Sagapo Restaurant

National Labor Relations Board - Board Decisions

Sep 9, 1981

257 N.L.R.B. 1212 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15 East 48th Restauarnt, Inc., d/b/a Sagapo Restau-
rant and Sagapo Restaurant, Inc., its Agent and
Local 6, Hotel, Restaurant & Club Employees &
Bartenders International Union, AFL-CIO.
Case 2-CA-17173
September 9, 1981
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 27, 1981, Administrative Law
Judge Raymond P. Green issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
Respondent filed cross-exceptions and a brief in
support of its cross-exceptions and in support of
the remainder of the Administrative Law Judge's
Decision.
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 at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rules, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
While we agree with the Administrative Law
Judge that Respondent unlawfully interrogated and
threatened its employees in violation of Section
8(a)(1) of the Act, we do not agree with his find-
ings that Respondent did not violate Section 8(a)(3)
and (1) of the Act by discharging employees Steve
Stamatopoulos and Matheos Kiropoulos, and by
transferring employee John Marinis from one shift
to another and thereafter discharging him.
Respondent is a Greek night club and restaurant
located in New York, New York. It is managed by
one of its owners, Kimon Makris. The record re-
veals that on or about March 14, 1980,1 Stamato-
poulos, who worked as Respondent's day-shift bar-
tender,2 was accused by Makris of being short ap-
proximately $55 in his daily register receipts. Sev-
eral days later, on Saturday, March 22, Stamato-
poulos met with Marinis, who was the night-shift
bartender, at a nearby fast food restaurant where
they discussed their working conditions and, at Sta-
matopoulos' suggestion, agreed to seek assistance
from a union. On Monday, March 24, prior to re-
porting for work, Stamatopoulos visited the offices
of the Charging Party Union and obtained authori-
zation cards from a union official named Martin.
Upon reporting to work, Stamatopoulos gave some
All dates hereinafter are in 1980, unless otherwise indicated.
2 Respondent maintains two shifts of employees, a day shift which
works from II am. to between 5:30 p.m. and 7 p.m., and an evening shift
which works from 7 p.m. until 4 a.m.
257 NLRB No. 156
of the cards to Marinis3 and hid the rest in a desk
located in a locker room where employees fre-
quently changed. Somehow, some of these cards
were subsequently discovered in Makris' office.4
According to Marinis' uncontradicted testimony,
shortly after he signed an authorization card, Re-
spondent's maitre d', Frank Koutsiftis, an admitted
agent of Respondent, informed Marinis that some
blank authorization cards had been found in
Makris' office and that Makris believed that Mar-
inis had brought them into the restaurant. Further-
more, he informed Marinis that during a conversa-
tion with another of Respondent's owners, Makris
had stated that Marinis was going to be fired.
Koutsiftis then told Marinis not to worry, as he
would talk to Makris, but that Marinis should let
someone else do the organizing. Koutsiftis admitted
telling Marinis that he should stop his organizing
activities. He also admitted to telling him that he
(Marinis) could be fired if he made the smallest
mistake.
Marinis further testified, without contradiction,
that one or two days after his conversation with
Koutsiftis, Makris asked him why he wanted to
bring in the Union, which Marinis initially denied
wanting to do. However, when Makris accused
him of lying, Marinis admitted wanting to bring in
a union and thereafter offered to resign. Makris
nevertheless allowed him to remain on the job.
Stamatopoulos also testified without contradic-
tion that he was similarly questioned by Makris.
Thus, he testified that on or about March 24 or 25
Makris summoned him into his office and, after
asking Stamatopoulos if he was happy with his job,
accused him of having brought the authorization
cards into the restaurant. When Stamatopoulos
denied having done so, Makris stated that he be-
lieved Stamatopoulos and added that he would find
out who had brought in the cards.
Kiropoulos, who worked in the kitchen, signed
an authorization card on March 25. According to
his undisputed testimony, shortly after signing the
card, Night Manager Antonakos asked him if he
had signed a card and Kiropoulos acknowledged
having done so.
According to Stamatopoulos' uncontradicted tes-
timony, on March 28, Antonakos told Stamatopou-
los that he was fired because Makris had said that
he had been receiving complaints from the waiters.
The record reveals that the authorization cards obtained by Stamato-
poulos were not the proper ones and that Marinis subsequently obtained
new ones from the Union. He thereafter distributed the new cards to sev-
eral employees and he and Stamatopoulos signed cards on March 25 and
26, respectively.
4 Although the record is silent as to how the cards wound up in
Makris' office. Makris testified that he had been informed by his night
manager, Kostas Antonakos, that "some union cards" had been found.
1212
SAGAPO RESTAURANT
When Stamatopoulos sought to inquire from
Makris the reason for his discharge, Makris re-
sponded by saying, "The case is closed, that's all."
Kiropoulos was also terminated on the following
day, March 29. According to his undisputed testi-
mony, as he was leaving work at the end of the
evening shift, Antonakos informed him that he was
being terminated. When Kiropoulos asked why he
was being terminated, Antonakos responded by
saying that he had been instructed to "stop" Kiro-
poulos.
On March 31, Stamatopoulos, Kiropoulos, and
Marinis went to the Union's office to seek assist-
ance in getting Stamatopoulos and Kiropoulos rein-
stated. That same day, two union representatives
visited Makris, informed him of the employees'
visit to the Union's office, and accused Makris of
having discharged Stamatopoulos and Kiropoulos
because of their union activities. Makris denied the
accusation. Later that day, when Kiropoulos went
in to pick up his final paycheck, Antonakos told
him that he had found out everything and that he
knew that Kiropoulos, Stamatopoulos, and Marinis
had gone to the Union. Marinis similarly testified
that, when he arrived for work that evening,
Makris told him that he (Makris) had found out
that the employees had gone to the Union and with
whom they had spoken. He then told Marinis, "I
know exactly what you are doing, every step that
you take I know .... "
Either on Friday, April 4, or Saturday, April 5,
Makris informed Marinis that he was being trans-
ferred to the day shift. Makris testified that the
reaspn for transferring Marinis from the night shift
to the day shift was because of the need for a day-
shift bartender resulting from Stamatopoulos' ter-
mination, and because Marinis allegedly had been
having arguments with the night-shift waiters over
tips. When told of the shift change, Marinis stated
that he preferred the night shift but would work
the day shift if requested to do so.
On Monday, April 7, Marinis reported for work
at 7 p.m. and, while changing into his work
clothes, was approached by Makris who asked him
why he had not reported for the day shift as he
had been instructed to do. When Marinis respond-
ed that he did not know that he was supposed to
start that day,5 Makris discharged Marinis by in-
Although the Administrative Law Judge found that Makris told Mar-
inis that he was to begin working the day shift on Monday. April 7, we
conclude that the record does not support such a finding. Thus, while
Makris, when questioned by Respondent's attorney, testified that he told
Marinis when to report for the day shift, on cross-examination, he testi-
fied only that he told Marinis that he was being transferred to the day
shift. Additionally, Koutsiftis' testimony that Marinis was discharged for
failing to show up a third time for the day shift is inconsistent with
Makris' testimony that Marinis was discharged for failing to report the
first time on April 7. as purportedly required to do. Finall), we note that
forming him that his last working day would be
Saturday, April 12. The record reveals that Kout-
siftis, after learning of Marinis' discharge, sought to
intervene on Marinis' behalf by telling Makris that
if Marinis were retained he (Marinis) would not be
involved in union activity. Makris, denying that
union activities had played a part in Marinis' dis-
charge, refused to reconsider his decision.
In agreement with the Administrative Law
Judge, we find that Respondent violated Section
8(a)(1) of the Act when Makris interrogated Stama-
topoulos and Marinis concerning the union cards
found in his office, when Antonakos interrogated
Kiropoulos as to whether he had signed an authori-
zation card, and when Koutsiftis warned Marinis
that he could not be fired for his union activities.
However, as noted above, we find, contrary to the
Administrative Law Judge, that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by transfer-
ring Marinis from the night to the day shift and
thereafter discharging him, and by discharging Sta-
matopoulos and Kiropoulos.
Respondent contends, and the Administrative
Law Judge found, that Stamatopoulos was dis-
charged for being short $55 in his daily register re-
ceipts of March 14. The record, however, does not
support that finding. Rather, as noted above, Sta-
matopoulos was told by Antonakos that he was
being discharged because of complaints Makris had
purportedly received from waiters, and not for any
shortage in his daily register receipts. In this
regard, we note that when Stamatopoulos sought
to ascertain from Makris the true reason for his dis-
charge, Makris refused to discuss the matter stating
only that the case was closed. Additionally, the
record reveals that since he began working for Re-
spondent on February 14 Stamatopoulos had been
short in his daily register receipts approximately 80
percent of the time but had never been disciplined
or warned for such shortages. In fact, when the
March 14 shortage was discovered, Makris merely
informed Stamatopoulos of the shortage but took
no immediate action against Stamatopoulos nor in-
dicated to him that some form of disciplinary
action would be forthcoming. Instead, Stamatopou-
los was allowed to remain on the job where, in
spite of his continued receipt shortages, no action
was taken against him. It was only after Stamato-
poulos had initiated the organizational activity
among Respondent's employees, had obtained the
the Administrative Law Judge. in finding that Marinis "let it slip" that he
was told to start on Monday April 7, has misconstrued the record by
taking Marinis' testimony out of context. Rather, contrary to Respond-
ent's witnesses, Marinis consistently testified that he was not told when to
report for the day shift. In view of the above, we find that while Re-
spondent Informed Marinis that he was being transferred to the day shift.
it did not inform him of the effective date of the transfer
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first set of union authorization cards, had been ac-
cused by Respondent of being responsible for
bringing the cards into the restaurant, and had
signed an authorization card for the Union that his
performance as an employee was found sufficiently
deficient to warrant his discharge. Indeed, just 2
days after he signed his authorization card and
within 1 week of having commenced his union ac-
tivity, Stamatopoulos was discharged without
warning and without a replacement having been
obtained6--and then for a reason other than the
one advanced by Respondent at the hearing. Thus,
in view of the timing of the discharge to his union
activities, the shifting reasons given for his dis-
charge, and Respondent's acceptance, until the
advent of the Union on the scene, of the frequent
shortages in Stamatopoulos' cash receipts, we con-
clude that the March 14 shortage was not the
actual reason for Stamatopoulos' discharge. Rather,
we find that Respondent seized upon the March 14
shortage as a pretext to discharge Stamatopoulos
for his union activities, 7 in violation of Section
8(a)(3) and (1) of the Act.
With respect to Kiropoulos, the Administrative
Law Judge found that he was discharged for hold-
ing a second job which purportedly had adversely
affected his job performance, and because Re-
spondent determined that it no longer needed a
"salad man," the position held by Kiropoulos prior
to his discharge. Contrary to the Administrative
Law Judge, we find that these were not the real
reasons for Kiropoulos' discharge.
Kiropoulos admittedly held a second job while
working for Respondent. The record, however, re-
veals that he had held this second job since prior
to December 14, 1979, the date he was hired by
Respondent and, although Respondent asserts that
the second job resulted in a poor work perform-
ance, there is no record evidence to indicate that
Kiropoulos had ever been disciplined or warned
for any alleged poor work performance on his part.
To the contrary, the only warnings which Kiro-
poulos apparently received were for sitting with
his feet propped up against another chair. Addi-
tionally, while Makris testified that Respondent had
a policy forbidding employees from holding second
jobs, there is no evidence to indicate that the
6 Makris testified that the decision to discharge Stamatopoulos was
made I or 2 days after it learned of the March 14 shortage and that soon
thereafter Respondent contacted several employment agencies in an
effort to obtain a replacement for Stamatopoulos. No explanation, how-
ever, was offered by Respondent as to why, after having allowed Stama-
topoulos to remain on the job for so long after the alleged shortage oc-
curred, it arbitrarily chose to discharge him on March 29 without first
obtaining a replacement.
' Although Respondent denies having had knowledge of Stamatopou-
los' union activities, Koutsiftis, the maitre d', admitted that he had been
told, prior to Stamatopoulos' discharge, which employees had signed
union authorization cards and which had not.
policy was a written one or that it was ever com-
municated to Respondent's employees, including
Kiropoulos. Furthermore, when questioned by the
General Counsel as to when he found out about
Kiropoulos' second job, Makris could not recall if
it was early in Kiropoulos' employment period or
prior to his discharge. In light of this fact, there
can be no basis for finding that Respondent dis-
charged Kiropoulos for disregarding its purported
policy against employees holding two jobs. Under
these circumstances, we find that there is no merit
to Respondent's assertion that Kiropoulos was ter-
minated because of poor work performance or that
his work performance played a part in his dis-
charge. s
Similarly, we find Respondent's other asserted
reason for terminating Kiropoulos (i.e., that it no
longer needed a "salad man") to be without foun-
dation and therefore also pretextual. According to
Makris, early in March he and Antonakos decided
that because business was slow they would elimi-
nate the "salad man" position. However, while that
decision was purportedly made in early March,
Kiropoulos was not terminated until March 29, just
a few days after signing a union card and after re-
sponding affirmatively to Anatonakos' unlawful in-
quiry of whether or not he had signed a card. Re-
spondent has offered no explanation as to why it
waited so long to discharge Kiropoulos when its
decision to eliminate the position was purportedly
made in early March.9 Furthermore, we note that
Kiropoulos was offered no explanation for his dis-
charge but rather was cryptically told by Antona-
kos that he had been ordered to "stop" Kiropoylos.
In our view, the above circumstances and the
timing of the discharge to Kiropoulos' admission to
Respondent that he had signed a union card give
rise to an inference, which we draw, that another
reason-Kiropoulos' support of the Union-moti-
vated Respondent into terminating this employee. 0
Thus, in the words of Antonakos, Respondent
sought to "stop" Kiropoulos from engaging in any
further union activities by discharging him. 1 Ac-
I Indeed, Respondent itself appears largely to have discounted poor
work performance as a reason for Kiropoulos' discharge since during the
hearing and in its brief to the Board, Respondent asserted that the "pri-
mary reason" for discharging Kiropoulos was because it no longer
needed a "salad man."
I Respondent contends that it did not hire another person to do the
salad work previously done by Kiropoulos. However, its record of the
hours worked by employees, which was subpenaed by the General Coun-
sel, contain the notation "SAL" next to the name of an employee subse-
quently hired by Respondent, and while Respondent would have us be-
lieve that "SAL" stands for second cook, we find it more probable that
said notation was meant to indicate that the new employee was perform-
ing the "salad" work which Kiropoulos had previously done.
' Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466 (9th Cir. 1966).
" It is undisputed that after signing his union authorization card, Kiro-
poulos sought to solicit a card from at least one other employee.
1214
SAGAPO RESTAURANT
cordingly, we find that in discharging Kiropoulos
for his union activities, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
As for Marinis, we find no merit to Respondent's
assertion that its reason for wanting to transfer
Marinis from the night shift to the day shift was
because it needed someone to replace Stamatopou-
los as the day-shift bartender. As noted earlier,
Makris testified that, upon discovering the March
14 shortage, Respondent contacted several employ-
ment agencies in an attempt to obtain a replace-
ment for Stamatopoulos. He further testified that
within a week to 10 days, Respondent had hired a
Mr. Katz to replace Stamatopoulos. 12 It is therefore
apparent from Makris' own testimony that Re-
spondent had not considered replacing Stamato-
poulos with Marinis but instead had hired another
employee to assume Stamatopoulos' duties. Fur-
thermore, Respondent has failed to explain why, if
Marinis was to be Stamatopoulos' replacement, it
did not immediately effectuate the change on
March 14, when the shortage in the cash receipts
was discovered, or on March 28, when Stamato-
poulos was finally discharged. Also, it is significant
to note that in its brief to the Board Respondent as-
serts that the reason for wanting to change Marinis
to the day shift was because Marinis was fighting
with the night waiters over tips. 3 No mention
whatsoever is made of Respondent's earlier conten-
tion that Marinis was needed to replace Stamato-
poulos. Thus, in view of the shifting reasons given
for wanting Marinis transferred to the day shift, the
earlier threat to discharge him for his union activi-
ties, the unlawful interrogation by Makris and
Makris' comment that he knew everything Marinis
was doing, t4 we find that Respondent's transfer of
Marinis to the less desirable day shift was motivat-
ed solely by antiunion considerations and was
therefore in violation of Section 8(a)(3) and (1) of
'2 Katz began working shortly after Marinis was discharged.
13 We also find this reason to be pretextual. Thus, while the record re-
veals that Marinis had quarreled with the night waiters over tips, it fur-
ther reveals that the matter was resolved in late January when Makris
asked the waiters to share their tips with Marinis, stating "I think it's
fair." Furthermore, when asked if the arguments continued after the wait-
ers began sharing their tips, Makris admitted that he did not know. Addi-
tionally, Respondent at the hearing indicated that "another" reason for
wanting Marinis on the day shift was because it had "faith" that Marinis
could resolve the difficulties the day-shift waiters were having with their
woman day manager. However, it is inconceivable to us that Respondent
would transfer an employee, who it claims was having problems with the
night waiters, to the day shift to resolve a dispute between the day wait-
ers and their manager.
14 The Administrative Law Judge found that Respondent did not
create the impression of surveillance when Makris informed Marinis that
he knew exactly what Marinis was doing and every step Marinis took
and when Antonakos informed Kiropoulos that he knew that the employ-
ees had visited the Union. However, in view of the unlawful nature of
the discharges as well as Respondent's other unlawful conduct, we are
convinced that Respondent sought, through the above comments, to
create the impression that its employees activities were being kept under
surveillance, in violation of Sec. 8(a)(l) of the Act
the Act. 5 Furthermore, as noted above, Marinis'
discharge resulted directly from his purported fail-
ure to comply with the transfer to the day shift.
Since the transfer itself was motivated by antiunion
considerations and thus was illegal, we find that
the resulting discharge of Marinis was similarly
motivated and also violated Section 8(a)(3) and (1)
of the Act. 16
REMEDY
Having found that Respondent unlawfully trans-
ferred and discharged employees for having en-
gaged in union activities, and having found that
Respondent engaged in further unlawful conduct
by threatening its employees with discharge, inter-
rogating them, and creating the impression of sur-
veillance, we shall order it to cease and desist
therefrom, and to take certain affirmative action
which we find will effectuate the purposes to the
Act.
Respondent will be required to offer Steve Sta-
matopoulos, Matheos Kiropoulos, and John Marinis
full and immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges previously
enjoyed, and to make them whole for any loss of
earnings they may have suffered by reason of the
discrimination practiced against them, such earn-
ings to be computed in accordance with the formu-
la set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).17 See, generally, Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
15 East 48th Restaurant, Inc., d/b/a Sagapo Res-
taurant and Sagapo Restaurant, Inc., New York,
New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Transferring its employees from one shift to
another, discharging, or otherwise discriminating
1s Although the complaint alleges the change of shift only as an 8(a)(1)
violation, we are not precluded from finding that such conduct was also
violative of Sec. 8(a)(3) of the Act since, as noted above, the shift change
was motivated by Respondent's opposition to Marinis' activities on behalf
of the Union and was designed to discourage any such further union ac-
tivities
6 Our finding in this regard is supported by the fact that, as noted ear-
lier, Marinis was never advised as to when to report to the day shift.
' Member Jenkins would compute interest in the manner set forth in
his partial dissen i Olvenpic Medical Corporation, 250 NLRB 146 (1980).
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them because of their support for or mem-
bership in Local 6, Hotel, Restaurant & Club Em-
ployees & Bartenders International Union, AFL-
CIO, the Union herein, or any other labor organi-
zation.
(b) Conveying to its employees the impression
that it is engaging in the surveillance of their union
or other protected concerted activities.
(c) Interrogating its employees concerning their
union sympathies and activities.
(d) Threatening its employees with discharge or
other reprisals if they join or support the Union or
any other labor organization.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following action which is necessary
to effectuate the policies of the Act:
(a) Offer Steve Stamatopoulos, Matheos Kiro-
poulos, and John Marinis full and immediate rein-
statement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them
in the manner set forth in the section of this Deci-
sion entitled "Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its place of business in New York,
New York, copies of the attached notice marked
"Appendix."'l Copies of said notice, on forms pro-
vided by the Regional Director for Region 2, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places at all locations 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.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
" 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-
lnt to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
what steps Respondent has taken to comply here-
with.
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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT transfer our employees from
one shift to another, discharge, or otherwise
discriminate against them because of their sup-
port for or membership in Local 6, Hotel, Res-
taurant & Club Employees & Bartenders Inter-
national Union, AFL-CIO, or any other labor
organization.
WE WILL NOT give our employees the im-
pression that we are engaging in the surveil-
lance of their union or other protected con-
certed activities.
WE WILL NOT interrogate our employees
concerning their union sympathies and activi-
ties.
WE WILL NOT threaten our employees with
discharge or other reprisals if they join or sup-
port the above-named, or any other labor or-
ganization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Steve Stamatopoulos, Math-
eos Kiropoulos, and John Marinis full and im-
mediate reinstatement to their former positions
or, if those positions no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any loss of pay they
1216
SAGAPO RESTAURANT
may have suffered by reason of our discrimina-
tion against them, with interest.
15 EAST 48TH RESTAURANT,
D/B/A SAGAPO RESTAURANT
SAGAPO RESTAURANT, INC.,
AGENT
INC.,
AND
ITS
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard by me on December 4 and 5, 1980, based
on a complaint issued by the Regional Director of
Region 2 on June 9, 1980.' The initial charge in the pro-
ceeding was filed by the Union on April 1, a first amend-
ed charge was filed on April 16, and a second amended
charge was filed on May 27.
The issues raised by the complaint, as amended at the
hearing, are as follows:
I. Whether in March, Respondent by Kimon Makris
and Kostas Antonskos interrogated employees regarding
their membership in, and activities on behalf of the
Union.
2. Whether in March, Respondent by Frank Kousiftis
and Kimon Makris threatened to discharge employees
for engaging in union activities and distributing authori-
zation cards on behalf of the Union.
3. Whether in March, Respondent by Kimon Makris
and Kostas Antonakos created an impression that its em-
ployees' union activities were under surveillance.
4. Whether in March, Respondent by Kimon Makris
threatened to change the hours of employees because
they joined, supported, or assisted the Union.
5. Whether the discharges of Steve Stamatopoulos on
March 28 and Matheos Kiropoulos on March 29 were
violative of Section 8(a)(3) of the Act because motivated
by said employees' union activities.
6. Whether the change in John Marinis' hours from
the night shift to the day shift was motivated because of
that employee's union activities.
7. Whether the discharge of Marinis on April 12 was
violative of Section 8(a)(3) of the Act because it was mo-
tivated by his union activities.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The parties agree that Respondent operates a night
club and restaurant located at 15 East 48th Street in the
city and State of New York. It is conceded that during
the past year the Respondent had gross revenues in
excess of $500,000 and that it purchased goods and mate-
rials valued in excess of $50,000 directly from points lo-
cated outside the State of New York. Respondent admits
and I find that it is an employer engaged in commerce
Unless otherwise indicated. all dates are in 1980.
within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED) UNFAIR ABOR PRACTICES
A crucial issue in this case is when the employees first
engaged in any activity to obtain union representation at
Respondent. According to John Marinis, the night bar-
tender, he along with Matheos Kiropoulos, Steve Stama-
topoulos, and another employee named Tom decided to
obtain union representation sometime in March. Howev-
er, Kiropoulos, who was employed in the kitchen
making salads, indicated in his testimony that the first
time he became involved with the Union was when he
signed a union card given to him by Marinis on the
corner of 48th Street and Fifth Avenue on March 25 and
thereafter asked Mario, a cook, to join the Union. The
testimony of Steve Stamatopoulos, the day bartender is
somewhat contradictory on this matter. Initially, he testi-
fied that he and Marinis had a discussion about unioniz-
ing the restaurant in late February at a restaurant called
Arthur Treacher's Fish and Chips. However, Stamato-
poulos later acknowledged that his meeting with Marinis
at the fish restaurant took place on Saturday, March 21,
that he spoke to no one else about the Union prior to the
meeting, and that he arranged for this meeting with Mar-
inis shortly after he had been accused of being 55 or
$56 short in his cash register. Needless to say, Respond-
ent asserts that it decided to discharge Stamatopoulos
when the cash shortage was discovered and waited until
March 28 to do so only because it needed time to obtain
his replacement.
In any event, it appears that as a result of the meeting
between Marinis and Stamatopoulos on March 21, which
I conclude is when the union activity commenced, Sta-
matopoulos went to the offices of the Union, obtained
union authorization cards, and brought them back to Re-
spondent's facility where he hid them in a desk in the
locker room. It is acknowledged by all parties that some-
how, some of these unsigned cards found their way into
the office of Kimon Makris, one of Respondent's owners.
It also is established that, after these cards were discov-
ered, John Marinis went back to the Union to obtain
new cards which some of the employees executed
around March 25. As noted above, Kiropoulos signed
such a card on that date.
According to Marinis, he was told by Koutsiftis, the
maitre d' that the original set of cards had been found in
Makris' office and that Makris thought that Marinis had
brought them in. Marinis testified that Koutsiftis told him
that Makris was talking with another of the owners and
that "they're going to fire you." According to Marinis,
Koutsiftis told him that he was going to talk to Makris,
that he should not worry about it, but that Marinis
should let someone else do the organizing. Marinis also
testified that, a day or two later, Makris asked him why
he wanted to bring the Union in, to which he initially
responded that he did not want to do so. He states that
Markis accused him of lying and that he then told
Makris that he was sorry and thereupon admitted that he
had brought the Union in. According to Marinis, he then
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to resign but Makris refused the offer and told
him to go back to work. On another day, Marinis asserts
that Makris told him that he had no right to solicit em-
ployeesin the restaurant and that he, Marinis, denied that
he had done so at work.
According to the testimony of Stamatopoulos, he was
called into Makris' office on March 24 or 25 and asked if
he was happy with his job. He stated that he was then
accused of bringing in the union cards, which he denied.
He stated that Makris said that he believed him and as-
serted that he would find out who brought them in. Ac-
cording to Stamatopoulos, this was the only conversation
he had with any of the managers or supervisors of Re-
spondent about the Union. Kiropoulos for his part states
that he was asked by the night manager, Kostas Antona-
kos, if he had signed a union card which he acknowl-
edged. He asserts that this conversation took place about
2 or 3 days before his discharge.
Makris acknowledges that he asked Marinis and Sta-
matopoulos about the union cards which were found in
his office. In this regard, he testified that he did so after
asking his managers about the cards because he wanted
to ascertain who had gained entrance to his office which
is locked, and where cash, checks, and records are kept.2
He states that aside from the managers, the partners, the
cashier, and the maitre d' who had keys, the only other
people who had permissible access to the office were
Marinis and Stamatopoulos because they got their cash
there and returned their receipts to the office each day.3
Makris asserts that the only conversations he had with
these two men about the Union were when he asked
them if they had placed the union cards in his office.
Koutsiftis testified that, sometime after the union cards
were discovered in Makris' office, he told Marinis, in
effect, that he should stop his organizing activity and
that he could be fired if he made the smallest mistake.
Koutsiftis testifed that he told this to Marinis because
Marinis was his "best friend," 4 and he was telling Mar-
inis, as a matter of personal advice, not be involved with
the Union because, based on his own experiences, com-
panies would use the least excuse to discharge someone
who was involved with a union. According to Koutsiftis,
Marinis then agreed to stop his union activity.
It is agreed by the parties that Stamatopoulos was dis-
charged on March 28. As noted above, the Company as-
serts that the decision to discharge him was made upon
the discovery of the major cash shortage in his cash reg-
ister5 and that the only reason it kept him on until March
28 was to find a replacement. It also is noted that the
shortage accusation in question occurred, according to
Stamatopoulos, before any union activity commenced
' I credit the testimony of Makris that the door to this office is kept
locked.
' In addition, Marinis who is a personal friend of Koutsiftis, the maitre
d', also used this office to change his clothes when the latter was present.
I According to Marinis, Koutsiftis is a personal friend whom he has
known for many years going back to when they both lived in Athens,
Greece. It is noted that Koutsiftis, at the time of the hearing was a
member of the Union having become a member a number of years ago.
I The Company also asserts that Stamatopoulos was short in his cash
register numerous times before the big shortage, but that these were in
much smaller amounts. Stamatopoulos conceded that, prior to the 555 or
$56 shortage, he had been spoken to about shortages on other occasions.
and therefore it cannot be asserted that this accusation
was made in an effort to find a pretext for his discharge.
It is also clear from Stamatopoulos' own testimony that
such an accusation may reasonably be construed as an al-
legation of theft.
Upon the discharge of Stamatopoulos as the day bar-
tender, Makris directed John Marinis to go from the
night shift to the day shift so as to take the place of Sta-
matopoulos. This occurred on Friday or Saturday, April
4 or 5. In this regard, Makris testified that he decided to
put Marinis on the day shift because he needed someone
to replace Stamatopoulos and because Marinis was
having arguments with the night waiters6 and the night
manager. 7
According to Makris, he told Marinis that he was to
start on the day shift on Monday, April 7. Marinis initial-
ly testified that, although he was told to switch to the
day shift, he asserted that he was not told on what day
he was supposed to start. However, during cross-exami-
nation, Marinis let it slip that he was, in fact, told to start
the day shift beginning on Monday. 8
On Monday, April 7, Marinis arrived at work at 7 p.m.
rather than at 11 a.m. When asked why he had not
shown up at the proper time, Marinis responded that he
did not realize he was supposed to start the day shift on
that day. Makris thereupon told Marinis that his last day
of work would be on Saturday, April 12.
Matheos Kiropoulos was discharged on March 29. In
connection with his case, the evidence establishes that, in
addition to his job at Respondent, where his hours were
generally from 7 p.m. to 2:30 a.m.,9 he also had a full-
time job in a factory in Astoria, New York, where he
worked from 8 a.m. to 5 p.m. According to Makris, Kir-
opoulos did not inform him of this other job when hired,
and that during the time of his employment he observed
that Kiropoulos was continually at rest. Makris testified
that when he was informed by the night manager that
Kiropoulos was too tired to do his job, he asked if he
were really necessary in the kitchen. He asserts that,
when he was told that the kitchen could get along with-
out Kiropuulos, he decided to discharge him.
Although it is not entirely clear from the record, it ap-
pears that on Monday afternoon, March 31, Stamatopou-
los, Kiropoulos, and Marinis went to the Union's offices
to seek the Union's assistance in gaining the reinstate-
ment of the two employees who had been discharged.
According to the uncontradicted testimony of Makris,
two union representatives visited him on that day and
told him that they had a meeting scheduled with these
employees later in the afternoon. Makris also testified
that the two union agents accused him of discharging
Kiropoulos and Stamatopoulos because of their union ac-
tivities which he denied. He further states that they
6 The record herein discloses a degree of friction between Marinis and
the night waiters concerning the allocation of tips.
I At the time of the hearing, the night manager, Kostas Antonakos,
was not available as he was in Detroit, Michigan.
8 It does not seem plausible that Makris would have directed Marinis
to go on the day shift without telling him when to do so.
9 Makris testified that his hours were supposed to be from 7 p m. to 4
am.
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SAGAPO RESTAURANT
asked him to sign up with the Union whereupon he invit-
ed them to have an election.
According to Kiropoulos, on Monday, March 31,
when he went to pick up his final check, Antonakos told
him that he had found out everything, and that he knew
that Kiropoulos, along with Marinis and Stamatopoulos.
had gone to the Union. Marinis also testified that, when
he arrived at work that evening, Makris told him that he
had found out that the employees had gone to the Union
and with whom they had spoken to while there. Accord-
ing to Marinis, Makris also said, "I know exactly what
you are doing, every step that you take that I
know .. ."
Makris testified that, after Kiropoulos was discharged,
the latter's wife called him in an effort to have Kiropou-
los reinstated. He states that during this conversation,
where he learned that Kiropoulos was a distant relative,
his wife accused him of discharging Kiropoulos because
of the Union. He testified that he denied this accusation.
Kiropoulos' wife did not testify.
The evidence in this case also established that after
Marinis was notified of his discharge, Koutsiftis, the
maitre d', interceded unsuccessfully on Marinis' behalf
with Makris and told the latter that, if Marinis were kept
on, he would not be involved in union activity. Accord-
ing to the testimony of Koutsiftis, Makris refused to re-
consider the discharge of Marinis, and denied that union
considerations had played a role in his decision.
Ill. ANALYSIS
In my opinion, the evidence establishes that the union
activity commenced no earlier than March 21 when Sta-
matopoulos and Marinis met at a restaurant and decided
to obtain union representation. It also is concluded that a
group of union cards brought to Respondent's premises
by Stamatopoulos was discovered in the office of Makris
which then led him to interrogate both Marinis and Sta-
matopoulos as to whether they had brought in these
cards. Inasmuch as this office was kept locked and con-
tained cash, it therefore is understandable that Makris
would have questioned those people who normally had
access to his office to make sure that unauthorized per-
sonnel had not entered. Nevertheless, it is concluded that
when Makris interrogated Marinis and Stamatopoulos
about the union cards, he violated the Act.'°
It is further concluded, based on the testimony of Mar-
inis and Koutsiftis, that the latter warned Marinis that he
could be discharged because of his union activity. While
I am inclined to believe that Koutsiftis gave this warning
as a matter of personal advice to a friend, this does not
militate against the conclusion that such a statement was
violative of the Act. "
t In Strucksnes Construction Co.. Inc., 165 NLRB 1062 (1967), the
Board held that the polling of employees as to their union sympathies or
activities would only be lawful if (1) the purpose of the poll is to deter-
mine the truth of a union's claim of majority. (2) this purpose is commu-
nicated to the employees. (3) assurances against reprisals are given, (4)
the employees are polled by secret ballot. and (5) the employer has not
engaged in unfair labor practices or otherswise created a coercive atmos-
phere.
" See Belcher Towing Company. 238 NLRB 446. 480 (1978).
As to the discharge of Stamatopoulos, the day bar-
tender. I am of the opinion that it was not motivated by
union considerations. In this instance, it is clear from Sta-
matopoulos' own testimony that prior to his union activi-
ty he had been accused of being $55 or $56 short in his
cash register, an accusation which he acknowledges is
tantamount to an allegation of theft. It therefore is con-
cluded that, prior to March 21, the Company had come
to the conclusion that Stamatopoulos was not the type of
employee it wished to retain and that a decision had
been made to terminate his services. Therefore it is con-
cluded that this decision was made before he became in-
volved with the Union. t2
Given the conclusion that the discharge of Stamato-
poulos was not motivated by illegal considerations, it
therefore follows that the Company had a need to re-
place him. As such, I cannot conclude that when Makris
decided to transfer Marinis to the day shift, that this
action was motivated by illegal considerations, especially
as there is credible evidence that Marinis was not getting
along with the night waiters because of disputes over the
allocation of tips. Accordingly, I conclude that this deci-
sion to change Marinis' hours was motivated by legiti-
mate business reasons and was not motivated by Re-
spondent's desire to retaliate against him because of his
union activities. This conclusion is further buttressed by
the fact that when Marinis offered to resign, after being
interrogated about the union cards, Makris rejected the
offer and told him to go back to work.
It is also my conclusion that, when Makris told Mar-
inis of the switch in his hours, he told Marinis that the
change was to commence on Monday, April 7. Accord-
ingly, when Marinis disregarded this order and appeared
at work on April 7 at 7 p.m., it is evident that his actions
constituted insubordination. As such, it seems to me that
the decision by Makris to discharge Marinis, when the
latter failed to carry out a legitimate order, was motivat-
ed by good cause. I therefore conclude that the dis-
charge of Marinis did not violate the Act, notwithstand-
ing the prior interrogation of him and the warning by
Koutsiftis, as the act of insubordination directly precipi-
tated his firing, and was sufficient to warrant his dis-
charge. Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980).
In connection with Matheos Kiropoulos, it is evident
that Makris' description of him as a tired worker is justi-
fied as Kiropoulos worked at one job from 8 a.m. to 5
p.m. while working at Respondent from 7 p.m. to about
2:30 a.m. I therefore credit the assertion by Makris that
he had received a complaint about Kiropoulos' work
from the night manager. I further credit his assertion that
when he determined that Kiropoulos' services were not
necessary, he decided to discharge him and operate the
kitchen with one fewer employee. Therefore, notwith-
standing the testimony of Kiropoulos that he had signed
a card for the Union on March 25, that he had been con-
fronted about this by Kostos Antonakos,'3 and that he
1 In reaching this conclusion. I am not making any finding that Stama-
topoulos did steal any money.
:: It is concluded that the interrogation of Kiropoulos h Antonakos
regarding the former's execution of a union card constitutes a iolation of
Sec 8(a)(1) ,of the Act
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked one other employee to sign such a card, it never-
theless seems to me that his union activity did not play a
role in the decision to discharge him.
The General Counsel's allegation that Respondent cre-
ated the impression of surveillance is based, inter alia, on
the testimony of Kiropoulos to the effect that on
Monday, March 31, after he had been discharged, he had
a conversation with Antonakos who said that he was
aware that certain employees including Kiropoulos and
Stamtopoulos had gone to the Union's office. However,
according to the uncontradicted testimony of Makris,
knowledge of this visit was gained when union repre-
sentatives visited him on Monday for the purpose of
seeking the reinstatement of these two employees. In
these circumstances I do not conclude that this conversa-
tion with a former employee can support the contention
that the Company created the impression that it was en-
gaging in surveillance of its employees' union activities.
Nor do I conclude that a similar conversation between
Makris and Marinis on Monday evening constituted a
violation of the Act. Clearly when the employees in
question arranged for a meeting with the Union for
Monday to seek the Union's aid in having the discharges
revoked, they should have realized that union representa-
tives would likely contact the Employer for that pur-
pose. As union agents did contact Makris on Monday for
the purpose of obtaining reinstatement and did inform
him of the scheduled meeting to take place with the indi-
viduals later that day, it was only natural and hardly sin-
ister for Makris to repeat what he had learned upon Mar-
inis' arrival. In so doing, in the circumstances described
herein, I cannot conclude that, when Makris told Marinis
that he knew that employees had met with the Union, he
thereby created the impression that he was engaged in
surveillance of his employees' union activities. '4
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees as to whether they
signed union cards or brought such cards to Respond-
ent's premises, Respondent violated Section 8(a)(1) of the
Act.
4. By threatening employees with discharge if they
continued to support the Union, Respondent violated
Section 8(a)(1) of the Act.
5. Except to the extent as heretofore found, Respond-
ent has not violated the Act in any other manner.
6. The unfair labor practices of Respondent affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
C Bankers Dispauch Corporution. 233 NLR 30, 307; Aeon Precision
(Compalny 239 Nl Rit h6), 3
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