Bill Johnson's Restaurants, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1980

249 N.L.R.B. 155 (N.L.R.B. 1980)

BILL JOHNSON'S RESTAURANTS, INC. 155
Bill Johnson's Restaurants, Inc. and Myrland R.
Helton. Cases 28-CA-4970 and 28-CA-5041
April 30, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 27, 1979, Administrative Law
Judge James S. Jenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed exceptions and a brief in answer to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions 3 of the Administrative Law
Judge, except as modified herein, and to adopt his
recommended Order, as modified below.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following Conclusion of Law 3
for that of the Administrative Law Judge:
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties
a Respondent has excepted to certain credibility findings made by tile
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found, inter alta, that Respondent vio-
lated Sec. 8(a)4) of the Act by Supervisor Sturgeon's threat to "get
even" with employee Helton for her participation in picketing Respond-
ent's restaurant, and by Gene Johnson's, Respondent's part owner, veiled
threat of retaliation to Carl Nichols, the husband of employee Cheryl Ni-
chols, for her picketing activities. While we agree with the Administra-
tive Law Judge's findings that the threats were in retaliation for the em-
ployees' protected activities and thus unlawful, we find no evidence to
support his conclusion that such conduct was in response to Helton's
filing of an unfair labor practice charge. Accordingly, we do not adopt
the Administrative Law Judge's findings of violations of Sec. 8(a)4) with
respect to these incidents, but, instead, find that the threats violated Sec.
8(aX I) of the Act
In his exceptions, the General Counsel notes that, while the Adminis-
trative Law Judge found that employees Nichols, Michaud, and Scott
were unfair labor practice strikers, he failed to set forth in either his rec-
ommended Order or notice their rights respective to reinstatement and
backpay. Accordingly, we shall amend his recommended Order to in-
clude such provisions.
I While the Administrative Law Judge found that Supervisor Gay in-
terrogated employee Dirksen on two separate occasions, the Administra-
tive Law Judge only refers to a single incident of interrogation in his
Conclusions of Law. The General Counsel requests that the Conclusions
of Law be amended to reflect that two interrogations, in fact, occurred.
We agree, and shall amend the Administrative Law Judge's Conclusions
of Law accordingly.
249 NLRB No. 26
"3. By interrogating an employee on two sepa-
rate occasions on and after August 10, 1978, re-
garding the union activities of other employees,
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Bill Johnson's Restaurants, Inc., Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) Threatening to bring reprisals against em-
ployees or their spouses for picketing its premises
or for engaging in other protected concerted activ-
ities."
2. Insert the following as paragraph 2(d) and re-
letter the succeeding paragraphs accordingly:
"(d) Offer to employees Nichols, Scott, and Mi-
chaud, upon application, reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dis-
charging, if necessary, any replacements hired on
or after September 18, 1978, the commencement of
the unfair labor practice strike."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge employees because
of their union or other protected concerted ac-
tivities.
WE WILL NOT question any employees or
former employees regarding their union activi-
ties or the union activities of others.
WE WILL NOT threaten to bring reprisals
upon employees or their spouses for picketing
our premises or for engaging in other protect-
ed concerted activities.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT file a civil lawsuit against em-
ployees, or threaten to depose or depose them,
for engaging in protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
WE WILL offer Myrland R. Helton immedi-
ate and full reinstatement to her former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and
WE WILL reimburse her for any loss of earn-
ings she may have suffered because we dis-
charged her, together with interest.
WE WILL offer to employees Nichols, Scott,
and Michaud, upon application, reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, discharging, if necessary,
any replacements hired on or after September
18, 1978, the commencement of the unfair
labor practice strike.
WE WILL withdraw the complaint styled as
Bill Johnson's Restaurants, Inc., An Arizona
Corporation, et a v. Myrland R. Helton, et a.,
No. C375470, which we caused to be instituted
in the Superior Court of the State of Arizona
in and for the County of Maricopa, and which
we filed and maintained because Helton uti-
lized the processes of the National Labor Rela-
tions Board, and WE WILL reimburse Myrland
R. Helton and all other named party defend-
ants for all legal expenses incurred in the de-
fense of said lawsuit, including expenses in-
curred in relation to Defendants' Answer and
Counterclaim.
BILL JOHNSON'S RESTAURANTS, INC.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: These
cases were heard before me in Phoenix, Arizona, on De-
cember 7, 8, 9, and 20, 1978,1 based upon complaints
issued by the Regional Director for Region 28 on Sep-
tember 20 and October 23, respectively, pursuant to
charges filed by Myrland R. Helton on August 9 and
September 26, respectively. The latter charge was
amended on October 3, and the complaints, which were
consolidated for hearing by order dated November 3,
were both amended at the hearing. The complaints
allege, in substance, the unlawful discharge of four em-
ployees, unlawful interrogation, the threat to file and
I All dates hereafter are in 1978 unless otherwise stated.
filing of a civil action against several employees, former
employees, and their respective spouses for engaging in
picketing of Respondent's premises, and a threat to
depose an alleged discriminatee. Respondent filed an-
swers denying the commission of any unfair labor prac-
tices, contending the civil action which it filed in the Su-
perior Court of Arizona, and the depositions taken pur-
suant to the Arizona rules of civil procedure, were
lawful. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Extensive briefs were filed by the
General Counsel and Respondent and have been careful-
ly considered.
Upon the entire record in the case,2 my observation of
the demeanor of the witnesses, and having considered
the post-hearing briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged in the operation of restaurants
in Phoenix and Mesa, Arizona. Its annual gross sales
exceed $500,000 and its annual purchases of goods and
supplies which are delivered from suppliers located out-
side Arizona exceed $10,000. Respondent admits, and it
is found, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
1. ISSUES
Case 28-CA-4970
1. Whether Helton was discharged because of her
union activities in violation of Section 8(a)(3) and (1) of
the Act.
2. Whether on August 10 Suzie Gay interrogated an
employee in violation of Section 8(a)(1) of the Act.
Case 28-CA-5041
1. Whether Nichols, Michaud, and Scott were dis-
charged because of their union or protected concerted
activities in violation of Section 8(a)(3) and (1) of the
Act.
2. Whether the picketing that commenced on Septem-
ber 20 was to protest the unfair labor practices alleged to
have been committed in Case 28-CA-4970.
3. Whether Gene Johnson threatened to file a lawsuit
against employees in retaliation for their union and pro-
tected concerted activities in violation of Section 8(a)(4)
and (I) of the Act.
4. Whether the filing and prosecution of the civil
action in the Superior Court of Arizona to enjoin the
named defendants, who were employees, former employ-
ees, and/or their spouses, from engaging in certain con-
duct was filed because Helton filed the charge in Case
28-CA-4970 and because the other named defendants en-
2 The General Counsel's motion to correct the record is granted with
the exception of the correction requested on p. 701. 1. 6. Accordingly, the
motion and Respondent's opposition thereto are received in evidence as
G.C. Exhs 2 (r) and (s). respectively
BILL JOHNSON'S RESTAURANTS, INC. 157
gaged in protected concerted activities, and thus in viola-
tion of Section 8(a)(4) and (1) of the Act.
5. Whether, by threatening to depose and by deposing
employees, former employees, and their spouses regard-
ing the union and concerted activities of employees, Re-
spondent violated Section 8(a)(4) and (1) of the Act.
6. Whether Sherry Sturgeon threatened employees
with reprisals because they engaged in protected con-
certed activities in violation of Section 8(a)(4) and (1) of
the Act.
7. Whether Don Kalfas interrogated a former employ-
ee about said employee's union activities and the union
activities of other of Respondent's employees in violation
of Section 8(a)(4) and () of the Act.
111. THE AI.LEGED UNFAIR LABOR PRACTICES
The Setting
Respondent operates several restaurants in the Phoenix
and Mesa, Arizona, area. Only one of the restaurants is
involved in these proceedings, herein called the Big
Apple. Respondent is operated by the Johnson family.
Gene Johnson is the president and mother of Vice Presi-
dents Johnny and Rudy Johnson, Secretary-Treasurer
Dena Cameron, and Manager Sherry Sturgeon. Lois
Williams, another manager, is the former wife of Rudy
Johnson. Don Kalfus is the general manager, and Suzie
Gay is the day supervisor. All of the foregoing, with the
exception of Dena Cameron, are alleged and admitted to
be supervisors. The record establishes that Dena Ca-
meron is also a supervisor. Myrland R. Helton, the
Charging Party and an alleged discriminatee, worked for
Respondent at the Big Apple from February 2, 1972,
until terminated on August 8. At the time she was dis-
charged, Helton was the most senior waitress at the Big
Apple and the only employee receiving a bonus which
amounted to 20 cents an hour. Sandy Lambertus, who
had been hired in 1964, voluntarily left Respondent's
employ on August 3. Lambertus was the only waitress
besides Helton who was paid a bonus. Cheryl Nichols,
Carla Scott, and Dale Michaud, all alleged as discrimina-
tees by amendment to the consolidated complaint during
the hearing, were also waitresses at the Big Apple until
September 18.
A. Case 28-CA-4970
1. Helton's discharge
As previously noted, Helton commenced working for
Respondent in February 1972, and, at the time of her dis-
charge on August 8, was one of three regular waitresses
on the breakfast shift, whose hours were 6 a.m. until 2
p.m. An overlapping shift of approximately 13 employees
worked from 10 a.m. until 6 p.m. Because of the size of
tips and other amenities, the breakfast shift was consid-
ered the most desirable. Gay supervised the waitresses
on those shifts.
The record shows that the waitresses first discussed
the Union among themselves in or about 1975. Efforts
towards organizing a union, however, were not under-
taken until after Johnny Johnson held a meeting of all
employees on July 25, at which time he told the employ-
ees, inter alia, that he didn't want them to stand around
talking, but instead to keep busy at all times; that they
should go to the back if they wanted a drink; that they
should not sit together when they ate; that they should
write customers' checks starting on the top line; that
they were not to sit with customers; that they should
leave the premises as soon as work was finished and not
return on days off unless to eat; that they were not to go
into the kitchen or behind the fountain; that they were
not to go to the lounge except to put on lipstick and
freshen up; that the waitresses should call in on "call
days," as before; and that they were not supposed to
chew gum or use the company telephone for personal
calls. Hardly a master at diplomacy, he went on to state
that, if the employees did not follow those policies, they
would be fired, in which case they would never get an-
other job in one of Respondent's restaurants, and that he
would make it hard for them to get a job at any other
restaurant; that the waitresses "didn't really mean any-
thing," and that he could replace them all within half an
hour; that he could discharge them for the earrings they
wore; and that they were not worth a dime a dozen. :'
Lambertus did not attend the meeting since she had
given notice she was quitting Respondent's employ on
August 3. Nevertheless, she credibly testified that after
the meeting she asked Gay what had transpired and was
told that nothing pertained to the breakfast girls.
Feeling insecure in their jobs following the meeting,
the waitresses discussed among themselves the unfair
treatment they felt they were receiving, and Helton sug-
gested they either organize a union or get one to repre-
sent them. One of the waitresses, Carla Scott, suggested
that Helton draft a list of grievances for presentation to
an attorney. On July 28, Helton, Cheryl Nichols, Dale
Michaud (herein Nichols and Michaud), and Terry
Curry, all waitresses, were discussing employee problems
in the employees lounge, and Helton said she thought
they needed union representation. Feeling it was too
risky to discuss the matter while working, they agreed to
meet later at the Ramada Inn located nearby. Later in
the day, a customer commented to Helton that the wait-
resses needed a union and agreed to have a union orga-
nizer contact her. Later that day, at the Ramada Inn,
Helton told the other waitresses that arrangements had
been made for a union organizer to contact them.
At or about 11:30 a.m. on August 3, Helton, Michaud,
and Lambertus were discussing the Union when Gay ap-
proached them on another subject. During the afternoon,
a going away party was held in honor of Lambertus,
who was going to join her husband in the trucking busi-
ness. Lambertus' husband was present, and talked to
Helton, Gay, and his wife about the Teamsters Union
and its benefits, to which Helton remarked, "[T]hat's
what we need here is a good union." The July 25 meet-
ing was also discussed, as were pension and profit-shar-
ing plans. Gay mentioned that she had raised the subject
of profit sharing at a managers meeting, but that it had
not been well received. Lambertus remarked that the
trouble with going to the Union was that she did not
a Based upon the mutually corroborative testimony of Helton. Lois
Dirkson, Dale Michaud, Cheryl Nichols, and Carla Scott Johnny John-
son did not testify
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
think the waitresses would stick together, and Helton re-
sponded that she felt they would "this time." 4 Gay and
Helton were sitting beside each other and Lambertus
was across the table. Lambertus, whom I credit, testified
that she was concerned Helton would be fired because of
the organizing, that after the party she told Gay she
hated to leave Helton, and that Gay responded that
"[s]he would take care of her. Because she was her
friend, too."
On August 4, Helton sought to dissuade Penny Toms,
who had been on vacation and had not attended the July
25 meeting, but who had been informed about it that
morning by other waitresses, from quitting her job be-
cause they were organizing a union so there would be
better working conditions and higher pay. Toms re-
sponded that it would never happen because Johnny
Johnson had told her a couple of years previous that he
"would not allow a union in his place." That same day,
the customer who had earlier agreed to have a union or-
ganizer contact Helton at the restaurant told her that the
organizer had been out of town but that he would con-
tact her on his return. When Helton impressed him with
the urgency of the matter, the customer told her that all
she had to do was call the National Labor Relations
Board, who would tell her what to do. Helton took out
her checkpad and wrote "NLRB" and the phone number
of the Regional Office on the cardboard backing. Lois
Dirkson, a hostess-cashier, saw the notation, made a
comment to Helton about it, and indicated she thought it
unwise for Helton to be walking around the restaurant
with that written on her checkpad.a While Gay denied
she had seen the notation on Helton's checkpad, she ac-
knowledged that sometimes the cardboard backing is
wrapped around the checkstubs when it is turned in to
the cashier after the pad is empty, that she has access to
them, and that, had "NLRB" been written on one, she
would have noticed it. When a pad is not completely
used up at the end of a waitress' shift, it is placed on a
shelf in the employees lounge with the binding, which
contains the waitress' name facing out. Helton testified
without contradiction that she turned in the used pad
with the backing attached as a matter of practice.
Helton did not work on August 6 or 7, but on Tues-
day, August 8, worked her regular 6 a.m. to 2 p.m.
shift. 8 While nothing was mentioned during work re-
garding her tenure, at or about 3 p.m. that afternoon
Gay called her at home and informed her that they had
found a replacement for her, 7 and that she was terminat-
ed, according to Helton, because Johnny Johnson didn't
like something she had said at the July 25 meetings and
4 Based on the credited testimony of Helton and Lambertus. Gay's
denial that the Union was mentioned is not credited.
I Dirkson testified without contradiction that Gay had told her that
she could stay in her office during the morning shift and always know
what was going on because she had people on the floor that would
inform her.
e Payday is every other Monday
()n cross-examination Gay admitted the fact she may have believed
Helton was going to quit on October 1 had nothing to do with her termi-
nation. Further, a replacement did not commence working until a week
after the discharge.
Helton had asked a question about serving only one pancake to a
customer.
because of her attitude, which was not explained.9
Helton asked if she could have a slip with her paycheck
explaining why she was being fired, and Gay responded
negatively that Respondent was not required by law to
give her one.
On the day following her discharge, August 9, Helton
filed the charge in Case 28-CA-4970.
Respondent claims Helton was discharged for refusing
to abide by restaurant rules, gum chewing, use of the
business phone for personal calls, and failure to call in on
a designated day off. While Gay testified she advised
Helton of those reasons at the time she discharged her,
Helton claimed otherwise. The evidence below con-
vinces me Helton was telling the truth and Gay was not.
Accordingly, I credit Helton. As a further reason for her
termination, Respondent now claims Helton was insubor-
dinate and disrespectful towards management. The evi-
dence convinces me that it was not until after Helton
had been discharged and filed a charge that Gay went in
search of reasons which might justify a lawful discharge.
In this regard, the same day Respondent received a copy
of the charge filed in this case by Helton, Gay ques-
tioned Dirkson about whether Johnny Johnson had said
anything about gum chewing at the July 25 meeting.
While Dirkson was not able to read what Gay had writ-
ten on a legal pad she had with her, I am convinced Gay
was in the process of compiling a list of reasons to justify
Helton's earlier termination.
Gay's claim that Helton was terminated for the rea-
sons stated does not ring true. While she testified one of
the reasons was Helton's habit of gum chewing, which
continued after the July 25 meeting, it is clear that other
waitresses chewed gum after that date with no adverse
effect upon their employment status. In this regard, Janet
Wolff, a witness called by Respondent to testify, testified
that after the July 25 meeting she observed Helton, with
whom she worked 3 or 4 hours a day, chewing gum
"pretty frequent. Almost every day." She went on to tes-
tify that she worked with five or six waitresses, and that
five or six witnesses chewed gum; that while "I don't
chew gum that often myself"-she also denied chewing
gum-the other girls still do, yet none has been dis-
charged for that reason. Tidey, whose bias against
Helton was obvious throughout his testimony, claimed
he had observed Helton chewing gum on specific dates,
July 26 and 27, and that he reported it to Gay. He ad-
mitted that since July 25 he had seen a number of the
waitresses chewing gum, yet none was terminated. Tidey
also alluded to the fact that in April an inspector from
the county health department had "pointed out there was
a few girls on the floor that was chewing gum and . . .
it was unsanitary." According to Tidey's testimony,
Helton was the only waitress to whom he spoke about
the matter. It is clear from the record that chewing gum
is not a violation of the health department code, and no
mention was made of such an alleged violation in the in-
spector's report. Tidey sought to add a further reason for
terminating Helton by claiming she caused problems
with the cooks by asking for extra food portions for cus-
I Helton had told Gay that she was going to look for another job but
would remain until at least October I. October, it appears, is the com-
mencement of the busy season.
BILL JOHNSON'S RESTAURANTS, INC. 159
tomers and by ordering omelets with onions, although
cooking onions on the grill is against company policy be-
cause it causes other items to have an onion taste. He ac-
knowledged that the simple answer to a special order for
an omelet with onions was to refuse to prepare it. More-
over, many waitresses have requested special orders and
many have asked for extra food portions for customers.
In fact, adding more to an order is justified when the
cook has not put enough on the plate initially. To his
knowledge, asking for an order containing onions never
entered into a decision to discharge anyone.'
Gay testified she also found fault with the fact Helton
failed to call in on "call days."" Respondent does not
dispute the fact that the breakfast shift waitresses were
not required to call in on "call days" prior to the July 25
meeting. Gay testified that after the meeting she specifi-
cally told Helton "Don't forget to call in." However, ac-
cording to her, Helton was the only one she told to do
so, which raises the question: Why Helton? The most
senior employee, Lambertus, was never required to "call
in" on an off day, and she credibly testified that, while
she did not attend the July 25 meeting, she asked Gay
what had transpired and was told that "nothing per-
tained to the breakfast girls." Not until September, a
month after Helton's discharge, was Michaud, on the
breakfast shift since sometime in July, told that she had
to call in. Cheryl Nichols credibly testified that she also
never called in on her off days when she worked the
breakfast shift, nor did Penny Toms. In fact Toms testi-
fied that no one she knew who worked the breakfast
shift was required to call in. Further, Carla Scott credi-
bly testified that, while she started on the breakfast shift
about August 1, it was not until after Helton was termi-
nated that the breakfast shift waitresses were told they
had to call in. Dirkson's testimony confirms that fact.
Another reason Gay asserts led to Helton's termination
was her use of Respondent's business phone for personal
calls. Gay admitted that prior to the July 25 meeting she
let the waitresses use the business phone. 2 She testified
that Helton worked on her shift over 6 working days be-
tween July 25 and the date of her discharge, and that on
each day Helton used the business phone without permis-
sion in order to awaken her husband at 7 a.m. as she had
done in the past. She "thought" she mentioned her using
the phone after July 25, but did not say anything on the
other occasions. Helton, on the other hand, testified that
she had used the business phone after July 25 on three or
four occasions to awaken her husband and on another
occasion to tell him to pick her up from work at a later
hour. She testified she had obtained Gay's permission on
each occasion, and that a couple of days after the July 25
meeting Gay told her that she and Lambertus could use
the business phone. Dirkson testified that she had over-
heard Gay tell Helton to use the business phone rather
than spend her money on the pay phone, and that Gay
'o Respondent apparently finds fault with the fact Helton may have
asked for substitutions on the menu. It is clear, however, that requesting
substitutions was not unique with Helton. but, according to Sturgeon, is a
recurring problem
II Waitresses, except for those on the breakfast shift, were required to
call in on one specific day off to see if they were needed.
12 Pay phones located in the restaurant were available to the waitress-
es
had told her, when she first started working, that Helton
and Lambertus were permitted to use the business phone.
Of further significance is the fact that Gay told Lamber-
tus that nothing that was said at the July 25 meeting per-
tained to the breakfast waitresses.
Respondent contends another factor leading to Hel-
ton's discharge was her insubordination and disrespectful
attitude toward management. Examples of offensive con-
duct, argues Respondent, involved arguments with a
fountain employee, James Sanford, Helton's conduct re-
garding a day off on her birthday, her insistence on extra
portions for customers and special orders for herself
(previously covered herein), and a purported statement
to the effect she would like to put the Johnsons, with the
exception of Gene, in a jar and screw the lid on and
watch them die. With respect to the alleged offensive
conduct involving Sanford in April, I find it significant
that Sanford was terminated on April 20,'3 leading me
to conclude that long-term employee Helton was not the
transgressor. In any event, even if she and Sanford had
differences, Gay testified they were both sent back to
work. The statement regarding the placement of the
Johnsons, with the exception of Gene, in a jar and let
them die, purportedly was made by Helton at the August
3 going away party for Lambertus, and in her presence.
Helton specifically denied making the statement, and her
testimony is corroborated by Lambertus. Accordingly, I
do not credit Gay's testimony that Helton ever made
such a statement.
Sturgeon testified that she always had trouble with
Helton and had talked to Gene Johnson over a 2-year
period about terminating her. According to her, Helton
had worked for Respondent so long she did not feel she
had to follow the policies. 4 Contrary to Sturgeon, Gay
apparently had no complaint about Helton's following
company policies until sometime after the July 25 meet-
ing, which, since Gay was more closely in contact with
Helton than Sturgeon, casts doubt on Sturgeon's testimo-
ny. Moreover, I find it unlikely, indeed incredible, that
Helton would have been one of only two employees re-
ceiving a bonus up until the time of her discharge if she
had been the poor employee Respondent's witnesses
characterize her.' Of further significance in assessing
Respondent's reasons for terminating Helton is the fact
that Respondent's supervisors expressed union animus,
specifically when Johnny Johnson told Toms he would
never allow a union in his place and when Gay, on nu-
merous occasions, told employees that the words "union
and sue" were two words that employees were not per-
mitted to use, and that one could be fired for saying
them. I also find it significant that Helton, at the time of
her discharge, was the most senior waitress and, as
noted, the only one receiving a bonus at that time, that
she had never been reprimanded, and that Gay had told
Dirkson that she knew what was going on because she
had an informer on the floor.
1 Resp. Exh. 7.
4 Sturgeon also testified that, when Helton learned she was scheduled
to work on her birthday in May, she cried, and consequently Sturgeon
told her to go home
I' Lambertus was the only other employee to receive a bonus.
16() DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraphs 7, 8, and 9 of the complaint in Case 28-
CA-4970 allege that Helton was discharged on August 8
because she engaged in union and other concerted activi-
ties. The principal question then is whether Respondent,
in discharging employee Helton on August 8, was moti-
vated at least in part by union animus. It is settled law
that the Board "is not compelled to accept" the employ-
er's stated reason an employee was discharged "When
there is reasonable cause for believing that the ground
put forward by the employer was not the true one, and
that the real reason was the employer's dissatisfaction
with the employee's union activity." The Great Atlantic
and Pacific Tea Co., Inc. v. N.L.R.B., 354 F.2d 707, 709
(5th Cir. 1966). "And a discharge motivated only in part
by anti-union discrimination is similarly illegal." J. P. Ste-
vens & Co. v. N.L.R.B., 380 F.2d 292, 300 (2d Cir. 1967),
cert. denied 389 U.S. 1005.
Based on the foregoing, I find that Respondent's deci-
sion to discharge Helton on August 8 was not motivated
by any of the several reasons advanced by Respondent. I
am convinced that the motivating force in Respondent's
action was its desire to eliminate a known union adher-
ent. In the circumstances of this case, such an inference
seems appropriate under the rationale of the court in
Shattuck Denn Mining Corporation (Iron King Branch) v.
N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the ques-
tion, it is seldom that direct evidence will be avai-
labe that is not also self-serving. In such cases, the
self-serving declaration is not conclusive; the trier
of fact may infer motive from the total circum-
stances proved. Otherwise no person accused of un-
lawful motive who took the stand and testified to a
lawful motive could be brought to book. Nor is the
trier of fact . . . required to be any more naif than
is a judge. If he finds the stated motive for a dis-
charge is false, he certainly can infer that there is
another motive. More than that, he can infer that
the motive is one that the employer desires to con-
ceal-an ulawful motive-at least where . . . the
surrounding facts tend to reinforce that inference.
Here, the "surrounding facts" preponderate in favor of a
finding that Respondent, in discharging Helton, was mo-
tivated by its knowledge that she was a union adherent,
and that the reasons advanced by Respondent are false.
Accordingly, by engaging in such conduct, Respondent
violated Section 8(a)(3) and (1) of the Act.
2. Interrogation by Gay
Paragraph 9(b) alleges that on or about August 10 Gay
interrogated an employee about the activities of Helton
and other employees.
Dirkson testified that the day after Helton's discharge
she had the following conversation with Gay:
I said, I'm going to say what I have to say about
Ruth's discharge now. And, then, we'll let it go,
and I said-she said, are the girls on the floor blam-
ing me? And, I said, everybody thinks that Ruth
got a raw deal. And, she said, I had to do it. She
said, Ruth had been antagonizing the girls on the
floor. She said, I can't run a shift with that type of
friction. She said, I've been sick for three (3) days,
knowing that I had to discharge Ruth, but when
Johnny Johnson tells you to fire somebody, as a
part of my job, I do it. And, then she asked me if I
knew Ruth had any contact with any of the girls
and I said, no. That's all of the conversation that I
recall.
She testified that, a day or two after the letter arrived
from the Board advising that Helton had filed a charge,
Gay "asked me if I knew if there were any waitresses
that had been talking about the Union." Respondent
argues that since the conversations related above oc-
curred on the floor of the restaurant and not in a private
office, were two-party discussions between friends, and
Gay's demeanor or manner was not threatening; since
Gay did not press the inquiry; since there is no evidence
Dirkson felt restrained or threatened; and since they
comprised an isolated incident, a violation of Section
8(a)(1) should not be found. In the context of the entire
case, these conversations indicate to me an attempt on
the part of Gay to determine the full extent of Helton's
union activities and whether any of the other waitresses
were also involved. These are classic examples of unlaw-
ful interrogation which require no recitation of authority.
B. Case 28-CA-5041
1. Alleged discharge or Nichols, Michaud, and
Scott
The complaint alleges that, on or about September 18,
Nichols, Michaud, and Scott ceased work concertedly
and went out on strike in protest over Helton's dis-
charge, and that Respondent discharged them for engag-
ing in such activity. 6 Respondent contends these three
employees voluntarily quit their employment. The
record shows that, at approximately 11 a.m. on Septem-
ber 18, these three waitresses turned in their customer
checkpads to the cashier and walked out of the restau-
rant without giving anyone an explanation. Upon check-
ing the checkpads, it was noted that Scott had written
on hers "End of this place, 9/18/78, CAR."' 7 The fact
the three had left was reported to Lois Williams, who,
with Sherry Sturgeon, observed the three drive away.
About 2:30 that afternoon, they returned in order to
make out and sign "tip slips" in order to get paid.' 8
When they walked in, Williams told them they could
pick up their checks in the office which is at another
Phoenix location. Sturgeon then asked the three to sit
down in a booth and explain to her why they had
"walked out." They responded that they did not believe
the way Helton had been fired was right, and that they
did not like the treatment they had received at the hands
of Johnny Johnson since the July 25 meeting. After they
"' The allegalionl that the three were discharged was added by amend-
ment during the hearing
L CAR" indicates Carla Scott.
'a Ilyday is every other Monday and tip slips are made out on the
Monday or Tuesday preceding the next payday. Regular payday was to
have been September 25
BILL JOHNSON'S RESTAURANTS, INC. 161
had explained what had happened at the July 25 meeting,
Sturgeon indicated that she had not been aware of what
had taken place on that date, and that now that she was
back things were going to change. According to Wil-
liams, Scott stated that she was trying to get out of wai-
tressing and would like to get into something else like
office work, and Nichols stated she was tired of driving
all the way from Sun City where her husband worked,
and that she had heard that Kalfas was coming back and
she refused to work with him. Williams indicated that, if
Nichols had asked for a transfer to the "west-side store,"
she was sure they could have arranged it. According to
Williams, Michaud did not say anything.
The General Counsel contends the three women
walked out on strike on September 18 in protest over
Helton's discharge which they believed to have been for
union activities, and that they were discharged that after-
noon as evidenced by the issuance of paychecks. Re-
spondent contends they quit their employment, and that
the issuance of the checks immediately was to avoid any
problem in light of statute requiring that "[W]hen an em-
ployee quits the service, or is discharged therefrom, he
shall be paid wages due him at once" (emphasis supplied).
While it may well have been, as Respondent argues, that
the waitresses may have wanted, and in fact intended at
some time, to quit their employment with Respondent, I
am satisfied that on September 18 they walked out in
protest over Helton's discharge and in protest over the
July 25 meeting, but that they did not quit their employ-
ment. Nor do I believe they were terminated by Re-
spondent. In view of the statute set forth above, I am
unable to attach the significance the General Counsel
does to the issuance of the checks on the same day the
women walked out, and it may well have been that Wil-
liams and Sturgeon believed they had quit when they
walked out without any prior notice. Further, I note
that, upon their return to the restaurant, they were invit-
ed to explain why they had walked out, and upon learn-
ing that one of the problems involved Johnny Johnson
and the rules laid down at the July 25 meeting, Sturgeon,
in what I conclude was a conciliatory move, stated that
she had not been aware of what happened at that meet-
ing, but that now that she was back things would
change. I note further that none of the waitresses stated
they had quit, and, while they may have believed they
would be terminated for having walked out, they were
not told at any time that they were in fact terminated. I
conclude on this evidence that on September 18 Nichols,
Scott, and Michaud ceased work concertedly and went
out on strike in protest of the discharge of Helton, as al-
leged in paragraph 8(a) of the amended complaint, and in
protest over Johnny Johnson and conditions following
the July 25 meeting. Contrary to the allegation in para-
graph 8(b), however, I do not find that they were dis-
charged, and therefore recommend dismissal of para-
graph 8(b).
2. Picketing and alleged threats
The complaint in case 28-CA-4970 issued on Septem-
ber 20 alleging Helton's discharge on August 8 for union
or other concerted activities. On that same date Helton
and her husband, Nichols and her husband, Scott, Mi-
chaud, and former employee Debra Mackie' 9 picketed
the Big Apple with a number of signs critical of the res-
taurant and its management, asking that it be boycotted
and stating that it had been accused of engaging in unfair
labor practices. Upon observing the pickets walking back
and forth across the driveway and talking to those enter-
ing, Sturgeon called Rudy Johnson at home and told him
what was going on. Rudy, who watched the picketing
from the time he arrived at the restaurant until he left,
called the police, who apparently advised the pickets of
their rights. In the meantime, Sturgeon, who admitted
she was mad and used profane language in speaking with
the pickets, came out to the picket line. Helton testified
as follows concerning the conversation that took place:
A.. . . Sherry came out and said don't block my
fuckin' driveways and we said we're not blocking
your driveways and she said, and get the fuck off
my property. And, I said I'm not on your property,
but if it will make you happy, you know, we've
been walking across the driveways, not stopping
and then walking back, and I said, if it will make
you happy we'll stay right here in front and not
cross the driveways. And, she said, you might think
you're funny, but I intend to have the last laugh.
And, she said, I will get even with you for what
you're doing to us. And, I said, don't threaten us,
Sherry. And then, she walked across and she had a
paper and she said to Debby Makey, who the hell
are you. And Debby said, I'm Debby Makey, I used
to work here. And then she said to Dale, and who
are you. And, Dale told her her name and she said,
you're going to all pay for this. And, she said, and
Debby, you and Dale as my witness, Ruth I'll get
even with you if it's the last thing I do. And I do
intend to have the last laugh. And, I just told her
don't threaten us again. And, she started back
across the parking lot. And, she stopped about half
way across and looked back, and she said, is these
your right names, I think is what she said. And, I
said yeah, and there's some more coming down, do
you want their names too. And, she said, no this
will be enough. And then, she went on inside.
Q. Were you laughing at the time?
A. No, I wasn't laughing. I was scared.
Sturgeon's account of the conversation was:
I told them they could picket all they wanted too,
just to say-don't block the driveway. They started
moving out of the driveway in front of the building
on the sidewalk. And, Ruth [Helton] was holding
that sign out, sort of waving it back and forth, lik.
some horse in a parade grinning from ear to ear
And, it made me mad. And, I told her she thoughi
she was so funny, we would see who would havt
the last laugh.
Helton's testimony, corroborated in material part by Mi
chaud, is credited over the more limited Sturgeon ver
sion. As it is clear on this record that the picketing beint
conducted was a protected concerted activity, it is equal
I M.tckt', lilill ailol ppv.Lrs herein Mali cke, id lakt
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly clear that Sturgeon's threat to get even with Helton
for engaging in such activity violated Section 8(a)(4) and
(1) of the Act as alleged in paragraph 13 of the amended
complaint.
Carl Nichols testified that he received a telephone call
at home that afternoon from Gene Johnson. The sub-
stance of his testimony was that Gene asked why he and
his wife Cheryl had been picketing; that he told her in
protest over Helton's termination and the fact that the
waitresses were upset with some of the things Johnny
Johnson had said at the July 25 meeting; that Gene re-
plied that she would hate to see the Nicholses lose the
new home they had bought; and that on two occasions
during the conversation "She said that she would hate to
see us get hurt by all of this." Gene Johnson admitted
making the call to Carl Nichols and that its purpose was
to reassure him that Cheryl had not been terminated. She
denied she said anything about anyone losing a new
home or getting hurt by what had happened. While in
many instances it is difficult to determine which of two
witnesses is telling the truth in one-on-one conversations,
I entertain no doubt in this case. Carl Nichols impressed
me as an honest witness making a conscientious effort to
tell the truth. Gene Johnson, on the other hand, left a
distinct impression that she had memorized a story. In
this regard, I find it incredible that she would not have
personally assured Cheryl, who had answered the phone
and was the purported subject of the conversation, that
she was not terminated, instead of calling her husband to
the phone in order to make what I find to be a veiled
threat for having engaged in the picketing. I conclude
that her threat was but an extension of Sturgeon's threat
to get even for engaging in the same conduct, and that
both instances of threats were designed to persuade the
picketers to cease their lawful activities and ultimately
culminated in the filing of the civil suit discussed hereaf-
ter. Accordingly, I find that, by making such a veiled
threat, Respondent violated Section 8(a)(4) and (1) of the
Act as alleged in paragraph 15(b) of the amended com-
plaint.
3. Respondent's civil action
Picketing continued on September 21 and 22 by sub-
stantially the same individuals. On the latter date, and
again on September 26, the pickets distributed the fol-
lowing leaflet:
THIE NATIONAI. I.ABOR REI.ATIONS BOARD HAS
ISSUED) A COMPLAINT AGAINST THE BIG APPLE RS-
TAURANT, 3757 E. VAN BUREN STRELET, FOR UNFAIR
lABOR eRACtICIS.
The complaint was issued as a result of charges
filed by Myrland Helton, a former employee who
was fired August 8 after suggesting to other wait-
resses they should organize a union. Mrs. Helton
had been an employee of the Big Apple seven and
one half years.
Several other waitresses have quit their jobs to join
Mrs. Helton in picketing the restaurant to inform
the public of the dispute between the employees
and the restaurant's management. Among the wait-
resses' complaints are the following:
Eight hours shifts with no specified breaks.
No pay for overtime when waitresses were re-
quired to remain at their posts until their last cus-
tomer's check had been paid.
Waitresses threatened with dismissal if they lost
any time due to illness over the Christmas holi-
day season.
Inconsistent management practices.
Unwarranted sexual advances.
A filthy restroom for women employees, with no
soap, paper towels, or toilet tissue provided.
EMPLOYEES OF BILL JOHNSON'S BIG APPLE FOR JUS-
TICE ON THE JOB.
On September 25, the attorneys for Respondent filed a
complaint in the Superior Court of the State of Arizona,
alleging, inter alia, that the pickets had engaged in mass
picketing and harassment, published libelous statements
in the above leaflet, and created a threat to public safety.
For the purposes of the instant proceeding, the thrust of
the state action is that "the leaflets contained false and
outrageous statements, including misrepresentations of
proceedings pending before the National Labor Relations
Board and accusations that the Restaurant's waitresses
had complained about 'unwarranted sexual advances' and
about a filthy restroom for women employees, with no
soap, paper towels, or toilet tissue provided." The com-
plaint sought monetary damages in the amount of
$500,000, a temporary restraining order, other injunctive
relief enjoining the defendants from trespassing, mass
picketing, interfering with its business operations, engag-
ing in acts or threats of violence, harassment or intimida-
tion of any kind and "publishing false and misleading
statements concerning plaintiffs' business, officers, agents,
employees, facilities or practices, including but not limit-
ed to allegations misrepresenting the nature or substance
of the matter now pending before the National Labor
Relations Board in Case No. 28-CA-4970." 20 On the
same day Respondent filed its state court action, it dis-
tributed a letter to its employees claiming Helton had
filed a charge in Case 28-CA-4970 in bad faith and ap-
pealing to the employees to reject attempts to organize
them. Two days later it distributed a second letter ap-
pealing to employees to reject organization efforts.
Helton's testimony that she had told Gay about both
an unwarranted sexual advance toward her and the fact
that the women's restroom was filthy, the latter remark
having been overheard by Gene Johnson, was not refut-
ed at the hearing before me. Also, testimony of sexual
advances by Johnny Johnson and Kalfus toward Helton,
'" Named as defcndanlts were Myrland and Jhn Helton, Barhara and
Lawrence ()rr, Cheryl and Carl Nichols, Carla Scoltt, Debra Mackie,
Dale Michaud, and Jane and John Does, I through X respectively In ad-
dition to the corporate Respondent herein, named as plaintiff, were
Johnnly and Rudy Johnson and Don Klfus
-- ---- ___
BILL JOHNSON'S RESTAURANTS. INC. 1 3
Scott, Cheryl Nichols, and Lambertus was not denied.2 '
The testimony of the General Counsel's witnesses, cor-
roborated in part by Gene and Rudy Johnson, and Re-
spondent's stipulation concerning "inconsistent manage-
ment practices" establish the truthfulness of the seven
other "witnesses' complaints" listed in the leaflet.
Respondent also filed with the state court a motion to
shorten the statutory time for taking depositions and re-
questing they be taken on September 27 and 29 or Octo-
ber 2 and 3 if more convenient to the witnesses. Notices
of taking depositions on September 27 and 29 were
served on the defendants, the Heltons' to be taken on
September 27 and the other defendants on September 29.
The hearing on the temporary restraining order was held
at noon on September 25. Helton was not informed of
the complaint or hearing on the temporary restraining
order until she received a telephone call from Katz, Re-
spondent's attorney, less than an hour before the matter
was scheduled to be heard.2 2 Katz informed her of the
hearing at noon, that she and her husband were defend-
ants, and read her the names of the other defendants.
Helton responded that Katz should not be scaring the
others, to which Katz replied, "Aren't you," and Helton
responded negatively. She testified that, while she was
unable to attend the hearing at noon because of the short
notice, her husband did. The court issued a temporary
restraining order granting substantially all of the relief
requested, and set October 5 as a hearing date on the re-
quest for a temporary injunction.
On September 26, the Heltons, and later all of the de-
fendants in the state court proceedings, hired Attornec
Michael J. Keenan to represent them. In a discussion
with Keenan on September 27, Katz expressed his intent
to question Helton regarding the facts relied upon in de-
termining that she had been fired for union activity, and
indicated he may not need to take any depositions other
than Helton's. In a second telephone conversation with
Keenan, Katz outlined questions he proposed to ask
Helton which centered around the facts she relied on in
making the statement in the leaflet that she had been dis-
charged because of her union activities. On September 28
Keenan's law firm filed in the state court a motion for
protective order seeking to limit the scope of the deposi-
tion examination to preclude Respondent herein from ob-
taining discovery of matters covered in the complaint in
Case 28-CA-4970, on the ground it was privileged under
N.L.R.B. v. Robbins Tire de Rubber Co., 434 U.S. 1061
(1978). The court denied the motion for protective order
and initially ruled that "the allegations regarding union
organizing and the statements made to any investigators
in the case 28-CA-4970] may not be inquired into."
Katz, seeking clarification of the order, went on to argue
that, since the leaflet publicly accused Respondent of dis-
charging Helton because of her union activities, and
since she knew the statement to be false, Helton had ma-
liciously libeled Respondent, therefore entitling it "to
defend and protect our reputation by asking the facts,
why she made the statements to a public agency as op-
21 Based on credited testimony herein
22 Katz had apparently called Scott a fess minutes earlier ho had in
turn called Helton right before Katz called her. The evidence does not
disclose that any of the other defendants in the sta'l matter were norified
posed to some other forum." In a partial reversal of its
previous ruling, the court ruled that, while questions
about statements made to NLRB investigators would not
be proper, Respondent could ask questions "regarding
the statements made publicly in Maricopa County, and
the basis for those statements."
In taking the depositions of Helton and the other de-
fendants in the state court proceeding, Respondent's
counsel directed numerous questions toward the nature
and extent of Helton's union activities and the activities
of other employees, supervisory knowledge of those ac-
tivities, and Respondent's union animus. Numerous ques-
tions were also asked of some of those witnesses regard-
ing call days, use of the company phone for personal rea-
sons, and gum chewing, all matters relating to Respond-
ent's defense in the instant unfair labor practice proceed-
ing. 2 3
On the evening after Helton's deposition, Kalfus called
Lambertus at home. He told her that her name had been
mentioned several times during Helton's deposition, that
he felt Helton had gotten a "bad deal," and that "he
wanted to know if Suzie [Gay] was aware that the girls
were trying to organize a union." After she responded
affirmatively, Kalfus replied, "Oh no," that he had hoped
she would tell him differently. Lambertus called Helton
and told her of the conversation. As alleged in paragraph
15(a) of the complaint, such interrogation violates Sec-
tion 8(a)(1) of the Act. As it could reasonably he expect-
ed that Lambertus would tell Helton of the conversation,
as she did, the question has its nexus in the taking of the
deposition resulting from the filing of the state proceed-
ing, which I find unlawful hereinafter, and consequently
the interrogation also violates Section 8(a)(4) of the Act.
On November 16, the state court denied Respondent's
request for a preliminary injunction and dissolved the
temporary restraining order. Still pending before the
state court is Respondent's request for a permanent in-
junction and damages and a defendant's counterclaim
against Respondent for abuse of process, malicious pros-
ecution, and wrongfully securing an injunction.
The Civil Suit; Positions of the Parties and
Conclusions
Acknowledging the general rule expressed in Clyde
Taylor d/b/a Clyde Taylor Company, 127 NLRB 103
(1960), that, generally, the filing of a civil suit does not
constitute an unfair labor practice, the General Counsel
argues that, where the lawsuit is in furtherance of an un-
lawful objective, as here, the Board will find a violation.
The General Counsel relies chiefly on Power Systems.
Inc., 239 NLRB 445 (1978), enforcement denied 601 F.2d
936 (7th Cir. 1979).
Respondent relies on a line of cases following Clyde
Taylor, and the more recent case of S. E. Nichols Marcy
Corp., 229 NLRB 75 (1977), where the Board reversed
an administrative law judge who had found the respond-
ent violated Section 8(a)(l) by instituting a slander action
23 The depositions of Barbara and Lawrence Orr ere taken n Sep-
tember 29; of Myrland R. and John Helton on October 2 of Carl and
Cheryl Nichols and Dale Michaud on November 10 In preparation of hi.
defense to the state court action, he defendants' alttorne~ took he dpE.
sitions of Johnny and Rudy Johnson, Kalfus, and Gay
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against an employee seeking $50,000 in damages. Re-
spondent argues that Power Systems is readily distinguish-
able on its facts in that the employer in that case origi-
nally sought monetary damages and an order enjoining
the employee "from filing cases against Respondent with
the courts and administrative agencies of the United
States Government and the several states of the United
States." Here, argues the Respondent, it did not institute
the state court proceeding to challenge the employees'
right to file a charge with the Board; instead, the suit
challenges the right of employees to make defamatory
accusations and to engage in mass picketing when such
conduct interferes with and damages Respondent's busi-
ness operations and reputation and threatens the public
safety. Unlike Power Systems, it argues, Respondent's suit
does not seek to enjoin or restrain access to the Board,
or to recover compensation for damages suffered due to
employee resort to the Board. Instead, the civil com-
plaint prays for damages resulting from the commission
of the following unlawful acts: (I) trespassing on restau-
rant property; (2) mass picketing: (3) interfering with in-
gress or egress; (4) engaging in violence, threats of vio-
lence, or intimidation; and (5) publishing false and mis-
leading statements concerning Respondent's business, of-
ficers, employees, or practices, including "misrepresent-
ing the nature or substance of the matter now pending
before the National Labor Relations Board as Case No.
28-CA-4970." According to Respondent, the defendants
in the civil suit have publicly distributed leaflets accusing
Respondent of discharging Helton for union activity, of
making "unwarranted sexual advances" to employees,
and maintaining a "filthy restroom" with malicious intent
to injure its business. Respondent claims that under
Power Systems, the issue before me is whether Respond-
ent had a "reasonable basis for the filing of a lawsuit,"
contending, of course, that it did, since the stated pur-
pose was "to bring an end to the distribution of leaflets
which contained statements that the managers believed
to be personally and professionally defamatory."
Respondent contends further that, if its civil suit were
lawful, and if the discovery obtained in conformity with
the state court order were relevant to the civil suit, then
the discovery was lawful, and whether it would be rele-
vant to, or utilized in, another proceeding is totally im-
material.
The Civil Suit; Conclusions
In Power Systems, the Board determined that, since the
employer did not have a reasonable basis for the filing of
its lawsuit, the lawsuit had as its purpose the unlawful
objective of penalizing the employee for filing a charge
with the Board, thus depriving him of, and discouraging
employees from seeking, access to the Board's processes
in violation of Section 8(a)(4) and (1) of the Act. In
denying enforcement of the Board's Order, the court of
appeals concluded that the stipulated record did not sup-
port the Board's determination that Power Systems had no
reasonable basis for its suit against the employee, and
consequently the inference that the suit had as its pur-
pose the unlawful objective of penalizing the employee
for filing a charge with the Board could not stand. The
court went on to state, however, "We recognize that
civil actions for malicious prosecution carry with them a
potential for chilling employee complaints to the Board
and that the Board may, in a proper case, act to curb
such conduct." In my view, this is a proper case to do
so. I conclude, on the basis of the record and from my
observation of the witnesses, including their demeanor,
and upon the extensive briefs of the parties, that Re-
spondent did not have a reasonable basis for the filing of
its lawsuit, and that its effect has been to discourage em-
ployees from seeking access to the Board's processes.
The genesis of the civil suit is the leaflet distributed by
Helton and the others and the picketing associated with
it. By interpreting the leaflet to mean something other
than what it literally states, the Respondent claims that
the statements were made with malice, i.e., knowledge
that they were false, and with an intent to damage Re-
spondent.
The civil complaint alleges that, contrary to the signs
carried and statements made by the "defendants," no
boycott or strike was in progress. The legend on the
picket signs declared a boycott and the presence of the
waitresses who withheld their services when they
walked off the job on September 18 in protest over Hel-
ton's discharge, and over the July 25 meeting, together
with the complaints outlined in the leaflet, clearly estab-
lish the existence of a strike. Further, Rudy Johnson
heard Scott say that the pickets were on strike. Any con-
tention to the contrary is pure folly.
The civil complaint alleges that the leaflet contained
false and outrageous statements, including: (1) misrepre-
sentations of proceedings pending before the National
Labor Relations Board; (2) accusations that the waitress-
es had complained about "unwarranted sexual advances"
and about "a filthy restroom for women employees, with
no soap, paper towels, or toilet tissue provided"; (3) oral
statements maligning Respondent and its business to Re-
spondent's employees, customers, passersby, and other
persons.
The leaflet requires close examination. It states that the
Board issued a complaint against Respondent as a result
of charges filed by Helton, who was fired August 8 after
suggesting other employees should organize a union. It is
a fact that on September 20 the Board issued a complaint
against Respondent as a result of a charge filed by
Helton, who was fired on August 8, and that the gist of
the complaint is that Helton was discharged after at-
tempting to organize the .i!er waitresses-an entirely
true statement, and the formal exhibits show Respond-
ent's counsel received a copy of the complaint on Sep-
tember 21, several days prior to the filing of the civil
suit. The facts surrounding Helton's discharge have con-
vinced me, as found earlier, that Helton was discharged
for engaging in union activities, that agents of Respond-
ent were aware of her activities, that antiunion sentiment
had been expressed over a period of several years by Re-
spondent's agents, and that the reasons advanced by Re-
spondent for Helton's termination were false. Hence, it is
clear that the leaflet does not contain a misrepresentation
concerning the Board's proceeding as Respondent con-
tends.
The civil complaint alleges the leaflet contained a false
and outrageous statement that the waitresses had com-
BILL JOHNSON'S RESTAURANTS, INC. 156
plained about "unwarranted sexual advances" and about
"a filthy restroom for women employees, with no soap,
paper towels, or toilet tissue provided." Contrary to Re-
spondent's allegation, the leaflet does not state that the
waitresses "had complained" about those matters. How-
ever, as found earlier herein, Helton's testimony, that she
had told Gay about both an unwarranted sexual advance
toward her and the fact that the women's restroom was
filthy, the latter remark having been overheard by Gene
Johnson, was not refuted on this record. Further, the
evidence establishes the truthfulness of all six "waitress-
es' complaints" listed in the leaflet. Therefore, it is clear
the leaflet contains no misrepresentation concerning
waitresses' complaints.
The civil complaint alleges, without specifying, that
additional outrageous and false statements maligning it
were made by the protesters. The record contains no
evidence capable of such a construction.
The civil complaint alleges the protesters clogged the
sidewalk, harassed Respondent's customers and empioy-
ees, and blocked ingress and egress from the restaurant.
The evidence fails to support any of these contentions. 2 4
It is significant that, after hearing testimony on Novem-
ber 16, the state court denied Respondent's request for a
preliminary injunction and dissolved the temporary re-
straining order.
Other significant factors in determining Respondent's
real motive in filing the civil suit are two incidents that
occurred on September 20, the first day of picketing, and
prior to the distribution of the leaflets: (1) Sturgeon's
threat to "get even" with Helton for picketing Respond-
ent's premises; and (2) Gene Johnson's veiled threat to
Carl Nichols with respect to losing the new home the
Nicholses had just bought, and that she would hate to
see them "get hurt by all this." These statements presage
Respondent's later action, i.e., the filing of the civil suit,
and establish the true purpose behind the lawsuit was to
punish Helton for having filed the charge in Case 28-
CA-4970, and to punish the pickets for engaging in pro-
tected concerted activity and to prevent them from fur-
ther asserting those rights.
As the General Counsel has issued a complaint so al-
leging, I conclude that Helton had a reasonable basis
upon which to form a belief that she had been unlawful-
ly discharged at the time the leaflet was circulated, and
that the waitresses' complaints listed thereon were valid.
In my view, Respondent had no reasonable basis upon
which to assert that the filing of Helton's charge with
the Board and the publication of the leaflet were without
probable cause. Respondent's lawsuit placed its employ-
ees on notice that, if an employee files charges with the
Board, or makes public a dispute with Respondent, that
employee is subjecting himself to the possibility of a law-
suit which will require immediate expense by having to
hire private legal counsel to defend against the lawsuit
and to face the possibility of having to reimburse Re-
spondent for legal fees and damages if the state court up-
24 Rudy Johnson testified that pickets did not block ingress or egress
Further. while he testified he called the police during the picketing. there
was no evidence this was done because they had engaged in an) unlal Wul
conduct. Rather, he testified h called the police to advise he pickets of
their rights
holds Respondent's claim. Even if Respondent's lawsuit
is dismissed by the state court, Helton and the other
picketers will have been required to pay legal fees as a
direct consequence of her having filed a charge with the
Board. Accordingly, I find that Respondent's lawsuit is
an attempt to penalize Helton for having filed charges
with the Board, and to penalize the other defendants for
assisting Helton in her protest of the unfair labor practice
committed against her; thus, Respondent has violated
Section 8(a)(4) and (I) of the Act. The United Credit
Bureau of America, Inc., 242 NLRB No. 138 (1979);
George A. Angle, 242 NLRB No. 112 (1979); Power Sys-
tems, supra.
The Depositions
In conducting the taking of the depositions of Helton
and other employees and former employees of Respond-
ent, Respondent's counsel directed numerous questions
toward the nature and extent of Helton's union activities,
the union activities of other employees, supervisory
knowledge of these activities, and Respondent's union
animus. In addition, Respondent asked numerous ques-
tions regarding purported violations of restaurant policies
in an obvious maneuver to establish a defense to Case
28-CA-4970.
Since these activities and subject matter were also at
the time of the taking of the depositions the subject of a
pending Board proceeding, the General Counsel con-
tends that the giving of state court notices to employees
and former employees that they were required to submit
to deposition by Respondent's attorney, and the subse-
quent taking of those depositions, constituted an unlawful
interrogation in viclation of Section 8(a)(1) and (4) of the
Act.
Rule 30(a) of the Arizona Code of Civil Procedure
which was patterned directly after Federal Rule 30(a)
provides:
After commencement of the action, any party may
take the testimony of any person, including a part)
by deposition upon oral examination. Leave of the
court, granted with or without notice, must be ob-
tained only if the plaintiff seeks to take a deposition
prior to the expiration of 30 days after service of
the summons and complaint upon any defendant or
service which is completed under Rule 4(e).
The attendance of witnesses may be compelled by
subpoena as provided in Rule 45.
Rule 26(b)(1) of the Arizona Code regarding the scope
of discovery states:
Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject
matter involved in the pending action, whether it
relates to the claim or defense of any other party.
It should be noted that typically a party does not have
to obtain leave from court to obtain depositions under
the Arizona rules, and he does not have to show good
cause. Additionally, there is no restriction on the scope
-
16h DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the matters which he can discover. It was pursuant to
these broad provisions of the Arizona Code of Civil Pro-
cedure that Respondent obtained the depositions of its
employees and former employees.
In stark contrast to the liberal discovery rules of Ari-
zona, Section 102.30 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended, pro-
vides that testimony may be taken by deposition only
upon application to the regional director prior to the
hearing and to the administrative law judge during and
subsequent to the hearing, and, most importantly, good
cause must be shown to obtain a deposition order.
While there has been some dispute within Federal
courts of appeal regarding the interpretation of the good
cause requirement of Section 102.30 (for example, the
Fifth Circuit has held that the requirement can be satis-
fied by simple discovery needs, N.L.R.B. v. Miami Coco-
Cola Bottling Company, 403 F.2d 994, 996 (1968);
N'L. R.B. v. Safeway Steel Scaffolds Company of Georgia,
383 F.2d 273 (1967), cert. denied 390 U.S. 955 (1968)
(but this particular view has not generally been accepted
by the other circuits and was persuasively refuted in
N.L.R.B. v. Interboro Contractors, Inc., 432 F.2d 854, 859
(2d Cir. 1970)), the Board has consistently held the good
cause requirement to mean that depositions may be taken
for use as evidence in an action when there is reason to
believe that the witness whose deposition is sought may
be unavailable at the hearing, and that the rule was never
intended to provide for the taking of depositions solely
for discovery purposes when witnesses will be available
for the hearing. N.L.R.B. v. Interboro Contractors, supra
at 857-858; Title Guarantee Co. v. N.L.R.B., 534 F.2d
484 (2d Cir. 1976).
The rationale underlying the Board's limitation on the
taking of depositions for the purpose of pretrial discov-
ery is "[B]ased not only on the cost and inconvenience
full discovery would impose on administrative proceed-
ings but also on the pecualiar nature of a labor dispute
.... Board witnesses and other persons with relevant
information are typically employees of the company de-
fending an unfair labor practice charge. The company's
position of control over these persons' livelihoods man-
dates protection that is not usually necessary in ordinary
litigation." P.S.C. Resources Inc. v. N.L.R.B., 576 F.2d
380, 386-387 (Ist Cir. 1978).
Therefore, though Respondent's attorneys could not
have taken the depositions of Helton and the other em-
ployees consistent with the Board's rules, they were not
completely precluded from legitimately interrogating em-
ployees on matters involving their Section 7 rights. Inter-
rogation for "legitimate cause" can be conducted with-
out incurring 8(a)(1) liability where it is directed toward
"the investigation of facts concerning issues raised in a
complaint where such interrogation is necessary in pre-
paring the employer's defense for the trial of the case."
Roadway Express, Inc., 239 NLRB 653 (1978), quoting
Johnnie's Poultry Co., 146 NLRB 770 (1964), enforcement
denied on other grounds 344 F.2d 617 (8th Cir. 1965).
However, in pursuing such an investigation in prepara-
tion for hearing, certain safeguards established by the
Board in Johnnie's Poultry and Roadway Express must be
observed and, if transgressed by an employer, would
constitute a violation of Section 8(a)(1):
[T]he employer must communicate to the employee
the purpose of the questioning, assure him that no
reprisal will take place, and obtain his participation
on a voluntary basis; the questioning must occur in
a context free from employer hostility to union or-
ganization and must not be itself coercive in nature;
and the question must not exceed the necessities of
the legitimate purpose by prying into other union
matters, eliciting information concerning an employ-
ee's subjective state of mind, or otherwise interfer-
ing with the statutory rights of employees. [John-
nie's Poultry, supra at 775.]
As the General Counsel contends, Helton and the
other defendants named in the civil suit were not de-
posed voluntarily and only submitted upon being subject
to legal process. There were no assurances that reprisals
would not be taken, and the questions asked far exceeded
the relevance to the libel and wrongful interference suit.
On the other hand, the questioning explored in depth
Helton's union activities, which were the subject of a
pending Board hearing. Many questions were also direct-
ed at discovering the union activities of other employees
and knowledge of union activities on the part of a super-
visor. Still others explored the strength of Respondent's
defense to the unlawful discharge allegation. These cir-
cumstances would adequately support an inference that
the questioning in this particular subject area was direct-
ed more toward discovering evidence and examining po-
tential witnesses for the Board hearing than for prepara-
tion for the state civil suit. In that sense, it could be said
that the full purpose of the questioning was not con-
veyed to the employees interrogated.
Absent the state court's imprimatur on the interroga-
tion by deposition, the questioning under the circum-
stances of this case would necessarily have to be consid-
ered coercive within the meaning of Section 8(a)(1).
Respondent's utilization of Arizona's libel discovery
rules to obtain the depositions of its employees in fur-
therance of a separate state action effectively allowed
Respondent to bypass the Board's established procedures
and obtain through the backdoor evidence which was
closely associated with the issues in the pending Board
hearing. Consequently, it is necessary to determine
whether the NLRB's stricter discovery procedures pre-
empt the State's looser standard to the extent that the
Board's stricter standards are implied within a state court
discovery order affecting a pending Board proceeding
and involving essentially the same parties and many of
the same issues. Additionally, it must be determined
whether the failure to observe these stricter standards
violates Section 8(a)(1) of the Act.
Respondent cites Jay V. Zimmerman Co. v. National
AMask & Puppet Corp. et al., 13 F.R.D. 172 (E.D.N.Y.,
1952), to support its contention that discovery in a sepa-
rate action is not precluded even though it may impinge
on proceedings in another action. The Zimmerman case
was an action for unfair competition wherein defendants
moved for a protective order respecting the taking and
BILL JOHNSON'S RESTAURANTS, INC. 16h7
subject matter of their depositions. The district court
held that, although the precise issues in the case were
not identical to those involved in an interference pro-
ceeding in the Patent Office between the same parties,
the fact that supporting evidence in one might tend to
impinge upon the other was not sufficient in the absence
of facts to support an inference that plaintiff was seeking
to subvert the rules of the Patent Office.
The key to the Zimmerman case was not, therefore,
that the possibility that discovery in one action might im-
pinge on the proceedings of another action was sufficient
to restrict that discovery as Respondent contends.
Rather, the holding was that the defendants had failed to
allege any facts that the plaintiff was seeking to subvert
the rules of the Patent Office.
In the present case, the broad exploration of matters
intimately connected with the pending Board action, and
only tangentially associated with the state suit, amply
supports an inference that at least part of Respondent's
purpose was to go around the Board's restrictive discov-
ery rules, thereby subverting the meaning and purpose
behind these rules.
It is this manner of utilizing liberal state discovery pro-
visions to get around the Board's rules that leads directly
to the question of whether, through preemption, the
Board's rule impliedly restricts the reach of the state
court's discovery order.
Recently the Supreme Court has reviewed the doc-
trine of preemption in labor law cases in Farmer v.
United Brotherhood of Carpenters d Joiners of America,
Local 25, et al., 430 U.S. 290 (1977). The Farmer case
was tort action brought in the California state court for
damages against unions and union officials alleging that
they had intentionally caused the plaintiff to suffer
severe emotional distress. In deciding this case, the Su-
preme Court recognized the competing interests which
have shaped the doctrine of preemption as it relates to
labor law:
On the one hand, this Court has recognized that
"the broad powers conferred by Congress upon the
National Labor Relations Board to interpret and to
enforce the complex Labor Management Relations
Act . . . necessarily imply that potentially conflict-
ing 'rules of law, of remedy, and of administration'
cannot be permitted to operate." On the other hand,
because Congress has refrained from providing spe-
cific directions with respect to the scope of pre-
empted state regulation, the Court has been unwill-
ing to "declare pre-empted all local regulation that
touches or concerns in any way the complex inter-
relationships between employees, employers, and
unions .... " [Farmer v. Carpenters, supra at 295-
296.]
The Court in Farmer went on to reaffirm the general
rule regarding preemption which was formulated in San
Diego Building. Trades Council v. Garmon, 359 U.S. 236,
244 (1959):
When it is clear or may be fairly assumed that
the activities which a State purports to regulate are
protected by Section 7 of the National Labor Rela-
tions Act, or constitute an unfair labor practice
under Section 8, due regard for the federal enact-
ment requires that state jurisdiction must yield. To
leave the States free to regulate conduct so plainly
within the central aim of federal regulation involves
too great a danger of conflict between power assert-
ed by Congress, and requirements imposed by state
law.
The Court recognized exceptions to the Garmon rule
in appropriate classes of cases where the activity "was a
merely peripheral concern of the Labor Management Re-
lations Act . . . [or] touched interests so deeply rooted
in local feeling and responsibility that, in the absence of
compelling congressional direction we could not infer
that Congress had deprived the States of the power to
act." Farmer v. Carpenters, supra at 296-297, quoting
Garmon, supra at 243-244. Among the exceptions to the
preemption rule the Court has recognized are cases in-
volving libel (Linn v. United Plant Guard Workers of
America, Local 114, et al, 383 U.S. 53 (1966)) and mass
picketing and threats of violence (International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW-CIO) et al. v. Russell, 356
U.S. 634 (1958)).
Clearly, the suit brought in Arizona state court by Re-
spondent would fall within the recognized exceptions to
the preemption rule. However, the fact that a state court
may properly exercise jurisdiction over the suit does not
permit that court to determine the case without regard to
the limitations imposed in furtherance of a national labor
policy.
For example, to minimize the possibility that state libel
suits would either dampen the free discussion character-
istics of labor disputes or become a weapon of economic
coercion, the Supreme Court in Linn adopted by analogy
the standards enunicated in New York Times Co. v. Sulli-
van, 376 U.S. 254 (1964), holding that state damage ac-
tions in the labor context would escape preemption only
if limited to defamatory statements published with
knowledge or reckless disregard of their falsity. The
Court also required that the plantiff show the statements
caused actual injury. Additionally, the Court stressed the
responsibility of the trial judge to assure that the dam-
ages were not excessive.
In Farmer v. Carpenters. supra at 305, the Supreme
Court imposed limitations upon actions for intentional in-
fliction of emotional distress arising out of a labor setting
because of the potential interference with Federal regula-
tion.
These cases clearly demonstrate that, where a state
court assumes jurisdiction over a case arising out of a
labor setting, its jurisdiction is carefully circumscribed
and the state court's actions remain subject to implied re-
strictions dictated by the potential of interference with
the national labor policy-restrictions that would not be
present in suits arising from nonlabor related circum-
stances.
The Arizona discovery rules applicable in this case not
only pose a potential for interference with the national
labor policy, but directly conflict with the rules of the
Board. Whether the Arizona rules are preempted, there-
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, requires "a balanced inquiry into such factors as the
nature of the federal and state interests in regulation and
the potential for interference with federal regulation."
Farmer v. Carpenters, supra at 300.
In modeling its discovery procedures upon the Federal
Rules of Civil Procedure, Arizona revealed a similar pur-
pose as that embodied in the Federal rules of promoting
judicial efficiency and providing full disclosure of all
facets of a law suit. (See, generally, 4 Moore, Federal
Practice, 26.02)
On the other hand, as noted previously, the rationale
behind the Board's severe restriction of discovery is to
protect witnesses and other persons with relevant infor-
mation and to avoid the cost and inconvenience of full
discovery. P.S.C. Resources, Inc. v. N.L.R.B., supra at
386-387. Furthermore, "The Board's procedures [re-
stricting discovery] are reasonably designed to forestall
such intimidation and harassment as would otherwise be
possible because of the leverage inherent in the employ-
er-employee relationship." N.L.R.B. v. Lizdale Knitting
Mills, Inc., 523 F.2d 978, 980 (2d Cir. 1975).
Additionally, allowing broad discovery of evidence
pertaining to a matter pending before the Board would
necessarily disrupt the Board's administration of the Act
by providing litigants with advance knowledge of the
substance of the General Counsel's case by resorting to
the expedient of filing a concomitant civil suit in state
court. In N.L.R.B. v. Robbins Tire & Rubber Co., 437
U.S. 214 (1978), the Supreme Court viewed with disfa-
vor the prospect of litigants using backdoor methods of
gaining access to the substance of the General Counsel's
case, viewing such conduct as an "interference" on the
ground that such methods would permit the following:
"[E]ven without intimidation or harassment a suspected
violator with advance access to the Board's case could
'construct defenses which would permit violations to go
unremedied."' Id at 241. In Robbins, the Court refused to
allow litigants to gain access under the Freedom of In-
formation Act to witnesses' statements and affidavits
made to the Board. It would hardly make sense to allow
litigants to gain access to the substance of these state-
ments through the use of state discovery procedures.
Such a rule permitting such conduct would certainly
promote the filing of suits, meritorious or not, in state
courts to take advantage of discovery procedures not
available to litigants in a Board proceeding. Therefore, it
seems clear that such a result would definitely subvert
the purpose and policy of the Board's rules and of the
Act.
On the other hand, the potential interference with state
regulation is minimal. A policy limiting discovery in
state court actions, which are already subject to implied
restrictions dictated by the supremacy of a national labor
policy, until hearing on a matter involving essentially
similar parties, witnesses, and issues before the Board
would not deny a litigant of a forum. At most, it would
stay the proceeding of the state action until the Board's
hearing was held. Since, traditionally, Board proceedings
are conducted at a more rapid pace and much sooner
after the filing of the complaint than is true in state civil
suits, the delay to the state court action would not neces-
sarily be burdensome.
Moreover, a litigant would not be altogether restricted
in taking depositions, etc., but, pending Board hearing,
would be required to meet the "good cause" requirement
of Rule 102.30 as interpreted by the Board's Decisions.
On balance, therefore, it appears that the Federal in-
terest underlying the Board's restrictive discovery rule is
much greater than that which serves as the basis for the
Arizona rule. Also, the danger of interference with the
Board's administration of the National Labor Relations
Act by failing to limit the state court discovery proce-
dures is very much greater than the potential for inter-
ference with the state proceedings. Reflecting this failure
of the State's interests to adequately counterbalance the
strong Federal interest, it would seem imperative that
any state court discovery order would necessarily con-
tain within it by implication the Board's restrictive dis-
covery rule regarding matters affecting a pending Board
hearing.
Since the state court's jurisdiction was limited by the
superior Board regulation, the state court's discovery
order could not extend beyond the discovery permitted
under Board procedures. When Respondent exceeded
the implied limitations imposed by the Board's regula-
tion, it was venturing into an area where its conduct was
not protected by the state court discovery order, and
that order would not immunize that conduct from scruti-
ny by the Board. Since, as noted previously, the manner
in which Respondent's attorneys interrogated (acting as
its agents) could be considered coercive, it follows that
the taking of the depositions of Helton and other em-
ployees and former employees of Respondent, in a
manner which would not have been permitted by the
Board, was a violation of Section 8(a)(1) of the Act.
The present case was not a situation in which counsel
in taking depositions in an unrelated matter unwittingly
crossed over into an area protected by the Act. On the
contrary, Respondent's counsel was a capable and expe-
rienced labor attorney who was aware of exactly what
he was doing when he specifically requested a court
order allowing him to question Respondent's employees
and former employees, subject only to the restriction
that he not ask the witnesses about their statements to
the Board, but with no restriction as to the substance em-
bodied in those statements to the Board. Such circum-
stances strongly militate toward a conclusion that the
conduct of Respondent's counsel constituted a violation
of the Act. Accordingly, I find that Respondent, in fur-
therance of its civil action, threatened to depose and de-
posed employees, former employees and their spouses re-
garding the union and concerted activities of its employ-
ees, including the union and concerted activities of
Helton, in violation of Section 8(a)(4) and (1) of the Act
as alleged in paragraph 14 of the complaint.
CONCI.USIONS OF LAW
1. Bill Johnson's Restaurants, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By discharging Myrland R. Helton on August 8,
1978, because of her union activities, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
BILL JOHNSON'S RESTAURANTS, INC. 169
3. By interrogating an employee on August 10, 1978,
regarding the union activities of other employees, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
4. On September 18, 1978, Respondent's employees
Cheryl Nichols, Carla Scott, and Dale Michaud ceased
work concertedly and went out on strike in protest of
the unlawful discharge of Helton, and, at various times
since said date, those employees and the spouses of cer-
tain employees and former employees of Respondent
have picketed to protest Respondent's unfair labor prac-
tices.
5. By threatening to bring reprisals upon employees
for engaging in protected concerted activities, including
the filing of a charge with the Board and the picketing
of Respondent's premises, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(4) and
(1) of the Act.
6. By making a vieled threat against the husband of an
employee and his wife for having engaged in protected
concerted activities, Respondent engaged in an unfair
labor practice within the meaning of Section 8(a)(4) and
(1) of the Act.
7. By interrogating a former employee on October 3,
1978, regarding said employee's union activities and her
knowledge of the union activities of others, Respondent
engaged in an unfair labor practice within the meaning
of Section 8(a)(4) and (1) of the Act.
8. By filing a civil complaint in the Superior Court of
the State of Arizona, in and for the County of Maricopa,
against Myrland R. Helton, John Helton, Barbara Orr,
Lawrence Orr, Cheryl Nichols, Carl Nichols, Carla
Marie Scott, Debra Mackie, Dale Michaud, and Jane and
John Does I through X, alleging the defendants made
false and misleading statements with respect to a pro-
ceeding pending before the National Labor Relations
Board, and with respect to other employee complaints
against Respondent, and seeking to recover compensa-
tory and punitive damages and an injunction against said
individuals, which action was brought for the purpose of
impeding the Board's processes and interfering with the
prosecution of an unfair labor practice charge filed by
Myrland R. Helton, Respondent has violated Section
8(a)(4) and (1) of the Act.
9. By threatening to depose, and by deposing, the de-
fendants in the State of Arizona civil proceeding regard-
ing the union and concerted activities of its employees,
including those of Myrland R. Helton, Respondent has
violated Section 8(a)(4) and (1) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. I shall rec-
ommend that Respondent be required to offer Myrland
R. Helton immediate and full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority
and other rights and privileges, and make her whole for
any loss of earnings she may have suffered by reason of
such discrimination by payment of a sum of money equal
to that which she normally would have earned as wages
from the date of her discharge on August 8, 1978, to the
date of said offer of reinstatement, less her net earnings
during such period, with backpay computed on a quar-
terly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), and with
interest thereon as set forth in Florida Steel Corporation,
231 NLRB 651 (1977). 2 5 It is also recommended that
Respondent make available to the Board, upon request,
all payroll and other records to facilitate checking the
amount of earnings due. It has been found that Respond-
ent did not have a reasonable basis for the filing of a
civil complaint in the Superior Court of Arizona, in and
for the County of Maricopa, seeking damages and in-
junctive relief. It has further been found that Respond-
ent, in furtherance of its civil suit, threatened to depose,
did and depose, employees and former employees and
their spouses regarding the union and concerted activi-
ties of its employees. By such conduct, Respondent has
discriminated against its employees in the exercise of
their right to file charges or otherwise give testimony
under the Act, and has interfered with, restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act. In order to dissipate the
effect of Respondent's unfair labor practices, it shall be
recommended that the Respondent cease and desist from
prosecuting its complaint which arose out of Myrland R.
Helton's filing of unfair labor practice charges with the
National Labor relations Board and the protected con-
certed activities engaged in by its employees and former
employees and their spouses, and that Respondent be re-
quired to withdraw said civil complaint. In order to
place Helton and the others who engaged in the picket-
ing of Respondent's premises in the position they would
have been absent Respondent's 8(a)(4) and (1) violations,
it is recommended that Respondent make the defendants
in the civil complaint whole for all legal expenses in-
curred in the defense of Respondent's lawsuit.2 6
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER 2 7
The Respondent, Bill Johnson's Restaurants, Inc.,
Phoenix, Arizona, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees because of their union in-
terest or activities.
" See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
26 George A. Angle, supra; Power Systems Inc., supra.
27 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
,..
17() DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating employees or former employees re-
garding their union activities or the union activities of
others.
(c) Threatening to bring reprisals upon employees or
their spouses for filing a charge with the National Labor
Relations Board or for picketing their premises or for en-
gaging in other protected concerted activities.
(d) Prosecuting its complaint in the Superior Court of
the State of Arizona, in and for the County of Maricopa,
styled as Bill Johnson's Restaurants, Inc., An Arizona Cor-
poration, et al. v. Myrland R. Helton, et al., No. C375470,
including threats to depose, and deposing, the defendants
in said action.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Myrland R. Helton immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority or other rights and privileges, and make
her whole for any loss of earnings she may have suffered
as a result of the discrimination against her in the manner
described above in the section entitled "The Remedy."
(b) Withdraw its complaint styled as Bill Johnson's
Restaurants, Inc.. An Arizona Corporation, et al. v. Myr-
land R. Helton, et al., No. C375470, which Respondent
caused to be instituted in the Superior Court of the State
of Arizona, in and for the County of Maricopa.
(c) Reimburse the Charging Party, Myrland R. Helton,
and all other named party defendants, for all legal ex-
penses incurred in the defense of said lawsuit, including
expenses incurred in relation to the defendants' answer
and counterclaim.
(d) Post at each of its restaurants located in Phoenix
and Mesa, Arizona, 28 copies of the attached notice
marked "Appendix." 29 Copies of said notice, on forms
provided by the Regional Director for Region 28, after
being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that paragraph 8(b) of the
complaint, as amended, in Case 28-CA-5041 be, and it
hereby is, dismissed.
28 As the temporary restraining order limited picketing at each of Re-
spondent's business establishments, I conclude that it will best effectuate
the policies of the Act to require the notice be posted at each of said
premises.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."