Tony Roma's Restaurant

National Labor Relations Board - Board Decisions

Jun 8, 1998

325 N.L.R.B. 851 (N.L.R.B. 1998)

851
325 NLRB No. 161
TONY ROMA’S RESTAURANT
1 The Respondent also filed a request for attorneys’ fees, which the
Board rejected as premature on December 9, 1997. See Sec. 102.148
of the Board’s Rules and Regulations.
2 All dates hereafter are in 1996.
3 We find that the two cooks unconditionally offered to end their
strike and return to work when they reported at these times.
4 At the hearing, Marks described these suspensions as ‘‘open-
ended.’’
Roma One Enterprises, d/b/a Tony Roma’s Res-
taurant and Mauro S. Ruiz. Case 21–CA–31485
June 8, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
On July 22, 1997, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
the Respondent filed a brief opposing the exceptions,
and the General Counsel filed a brief in reply to the
Respondent’s opposition brief.1
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, and
conclusions to the extent consistent herewith, and to
adopt the recommended Order as modified.
The only exceptions in this case are those filed by
the General Counsel concerning the judge’s rec-
ommended remedy. The judge declined to recommend
reinstatement and full backpay for the two discrim-
inatees in this case, Mauro Ruiz and Antonio Gaitan,
who the judge found were suspended in violation of
Section 8(a)(1). Instead, she concluded that limited
backpay was appropriate, based on her view that both
of the discriminatees unjustifiably refused work offered
by the Respondent and subsequently voluntarily quit
their employment. We disagree, concluding on the
basis of the present record that the Respondent has not
made a specific, unequivocal, and unconditional offer
of reinstatement which would properly toll backpay.
Accordingly, as explained below, reinstatement and
full backpay is the appropriate remedy in this case for
the Respondent’s unfair labor practices.
Facts
On July 29, 1996,2 Ruiz and Gaitan, cooks in the
Respondent’s restaurant, left work early pursuant to
their complaints about working conditions. It is undis-
puted at this stage of the case that the two employees
engaged in a strike protected by Section 7. Each of
them reported to work for his next scheduled shift,
Gaitan on July 30 and Ruiz on July 31.3 David Marks,
general manager of the Respondent’s restaurant, in-
formed each when he reported that he was suspended
without pay while Marks conducted an investigation of
their conduct on July 29.4
Marks concluded that there was no legitimate basis
for the cooks’ July 29 walkout, and on August 1 he
issued disciplinary writeups to be placed in their per-
sonnel files. The writeups stated, inter alia, that their
conduct had been unsatisfactory on July 29 and that
any repetition would lead to further discipline or termi-
nation. Marks’ testimony establishes that, as a matter
of policy, the Respondent would not permit the two
employees to return to work until they signed the
writeups—either at the bottom of the document, indi-
cating acquiescence to the writeup, or in the space re-
served for employee comments. After drafting the
writeups, Marks began his attempts, unsuccessful at
first, to contact the two cooks in order to discuss the
documents with them.
In the meantime, on August 2, Ruiz spoke by tele-
phone with Karen Kozen, one of the Respondent’s
owners. He asked for his work schedule, and Kozen
told him to call Marks. Ruiz did not contact Marks.
On August 12, Marks reached Gaitan by telephone,
seeking to discuss his disciplinary writeup. He spoke
with Gaitan through an interpreter. They talked about
his job status: Gaitan thought he had been discharged,
but Marks assured him that he had not been. They dis-
cussed work hours and scheduling: Marks asked him
if he could work that day, and Gaitan said that he
could not because it would conflict with the work
schedule for his preexisting second job. The conversa-
tion resulted in an agreement to meet on August 13 or
14 to discuss Gaitan’s employment. This meeting did
not take place.
On August 19, Marks met with Gaitan and Ruiz at
the restaurant. Marks offered to reinstate them if they
would sign the disciplinary writeups. Ruiz and Gaitan
expressed interest in returning to work, but requested
2 weeks’ backpay. Marks said he had to discuss the
backpay question with the Respondent’s owners. Nei-
ther side contacted the other to follow up this meeting.
On October 25, the Respondent sent certified letters
to the two discriminatees, requesting that they ‘‘report
to work at Tony Roma’s immediately.’’ According to
Marks, Ruiz’ letter was received, but he did not re-
spond. Gaitan’s letter was returned to the Respondent
undelivered.
The judge concluded that the Respondent’s suspen-
sion of the two cooks was attributable to their strike
activity, and therefore violated Section 8(a)(1). On the
question of an appropriate remedy, she found that
backpay for Ruiz was tolled as of August 2 because
he failed to act on Kozen’s instruction to call Marks
for his schedule, and that Gaitan’s backpay was tolled
on August 12 because he refused work offered to him
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852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We discuss below the significance of this writeup in itself, and
the writeup of Ruiz as well.
6 Disciplinary warnings of this kind are, in fact, commonly found
to be independent unfair labor practices. United Parcel Service, 301
NLRB 1142, 1144 (1991). See also Consolidated Freightways,
supra, 290 NLRB at 772 fn. 4. Because the writeups were neither
alleged nor litigated in this proceeding as independent violations,
however, we do not make a separate formal finding or include them
in the cease-and-desist order. We note, however, that the disciplinary
writeups are connected to the suspensions found unlawful by the
judge, and, therefore, properly are included in the expunction order
recommended by the judge as part of the remedy for the unlawful
suspensions.
7 The complaint alleged that the two discriminatees were unlaw-
fully discharged. The judge found that they were unlawfully sus-
pended. See fn. 15 of the judge’s decision. The Respondent in fact
by Marks on that date. She also found that the two
discriminatees effectively quit their employment with
the Respondent by failing to follow up on their discus-
sion with Marks on August 19. Accordingly, she rec-
ommended limited backpay and no reinstatement.
Discussion
As set forth above, the Respondent unlawfully put
Ruiz and Gaitan on ‘‘open ended suspension’’ for their
protected walkout on July 29. The issue regarding the
Respondent’s subsequent actions is, therefore, essen-
tially remedial—whether the Respondent made an offer
of reinstatement to either discriminatee sufficient to
toll backpay. The Board recently restated several legal
principles relevant to this question:
A reinstatement offer to a discriminatee must
be specific, unequivocal, and unconditional in
order to toll backpay. See, e.g., Holo-Krome Co.,
302 NLRB 452, 454 (1991), enf. denied on other
grounds 947 F.2d 588 (2d Cir. 1991), rehearing
denied 954 F.2d 108 (2d Cir. 1992); L. A. Water
Treatment, 263 NLRB 244, 246 (1982); and
Standard Aggregate Corp., 213 NLRB 154
(1974). It is the employer’s burden to establish
that it made a valid offer of reinstatement to the
discriminatees. L. A. Water, supra at 246–247.
For a reinstatement offer to be valid, it must have
sufficient specificity to apprise the discriminatee
that the employer is offering unconditional and
full reinstatement to the employee’s former or a
substantially equivalent position. Standard Aggre-
gate, supra at 154.
Adsco Mfg. Corp., 322 NLRB 217, 218 (1996). In ad-
dition, the Board does not evaluate a discriminatee’s
reply to a reinstatement offer until the respondent
proves that the offer is a valid one, i.e., consistent with
the principles above. See, e.g., CleanSoils, Inc., 317
NLRB 99, 110 (1995); Consolidated Freightways, 290
NLRB 771, 772–773 (1988), enfd. as modified 892
F.2d 1052 (D.C. Cir. 1989), cert. denied 498 U.S. 817
(1990).
Our review of the evidence establishes that the Re-
spondent never made an offer of reinstatement to Ruiz
or Gaitan which would satisfy its burden and require
our evaluation of the discriminatees’ conduct in re-
sponse. Specifically, we disagree with the judge that
Ruiz’ backpay was tolled on August 2: Kozen said
nothing to him which constituted an offer of any kind,
much less one that was ‘‘specific, unequivocal, and un-
conditional.’’ We also disagree with the judge that
Gaitan’s backpay was tolled on August 12. Marks’
purpose in contacting Gaitan on that day was not to
offer reinstatement, but to set up a meeting to discuss
his job situation, and in particular, to discuss the re-
quirement that he sign the disciplinary writeup issued
August 1.5 A meeting was arranged, and thus Marks’
goal was satisfied. However, an offer to meet to dis-
cuss a discriminatee’s employment situation is not an
offer of reinstatement, and does not toll backpay. See
La Corte ECM, Inc., 322 NLRB 137, 140–141 (1996);
Holo-Krome Co., 302 NLRB at 454. Marks’ offer
clearly lacked the requisite specificity.
At his August 19 meeting with Ruiz and Gaitan,
Marks explained the terms for reinstatement of the
discriminatees that the Respondent had established on
August 1: that they sign, for placement in their person-
nel records, disciplinary writeups which indicated that
their strike activity of July 29 constituted unsatisfac-
tory work performance that would lead to further dis-
cipline or termination if repeated. Since we are adopt-
ing the finding (to which there are no exceptions) that
their walkout on July 29 was a protected strike, it was
obviously impermissible for the Respondent to condi-
tion their reinstatement on their acceptance of a written
disciplinary warning for engaging in that conduct.
Cleansoils, Inc., supra, 317 NLRB at 111; Consoli-
dated Freightways, supra, 290 NLRB at 773; Rikal
West, Inc., 274 NLRB 1136 fn. 2, 1138–1139 (1985).6
Such a condition precludes a finding that the August
19 offer was adequate to toll backpay or that the
discriminatees voluntarily quit their employment by
failing to respond to it.
Finally, the Respondent’s certified letters of October
25 did not clearly remove the condition on reinstate-
ment expressed to the discriminatees on August 19.
Therefore, it is reasonable to deduce from the entire
factual context that the improper condition remained a
part of these offers. On this basis alone, they were in-
sufficient to toll backpay.
Under these circumstances, the Respondent has not
shown that it made a valid, unconditional offer of rein-
statement to either discriminatee. Therefore, the
Board’s standard remedial order of reinstatement and
full backpay for Ruiz and Gaitan remains appropriate
in this case to remedy the Respondent’s unfair labor
practices, and we will modify the judge’s order accord-
ingly.7
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853TONY ROMA’S RESTAURANT
made the term of each employee’s suspension dependent on their
signing the improper writeups. Thus, if they refused to sign, they
would remain on indefinite suspension. For remedial purposes, we
see no significant difference between a ‘‘discharge,’’ as alleged by
the General Counsel, and the suspension imposed by the Respond-
ent.
We leave to the compliance stage of this proceeding any remedial
issues that might arise in determining the amount of backpay owed
by the Respondent to Ruiz and Gaitan.
1 Contrary to the assertions of my colleagues, I do not seek to
overturn precedent. My difference with them is that they have turned
that precedent into a ritualistic word game.
2 In cases where an employee has been discharged or laid off, it
may be necessary for the employer to expressly state that reinstate-
ment to the prior job is being offered. However, in cases where, as
here, an employee is suspended, it is clear that reinstatement to the
prior job is being offered, i.e., the suspension is over.
Our dissenting colleague’s essential disagreement is
not with the manner in which we have applied prece-
dent but with the precedent itself. As the cases cited
above hold, when an employer has unlawfully laid off
an employee, its remedial obligation is to make a spe-
cific, unequivocal, and unconditional offer of reinstate-
ment. In other words, we are not requiring ‘‘magic
words’’: we are simply, consistent with Board and
court precedent, requiring words that are specific and
unequivocal and that offer reinstatement without condi-
tions attached. In order to find that a sufficient offer
of reinstatement was made here, our dissenting col-
league applies a less stringent standard.
In suggesting that the Respondent’s requirement that
Ruiz and Gaitan sign disciplinary writeups was a neg-
ligible condition on their reinstatement, our colleague
overlooks the reasonable inference that the writeups
would have a significant negative impact on these em-
ployees in any future disciplinary situation, regardless
of any comments they might make on the ‘‘write-up’’
form they were required to sign. As we have noted
above, evidence that the Respondent insisted on the
employees’ acknowledgement of a written record of
discipline for the very activity for which the Respond-
ent had unlawfully suspended them obviously pre-
cludes a finding that the reinstatement offer was ‘‘un-
conditional.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Roma
One Enterprises, d/b/a Tony Roma’s Restaurant, Carls-
bad, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Delete paragraph 2(a), insert the following in its
place, and reletter the subsequent paragraphs accord-
ingly.
‘‘(a) Within 14 days from the date of this Order,
offer Mauro Ruiz and Antonio Gaitan full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
‘‘(b) Make Mauro Ruiz and Antonio Gaitan whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in the remedy section of the judge’s deci-
sion, as modified herein.’’
2. In newly relettered paragraph 2(c), insert the
phrase ‘‘including the disciplinary writeups issued Au-
gust 1, 1996,’’ after the words ‘‘unlawful suspen-
sions.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER HURTGEN, dissenting in part.
Contrary to my colleagues, I agree with the judge
that reinstatement was offered to employees Ruiz and
Gaitan. Thus, a further offer is unnecessary and back-
pay was tolled when these two employees declined the
offer. In my view, the majority places an unrealistic
and overly legalistic template on the events in this case
to conclude that a ‘‘specific, unequivocal, and uncon-
ditional’’ offer of reinstatement was not made and,
thus, the employees’ failure to return to work did not
toll the backpay obligation. The majority makes two
analytical errors: first, imposing an overly ritualistic
obligation with respect to the words an employer must
use in its offer; and second, placing an unreasonably
high bar as the test, making employee responses irrele-
vant. I find that the employer clearly told the employ-
ees to come back to work and that the employees
clearly did not want to.1
The unlawful suspensions occurred on July 30
(Gaitan) and July 31 (Ruiz). The suspensions were
open-ended, i.e., Respondent could call the employees
back whenever it wished. With respect to Ruiz, Re-
spondent agent Kozen told him on August 2 that there
was a work schedule for him and that he should call
Respondent agent Marks to get that work schedule.
Ruiz failed to follow up on this instruction. The in-
struction to get his work schedule clearly demonstrated
that the suspension was over and that reinstatement
was intended. If the suspension had not been over and
if reinstatement had not been intended, there would be
no point in obtaining the work schedule. Although Re-
spondent did not utter the precise words ‘‘you are of-
fered reinstatement,’’ there are no magic words that
must be used. Thus, it would be clear to any reason-
able person that an offer of reinstatement was implicit
in the Respondent’s instruction to Ruiz to get the work
schedule which had been prepared for him.2
With respect to Gaitan, the parties discussed work
hours and scheduling on August 12. Indeed, the Re-
spondent offered employment on that very day. Gaitan
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854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Since the writeups are not alleged or found to be unlawful, I
would not order them expunged.
4 My colleagues contend that there is a reasonable inference that
a writeup would have a significant impact on an employee in any
future disciplinary situation. The contention is in error. First, as
noted supra, the writeup itself is not attacked as unlawful. Rather,
the issue is whether the ‘‘employee signature’’ requirement is a suf-
ficient condition to render invalid the employer’s offer. Second,
since the signature is not an acquiescence to the discipline or an ad-
mission of wrongdoing, it is speculative at best as to whether the
signature will be held against the employee in the future.
1 All dates are in 1996 unless otherwise indicated.
declined because he was working on another job. The
parties agreed to meet further on August 13 or 19.
Gaitan did not show up.
In addition, an express offer of reinstatement was
made to both employees on August 19. The Respond-
ent offered to reinstate them if they would sign dis-
ciplinary writeups. The writeup form does not compel
acquiescence to the discipline nor admission of wrong-
doing. The employees can write comments in a space
provided for same. In addition, I note that the writeups
are not alleged to be unlawful.3 Finally, I note that re-
instatement was not achieved because the two employ-
ees themselves placed a condition thereon, viz. 2
weeks backpay. In these circumstances, I conclude that
Respondent did not place an impermissible condition
on reinstatement. The employees were clearly no
longer suspended and their failure to return to work
was their decision, unimpeded by any unlawful or ob-
structionist conduct by the Respondent.4
Finally, on October 25, the Respondent sent certified
letters to the two employees asking that they ‘‘report
to work at Tony Roma’s immediately.’’ Neither em-
ployee responded.
The failure to respond to the October 25 letter
makes even clearer what had been clear all along.
These two employees, for their own reasons, were not
interested in working for the Respondent. In sum, be-
cause the Respondent repeatedly offered reinstatement,
in terms that were increasingly explicit, and the two
employees always declined, I would not now reward
them with yet another offer of reinstatement and back-
pay.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT suspend or otherwise discriminate
against any of you for concertedly engaging in a strike
because of working conditions.
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, within 14 days from the date of the
Board’s Order, offer Mauro Ruiz and Antonio Gaitan
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Mauro Ruiz and Antonio Gaitan
whole for any loss of earnings and other benefits re-
sulting from their suspensions, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful suspensions of Mauro Ruiz and Antonio
Gaitan, including their disciplinary writeups issued Au-
gust 1, 1996, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done
and that the suspensions will not be used against them
in any way.
ROMA ONE ENTERPRISES, D/B/A TONY
ROMA’S RESTAURANT
David Mori, Esq. and Ami Silverman, Esq., for the General
Counsel.
John Edson, Esq. (Luce, Fornard, Hamilton & Scripps), and
James Kozen, of Roma One Enterprises, for Respondent.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in San Diego, California, on June 22 and
23, 1997, pursuant to complaint issued January 27, 1997, al-
leging that Roma One Enterprises d/b/a Tony Roma’s Res-
taurant (Respondent) violated Section 8(a)(1) of the Act by
discharging two cooks, Mauro S. Ruiz and Antonio Gaitan,
because they concertedly complained regarding an inoperable
ventilation fan. The underlying charge was filed by Ruiz on
August 6, 1996.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the oral argu-
ments of counsel for the General Counsel and for Respond-
ent, I make the following
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855TONY ROMA’S RESTAURANT
2 This testimony was admitted to show it was said but not to prove
the truth of the matters asserted therein.
3 I do not credit Gaitan’s testimony that Ruiz, who spoke to Myers
in English, told Myers that, ‘‘we were not feeling well, there was
too much smoke in the kitchen,’’ and asked Myers to quit taking
orders. Not only is Gaitan’s testimony suspect because he does not
speak English fluently, but it also improbable that he could have
heard their conversation from a distance of 6 feet in the extremely
noisy kitchen.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the res-
taurant business, annually deriving gross revenues in excess
of $500,000 and purchasing and receiving products, goods
and materials valued in excess of $10,000 directly from
sources within the State of California, which sources pur-
chase and receive products, goods and materials valued in
excess of $10,000 directly from points outside the State of
California. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent operates a restaurant in Carlsbad, California,
which specializes in barbecued ribs and chicken. These spe-
cialties are prepared in Respondent’s kitchen utilizing an
oven, a fryer, and two grills. The kitchen is typically hot due
to heat from the oven, fryer, and grills and noisy due to ex-
haust fans. On Monday, July 29, 1996, undisputedly a very
hot day in Carlsbad, California, one of the two exhaust fans
in Respondent’s kitchen, the exhaust fan located over the
large grill, malfunctioned. The other exhaust fan, located
over an adjacent small grill, remained in operation.
David Marks, the general manager of the facility, was in-
formed of the malfunction when he arrived that morning.
The contractor for repair of the exhaust fans was on the
premises and told Marks he could not repair the fan for
about a week because it would take that long to obtain the
part necessary for the repair. Marks then contacted another
repair source who promised and, in fact, did repair the fan
the following day. Marks was in and out of the kitchen dur-
ing that day and noticed it was hotter than normal but he re-
ceived no complaints from the two day-shift cooks, Santos
Ramero and Sergio Lopez, about excessive smoke and did
not notice excessive smoke himself.
Sheila Myers, assistant manager, reported to work around
2 p.m. Prior to leaving the restaurant at the end of his sched-
ule, Marks informed Myers that the exhaust fan over the
large grill was not working.
Cook Antonio Gaitan reported to work on Monday, July
29, at 4:46 p.m. Cook Mauro Ruiz reported shortly before
Gaitan arrived. They relieved Ramero and Lopez. According
to Gaitan, not only was the kitchen extremely hot, but there
was also so much smoke in the kitchen that by around 6:30
p.m., he began to feel nauseous, his eyes began tearing, and
he had difficulty breathing. According to Gaitan, he spoke
with Ruiz who stated that he also felt sick.2 It was agreed
that Ruiz, who spoke English, would speak to Assistant
Manager Sheila Myers.
Myers recalled that Ruiz spoke to her at about 6:15 p.m.
and stated that it was getting busy and it was getting real
smoky in the kitchen. Myers did not respond because she
was busy assisting with food service. Myers was in and out
of the kitchen for the next half hour but nothing further was
mentioned by Ruiz about the smoke. Myers noticed that
when a large quantity of food was placed on the large grill
due to seven tables arriving at once, the smoke rose to the
top of the ceiling above the large grill and then, ‘‘floated
over across . . . toward the next exhaust.’’ At about 6:45
p.m., Ruiz told Myers that, ‘‘he could not work here any-
more in this mess, and it was too smoky and that he was
going to leave.’’3 Myers asked Ruiz to wait until she could
call a replacement for him and he agreed.
Myers then called Marks and left a message on his an-
swering machine stating that she would need some help be-
cause one of the cooks was going to leave. Myers next called
Sergio Lopez, who had already worked the day shift. He
agreed to come back to work. However, Lopez was not
strong enough to handle the heavier work. Myers attempted
to reach Relief Manager Ken Best but was unsuccessful and
then she called Karen Kozen, one of the owners, and told her
that one of the cooks was going to be leaving because one
of the exhaust fans was broken and it was smoky in the res-
taurant. Myers told Kozen she needed some help. Kozen stat-
ed she would try to get some help for Myers and called back
later to say that she was on her way to the restaurant to help.
At about 7:10 p.m., Lopez arrived and Ruiz left.
After Ruiz left, Gaitan approached Myers and stated in
broken English that he was sorry but he was leaving too.
Myers told him, ‘‘okay.’’ Myers, who was 2 months preg-
nant at the time, worked in the kitchen after Gaitan left.
Myers did not observe more smoke than usual in the kitchen.
She and Lopez both testified that the kitchen was extremely
hot but they did not feel nauseous, their eyes did not tear,
and they had no difficulty breathing. Kozen arrived at the
restaurant a short time later with two fans to relieve the heat.
She did not observe unusual smoke in the kitchen. Myers
told Kozen that the cooks had left because of the exhaust fan
and smoke in the kitchen. Kozen opened the back door and
the door connecting the kitchen to the dining area in order
to provide further circulation of the air. She also noticed that
the repairman had left the roof hatch open which was letting
in hot air so she closed that hatch.
Kozen then took over for Myers at the large grill. She esti-
mated that she prepared about 50 to 60 orders during the
time she spent in the kitchen. Kozen explained that there was
never any smoke in her face because the smoke rises directly
from the grill and she was standing in front of the grill. That
evening, after the smoke rose over the large grill, it drifted
over to the exhaust fan above the small grill. The small grill
is adjacent to the large grill. Kozen said she never had
smoke in her lungs and her eyes did not water. At about 8
p.m., the large grill was turned off because there were fewer
orders. According to Lopez, this was done to relieve heat and
to clear smoke from the kitchen.
At about 8:30 p.m., Marks arrived at the restaurant in re-
sponse to Myers’ message on his answering machine. He
asked Myers what had happened. Myers stated that Ruiz told
her he could not work in the conditions and was leaving.
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856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 According to Gaitan, Marks said in Spanish, ‘‘No mas amigo,’’
meaning, ‘‘No more my friend,’’ and then said in English, ‘‘you
don’t clean, you don’t work, you quit.’’ During the course of the
conversation, Gaitan testified that Marks repeated these phrases four
times. I do not credit this testimony. Gaitan admitted that Marks had
never spoken to him in Spanish prior to this time. Marks agreed that
he never conversed with Gaitan in Spanish. I credit Marks’ testi-
mony in this regard.
5 Marks spoke with a server, David Manning, who was in and out
of the kitchen. Manning reported that there was more smoke in the
kitchen than usual but it was fine to work in there. Manning and
the other servers did not indicate that they felt sick. Marks spoke
with Edmundo Perez, the dish washer, who told him that he did not
observe Ruiz or Gaitan appearing sick and Perez, who worked in the
same area, did not feel sick. Sergio Lopez, cook, told Marks there
was a little more smoke than normal but there was no reason to be
alarmed. Lopez worked an 8-hour shift and came back that night
when Ruiz asked to leave.
6 Kozen did not have access to the schedule because she was not
at the Carlsbad restaurant at the time of the conversation.
7 Although Gaitan did not indicate to Marks that this was a tem-
porary change, he testified that the change in his schedule was for
1 week only.
8 The factual recitation regarding this conversation comports with
both Gaitan’s and Marks’ testimony although Marks did not recall
specifically saying, ‘‘What kind of game are you and Ruiz playing,’’
but agreed he might have said that.
9 This description of the conversation is based on Marks’ credible
testimony. I do not credit Gaitan’s version of the conversation which
differs slightly. Gaitan testified regarding what Ruiz’ sister told him
was said. Ruiz’ sister did not testify. Under these circumstances, I
find Gaitan’s testimony potentially unreliable. Marks’ demeanor was
forthright and open and for these reasons, I credit his version of the
conversation.
Myers further related that several minutes later, Gaitan ap-
proached and said he was leaving too. Marks attempted to
contact Ruiz and Gaitan several times that evening but was
unsuccessful.
Gaitan was scheduled to work on the following day. When
he reported to work, Marks told Gaitan (using Santos
Ramero as interpreter) to take the day off (without pay) be-
cause Marks had already scheduled another employee to
work for Gaitan. Marks explained that he understood that
Gaitan was not coming back.4 Marks further told Gaitan that
he was not scheduled to work again until Marks completed
an investigation of the events of the prior evening. Ruiz was
scheduled to work 2 days later and Marks told Ruiz the same
thing, that he wanted to investigate the situation before
scheduling Ruiz again. Marks conducted his investigation
and concluded that the cooks had no basis to walk out.5
On August 1, Marks completed a counseling form for Ruiz
noting unsatisfactory work performance and violation of rule
or company policy by leaving his position on July 29 with-
out management approval. The form noted that if the behav-
ior was repeated it would lead to possible counseling notice
or immediate termination: ‘‘Walking off the job is consid-
ered voluntary job loss.’’ Gaitan’s notice was similar and
stated that employees must discuss the reason for leaving
work with the manager on duty. Thereafter, Marks attempted
to reach Ruiz and Gaitan to discuss the counseling forms.
However, he did not reach either of them. On August 2,
Kozen spoke with Ruiz at about 10 a.m. Ruiz asked Kozen
for his schedule. Kozen asked Ruiz why he had not called
for his schedule earlier. Ruiz said he wanted his schedule
now. Kozen told Ruiz that there was a schedule for him but
he had to call Marks to get it.6 Ruiz stated that he would
do so. However, Ruiz did not contact Marks.
On August 6, Ruiz filed the unfair labor practice charge
in this case alleging that he and Gaitan were discharged be-
cause they concertedly complained about unhealthy working
conditions. According to Marks, Respondent received notice
of the charge before 11:30 a.m. on August 12.
On August 12 at about 11:30 a.m., Marks called Gaitan.
Sergio Lopez spoke in Spanish for Marks and asked, ‘‘Hey,
what’s wrong with you.’’ Gaitan responded that nothing was
wrong. Marks then asked what kind of game are you and
Ruiz playing. Gaitan responded that Marks had fired them.
Marks said, ‘‘Your job is here,’’ and Gaitan again repeated
that Marks had already fired them. Marks then said, ‘‘No, I
have never fired you.’’ Marks then asked what time Gaitan
could come to work and Gaitan responded that he could no
longer go to work at Respondent’s because his schedule at
his other job had changed and conflicted with the hours at
Respondent.7 Gaitan agreed to meet with Marks on August
13 or 14. However, the meeting did not take place.8
On August 19, Gaitan, Ruiz, and Ruiz’ sister met with
Marks at the restaurant. It is undisputed that Marks told the
employees that they had not been fired and that they had
jobs at the restaurant. Marks told the employees they would
need to sign the counseling forms. It is also undisputed that
Gaitan and Ruiz agreed to return to work if Marks paid 2
weeks backpay. Marks said he was not authorized to pay
backpay and would speak to the owners. Ruiz agreed to call
Marks 2 days later to find out about backpay. Neither Ruiz
nor Gaitan called back to find out what the decision was and
Marks did not attempt to reach them.9
Ruiz did not appear at the hearing. Counsel for the Gen-
eral Counsel requested that I find Ruiz unavailable within the
meaning of Federal Rule of Evidence 804(a)(5) and admit
Ruiz’ affidavit pursuant to Rule 804(b)(5). Rule 804 provides
in relevant part,
(a) Definition of unavailability.—‘‘Unavailability as a
witness’’ includes situations in which the declarant . . .
(5) is absent from the hearing and the proponent of his
statement has been unable to procure his attendance
. . . by process or other reasonable means.
(b) Hearsay exceptions.—The following are not ex-
cluded by the hearsay rule if the declarant is unavail-
able as a witness: . . . (5) Other exceptions.—A state-
ment not specifically covered by one of the foregoing
exceptions but having equivalent circumstantial guaran-
tees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests
of justice will best be served by admission of the state-
ment into evidence. However, a statement may not be
admitted under this exception unless the proponent of
it makes known to the adverse party sufficiently in ad-
vance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, his
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857TONY ROMA’S RESTAURANT
10 This was obviously an error in the name of the month rather
than the year as Ruiz was working for Respondent on July 11, 1996.
The subpoena is dated June 4, 1997, and an inference may be drawn
that June 11, 1997, was the correct date.
11 Myers II reaffirmed the definition of concerted activity con-
tained in Myers I, 268 NLRB 493 (1984), revd. sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir.), cert. denied 474 U.S. 971 (1985).
12 See also, Pacific Electricord Co. v. NLRB, 361 F.2d 310 (9th
Cir. 1966), enfg. 153 NLRB 521 (1965), cited in KNTV, Inc., 319
NLRB 447, 450 (1995).
13 See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962); P & L Cedar Products, 224 NLRB 244 (1976); Anheuser-
Busch, Inc., 239 NLRB 207 (1975).
14 See, e.g., Sonoma Mission Inn & Spa, 322 NLRB 898, 900
(1997), and cases cited therein: National Car Rental System, 237
NLRB 172 (1978); Drug Package Co., 228 NLRB 108, 113–114
(1977); Snowshoe Co., 217 NLRB 1056 (1975).
15 The suspensions were not alleged in the complaint to violate
Sec. 8(a)(1). However, the issue of Respondent’s motivation in sus-
Continued
intention to offer the statement and the particulars of it,
including the name and address of the declarant.
Counsel for the General Counsel represented that Ruiz re-
turned to Mexico on October 8, 1996, and that Ruiz was sub-
poenaed at his current address in Mexico City. Although
counsel asserted that letters were sent to the American Em-
bassy in Mexico City to assist Ruiz in obtaining a visa in
order to enter the United States to testify in this proceeding,
Ruiz asserted in a letter to counsel dated June 20, 1997, that
on July 11, 1997,10 he attempted to obtain a visa but did not
have the ‘‘information’’ necessary to obtain a visa and his
request was refused. On the other hand, counsel for the Gen-
eral Counsel asserted that the American Embassy explained
to him that Ruiz was not eligible for a visa because he had
no steady employment in Mexico and because his family
lives in San Diego; i.e., there would be no reason to return
to Mexico after testifying. Counsel for the General Counsel
asserted that because further time would not alter the situa-
tion, no postponement was sought. Counsel for the General
Counsel further asserted that the ‘‘particulars’’ of the affida-
vit were made known to Respondent through investigation of
the charge. No advance notice was given to Respondent of
intention to utilize Ruiz’ affidavit.
Respondent objected to introduction of Ruiz’ affidavit be-
cause it deprived Respondent of the opportunity to cross ex-
amine Ruiz, no advance notice of intent to offer the affidavit
was provided, and the ‘‘particulars’’ of the affidavit were not
made known to Respondent. Moreover, Respondent argued
that Ruiz was not unavailable within the meaning of the rule
because the evidence did not indicate a serious effort to ob-
tain a visa.
I held that Ruiz was not unavailable and that even if he
were unavailable within the meaning of Rule 804, his affida-
vit was inadmissible pursuant to Rule 804(b)(5) because no
advance notice was provided Respondent, Respondent was
not made aware of the ‘‘particulars’’ of the affidavit, and the
affidavit lacked the equivalent circumstantial guarantee of
trustworthiness inherent in prior testimony in court or prior
deposition testimony. I adhere to this ruling. See, e.g., Bur-
lingame Saab, 296 NLRB 227, 233 fn. 7 (1989) (witness
who was on vacation in Mexico not unavailable within the
meaning of Rule 804); Town & Country Nursing Home, 291
NLRB 74, 76 fn. 7 (1988) (failure to expeditiously ascertain
current address of crucial witness in order to serve affidavit
when it became available shortly before hearing resulted in
failure to find the witness but did not constitute ‘‘unavail-
ability’’ of the witness).
B. Analysis
Section 8(a)(1) of the Act specifically prohibits discharge
or discrimination against employees because of their pro-
tected, concerted activity. Both the General Counsel and Re-
spondent rely on the definition of concerted activity set forth
in Meyers Industries, 281 NLRB 882 (1986) (Meyers II),
enfd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988),11 as follows: ‘‘In general, to find an employ-
ee’s activity to be ‘concerted,’ we shall require that it be en-
gaged in with or on the authority of other employees, and
not solely by and on behalf of the employee himself.’’12
In order to establish such discrimination, the General
Counsel must show that the employees engaged in concerted
activity, Respondent knew that the employees engaged in
concerted activity, the concerted activity was protected by
the Act, and the discharges were motivated by the employ-
ees’ protected concerted activity. Meyers II, 281 NLRB at
882; Meyers I, 268 NLRB at 497. An inference of unlawful
motivation may be drawn from the timing of the discharge
or other discrimination as well as evidence of animus against
the exercise of the protected concerted activity or shifting or
false reasons for the action taken. Respondent may then
show that it would have discharged or taken other action
even in the absence of the protected concerted activities. See
KNTV, Inc., 319 NLRB 447, 452 (1995). A one-time con-
certed refusal to work due to unsafe working conditions,
such as alleged in this case, generally constitutes protected
activity.13
It is undisputed that Gaitan and Ruiz acted in concert.
Moreover, it is clear that Respondent assumed the employees
were acting together. Both Kozen and Marks agreed that they
were told that the cooks had left due to the broken exhaust
fan and smoke. This one-time, nonrecurring concerted refusal
to work is protected even though other employees might not
agree that the working conditions were unsafe. See, e.g.,
Sawyer of Napa, 300 NLRB 131, 137 (1990) (concerted re-
fusal to work mandatory overtime did not lose protection of
the Act because the refusal was nonrecurring); Mediplex of
Wethersfield, 320 NLRB 510, 513 (1995) (erroneous belief
regarding paid time off did not remove concerted actions
from protection of the Act).
I conclude that Ruiz and Gaitan went on strike on the
evening of July 29. Gaitan returned to work his normal shift
on Tuesday, July 30, and Ruiz returned to work his normal
shift on Wednesday, July 31. Both employees were told by
Marks that he had covered their shifts because he understood
they were not returning. Assuming that both Ruiz and Gaitan
made unconditional offers to return to work by appearing at
their next scheduled shift, it would have been lawful for Re-
spondent to have covered their shifts for the specific days
when they were next scheduled to work.14 However, Marks
also suspended both employees pending investigation of their
walkout. This constituted an unlawful suspension attributable
only to the employees’ strike.15
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858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pending the employees was fully litigated. See, First Western Build-
ing Services, 309 NLRB 591, 608 (1992); Sawyer of Napa, 300
NLRB 131, 137 fn. 16 (1990).
16 Although Ruiz and Gaitan were unlawfully suspended, this did
not excuse their failure to return to work when they were next
scheduled to work. See, KRI Constructors, 290 NLRB 802, 813–814
(1988) (mere existence of discrimination is insufficient to warrant
abandonment of employment).
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSION OF LAW
By suspending Mauro Ruiz and Antonio Gaitan, Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
discriminatorily suspended employees, it must make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis, for the period of their suspensions, less
any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On August 2, Ruiz was told to call Marks for his hours.
He did not do so. On August 12, Gaitan refused work of-
fered to him by Marks but promised to meet with Marks in
the next days to discuss the matter. Gaitan did not appear for
this discussion. On August 19, Ruiz and Gaitan were told
that they had not been fired, their services were required, and
they needed to sign an employee counseling form regarding
the events of July 29. They responded that they would come
back if the Respondent paid 2 weeks backpay. Although
Marks agreed to look into the matter, neither Ruiz nor Gaitan
called him, as they said they would, to discuss backpay any
further. Under these circumstances, I find that Ruiz and
Gaitan voluntarily quit and are not entitled to a remedy of
reinstatement.16 I further find that Ruiz is entitled to backpay
for unlawful suspension from July 31 (the day he offered to
return to work) until August 2 (the day he was told he was
scheduled to work). I find that Gaitan is entitled to backpay
for unlawful suspension from July 30 (the day he offered to
return to work) until August 12 (the day he was told he was
scheduled to work).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Roma One Enterprises d/b/a Tony
Roma’s Restaurant, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Suspending its employees for engaging in activities
protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Mauro Ruiz and Antonio Gaitan whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspensions and
notify the employees in writing that this has been done and
that the suspensions will not be used against them in any
way.
(c) Preserve and, within 14 days of a request, make avail-
able 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 records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
facility in San Diego, California, copies of the attached no-
tice marked ‘‘Appendix.’’18 Copies of the notice, on forms
provided by the Regional Director for Region 21, 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 conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 6, 1996.
(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.
(f) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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