Spectrum Foods, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1975

221 N.L.R.B. 50 (N.L.R.B. 1975)

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minnin Corporation d/b/a Greenhouse Restaurant
and Pottingshed Restaurant, A Subsidiary of
Spectrum Foods, Inc. ' and Los 'Angeles Joint
Executive Board of Hotel and Restaurant Employ-
ees and Bartenders Unions, AFL-CIO. Cases 31-
CA-4467 and 31-RC-2711
October 23, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On May 2, 1975, Administrative Law Judge James
T. Rasbury issued the attached Decision in this
proceeding. Thereafter, General Counsel and Charg-
ing Party-Petitioner filed exceptions and supporting
briefs, and Respondent filed a brief in support of the
Administrative Law Judge's Decision.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
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.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Los Angeles Joint
Executive Board of Hotel and Restaurant Employees
and Bartenders Unions, AFL-CIO, and that said
labor organization is not the exclusive representative
of the employees , in the following appropriate unit,
within the meaning of Section 9 (a) of the National
Labor Relations Act, as amended:
All food and beverage preparation and service
department employees of the Employer, exclud-
ing guards and supervisors as defined in the Act.
i General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
221 NLRB No. 13
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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for" reversing his findings.,
Although, as General Counsel contends, the Administrative Law Judge's
stated reasons for crediting certain witnesses as opposed to other witnesses
appeared in some respects to be inconsistent, we do not believe that this
alone forms a sufficient basis for overturning his credibility resolutions
which were based in part on the demeanor of the witnesses as they testified
at the hearing.
2 The Administrative Law Judge noted in his Conclusions of Law that he
was finding Petitioner's objections to the election in Case 31-RC-2711 to be
without merit. However, he did not refer the case for further appropriate
action consistent with that conclusion which we have treated as a
recommendation to overrule the objections-a recommendation which we
have adopted herein. Inasmuch as the tally of ballots shows a vote of 10 for
and 20 against the Union, with 2 challenged ballots and I void ballot which
were insufficient to affect the results of the election, we shall issue a
Certification of Results of Election in Case 31-RC-2711.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This
matter was heard by me in Los Angeles, California, on
February 20 and 21, 1975. The original charge was filed by
Los Angeles Joint Executive Board of Hotel and Restau-
rant Employees and Bartenders Unions, AFL-CIO, herein
called the Union, on May 17, 1974, an amended charge on
September 4, 1974, and copies thereof served upon Minnin
Corporation d/b/a Greenhouse Restaurant and Pot-
tingshed Restaurant, a subsidiary of Spectrum Foods, Inc.,
herein called Respondent, by registered mail on or about
the same date. The complaint alleged the wrongful
discharge of three employees in violation of Section 8(a)(3)
of the National Labor Relations Act, as amended (herein
Act), and four incidents of 8(a)(1) violations, including
interrogation, threats, and surveillance, or appearance of
surveillance. On January 9, 1975, the Regional Director for
Region 31 issued his Report on Objections in which he
found certain objections to election raised by Petitioner
requiring credibility resolutions of conflicting evidence that
could best be resolved at a hearing before an Administra-
tive Law Judge. Pursuant to Section 102.33 of the Board's
Rules and Regulations, Series 8, as amended, the Regional
Director thereupon ordered the objections in Case 31-RC-
2711 to be consolidated with the unfair labor practice Case
31-CA-4467 for the purpose of hearing, ruling, and
decision by a duly designated Administrative Law Judge.
Issues
The problems herein consist of discerning the true
motivation or reason for the discharges of employees Peter
Rowlins, Judy Farrell, and Gillian Hathaway, made
difficult by the conflicting evidence, and perceiving -
again in the face of conflicting evidence - whether or not
certain alleged statements and conduct were committed by
the Respondent and whether such conduct might reason-
ably have interfered with, restrained, or coerced the
employees in the exercise of their Section 7 rights, and/or
whether the objections raised by Petitioner are sufficiently
meritorious to have interfered with the laboratory condi-
GREENHOUSE RESTAURANT, ETC.
tions under which elections, supervised by the National
Labor Relations Board, are to be conducted.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally.
Upon the entire record, and from my observations of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the Respondent acknowledges
that it is a California corporation engaged in the operation
of restaurant facilities in the Los Angeles, California, area.
During the past year, the Respondent realized a gross
volume in excess of $500,000 and, during the same period,
purchased goods valued in excess of $50,000 from sources
within the State of California, which in turn purchased
these goods in substantially the same form from sources
outside the State of California. I find that Respondent is
and, at all times has been, an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer of Respondent acknowledges , and I herewith
find, the Los Angeles Joint Executive Board of Hotel and
Restaurant Employees and Bartenders Unions, AFL-CIO,
to be a labor organization within the meaning of Section
2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES'
A. Background
Respondent operates two restaurants , the "Greenhouse"
and the "Pottingshed," under the same roof and serviced
from the same kitchen . In late 1972, the Union lost a
consent election by one vote (Case 31-RC-2275). In late
1973 , the Union launched a new organizational campaign
and Peter Rowlins was active in obtaining the authoriza-
tion cards from approximately half of the employees. On
May 10, 1974, an election was held in Case 31-RC-2711 in
which the Union was defeated by a vote of 20 votes for
Respondent and 10 for the Union.2
Respondent contends Peter Rowlins was discharged on
February 1 , 1974, for appropriating a partially filled bottle
of wine from a customer's table for his own use. Judy
Farrell was discharged on March 9 , 1974, allegedly for
misappropriation of fiends, and Gillian Hathaway allegedly
quit, or voluntarily brought on her own termination,
because she was unable to work the hours or shift required
by Respondent.
i The allegations of interference, restraint, and coercion because of
alleged statements and conduct on the part of Respondent are so nearly
akin to the objections to the election that the consideration and discussion
of the evidence shall dispose of both issues as if they were one and the same.
2 One ballot was void and two ballots were challenged
3 The incident occurred more than 6 months before the charge was filed
and is barred as evidence of an unfair labor practice by Sec. 10(b) of the
Act, but was admissible as background evidence only.
51
B. Discharge of Peter Rowlins
Rowlins was a waiter in that portion or section of the
restaurant known as the Greenhouse. There was some
testimony of a background nature tending to show that
Respondent had knowledge of Rowlins' interest and
activity on behalf of the Union.3 Even this evidence was
vague, and might be characterized as dubious proof of an
8(a)(1) violation, but, according, to Rowlins, Morri Ahma-
dmejad4 spoke to him and to another waiter on one
occasion saying: "You can go ahead and try and get the
union in, but you will lose." To which Rowlins responded
by saying, "Well, we will quit the union activity." Nothing
more.
The incident precipitating Rowlins' discharge involved a
partial bottle of wine. According to Rowlins' testimony,
the partial bottle of wine was removed by him from the
customers' table before they had finished eating, because
one of the customers had told him to take it away. He then
placed it on a counter, or shelf, behind the cigarette
machine, intending it for his own use. Rowlins said this
was not unusual.
The manager, Morri Amedi, testified that the customer
complained because Rowlins removed the wine before it
had all been served and that it became necessary for
Amedi to "buy" the customer another bottleth of wine. After
locating where Rowlins had "hidden" the wine, Amedi
confronted Rowlins who acknowledged that he had placed
the wine on ' the counter, behind the cigarette machine.
Whereupon Amedi advised Rowlins that he was dis-
charged. This incident was followed by a letter to Rowlins
confirming the reason for the discharge and enclosing his
salary check and pay for his accrued vacation (G.C. Exh.
2).
Based on all the evidence, I find Rowlins' discharge to
have been fully justified and not in violation of the Act as
alleged. Not only do I find Rowlins' testimony concerning
the removal of the wine from the table lacking in complete
candor, but I also find that the act of discharging Rowlins
occurred only a few days after he had been warned, in
writing, of several inadequacies or mistakes as a waiter -
any one of which might have justified discharge (Resp.
Exh. 7).5 The General Counsel has an obligation to prove
the allegations of the complaint by a preponderance of the
evidences and the mere fact that an employee is active in
the Union does not insulate him from discipline or
discharge for nondiscriminatory reasons.?
C. Discharge of Judy Farrell
Judy Farrell was first employed as a waitress in the
Pottingshed in June 1972, and 'voluntarily quit in Decem-
ber 1972. She was rehired in August 1973 and worked until
terminated March 9, 1974. She testified that she had signed
a union authorization card and had given cards to two
4 Sometimes referred tom the record as Morn Amedi.
5 A waiter named Don Rowe was discharged the same evening for a
similar offense.
6 Falstaff Brewing Corporation, 128 NLRB 294, 295, fn. 2 (1960) enfd as
modified 301 F.2d 216 (C.A 8, 1962).
7 N.L RB v. Ace Comb Co and Ace Bowling Co., Division of Amerace
Corp., 342 F.2d 841, 847 (C.A. 8, 1965).
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other waitresses, but had no knowledge of whether or not
the other two waitresses had signed the cards. Suzanne
Wickman, a former waitress, testified that, on one
occasion, -Morn Amedi had stated that Judy Farrell and
Gillian Hathaway "were troublemakers and he wanted to
get rid of them." The record is void of proof that
Respondent had knowledge of Farrell's union interest -
which was minimal by her own testimony.
William Maltz, a customer of the restaurant, testified
that, the latter part of January 1974, he had seen Farrell
place money in her pocket and erase a check. He advised
Charles Frank, Respondent's controller, of this by letter
dated January 31 (Resp. Exh. 3). Maltz did not know the
waitress by name and it was not until about the first week
in March that he identified Farrell to the management.
Farrell was discharged at the end of of the first full week in
March by Morn Amedi at which time she was told, "he
had received a letter of complaint from a customer" and
that was the reason for the discharge.
Farrell denied that she had ever wrongfully taken any
money or erased any of the checks.8 Regardless of whether
Farrell did or did not wrongfully appropriate Respondent's
money for her own use, and from this record it 'certainly
was not proven that she did, nevertheless, I am convinced
that she was discharged because Respondent believed that
she had done so based on the customer's complaint. Maltz
was a credible witness whose motives were sincere and his
testimony candid. Moreover, I am not convinced that
Respondent had any knowledge of Farrell's interest in the
Union.
D. Discharge of Gillian Hathaway
Gillian Hathaway was first employed on January 13,
1974, and her, employment was terminated on March 9,
1974. She worked first as a counter girl for takeout orders
and then was moved to become a waitress behind the
counter in' the Pottingshed. In late February, she signed a
union card which was' misplaced and a short time later she
signed another that was given to Suzanne Wickman, an
employee, who returned it to a union representative. There
is no other testimony reflecting on her union interests or
activities other than that related heretofore to the effect
that she was a troublemaker. In contrast to this, Mom
Amedi testified she was a good waitress and he was sorry
to lose her.
The relevant testimony relating to her severance con-
cerned her hours of work. When Hathaway was first
employed, she only worked 3 or 4 hours a day. When she
became a counter waitress, she worked from 10 a.m. to 2
p.m. and later until 4 p.m. On March 8, 1974, she was
informed that the counter would be opening at 8 a.m., and
she was to report for work at 8 a.m. on March 11.
Hathaway protested, contending she had a child and that it
was not possible for her to work those hours. There was
additional tangential evidence as to whether she forthwith
quit, refused to take offered employment at the takeout
counter (where the hours would be more to her liking), and
whether or not Amedi knew she had a child.
a "Checks," as the word is used herem, refers to the order pads used by
the waitresses which were senahzed to provide a means of accounting.
In view of the total lack of evidence that Respondent
knew of Hathaway's union interest and confronted with
solid- proof that increased breakfast business required her
work station to be opened at 8 a.m. instead of 10 a.m.,9 it
must be found that Gillian Hathaway voluntarily brought
about her own termination because of her unwillingness, or
inability because of personal problems, to work the hours
and shift times desired by her employer. I fmd nothing
discriminatory or violative of the Act associated with her
severance from Respondent's payroll.
E. Interrogation of Suzanne Wickman
Suzanne Wickman was employed as a counter waitress
in , the Pottingshed and as a cocktail waitress in the
Greenhouse for a period of approximately 6 weeks
beginning the latter part of January 1974. She was
discharged, but is not an alleged 8(a)(3) discriminatee.
Wickman testified that sometime, during her employment
("about 2 weeks before I was fired, I think, I don't know
exactly") Morn Amedi told her, "We have been having
some problems here and all the waiters in the Greenhouse
have signed union cards and did -I know the names of
anyone that had signed a card." After replying, "No," she
testified that Amedi then said: "Well, if you hear of
anything, let me know," something like that. Morri Amedi
specifically denied the conversation. Mom Amedi is no
longer employed by Respondent and had nothing to gain
by lying., I fmd it difficult to believe that an experienced
manager, would make such an observation, or request, as
related by Wickman, of a relatively new employee.
Wickman's testimony was vague and indefinite as to
exactly when and where the conversation occurred and, in
the absence of something more convincing, I am unable to
fmd that the preponderance of the evidence sustains the
allegation.
F. Interrogation of Claudia Craze -
The complaint alleged that Claudia Craze was interro-
gated by Amedi on March 25, 1974, supposedly the day
she first applied for. a job. However,, the testimony
indicates her first day of work was March 25, and she was
not hired until a few days after initially applying at the
restaurant. There is a conflict in, the evidence as to who
actually hired her, but I do not regard that conflict as
determinative of the primary issue of whether she was
questioned by Amedi regarding her attitude toward the
Union as was alleged and as Miss Craze testified.
According to Miss Craze, while Amedi was. showing her
around the premises of the two restaurants, he asked her
what she thought of unions. Upon receiving indications
that she had never belonged to one, he replied, "In this
company we all work together and we don't need them."
Morri Amedi denied any such conversation with Miss
Craze and explained that she came into the restaurant
about 12:30 p.m. when he was very busy with the luncheon
business; that he only gave her Charles Frank's telephone
number (the company controller); obtained her telephone
number because the restaurant was in need of a cashier;
9 See Resp. Exh. 5 and 6 which reflect a definite increase in the number
of breakfast customers between February 1973 and February 1974.
GREENHOUSE RESTAURANT, ETC.
and that he did not hire cashiers, that it was done by
Charles Frank.
There was cross-examination testimony by Craze show-
ing that she was paid $15 a day by the Union for each day
she worked at the restaurant as payment for furnishing the
Union information regarding Respondent. While I do not
discredit her testimony for this reason, and under Board
decisions this is not per se wrongful conduct,10 neverthe-
less, it does tend to show a certain bias or prejudice on her
part. Logically, I can perceive of no reason why a walk-in
cashier applicant would be shown around the premises by
the manager. This would be especially true if - as is
undenied in the record - the applicant appeared at a
particularly busy time of day. Moreover, in the interest of
security and accountability for the cash receipts, it would
seem prudent to have the authority for hiring of cashiers
rest with someone other than the restaurant manager. It
was the controller's office who checked with her former
employer (Resp. Exh. 4). A careful analysis of all the
evidence compels the conclusion that the circumstances
surrounding the hiring of Miss Craze was in accordance
with the testimony of Respondent's witnesses and not as
testified by Miss Craze.
G. Surveillance by Amedi and Mindel
There were two instances of alleged surveillance by
Respondent . The first allegedly occurred a few days before
the election and involved Mindel, the president of
Respondent , and Louis De La Cruz, a union business
representative for one of the locals that make up the Joint
Board herein involved as Petitioner and Charging Party. I
find Louis De La Cruz' testimony too confusing to be
proof of anything except that he was on the sidewalk near
the restaurant a few days before the election at which time
he had a conversation with a busboy, and a short time later
a conversation with Mmdel. Presumably, I am supposed to
reason that, because De La Cruz was in the vicinity of the
restaurant talking to employees and because the owner
walked out of the restaurant and spoke to De La Cruz,
there is an inference that Mindel was spying on the Union
and the employees. I refuse to engage in such assumptions
and inferences. The General Counsel is required to prove
the allegations by a preponderance of the evidence and not
by veiled inferences possibly arising from purely circum-
stantial events.
The second alleged incident of surveillance has more
substance, but in my opinion is without merit. Penny
Orduna, an organizing representative of the Union,
testified that a few days before the election date (May 10,
1974) she and Felicia Bragg went to the restaurants to try
and talk to some of the employees that they had been
unable to contact . After having a cup of coffee inside the
restaurant, they went outside to wait on the sidewalk at the
side of the building where they hoped to talk to some of the
employees who might come out of the restaurant for their
afternoon break. During this period of time, Amedi came
out of the restaurant, got into his car, moved it to the
loading zone , and returned inside the restaurant, and
53
shortly thereafter Mindel came out and both he and Amedi
stood near the back door and talked for a moment and
then Amedi departed. Mindel remained for _ several
minutes, and, according to Orduna, his presence prevented
her from talking to anyone.
Amedi explained that he had neglected to speak to
Mindel concerning a meeting that he and Mindel regularly
held at another restaurant and he returned to the
restaurant to speak to Mindel about the meeting. Mindel
said he met Amedi returning to the restaurant as he was
coming outside for a smoke. There is a small landing at the
back door for the purpose of receiving supplies and it
provides the only convenient place to step outside and
smoke. Mindel acknowledged seeing Orduna and Felicia
Bragg; that he did not know who they were, but they
introduced themselves; that a few pleasantries were
exchanged; and that he had no recollection of seeing any
employees during the time he was there other than Amedi.
Both Amedi and Mindel were in places where they had a
perfect right to be and their explanations are both logical
and reasonable. The mere fact that Mindel may have stood
on the landing deck at the back or side door of his
restaurant smoking a cigarette while two union organizers
were in the immediate vicinity is hardly proof of unlawful
surveillance. It is all too easy for the human mind to
attribute a much greater degree of observation to another
person than actually occurs. This is particularly true if one
is engaged in conduct about which one has some degree of
apprehension or concern. Under such circumstances, one
frequently imagines they are being closely watched or
observed when in reality they are not. I have previously
credited Amedi's testimony, and there is no basis for not
crediting Mindel's testimony. Under the evidence, the mere
suspicion of surveillance is totally inadequate to sustain the
burden of proof required by the General Counsel.
There remains only the comment attributed to Amedi
regarding Farrell and Hathaway as "troublemakers." As
already indicated, I have grave doubts about the credibility
of Wickman's testimony. Moreover, under all the circum-
stances, I do not regard the use of the word
"troublemaker" as being synonymous with "union adher-
ents" even if the statement were made.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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 the Act in any manner
within the meaning of the National Labor Relations Act,
as amended.
4. The objections to the election in Case 31-RC-2711
are without merit.
10 See Dee Knitting Mills, Inc., 214 NLRB No. 138 (1974)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER 11
It is hereby ordered that this consolidated complaint be,
and it hereby is, dismissed in its entirety.
it 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.