Country Cubbard Corp.

COUNTRY CUBBARD CORP. Country Cubbard Corporation and Anne L. Watson. Case 14-CA-4999 October 10, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 19, 1969, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Respondent filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner- This matter was heard before Trial Examiner Sidney J Barban at St. Louis, Missouri, on July 16, 1969. The complaint herein, alleging that the above-named Respondent has engaged in conduct violative of Sections 8(a)(1) and (3) of the Act, was issued on March 28, 1969, based upon a charge filed on February 13, 1969 and an amended charge filed March 24, 1969. The answer admits allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board, and to support a finding that Cooks and Pastry Cooks Union, Local No. 26, herein called the Union, is a labor organization within the meaning of the Act, but denies the commission of any unfair labor practices 53 Upon the entire record in this case, from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following FINDINGS AND CONCLUSIONS Facts Respondent operates a restaurant near St Louis, Missouri, known as The Cupboard It has a collective-bargaining contract with the Union covering the employees involved in this proceeding, who perform the functions of cooks and other kitchen help Prior to January 1969, and thereafter, Business Agent Ayres of the Union has had occasion to complain to David Bales, manager of The Cupboard, from time to time that the Respondent had hired kitchen help at wages below that prescribed by the contract, but in these instances, Bales, upon having these matters called to his attention, has adjusted these wages to conform with the contract Just before January 28, 1969, one of the employees in the kitchen of The Cupboard, Anne L. Watson, called Ayres to complain that Respondent was not providing the employees with a full 8-hour work day, but was bringing them in to work a varying number of hours less than a full shift Ayres stated that this was contrary to the contract and said he would come to the restaurant to talk to Bales Ayres arrived at The Cupboard in the afternoon of January 28, 1969, and spoke to the night crew before seeking a meeting with Bales Ayres ascertained that the employees were being given, and paid for, less than an 8-hour shift Ayres then went up to Bales' office, where he asserted to Bales that the Union contract required that Respondent pay its employees for a full 8-hour shift, unless the employees asked for a shorter work period Though Bales argued that his interpretation of the contract differed from that of Ayres, after a conference of 10 to 15 minutes, Bales acceded to Ayres' point and agreed that the help would be scheduled and paid on an 8-hour basis. Ayres then returned to the kitchen and explained to the employees that they would receive an 8-hour schedule, unless they worked shorter hours of their own volition Ayres also had a separate conference with Watson, in which Bales participated in part, concerning her asserted claim for backpay for previous shifts for which she had received less than 8 hours pay However, when Watson was reminded that she had requested shorter hours when she was employed, she agreed that this demand should be dropped Ayres then left Respondent's premises According to Bessie Grant, one of the cooks on duty that evening, whose testimony I find generally credible, the following events occurred after Ayres left: Bales came in the kitchen and checked out "the line" of kitchen operations for that evening; on a second occasion, he took the employees to task for two items, which should have been out on the line in preparation for the evening's operations, which were missing These activities of Bales were apparently quite normal He regularly inspected the kitchen operations and quite often found items missing from the line and criticized the employees for their laxness. However, on this occasion, when Bales came back into the kitchen a third time, according to Grant's testimony, "he said that the next time he come in and finds that the chicken liver gravy was missing and whatever the other item was, and that any steaks were ordered and they was 179 NLRB No. 9 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forgotten to be put on he was going to write us girls up and he was going to make us sign this. He said if we could play dirty he could play dirty too " These comments were apparently unusual Though Bales had in the past told the employees to put the proper items on the line and criticized cooking deficiencies, the employees had not been previously threatened in this respect so far as the record shows. It was unusual for Respondent to request an employee to sign a reprimand slip, the witnesses recalling only two such instances in the past Except for the remark that he would "play dirty" if the employees wanted to "play dirty," Bales did not deny Grant's testimony. He indicated, however, that his comments to the employees were occasioned by a buildup of problems in recent days, and were in accordance with his customary practice of bringing such matters to the attention of the employees at informal meetings in the kitchen. With respect to the "play dirty" comment, I believe that the preponderance of the evidence indicates that some comment to this effect was made by Bales Grant's testimony in this respect was supported by Gillespie, who was there. Indeed, Grant had also related this comment to Ayres shortly after the occurrence, in the course of her request that the Union assist in getting her job back Though Bales exhibited a clean-cut, credible demeanor, he certainly was not more impressive than General Counsel's witnesses, and no other witnesses who were present were produced. (Watson, whom the General Counsel expected to call, became ill at the hearing and had to leave.) The evidence is convincing that Bales' unusually sharp remarks on this occasion derived in part from Ayres' presentation of the employees' grievance. Bales' remarks were taken by Grant as a personal affront. She commented to Gillespie that she was "glad we are not in slavery," to which the latter assented Grant continued to brood over Bales' remarks, and, when she next saw him, Grant called Bales over to her. At that time, according to Grant's testimony, which is not disputed, Grant "said `what kind of fool did you think I am'p' And he thought I said food, and he didn't know what I was talking about, and I told him, `Well, Mr. Bales, as you know, I have forgotten steaks all along, and I am capable of forgetting steaks again "' Grant stated to Bales that if he didn't like her work, "why don't you fire me."' Bales states he told Grant that he had no desire to fire her Grant had difficulty in recalling anything else which was said, but, after prompting, stated that "I think I said something about him being upset, because Mr. Ayres was out there." Although there is some small dispute over Bales' part in this conversation, it is clear that he did not have much to say. Grant's tone was loud and aggressive, and could be heard by the other employees. Bales' tone of voice was much more moderate. Gillespie stated that Bales never talks very loud and indicated that his conduct on this occasion was not much different, though Grant asserted that Bales' voice became louder as the conversation continued She was unable generally, however, to recall what he said After this incident, the operations of the kitchen continued normally for the remainder of the evening. Bales talked to Grant thereafter about her duties On cross-examination, Grant also recalled in uncertain terms that Bales, during the discussion had advised her of another girl he had fired Bales denied this The manner in which this was adduced would make me reluctant to make a finding upon it In any event , it appears unnecessary to resolve this conflict in the usual manner. According to Bales, during the next 2 days, during which Grant was absent from work in accordance with her regular schedule, he reflected on the incident and arrived at a decision to discharge Grant, "because I felt it was direct insubordination, that her remarks were totally uncalled for, and my position of authority would be jeopardized if I let such an occasion to slide by." Bales stated that the idea had crossed his mind during the incident, but that he did not decide to call Grant to advise her that she was terminated until the day before she was to return to work, after he had further considered the matter Bales denied that the protest to Ayres had any influence on his decision to discharge Grant Both Ayres and Bales agreed that Grant's name was not mentioned in the discussion between them. A few days thereafter, when Ayres protested Grant's discharge to Bales, the latter called the manager of another restaurant nearby, affiliated with the same parent corporation as The Cupboard, who knew Grant, and succeeded in getting her a job at that restaurant as a cook, apparently with the same senority as she had at The Cupboard, and she continues to be employed there Discussion and Conclusions The General Counsel contends "that Grant was discharged because her discussion with Bales .... was a protest against Bales for his [threat of] reprisals because [the employees] had sought and received assistance from [the Union]." He asserts that "any alleged insubordination on Grant's part must necessarily be related to the immediately preceding events." (Br. pp. 5, 6) A major difficulty with the General Counsel's theory, however, lies in the fact that neither the testimony of Grant or Gillespie shows that Grant was protesting Bales' threat of reprisals (however much that may have been in her mind), but rather that Grant was angrily and loudly telling Bales that she not only had made mistakes in the past, but expected that she would continue to do so in the future, and if that were not satisfactory he should fire her. Though Bales had no right to threaten the employees with reprisals for taking their grievances to the Union, he did have the right to demand that they exercise more care in the performance of their duties, and the demand was not only justified by past performance but also by mistakes of that evening. Grant's response to Bales was not that she resented and protested the threat to "write her up" if she did not perform well in the future, but that she could not be expected to, and would not perform any better in the future, a very much different matter. I have no doubt that Bales was upset over the protest to the Union, but see no reason to doubt his testimony that he decided to discharge Grant because of her insubordinate comments. It might be considered suspicious that it took Bales so long to act after Grant's remarks, or even unreasonable that he took such action upon so small a provocation after so much time to cool off. However, some people act upon reflection rather than impulsively, and I cannot say that Bales does not fit that pattern. And I am not prepared to say that Bales' actions were so unreasonable as to belie his explanation for them There is no other evidence of animus or act of reprisal on Respondent's part, except the threat by Bales to "write up" the employees in the future because of their resort to the Union. Though I find this to be a violation of Section 8(a)(1) of the Act, in view of Respondent's contractual COUNTRY CUBBARD CORP. relationship with the Union, its apparent cooperative attitude in administering the agreement, the fact that no attempt has since been made to visit reprisals upon, or "write up" any of the employees, and the lack of any other evidence of a propensity to interfere with the employees' rights under the Act, I do not believe that a remedy of this single violation should be required It will therefore be recommended that the complaint in this matter be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and the entire record in this case, the Trial Examiner makes the following- CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce 55 within the meaning of Section 2 (6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has engaged in no unfair labor practices warranting the issuance of a remedial order RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is hereby recommended that the complaint be dismissed in its entirety