over again" that Respondent had a "valid excuse" for discharging Ward. Bailey did not testify. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relenting, Ward asked Coleman for his job back the evening of April 14.10 Coleman responded that, although he might hire Weaver back, he was not so disposed regarding Ward. Coleman elaborated that he had received waitress complaints about Ward and that Ward's conduct of the previous night, as cook in charge, was no way to run a crew. Coleman suggested to Ward that he check back in 6 months or so; perhaps he would be rehired then, provided his attitude had changed. Ward told Coleman in the same conversation that he was "pretty sure" that he was going to be hired by an A & W Restaurant, but at 40 cents per hour less than Respondent paid him. The following Tuesday, April 17, Coleman telephoned Weaver that a job was waiting for him. Weaver returned, but was withheld from cooking for perhaps a month. Ward never was rehired. Coleman testified that he now would rehire him. Explaining why he took Weaver back, but not Ward, Coleman testified that he regarded Ward's frisbee playing to be a much larger dereliction than Weaver's because of Ward's greater responsibility and importance to the operation as the cook. Other, lesser factors that entered into his thinking, Coleman testified, were that Weaver was the sole support of his mother, apparently had no prospect of alternative employment, and had been a generally good employee. Ward, on the other hand, seemed to have a replacement job lined up, had been the object of complaints from time to time, and, according to Coleman, sometimes had evinced a troublesome attitude. Coleman voiced apprehension, given Ward's attitude, of the suitabil- ity of sanctions less than discharge, such as a demotion from cook to busboy. Other than an apparent personality clash between Ward and waitress Wells, the record fails to establish, except in conclusionary and abstract terms, the nature or manifestations of Ward's poor attitude. Coleman expressly denied that his use of the term was a reference to Ward's union sympathies.ii Both Pam Coleman and waitress Carmack urged that Coleman not fire Weaver, citing his compelling economic situation and good attitude. C. Ward's Union Activities and Respondent's Reaction to Them Ward, although manifestly prounion, probably was not the foremost union proponent among Respondent's em- ployees. Coleman named employees Debbie Horton and Marlyne Reeff as the main advocates, while Mrs. Coleman opined in her testimony that Susan Gerhart and Horton were the leaders.12 Employee Pat Elliott testified that while 10 Ward is credited over Coleman that this conversation occurred April 14 rather than April 16 because of the inherent plausibility of his version 11 Several weeks before his discharge , Ward became ill from drinking beer on the fob, absenting himself to a back room for an hour or two to sleep it off . Coleman testified that, while he learned of this April 13, it in no way influenced his decision either to discharge Ward or deny him reinstatement . By letter to the NLRB, dated May 9, 1973, Respondent's then counsel stated that this dunking incident was the reason Ward was not rehired. 12 Reeff quit his job with Respondent about April 20, Horton about April 22, and Gerhart about May 4. The General Counsel does not contend that misconduct by Respondent contributed to any of these departures. It is fairly inferable from the record that Respondent has a high turnover Ward's prounion sympathies had been evident others, unnamed, were more active. That the Colemans knew of Ward's prounion feelings before the discharge cannot be doubted. Before a union organizational meeting to be held April 2, Ward told Coleman about it and invited him to attend. And on April 2, before the meeting, waitress Muriel Fluharty asked Pam Coleman for Ward's telephone number, explaining that she wished to call him to find out about the meeting and arrange for a ride to it. After the meeting, attended by Ward and several other of Respondent's employees, Ward enumerated to Coleman his reasons for supporting the Union: higher wages, better medical insurance, and job protection through seniority. Coleman replied that Res- pondent was paying all it could afford; that union scale would require it to replace part-time help and high school students with true professionals in the field; that the existing medical plan matched anything the Union might offer; 13 and that Ward was "stupid," given his limited tenure as a cook, to think that seniority-based job security was desirable. Coleman added that no one would be allowed to work more than 30 hours a week should the Union get in. Ward answered that the Union would not let Respondent replace the incumbent employees or reduce hours. Weaver testified that Coleman and Ward were "kind of upset with each other" during this exchange. A day or two after this confrontation between Ward and Coleman, Coleman warned employee Bruce Sturgeon that he and Ward would be fired if they persisted in whispering behind Coleman's back. Coleman admitted in his testimo- ny that he "would suppose that they were whispering about the Union," and that it "irritated" him.14 Weaver's support of the Union was much less deter- mined than Ward's. When Coleman called Ward "stupid" as above described after the April 2 meeting, Weaver voiced agreement; and another time, when Coleman informed some of the employees that they could get their pledge cards back from the Union, Weaver volunteered that he would like to do that. D. Respondent 's Reaction Otherwise to the Threatened Advent of the Union The parties entered into a written stipulation (G.C. Exh. 2) stating that, between March 28 and 31, either Greg or Pam Coleman individually interrogated 22 employees, asking, among other things, why they wanted a union. The Colemans generally responded that, if Respondent were required to pay union scale , it would be compelled to hire professional help in the field and no longer could hire high Debbie Horton is erroneously called "David Hilton" on p. 139,1 7, of the transcript The transcript hereby is corrected accordingly The General Counsel moves that the transcript be further corrected so that "done" on p. 18, 1 22, reads "one"; that "didn 't" on p . 25, I. 11, reads "did "; and that "Greg" on p. 80, 1 18 , reads "Cliff." The motion being unopposed and appearing soundly based, it hereby is granted 13 None or Respondent's Everett employees then was covered by this plan 1-1 Coleman admitted expressing irritation to Sturgeon about the whispering , but denied raising the possibility of discharge if it persisted Sturgeon is credited over Coleman 's denial because he, unlike Coleman, had no apparent stake in which way the truth fell, and his version comports with other indications of Coleman 's union animus SAMBO'S OF EVERETT school students and part- time employees; and that it would have to cut hours to 30 per week to avoid paying overtime. The stipulation further establishes that Coleman invited various employees , Ward included , to call the manager of Respondent's Longview, Washington, restaurant, at Res- pondent 's expense , to verify that all the employees there quit after the advent of a union ; and that the Colemans listened to a tape of the April 2 organizational meeting which had been obtained by employees Pat Elliott and Muriel Fluharty. Analysis and Concluding Findings'-5 Counsel for the General Counsel contends, of course, that the reasons given by Respondent for Ward's dis- charge, and the later refusal to rehire him, are pretextuous. the real reason being Ward's union sympathies. In support of this contention, he stresses the existence of the several elements customarily relied upon to support an inference of unlawful motive: (a) the discharge occurred during the pendency of an NLRB election, (b) Respondent was hostile to the idea of bargaining with the Union, (c) Ward was openly prounion, and (d) Respondent knew of Ward's union sympathies before the discharge. Counsel for the General Counsel seeks further to fortify his position by arguing: (a) the situations of Ward and Weaver were significantly distinguishable in only one respect-their relative union ardors-indicating that Res- pondent's disparate treatment of the two-quickly rehiring Weaver, but not Ward-derived from that distinction, (b) Coleman's references to Ward's attitude as a reason for not recalling him, given Ward's recent raise and the surround- ing circumstances generally, suggest an allusion to his union sympathies, and (c) the conflict in explanations by Coleman during the trial with that by Respondent's then counsel, by letter to the NLRB during investigation of the charge, for the refi.sal to rehire Ward,16 betray a different and unlawful true reason. Granting the inculpating elements of timing, union animus, Ward's pronounced union sympathies, and Res- pondent's knowledge of those sympathies, and further that Coleman's nebulous references to Ward's attitude do not carry notable suasive thrust, I nevertheless am unable to conclude that either Ward's discharge, or the subsequent denial of reinstatement, was prompted by his union posture. Considering the discharge first, I am persuaded of the legality of Respondent's motive by these factors: (a) fully appreciating the tedium of working a graveyard shift during the wee hours' slack, playing frisbee in the restaurant parking lot for upwards of 20 minutes still cannot be considered a trifling breach of duty, (b) there is no evidence of past employer tolerance of that or similar activity, (c) the customer and waitress complaints flowing from that activity, even if contrived by a waitress in support of a personal feud with Ward, possessed sufficient 889 color of validity, in tandem with Ward's admitted frisbee frolic, to give Respondent abundant cause for distress, (d) Respondent deferred its action until completion of a more- than-token investigation of the events of the night in question, hardly indicative of unseemly eagerness to purge Ward, and (e) discharged with Ward was Weaver, who at least twice had displayed a readiness to bend to Respon- dent's view on the union question. As for the differing treatments of Ward and Weaver regarding recall, Coleman's assessment of Ward's dere- liction as qualitatively different and more serious than Weaver's because of the cook's special importance to the functioning of the graveyard shift, and Coleman's addi- tionally being influenced by Weaver's support role at home, were not so inappropriate as to imply another, unlawful true motive. It is worthy of note, in this connection, that Weaver did not escape disciplinary sanction altogether, being disallowed to cook for perhaps a month after his recall. True, as inentioned above, Coleman's citations to Ward's attitude, as still another reason for denying recall to him but not Weaver, are lacking in conviction; and, true, the Board sometimes construes references of this sort as meaning "union sympathies." 17 I do not so read them in the circumstances of this case, but rather as mildly hyberbolic "gildings of the lily." That one succumbs to the natural temptation to embellish in support of his position does not necessarily connote concealment of illegality, particularly since, in this case, Coleman's testimony was generally plausible, internally consistent, and in most respects credible. Nor do I accord other than slight import, in the overall meld of evidence, to Respondent's attorney's having written during the investigation of the charge, contrary to Coleman's testimony, that Ward was not recalled because of the drinking incident of a month or so before the discharge. While discrepancies of this sort, issuing from the same camp, surely do not enhance that camp's cause, I am not disposed, without knowing their underlying bases, to take too seriously emanations from the desk of a busy lawyer as against evidence adduced in the advisory crucible. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in and affecting 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. Respondent has not violated Section 8(a)(1) or (3) of the Act. 15 No conclusions are reached regarding the legality of conduct outside the scope of the amended complaint. I", See fn 11, supra '7 E.g, Virginia Metalcrafters, Inc, 158 NLRB 958, 962; Winn-Dixie Greenville, Inc, 157 NLRB 657, 662. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law , ORDER is and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended : The complaint is dismissed in its entirety. is In the event no exceptions are filed as provided by Sec. 102 .46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become Rules and Regulations of the National Labor Relations Board , the findings , its findings, conclusions, and order , and all objections thereto shall be conclusions , and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.