Iron Griddle Restaurant

National Labor Relations Board - Board Decisions

Jul 29, 1998

325 N.L.R.B. 1197 (N.L.R.B. 1998)

1197
325 NLRB No. 221
IRON GRIDDLE RESTAURANT
1 The panel’s reversal did not address Ferrari’s undisputed request
to discuss receiving pay for work performed before the restaurant
opened.
2 Contrary to our dissenting colleague, we think it unwarranted
simply to assume that the judge’s finding concerning the limits of
the Respondent’s defense in the unemployment compensation hear-
ing had no effect on his ultimate conclusion concerning the credibil-
ity of Lewis’s testimony. In his summary paragraph, in which he
concludes that ‘‘Lewis attempted to mislead me on a material fact,’’
the judge found that the ‘‘alleged insubordination’’ was only belat-
edly conceived, when the Respondent was looking for a defense to
the unfair labor practice charge. The point on which we are remand-
ing bears directly on that finding.
Linda Lewis and Roger Weekly, Individually and as
a Partnership, d/b/a Iron Griddle Restaurant
and Lynette Ferrari. Case 6–CA–28767
July 29, 1998
ORDER REMANDING TO ADMINISTRATIVE
LAW JUDGE
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On October 16, 1997, Administrative Law Judge
James L. Rose issued his decision in this proceeding.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a limited exception
and an answering brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by discharging the Charging
Party, Lynette Ferrari, for engaging in protected con-
certed activity. Specifically, the judge found that ma-
jority partner Linda Lewis had discharged Ferrari at
the close of her shift on January 23, 1997, because of
Ferrari’s request that day on behalf of herself and an-
other waitress for pay for time spent setting up before
the restaurant opened. He specifically discredited
Lewis testimony that she discharged Ferrari for insub-
ordination, namely for her refusal to report to her, as
she had requested, at the end of Ferrari’s shift on the
previous day. In support of his credibility determina-
tion, the judge noted that the ‘‘alleged act of insubor-
dination was not given as a reason on any of the forms
Lewis filled out in defense of Ferrari’s unemployment
compensation [claim] nor testified to by Lewis at the
unemployment compensation hearing.’’ He concluded
that ‘‘Ferrari’s alleged insubordination . . . was not
advanced before the Commonwealth because it did not
happen.’’
The Respondent has excepted to the judge’s decision
primarily on grounds that the judge made incorrect
credibility findings. Specifically, the Respondent con-
tends that the judge erred in holding that insubordina-
tion was not advanced before the Unemployment Com-
pensation Board as a reason for Ferrari’s discharge.
We have reviewed the record in light of the exceptions
and briefs and find merit in this contention.
Neither the Respondent nor the General Counsel en-
tered the transcript of the unemployment compensation
hearing as an exhibit in the instant proceeding. The
General Counsel entered as exhibits, however, deci-
sions of April 25 and June 24, 1997, made by the
Pennsylvania Unemployment Compensation Board re-
garding Ferrari’s claim for benefits. In the earlier deci-
sion, a referee affirmed the determination of the Office
of Employment Security to award unemployment bene-
fits to Ferrari. In the later decision reversing the ref-
eree’s order, however, a three-member panel specifi-
cally found, inter alia, ‘‘ employer’s testimony credible
that the claimant was instructed to report to the em-
ployer at the end of her shift, and refused to.’’1 In ad-
dition, Ferrari testified in the instant unfair labor prac-
tice hearing that ‘‘the first [she] ever knew’’ about the
assertion that Nichols had asked her to report to Lewis
on January 22 was at the hearing held by the Unem-
ployment Compensation Board on March 19.
In these circumstances, we are remanding this case
to the judge to reconsider his credibility determinations
and to prepare a supplemental decision in light of the
erroneous basis he asserted for discredting Lewis’ tes-
timony.2 We find it unnecessary at this time to pass
on the Respondent’s other exceptions or on the Gen-
eral Counsel’s limited exception to the judge’s deci-
sion.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge James L. Rose for the lim-
ited purpose described above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a Supplemental Decision set-
ting forth the resolution of credibility issues, findings
of fact, conclusions of law and recommendations, in-
cluding a recommended order, in light of the issue on
remand. Copies of the Supplemental Decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations, Se-
ries 8, as amended, shall apply.
CHAIRMAN GOULD, dissenting.
Contrary to my colleagues, I find it unnecessary to
remand this case to the judge to reconsider his credi-
bility determinations. Even assuming that one of the
reasons for the judge’s discrediting of Linda Lewis
was erroneous, I find the judge had sufficient, correct,
and independent reasons for his credibility resolution.
The judge found that Lewis discharged employee
Ferrari at the close of her shift on January 23, 1997,
because of Ferrari’s request earlier that day on behalf
of herself and another employee for pay for time spent
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1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1997 unless otherwise indicated.
setting up before the restaurant opened. In so finding,
the judge discredited Lewis’ testimony that she dis-
charged Ferrari for her insubordination in refusing to
report to Lewis, as requested, at the end of Ferrari’s
shift on the previous day.
The judge explained his discrediting of Lewis testi-
mony as ‘‘based in part on demeanor but also on the
inherent unreasonableness and internal inconsistency of
Lewis’ testimony on certain critical facts.’’ (ALJD
3:13–14) As my colleagues emphasize, the judge
pointed to the fact that Lewis did not testify about the
insubordination at the unemployment compensation
hearing. However, he also pointed to the undisputed
facts that the insubordination was not given as a reason
on any of the forms Lewis filled out in defense of
Ferrari’s unemployment compensation. He further re-
lied on the admitted fact that insubordination was not
mentioned in a paper offered into evidence by Lewis
as containing a list of Ferrari’s faults which Lewis
claimed she intended to read to Ferrari when discharg-
ing her. These grounds, in addition to the judge’s ob-
servation of demeanor, are sufficient to find that the
record supports his credibility determination. The
judge’ error in finding that insubordination was not ad-
vanced before the Commonwealth at the unemploy-
ment compensation hearing does not affect his other
reasons for discrediting Lewis. I would not waste the
resources of this agency by remanding this case to the
judge to reconsider his credibility resolutions in such
circumstances.
David G. Shepley, Esq., for the General Counsel.
Thomas G. Lemons, Esq., of McMurray, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Waynesburg, Pennsylvania, on August
5, 1997,1 upon the General Counsel’s complaint which al-
leged that on January 23, the Respondent discharged Lynette
Ferrari and committed other violations of Section 8(a)(1) of
the National Labor Relations Act, 29 U.S.C. § 151 et seq.
The Respondent generally denied that it committed any
violations of the Act and affirmatively contends that Ferrari
was discharged for cause.
Upon the record as a whole, including my observation of
the witnesses, briefs and arguments of counsel, I hereby
make the following findings of fact, conclusions of law and
recommended order
I. JURISDICTION
The Respondent is a partnership jointly owned by Linda
Lewis and Roger Weekly engaged in the operation of a fam-
ily restaurant in Waynesburg, Pennsylvania, in which it an-
nually has gross revenues in excess of $500,000 and annually
purchases and receives goods valued in excess of $50,000
from other enterprises, including Sysco, Inc., located within
the Commonwealth of Pennsylvania, each of which enter-
prises had received these goods directly from points outside
the Commonwealth of Pennsylvania. The Respondent admits,
and I conclude that it is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Linda Lewis and Roger Weekly took over ownership of
the Iron Griddle Restaurant on May 22, 1995, prior to which
it had been owned and operated by John Christopher. Lewis
is the principal managing partner. Weekly has another full-
time job thus his active involvement is limited to the evening
shift.
Lynette Ferrari began working for the restaurant as a wait-
ress in 1994. She was discharged on January 23, at which
time she worked the early morning shift—6 a.m. to 1 p.m.
She, and the others on the early shift, typically arrived at
about 5:30 a.m. in order to make coffee and do other pre-
paratory activity.
In February 1996 Lewis had a timeclock installed. Ferrari
asked about punching in before 6 a.m. in order to do the pre-
paratory work and Lewis gave the early employees permis-
sion to punch in at 5:45 a.m. However, as Ferrari testified,
she was never paid for 15 minutes between 5:45 and 6 a.m.
The timeclock was taken out in December 1996.
The events leading to Ferrari’s discharge began on January
22. Ferrari overslept that morning, and as a result was 3 to
5 minutes late for work. Although her husband had called in
about 5:30 a.m. to say that she was running late but would
be there shortly, and Ferrari had never been late before, this
infuriated Lewis and on Ferrari’s arrival, Lewis reprimanded
her. Ferrari in turn was upset, particularly as she was not
being paid for time before 6 o’clock, and she called her hus-
band to see what had been said when he called the res-
taurant. This then resulted in Dennis Ferrari coming to the
restaurant about 8:30 a.m. asking to talk to Lewis. She re-
fused and there was a minor confrontation between Dennis
Ferrari, Lewis, and Lewis’ son.
While this was not assigned by the Respondent as the rea-
son for discharging Ferrari the next day (counsel for the Re-
spondent stating that it was down on the list), it did motivate
Ferrari to learn of her rights from the National Labor Rela-
tions Board and the Commonwealth unemployment office.
Thus at about 12:45 p.m. on January 23 she told her super-
visor, Melva Custer (then Nichols) that she needed to leave
promptly at 1 p.m. when her shift ended as she had ‘‘some
place I have to go. And she said no problem.’’ A few min-
utes before 1 p.m. Custer said business was slow enough
they could count the tips, they did so and Ferrari left.
Ferrari made contact with the various agencies and later on
January 22 called Phyllis Steves, who also worked the morn-
ing shift, to say that she could make a claim for the 15 min-
utes and could not be fired, but she had to include another
employee. Steves said to use her name, that she wanted to
be paid as well.
Thus on January 23 Ferrari saw Lewis about 6:30 a.m.
said to her, ‘‘me and Phyllis would like to talk to you about
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1199IRON GRIDDLE RESTAURANT
our starting time and about getting paid for that fifteen min-
utes.’’ To which, Ferrari testified, Lewis responded, ‘‘If you
want to push this, I will lay you off. I said Linda, me and
Phyllis just want to talk to you about our starting time and
about getting paid for that 15 minutes. She said I’ll talk to
you alone. I’ll talk to Phyllis alone, but, I will not talk to
you two together. She says, and I’ll pay you for five minutes
and no more, and I do mean it Lynn, if you want to push
this, I will lay you off.’’
At the end of her shift that day, Ferrari was called into
Lewis’ office and was terminated.
This summary of the facts is based on the credited testi-
mony of Ferrari. Where there are factual disputes between
Ferrari and Lewis I credit Ferrari and discredit Lewis. This
is based in part on demeanor but also on the inherent
unreasonableness and internal inconsistency of Lewis’ testi-
mony on certain critical facts.
Although Lewis testified that Ferrari’s overall attitude
from the beginning led to the termination, it was her refusal
to see Lewis at the end of her shift on January 22 which was
critical. Lewis testified that she told Custer to tell Ferrari to
come to her office at the end of the shift. Custer testified that
when relaying this order Ferrari declined, saying she had an
appointment and had to leave right after work and Custer so
informed Lewis. However this alleged act of insubordination
was not given as a reason on any of the forms Lewis filled
out in defense of Ferrari’s unemployment compensation nor
testified to by Lewis at the unemployment compensation
hearing. Lewis offered into evidence a paper on which she
had written a list of Ferrari’s many faults and which she
claims she intended to read to Ferrari when discharging her.
Not meeting with Lewis on January 22 was not listed. She
justified this omission saying ‘‘It was kind of a moot point
by then.’’ So, of course, were Ferrari’s other alleged faults.
I conclude that Ferrari was not called to see Lewis on Jan-
uary 22 as testified to by Lewis and Custer. To the contrary,
I credit Ferrari that Custer did not tell her to meet with
Lewis after the shift, rather about 15 minutes before the end
of the shift she told Custer that she needed to leave promptly
at 1 p.m. and Custer said that would be no problem. Ferrari’s
version is corroborated by then cashier Heidi Conard who is
no longer an employee and has no apparent stake in the out-
come of this matter.
I believe that Ferrari’s alleged insubordination on January
22 was not advanced before the Commonwealth as a reason
for her discharge because it did not happen. I conclude that
the alleged insubordination was conceived only after Lewis
learned that to avoid liability under the Act she needed to
have made the discharge decision prior to Ferrari engaging
in protected concerted activity. In short, I conclude that
Lewis attempted to mislead me on a material fact.
B. Analysis and Concluding Findings
1. The discharge of Lynette Ferrari
It is well settled that initiating a discussion about wages
with an employer is protected activity. It is also well settled
that where an employee brings to an employer’s attention a
matter of protected concern on behalf of one or more fellow
employees, it is concerted within the meaning of Section 7.
Thus if, as I conclude, Ferrari sought to discuss the matter
of being compensated for the 15 minutes before shift with
Lewis on behalf of herself and Steves, she was engaged in
protected concerted activity. And if, as I conclude, she was
discharged for this reason, the Respondent violated Section
8(a)(1) of the Act. Woodline Motor Freight, 278 NLRB 1141
(1986).
There is no doubt Ferrari sought to discuss the wage mat-
ter with Lewis on the morning of January 23 on behalf of
Steves and herself. Indeed, Lewis so admits. The only ques-
tion is whether this caused her discharge or whether, as the
Respondent contends, the decision to discharge Ferrari was
made on January 22 and was independent of wage issue dis-
cussion.
Considering the timing of Ferrari’s discharge with her at-
tempt to discuss the pay issue with Lewis, and her tenure
and competency as an employee, I conclude that the General
Counsel made out a prima facie case of a violation. It there-
fore devolved on the Respondent to establish that Ferrari
would have been discharged notwithstanding her engaging in
protected concerted activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st. Cir. 1981). I further con-
clude that the Respondent failed to carry its burden.
The Respondent’s characterization of Ferrari as being a
substantial problem employee from the beginning of the
Lewis/Weekly ownership is simply not persuasive. Weekly
testified that he recommended as early as October 1996 that
Ferrari be terminated and Custer testified that she also rec-
ommended Ferrari’s discharge in early January. Lewis
brought forth many documents by which she sought to prove
the continuing problems she had with Ferrari, yet she never
gave Ferrari any kind of a discipline. (The one written rep-
rimand in Ferrari’s file related to dirty shoes and was given
by the previous owner.) Lewis and Weekly admitted that em-
ployees are regularly discharged for various reasons. Ferrari
was not.
The Respondent offered into evidence a ‘‘Performance
Warning’’ Ferrari had signed the day she was hired by the
previous employer. The purported original offered into evi-
dence had a very light check mark by ‘‘Attitude toward co-
workers, petty bickering, gossiping.’’ I doubt this check mark
was in the document at the time Ferrari signed it or when
Lewis and Weekly bought the restaurant. It simply does not
make sense that Ferrari would be given a performance warn-
ing on her very first day of work. Rather, I conclude that the
document was a means by which employees acknowledged
the areas in which they would be evaluated and that someone
on behalf of the Respondent, at a later time, added the
check-mark. This is not particularly important of itself, but
it is consistent with the Respondent’s attempt to portray
Ferrari’s entire employment history in as unfavorable light as
possible.
Lewis and Weekly both testified that as bad an employee
as Ferrari was, the final ‘‘straw’’ was her refusing to meet
with Lewis on January 22. Lewis testified that she probably
would have terminated Ferrari on January 22, but may have
only given her a reprimand. ‘‘I had a written reprimand for
her that day. But, if she gave me any spark that she was
sorry, or that she could change; but I didn’t hold out much
hope for it, but she eliminated any hope on the 22nd when
she didn’t show up.’’ Thus, according to Lewis, the dis-
charge decision was made before Ferrari engaged in any pro-
tected concerted activity, and before their discussion on Janu-
ary 23. I am not persuaded. Indeed, I simply do not believe
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1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
Lewis. Had she in fact asked to see Ferrari at the end of her
shift on January 22 to give her a written reprimand, I find
it more probable than not that Lewis would still have the
document. She kept everything else associated with Ferrari’s
employment. Lewis testified that the threw the reprimand
away.
Further, had it been the events of January 22, rather than
January 23, which led Lewis to discharge Ferrari, it would
follow that Ferrari would have been terminated on arriving
at work on January 23, or would have been contacted at
home on January 22. Weekly testified that he has discharged
employees of the Respondent by phone.
Finally, Dorothy Welsh testified that about a week after
Ferrari’s termination, she asked Custer why this had hap-
pened and Custer ‘‘said she had been fired because her hus-
band had went into Linda’s office and they had words or an
argument. And that he had to be escorted out and that Ly-
nette had threatened to go to the Labor Relations Board.’’
Although denying this initially, Custer did admit that it was
possible that she said something about the Labor Board to
Welsh.
Testimony from several current employees, including
Steves who was a witness for the General Counsel, suggests
that Ferrari was a strong willed individual and not easy for
everyone to work with. Thus Steves testified that before
Kathy Johnson left in the winter of 1995–1996, Steves told
Lewis that with Johnson and Ferrari together was like a
‘‘war zone.’’ While this testimony lends some credence to
the Respondent’s position concerning Ferrari as an employee,
the fact remains that her attitude existed the entirely of her
time with the Respondent. Other than confront Lewis with
the before-hours pay issue, Ferrari’s performance on January
23 (or January 22) was no different than it had been.
Accordingly, I conclude that the Respondent did not carry
its burden of proving that Ferrari would have been dis-
charged even if she had not brought up the pay matter. And
I conclude that by discharging Ferrari, the Respondent vio-
lated Section 8(a)(1) of the Act.
2. Other alleged violations
It is alleged that on January 23 Lewis ‘‘threatened its em-
ployees with layoff if they engaged in protected concerted
activities relating to pay for time worked.’’ This is alleged
to have occurred when Ferrari approached Lewis on the
morning of January 23.
According to Ferrari, whom I credit, in response to
Ferrari’s inquiry about the before hours pay Lewis said, ‘‘lis-
ten Lynn, I’m not playing games. If you want to push this,
I will lay you off. I said Linda, me and Phyllis just want to
talk to you about our starting time and about getting paid for
that fifteen minutes. She said I’ll talk to you alone. I’ll talk
to Phyllis alone, but, I will not talk to you two together. She
says, and I’ll pay you for five minutes and no more, and I
do mean it Lynn, if you want to push this, I will lay you
off.’’
By telling Ferrari that she would be laid off if she pursued
the pay issue Lewis threatened Ferrari in violation of Section
8(a)(1) of the Act.
As noted above, I credit Welsh’s testimony that about one
week after Ferrari’s discharge, Custer told Welsh that the
discharge was caused in part because she had gone to the
Labor Board. Such necessarily intimidates employees in the
exercise of their right to seek protection of the Act and was
therefore violative of Section 8(a)(1).
III. REMEDY
Having concluded that the Respondent committed certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act, including reinstating Ly-
nette Ferrari to her former job, or if that job no longer exists,
to a substantially identical position of employment and make
her whole for any loss of wages or other benefits she may
have suffered in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact, conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Linda Lewis and Roger Weekly, Individ-
ually and as a Partnership d/b/a Iron Griddle Restaurant, their
officers agents, successors and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because they engage in concerted activity protected
by the National Labor Relations Act.
(b) Threatening employees with discharge should they en-
gage in concerted activity protected by the National Labor
Relations Act.
(c) Interfering with employees rights under the National
Labor Relations Act by telling them that an employee has
been discharged for contacting the National Labor Relations
Board.
(d) In any like or related manner, interfering with, 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) Offer Lynette Ferrari immediate and full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her in the
manner set forth in the remedy section of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and
within 3 days thereafter notify the employee in writing that
this has been done and that the discharge will not be used
against her in any way.
(c) Preserve and, within 14 days of a request, make 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.
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1201IRON GRIDDLE RESTAURANT
3 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.’’
(d) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Regional Di-
rector for Region 6, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed its facility in-
volved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since the date of this Order.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
employees because they engage in concerted activity pro-
tected by the Act.
WE WILL NOT threaten our employees with discharge
should they engage in concerted activity protected by the
Act.
WE WILL NOT interfere with our employees rights under
the Act by telling them that an employee has been dis-
charged for contacting the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Lynette Ferrari immediate and full rein-
statement to her former job, or if that job no longer exists,
to a substantially equivalent position of employment and we
will make her whole for any loss of wages or other benefits
she may have suffered as a result of our discrimination
against her, with interest.
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