Jacob Wirth Restaurant

JACOB WIRTH RESTAURANT 191 Pizza Pizzaz, Inc., d/b/a Jacob Wirth Restaurant and Angelo Pappas and Mohamed Zahran. Cases -CA-14794-1 and 1-CA-14794-2 March 7, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDAI.E. On November 7, 1979, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive 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 rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 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, hereby orders that the Respondent, Pizza Pizzaz, Inc., d/b/a Jacob Wirth Restaurant, Boston, Massachusetts, its officers, agents, succes- sors, 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) In any like or related manner, interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. i Respondent has excepted to certain credihilit finding i made h he Administrative Law" Judge It is the lBoard" etahlished pohlcy not to oserrule an administrative lass judgc', resolutions lt rre.pec to credl- bihly unles the clear preponderance of all of Ihe lexanlt esidencc con- vinecs us that Ilhe resolutions are incicerrrcl SalillrIdr Drl H'all Pri,duel. Inc. 91 NRB 544 (195(0) enfd 188 2d1 362 d Cir 1951) We ha;.c carefullI examined the record and find no hbasis for rcv-er,illg hi. findiing, In par I(c) of his recommended Order, the Administrallve l.as Judge used the broad cease-and-desist language. "In an)y ilher manner- We ha.e considered the case in light ilf he slandards set iforth i Hit A mott Food. Il. 242 NIRB No 177 (19791 ad hae ciT I.lded that broad remedial order is inappropriite sInice it has noT hben .hlsxn thilt Respolndenil ha a proclilxit t S1 olai te Ac l Or has tengaged i1 sihll egregious or idesprcad mniscirlduct as iI dnmnlotraTl a gnerl l di.tle gard fr he emploec' fundarintiial rights Ao.rdiinglk, \t, ll modify the recommended Ordcr anid nlltilC aid to TIh 1i Il;llrok Ii1)ilill- tile language. "in any like or related manilner 248 NLRB No. 37 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 parties had the oppor- tunity to present their evidence, the National Labor Relations Board has found that we have vio- lated the National Labor Relations Act and has or- dered us to post this notice. We therefore notify you that: WE WILL NOT threaten our employees with physical harm or reprisals if they engage in union activities. WE WILl NOT discourage membership in Hotel, Restaurant, Institutional Employees and Bartenders Union, Local 26, AFL-CIO, or any other labor organization, by discriminator- ily discharging any of our employees or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Angelo Pappas and Mo- hamed Zahran immediate and full reinstate- ment to their former jobs, or, if those jobs no longer exists, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any earnings they may have lost, plus interest. PIZZA PIZZAZ, INC., D/B/A JACOB WIRTH RESTAURANT DECISION FRANK H. ITKIN, Administrative Law Judge: Unfair labor practice charges were filed on August 7 and were amended on September 11, 1978. A complaint issued on September 18 and was amended on November 3 and on December 13. 1978. A hearing was conducted in Boston on March 5, 1979. Briefly, General Counsel alleges that Pizza Pizzaz, Inc., and Jacob Wirth Restaurant constitute a single employer engaged in commerce under the Na- tional Labor Relations Act, as amended; that on or about August 5, 1978. Robert McManus, the manager of Jacob Wirth Restaurant, "told an employee that if his friend did not stop bothering the employees about the Union he would fix him" and, in addition. "told an employee that if you think you are going to bust my ass with the Union. don't try it": and that, subsequently. on or about August 7, 1978. McManus discharged employees Angelo Pappas and Mohamed Zahran because of their union or JACOB WIRTH RESTAURANT 191 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other protected concerted activities, in violation of Sec- tion 8(a)(1) and (3) of the Act. Respondent denies that Pizza Pizzaz and Jacob Wirth are a single employer en- gaged in commerce and that Respondent violated the Act as alleged. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of counsel, I make the following: FINDINGS OF FACT A. Introduction; the Evidence Pertaining to Jurisdiction Pizza Pizzaz, Inc., and Jacob Wirth Restaurant are both Massachusetts corporations maintaining retail food facilities in Boston. Jacob Wirth is engaged in the oper- ation of a full menu restaurant. Pizza Pizzaz is engaged in the operation of a fast food shop which principally sells pizza. Pizza Pizzaz is the sole stockholder of Jacob Wirth. Pizza Pizzaz in turn is solely owned by two trust funds whose trustees and beneficiaries are William Fitz- gerald and his wife, Ann Fitzgerald. Richard L. Fallon testified that he is president of Pizza Pizzaz and vice president and treasurer of Jacob Wirth. Fallon asserted: "I assist in the managing of both . . . places"; "I would discuss the overall business of Pizza Pizzaz with Sam Schwartz [and] the overall business with the manager of Jacob Wirth . . . Robert McManus"; and "one tax return" is prepared by an ac- countant "on behalf of both corporations." Fallon also noted that he is presently "negotiating a Union contract at Jacob Wirth . . ." with Hotel, Restaurant, Institution- al Employees and Bartenders Union, Local 26, AFL- CIO. (See G.C. Exh. 4.) There are some 15 to 23 unit personnel employed at the Jacob Wirth facility. Howev- er, Pizza Pizzaz is solely operated by Sam Schwartz, his wife, son, and daughter and, as Fallon noted, has no agreement with any labor organization. Fallon asserted that his relationship with each of the two food facilities was "general manager, consulting with the managers." Fallon was asked: "Do you have the authority to hire and fire the managers at these facili- ties?" He responded: "I would at Pizza. I wouldn't at Jake Wirth." Elsewhere in his testimony, Fallon recalled how he "sought to hire a new manager" at Jacob Wirth after having "fired the [previous] manager ... " Fallon asserted that both Schwartz and McManus have consult- ed or discussed with him "the hiring of ... personnel"; "we talk about hiring help"; "they would" also discuss "firing personnel"-"we try to discuss everthing but the decision is theirs"; "they would discuss wages-they might ask for my suggestion"; "they may ask me a ques- tion related to [hours of employment] to clarify their own mind . . .";"either manager is free to discuss what- ever day-to-day operational problems they feel as though they have"; and "I listen to them, offer suggestions, try to clarify their mind [and] help them reach a decision." Fallon admittely signs checks for the purchase of prod- ucts for both food facilities; he participated in an earlier grievance with the Union involving employee Angelo Pappas; and he periodically examines the daily cash reg- ister tapes for Jacob Wirth-"the daily figures of the volume that the waiters do, comes across [his] desk." Fallon generally claimed that the "final decisions" per- taining to firing personnel are entrusted to each facility manager. However, elsewhere in his testimony, Fallon recalled that, during a grievance meeting with union rep- resentatives pertaining to an earlier firing of employee Angelo Pappas, the manager of Jacob Wirth at the time, Joe Ricci, wasn't going to hire [Pappas] back. He [Ricci] begged me [Fallon] not to, and to back him up in the matter. Fallon agreed with Ricci. Subsequently, when Fallon discovered that Ricci had rehired Pappas on his own ini- tiative, Fallon fired Ricci and hired McManus as the new restaurant manager. Fallon further recalled that he did "have occasion to discuss the work performances of em- ployees at Jake Wirth with Mr. McManus." They would discuss "the waiters that were not producing." Fallon claimed: "We were going to replace the inefficient wait- ers at Jacob Wirth's." It is undisputed that Pizza Pizzaz annually has gross sales in excess of $140,000; that Jacob Wirth annually has gross sales in excess of 380,000; and that Pizza Pizzaz and Jacob Wirth each annually purchases goods valued in excess of $2,000 from businesses located in Massachu- setts which in turn receive these goods directly from other States. As discussed below, I find and conclude on this record that Pizza Pizzaz and Jacob Wirth constitute a single employer engaged in commerce as alleged. I also find and conclude that Local 26 is a labor organization as alleged. B. The Events Culminating in the Discharges of Employees Pappas and Zahran Employee Angelo Pappas testified that he was em- ployed as a cashier and waiter at Jacob Wirth Restaurant from June 1977 to August 7, 1978; that he was dis- charged on Monday August 7 "for lack of production" by Manager McManus; and that McManus stated to him on August 7 in the presence of coworker Zahran, "I've nothing to do with this, but I was told to fire you." Pappas recalled that McManus, at the same time, in- formed coworker Zahran "why he was fired." Pappas noted: "I'm not quite sure. Some reason for being late on a certain day." Angelo Pappas testified that previously, on Saturday, August 5, he had the following conversation with Man- ager McManus: Well, the shop steward [William Pappas, father of Angelo] had left about two weeks before I [Angelo] was discharged.... And he [McManus] asked me who was going to be the next shop steward. My father, who was the shop steward, had left. I said we would have to have a meeting between the em- ployees. Or, if Mr. Sullivan [the union president], seen fit to appoint one of us, one of the employees who was in the Union, as shop steward. . . . I said, JACOB WIRTH RESTAURANT 193 if he [Sullivan] does appoint, it would probably be either me [Angelo] or Sammy [Zahran]. Angelo Pappas also testified that on that same day, a conversation arose between me [Angelo] and some of the employees, particularly the new employees, and I told them what the set-up was-that after 30 days [they] would have to join the Union if the Management-Bob McManus-decided to keep [them]. They said they weren't aware of this fact. [Pappas] then proceeded to ask another waiter that wasn't paying his Union dues why he wasn't paying the Union dues. And he [replied], this isn't a Union place any more. At that time, Bob McManus came over to me and he said, if you think you're going to bust my ass with the Union, I got news for you-don't try it. Pappas did not respond; he "walked away."' Angelo Pappas recalled that, about February 1978, the prior Jacob Wirth manager, Joseph Ricci, had "fired" him because he had complained about having "to make coffee" and that, subsequently, Ricci reinstated him. Pappas claimed that he has never been "warned about not producing enough business"; "about being surly to customers"; "about being late"; "about not showing up"; "about not calling in"; or about his "conduct" as a waiter. Employee Mohamed Zahran testified that he was em- ployed as a waiter by Jacob Wirth from September 1977 to August 7, 1978. Zahran recalled that, on Saturday, August 5, he telephoned the cashier at Jacob Wirth in order to notify Manager McManus that he would be late for work; McManus was "not in yet"; the cashier agreed to relate this message to McManus; and Zahran similarly asked coworker Angelo Pappas to tell McManus that he would be late. Zahran reported for work at 3:30 p.m. on August 5. McManus then warned Zahran: "This is the last time and if you are going to do it again you're going to get fired." Zahran asked McManus: "What do you mean, get fired, what [is] the reason?" McManus replied: "Because you didn't show up." Zahran explained to McManus that he had "called in." The cashier and Angelo Pappas confirmed this fact to McManus. The conversation ended. Later that same day, Saturday, August 5, as Zahran further testified, McManus approached Zahran outside of the restaurant and stated to the employee: . . . what you two people [Pappas and Zahran] are trying to do to me [McManus] . . . [McManus] said, tell [Pappas] don't bother my help about Union. And, if he [Pappas] is not going to stop doing that, I [McManus] am going to fix him.... He said, I break his legs. He told me to tell Angelo that . . . He walk away. Subsequently, on Monday, August 7, Zahran related McManus' warning to Angelo Pappas. Later that day, Angel o Pappas alsoi reclled a discussiorl hat dal ith hartender Bob Perr as tio \ h Perr: "\a\,n'l" panllg his union dues McManus fired both Angelo Pappas and Zahran. The reason McManus fired Zahran, as Zahran testified, "is because [Zahran] didn't show up Saturday." Zahran again explained to McManus that he had "called in." McManus also turned to Angleo Pappas and informed Pappas that he was "a poor waiter or something like that." 2 Joseph Sullivan, president of Local 26, testified that he is presently attempting to negotiate a new contract with Fallon for the Jacob Wirth Restaurant employees. Sulli- van acknowledged that neither Angelo Pappas nor Mo- hamed Zahran held any union positions or offices. How- ever, Angelo's father, William Pappas, had been steward at the restaurant shortly prior to August 1978, when he left to open his own business. Sullivan was questioned "about a previous discharge of Angelo Pappas" which assertedly concerned "an argument and a fight on the floor of the restaurant." Sullivan and William Pappas met with Fallon and, later, Manager Ricci concerning this incident. Fallon, at first, did not want to reinstate Angelo Pappas. However, later, Angelo Pappas was in fact reinstated. William Pappas testified that he left his job at Jacob Wirth about July 20, 1978; that he was shop steward while employed there; and that "a couple of weeks before I went out" there was discussion in the restaurant "around the table" concerning the selection of a new ste- ward. The "leading contenders" for the steward's job were Angelo Pappas, his son, Zahran, and James Scobie, another waiter. William Pappas claimed that his discus- sion was in the open "where all the executives go by, we don't talk behind anybody's back." Robert McManus testified that he was hired by Fallon as manager of Jacob Wirth during late May 1978; that he discharged both employees Angelo Pappas and Zahran on Monday, August 7, and that the reason "why" he dis- charged them was "poor workmanship." McManus also asserted as reasons: Absenteeism, tardiness, rudeness to customers, unable to get hold of them quite a few times to wait on the tables, quite often I'd find them out in the front streets when customers were looking for them, the parking lot to the side of the building when customers were looking for them, their food would be sitting on the counter getting cold. McManus was asked what "he said to them" at the time of their discharge. He replied: "They walked in the back door. I told them their services were no longer needed. that I had hired replacements for them." 2 Zahran recalled that "maybe once in 1977. 1 as ery sick [and] called up the manager" informing him. "I have cold" Furiher. Zahran recalled that about a w&eek before his discharge, during late Juls. he had requested permi ssion to be off onl Mondal!, and Mc Manus had approv ed his request Zahrail's regular dal, off thai ,,eek as Tuesda) Zahran then stated to McManluL. "If I come hack from Nes, York Mtonda il right. I like to come to %kork on m d off. luesd;', M" Ntlir al agreed Zahran. hov cer. did not return fron N York ot report for ork oil Tulsdais. an] reported fr s,ork on \T'edllesd1 oJf that i eek (On cross- caniltion Zabran, like Pappa.,, ckl'n, ledged that he held no union ffitc Further Zahr.an eplairied haJi priot to Auguts 5 he did Ilot have 'arn dilsissionrs ith NIcNaltIs" abOLit his "atteildjilce" JAOB WIRTH RESTAURANT 193 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McManus claimed, the "week before" the firing of Angelo Pappas and Zahran, I told them I would not put up with their tardiness, absenteeism, their rudeness to customers, their lack of ability to service my people in the way that I wanted them to be serviced, their lack of picking up the food, their complete -don't-care attitude. McManus was unaware how long Angelo Pappas and Zahran had been employed by Respondent. McManus claimed that "in a 7-day period" for the week ending August 5, Zahran "was absent twice without notifica- tion." The timecards for Angelo Pappas and Zahran, al- though available at the hearing, were not offered into evidence. McManus also claimed that he had observed the work performance of Angelo Pappas and Zahran during June and July and it was "very poor." McManus claimed that he had received "complaints" from customers about "poor service" and "rudeness"-"I would have to go out in the parking lot or out into the front of the building on the sidewalk and bring one of the two . . . back in" to serve the customers. McManus claimed that he discussed these "complaints" with Angelo Pappas and Zahran. McManus claimed that "both of them" were "absent and tardy." Further, according to McManus, Zahran had been told during the week before his discharge that he would "have to work Tuesday" and Zahran did not report for work on that day. McManus claimed that cash register tapes, which were available at the hearing and not offered into evidence, show that Angelo Pappas and Zahran were poor producers. McManus claimed that he had discharged some five or six employees "that week" of August 7 for unsatisfactory work. McManus claimed that on August 5 he had an "argument" with Angelo Pappas and "very definitely" did "suggest to him that he may be terminated." McManus denied threatening Angelo Pappas "or anyone else in the restaurant" that he "was going to break their legs." McManus, however, as- serted that "my night bartender," Perry, had complained to McManus that evening that Angelo Pappas had threatened to "break his .. . legs" if "he didn't back him up and start paying his back-dues . . . ."3 In addition, Richard Fallon testified that, during early 1978, Angelo Pappas had been discharged by former Manager Ricci because of an alleged "fight with a cus- tomer"; that he met with William Pappas and Sullivan about this incident; that Angelo's performance at the time "was the poorest of any waiter in Jake Wirth's." Fallon claimed that he had determined during early 1978 that Angelo "was through"-"there was no way Angelo would come back." Fallon claimed that "about six weeks" later he first discovered that Ricci had rehired Angelo "when I [Fallon] wasn't around." Fallon claimed that he then fired Ricci although he did not fire Angelo Pappas. Fallon also asserted that the cash register tapes show that Angelo Pappas "was the lowest of anyone we ever had working in there as a waiter" and Zahran "was the next one up from Angelo." The tapes, as noted, were not offered into evidence. Fallon claimed that prior to :' Pcrry did noil tctf August 5 "we were going to replace the inefficient wait- ers at Jacob Wirth's" and this "decision was made" on August 2. I credit the testimony of Angelo Pappas and Mohamed Zahran as recited and quoted above. Their testimony is in significant part mutually corroborative. Their testimo- ny is corroborated in part by the testimony of William Pappas and Joseph Sullivan. Their testimony is also sub- stantiated in part by the testimony of Robert McManus. Thus, McManus acknowledged in effect that on Satur- day, August 5, his bartender, Perry, had revealed to him that Angelo Pappas was attempting to get the restaurant employees to pay their back Union dues. I am persuaded here that McManus confronted Angelo Pappas about his Union activity that same day and warned the employee: "if you think you are going to bust my ass with the Union, I got news for you-don't try it." I am also per- suaded that McManus similarly confronted Zahran that same day and stated: "what [are] you two people [Pappas and Zahran] are trying to do to me . . . tell [Pappas] don't bother my help about Union . . . if he [Pappas] is not going to stop doing that, I am going to fix him . . . I break his legs." I note that negotiations with the Union for a new contract had been bogged down because of a "misunderstanding concerning the health and welfare program" according to Fallon. I also note that Angelo Pappas, the son of former Union Ste- ward William Pappas, and Zahran were openly discussed by employees at the restaurant as likely successors to the steward's position as a consequence of William Pappas' leaving the Jacob Wirth Restaurant a few weeks earlier. And, Angelo Pappas had disclosed this to McManus on Saturday, August 5. Angelo Pappas and Zahran were summarily fired shortly thereafter on Monday, August 7. I find and conclude on this record that McManus made the statements attributed to him by both Angelo Pappas and Zahran, as quoted above. Insofar as the testi- mony of McManus and Fallon differs with the above re- cited testimony of Angelo Pappas, Zahran, Sullivan, and William Pappas, I find and conclude here, relying upon the demeanor of the witnesses, that the testimony of the latter witnesses is more trustworthy and reliable. Fur- ther, as discussed below, I reject as pretextual the non- discriminatory reasons assigned by both Fallon and McManus for the summary firing of these two employ- ees. These asserted reasons, when assessed in the context of the full record, are belated, shifting, essentially uncor- roborated, and are in part contradictory, vague, and con- fusing. Further, as discussed below, I am also persuaded here that Fallon in fact exercised common control over the labor relations of both Pizza Pizzaz and Jacob Wirth. And, although Fallon asserted that final decisions in such matters were vested in the separate managers of each fa- cility, I find and conclude here, as discussed below, that Fallon in fact exercised the final decision and control over the labor relations at both food facilities. Discussion General Counsel contends that Pizza Pizzaz and Jacob Wirth Restaurant constitute a single employer engaged in commerce. Respondent denies this contention. The Board, in determining whether or not two or more busi- JACOB WIR-TH RESTAURANT 195 nesses constitutes a single employer, considers criteria such as common management, common ownership and financial control, interrelation of operations, and central- ized control of labor relations. See, e.g., Royal Typewriter Company v. iN.L.R.B., 533 F.2d 1030, 1042-44 (8th Cir. 1976). And, as the Board stated in Western Union Corpo- ration, etc., 224 NLRB 274, 276 (1976) (Chairman Fan- ning dissenting): It is well settled that a critical factor in determin- ing whether separate legal entities operate as a single employing enterprise is the common control of labor relations policies and that common owner- ship is not determinative where such requisite common control is not shown. Moreover, as noted above, such common control must be actual or active, as distinguished from potential control . . Applying these principles to the evidence adduced in the instant case, I find and conclude that Pizza Pizzaz and Jacob Wirth constitute a single employer as alleged and, consequently, satisfy the Board's jurisdictional standards. See Carolina Supplies and Cement Co., 122 NLRB 88, 89 (1958). Thus, as recited supra, Pizza Pizzaz and Jacob Wirth are both engaged in the operation of retail food facilities in Boston. The sole stockholders of Pizza Pizzaz are two trust funds whose trustees and beneficiaries are William Fitzgerald and his wife, Ann Fitzgerald. Pizza Pizzaz in turn is the sole stockholder of Jacob Wirth. Richard Fallon is president of Pizza Pizzaz and vice president and treasurer of Jacob Wirth. Fallon is also the general man- ager of both food operations. Fallon admittedly "would discuss the overall business of Pizza Pizzaz" with Sam Schwartz, its manager, and "the overall business with the manager of Jacob Wirth . . . Robert McManus." Includ- ed within these discussions were, inter alia, "the hiring of . . personnel"; "hiring help"; "firing personnel"; "wages"; hours of employment; and day-to-day oper- ational problems. Fallon, as demonstrated, has the power to hire and fire the facility managers. And, although Fallon generally claimed that the ultimate or final "deci- sion" with respect to the above subject matters is vested in the separate managers, he also acknowledged that he fired Jacob Wirth Manager Joe Ricci because Ricci had rehired a previously discharged worker. Further, Fallon alone is engaged in negotiating a new contract with Local 26 pertaining to Jacob Wirth. Fallon alone han- dled grievances with Local 26 pertaining to Jacob Wirth personnel. Pizza Pizzaz, a more limited food enterprise, employs only Sam Schwartz and the immediate members of the Schwartz family and, understandably, the exercise of control by Fallon over its labor relations policies is more limited than his exercise of such authority over the labor relations policies of Jacob Wirth. In addition, Fallon signs the checks for the purchase of goods and supplies by both facilities. A single accountant files one tax return for both operations. And, Fallon periodically examines "the daily" cash register tapes for Jacob Wirth. Under all the circumstances present here, I am per- suaded that Pizza Pizzaz and Jacob Wirth are commonly owned and commonly managed; there is in effect a cen- tralized control over their labor relations policies; Jacob Wirth annually has gross sales in excess of $380,000; Pizza Pizzaz annually has gross sales in excess of $140,000; each enterprise annually purchases goods valued in excess of $2,000 from business firms in Massa- chusetts which receive these goods directly from other States; and, therefore, Pizza Pizzaz and Jacob Wirth are a single employer which meets the Board's jurisdictional standards and is engaged in commerce as alleged. The question remains whether or not the Employer threatened employees Angelo Pappas and Mohamed Zahran on Saturday, August 5, and summarily dis- charged both employees because of union activities on Monday, August 7, in violation of Section 8(a)(1) and (3) of the Act. I find and conclude on the credible evidence of record, as detailed supra, that Jacob Wirth Manager McManus threatened the two employees on August 5 as alleged and that the real reason for their discharge on August 7 was union activities. Angelo Pappas credibly testified that on Saturday, August 5, McManus "asked" him "who was going to be the next shop steward." Angelo's father, William Pappas, had been the union steward until July 20 when William Pappas left Jacob Wirth to start his own business. Angelo revealed to McManus that We would have a meeting between the employees. Or, if Mr. Sullivan, [the union president], seen fit to appoint one of us, one of the employees in the Union, as shop steward. . . . If he does appoint, it would probably be me [Angelo] or Sammy [Zahran.] On that same day, Angelo Pappas, as he further testified, spoke to the Jacob Wirth employees about their obliga- tion to join the Union and pay dues. One waiter, when asked by Angelo "why he wasn't paying the Union dues," replied: "This isn't a Union place anymore." Angelo recalled a similar discussion with bartender Bob Perry. McManus, informed of Angelo's efforts on behalf of the Union, came over to [Angelo] and he [McManus] "said, If you think you're going to bust my ass with the Union, I got news for you, don't try it." McManus similarly stated to Zahran later that same day, "what you two people [Angelo and Zahran] are trying to do to me [McManus] .... " McManus admonished Zahran: "tell [Angelo] don't bother my help about Union"; "if he [Angelo] is not going to stop doing that, I am going to fix him"; "I break his legs"; ". . . tell Angelo that." On Monday, August 7, both Angelo Pappas and Zahran, as stated, were summarily fired by McManus. McManus claimed that I week earlier, "I [McManus] told [Angelo Pappas and Zahran] I would not put up with their tardiness, absenteeism, their rudeness to cus- tomers, their lack of ability to service my people in the way that I wanted them to be serviced, their lack of picking up the food, their complete I-don't-care atti- tude." McManus claimed that the reason "why" he dis- JACOB WIRTH RESTAURANT 195 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged the two workers on August 7 was "poor work- manship." McManus added: Absenteeism, tardiness, rudeness to customers, unable to get hold of them quite a few times to wait on tables .... McManus added that "in a 7-day period" for the week ending August 5, Zahran was absent "twice without no- tification." McManus added that he had observed the work performances of Angelo and Zahran during June and July and it was "very poor"; that he had received "complaints" from customers; and that "both of them" were "absent and tardy." Fallon, the Employer's general manager, asserted that the cash register tapes for Jacob Wirth show that Angelo Pappas and Zahran were the "lowest of any one we had working in there as a waiter." And, Fallon also claimed that the decision to re- place "the inefficient waiters," including Angelo Pappas and Zahran, was made on August 2, 3 days before Angelo and Zahran had been threatened by McManus. I note that the timecards for these two employees and the cash register tapes, although available at the hearing, were not offered into evidence. Zahran credibly ex- plained his absence from work during the prior week and credibly denied that he had been absent without notifica- tion and various other inadequacies attributed to him. Angelo Pappas credibly denied being "warned about not producing enough business"; "about being surly to cus- tomers"; "about being late"; "about not showing up"; "about not calling in"; or about his "conduct" as a waiter. On this record, I find and conclude that McManus threatened the two employees as they credibly testified and that he fired them because of union activities. Efforts by management to negotiate a new contract with the Union had bogged down. Angelo Pappas' efforts to get the unit employees to continue their union memberships and continue paying dues were made known to McManus. McManus was aware that Angelo Pappas and Zahran were in line for the vacant steward's position. It was openly discussed at the restaurant that Angelo Pappas and Zahran were the leading contenders for the steward's job. As noted, Angelo revealed this to McManus 2 days before the firing. In sum, management fired these two employees be- cause of union activities. Further, management's assigned reasons for firing these two employees are plainly pretex- tual. Timecards and register tapes which would easily substantiate general claims of poor workmanship and tar- diness and absenteeism were not offered into evidence. I reject management's shifting, belated, unsubstantiated, and often confusing and contradictory reasons for firing these two workers as not the real reason. Respondent, by firing these two employees because of union activities, violated Section 8(a)(l) and (3) of the Act. Respondent, by threatening these two employees earlier with physical harm or reprisals, as quoted above, clearly impinged upon their Section 7 rights, in violation of Section 8(a)(l). CONCLUSIONS OF LAW 1. Pizza Pizzaz, Inc., and Jacob Wirth Restaurant con- stitute a single employer engaged in commerce within the meaning of the National Labor Relations Act. 2. Hotel, Restaurant, Institutional Employees and Bar- tenders Union, Local 26, AFL-CIO, is a labor organiza- tion within the meaning of the Act. 3. Respondent Employer violated Section 8(a)(1) and (3) of the Act by threatening its employees with physical harm or reprisals if they enaged in union activities and by discharging employees Angelo Pappas and Mohamed Zahran because of their union activities. 4. The unfair labor practices found above affect com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in certain 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. And, as the unfair labor practices committed by the Respondent are flagrant and widespread, I recommend that Respondent cease and desist from in any other manner infringing upon rights guaranteed employees in Section 7 of the Act. It has been found that Respondent, in violation of Sec- tion 8(a)(l) and (3) of the Act, unlawfully terminated em- ployees Angelo Pappas and Zahran on August 7, 1978. It will therefore be recommended that Respondent offer to both employees immediate and full reinstatement to their former or substantially equivalent positions, without prej- udice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their unlawful terminations, by payment to them of a sum of money equal to that which they nor- mally would have earned from the date of Respondent's discrimination to the date of Respondent's offer of rein- statement, less net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 637 (1977). 4 Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. Respondent will also be directed to post the attached notice. Upon the foregoing findings of fact and conclusions of law, and upon the entire record of the case, I hereby issue the following recommended: ORDER 5 The Respondent, Pizza Pizzaz, Inc., d/b/a Jacob Wirth Restaurant, Boston, Massachusetts, its officers, agents, successors, and assigns, shall: See. gencralII. Iis Plllht,,g & Iliatig (Co. 138 NI RB 71h (19h2) ' In the e,.et no exceptionl arre iled a.i pro xided b See 12 I46 of the Rules a;ed Regiulations of the Naional l.bor Relations Blaird. he find- C ,i, Z.-(d JACOB WIRTH RESTAURANT 197 1. Cease and desist from: (a) Threatening its employees with physical harm or reprisals if they engage in union activities. (b) Discouraging membership in Hotel, Restaurant, In- stitutional Employees and Bartenders Union, Local 26, AFL-CIO, or any other labor organization, by discri- minatorily discharging any of its employees or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condi- tion of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer employees Angelo Pappas and Mohamed Zahran immediate and full reinstatement to their former jobs or to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges, and make them whole for any loss of earnings in the manner set forth in this Decision. igs. cornclInion i, lrid recolmnended Order herein shall, as prosided in Sec 102 48 of the Rules and Regulations. be adopted b the Board and become il finrldings conclusions. and d Order. and all objections therelo shall be deemed alixed for all purposes (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c)Post at its facilities in Boston, Massachusetts, copies of the attached notice marked "Appendix. " s Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's representative, shall be posted by immediately upon re- ceipt thereof, and be maintained by for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by employees to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. e In the eent that this Order is enforced b 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 " JACOH WIRTH RESTAURANT 197