Colony Kitchens, Inc.

r COLONY KITCHENS , INC. 671 Colony Kitchens , Inc. and Lionel Richman. Case 21-CA-12775 May 1, 1975 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On December 31, 1974, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed cross-exceptions and a brief in support thereof and in opposition to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the, rulings, findings,' and conclusions2 of the Administrative Law Judge except as modified herein. We find, contrary to the Administrative Law Judge, that a contributing cause of the discharge of employee Connie McLaughlin was her prounion attitude and her authorization of a union to represent her. In so finding, we discount Respondent's various explanations that she was discharged because she had not obtained an alien work permit and was unqualified for her job. McLaughlin, a young Irish girl, was hired early in April 1974 as a dishwasher and transferred to the posi- tion of bookkeeper trainee about 2 months later. Both jobs were at Respondent's restaurant at Cathedral City, California. On June 20, approximately a week after her transfer, she was fired_' The record is silent as to when McLaughlin, an alien, would legally have been required to obtain a permit in order to continue working,' and we have not been asked to take official notice of the applicable law. Respondent has not con- tended that it was required by law to terminate her employment. McLaughlin, whom the Administrative i General Counsel and Respondent have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enld. 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings except as appears infra 2 In affirming the Administrative Law Judge's conclusion that the allega- tion that Donald Wiley was discharged in violation of Sec. 8(a)(1) of the Act was not proved, we do not rely on his finding that Tom Sweeney, who discharged Wiley, was not present during a crucial part of a conversation between Wiley and Nancy Fredericks alleged to be the basis for the dis- charge. Respondent concedes that Sweeney, who so testified, was present 3 All dates herein are in 1974. Law, Judge found to be an impressive and credible wit- ness, testified that after she experienced some difficulty in obtaining a work permit from the Los Angeles office of the Immigration and Naturalization Service she dis- cussed the matter with the restaurant manager. She told him that she had been informed it would take a minimum of 6 months to a year because of numerous documents apparently difficult to locate, and that pos- sibly she would even have to leave the country in order successfully to apply. The manager told her "that it was okay, to leave it, to forget about it, not to worry about it." He was replaced as manager on May 8 by his assistant manager. During the course of her employment, McLaughlin told virtually everybody with whom she came in con- tact that she was not an American citizen. Neverthe- less, Respondent began in June to train her as a book- keeper. About the same time, she had occasion to ask the new manager about the job security because many other employees were being discharged. He assured her in effect that she had no cause for concern. The subject of the work permit did not arise. McLaughlin did men- tion to the manager, however, that Area Supervisor Charles Swanson had criticized her bookkeeping work and that she thought the trouble was the manager's failure to train her. The manager agreed and promised to so inform Swanson. This was about a week before McLaughlin was discharged. On the way to work on the morning of June 19, McLaughlin was approached by discharged employee Cheryl Romero,I who was picketing on a parking lot adjacent to the restaurant and solicitingunion authori- zation cards from Respondent's employees. McLaugh- lin was about 12 to 20 feet in front of the doors at the front of the restaurant when Romero spoke to her. They talked for 5 to 10 minutes in front of the restau- rant, then walked together about 100 yards to a trailer (mobile home), where McLaughlin signed an authori- zation card.' McLaughlin then left the trailer and 4 Although Respondent subpenaed certain documents pertaining to McLaughlin's immigration status, its request for production of them was withdrawn after General Counsel argued that such matters would be ger- mane only to questions of compliance with the Board's Order, should a violation be found 5 Employee Nicky Simmons, who had signed a similar card the previous day and was described by the Administrative Law Judge as a convincing witness, testified that Nancy Fredericks, a supervisor, had told her a day or so earlier that any employee who spoke to anyone who was picketing would be terminated. Fredericks denied this, but the Administrative Law Judge indicated on the record a lack of confidence in her testimony as a whole Respondent has taken the position in another connection that the Adminis- trative Law Judge did not credit Fredericks' testimony throughout his deci- sion except where it was corroborated or uncontradicted. We think this observation is well taken, but are constrained to turn it against Respondent in this instance In the circumstances set forth, we credit Simmons' tes- timony in the absence of a specific credibility resolution by the Administra- tive Law Judge. 217 NLRB No. 125 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to work. All this occurred approximately between 8 and 8:30 a.m. When McLaughlin entered the restaurant , another employee told her that Supervisor Nancy Fredericks had been watching her go into the trailer and had said, "Connie is a sympathizer.s6 Later that day, Area Supervisor Swanson ap- proached McLaughlin at work and asked her to go over to one of the restaurant booths where he wanted to speak to her. She followed him and they were joined by James O'Halloran, assistant manager for Respondent's southern section, who was responsible for 16 restau- rants including Cathedral City. O'Halloran began the conversation by asking McLaughlin, "Why did you sign the union card?" McLaughlin answered at length, telling O'Halloran and Swanson that she thought the situation at the restaurant was very bad, that "they weren't doing anything about it, and that if they were- n't going to do anything about it maybe the union would, if -they got in." Some time thereafter, in the course of the conversation , Swanson said to McLaugh- lin, "What right do you have to judge?" McLaughlin answered that "every human being had a right to judge what was right and what was wrong." She then asked O'Halloran why they didn't want a union. O'Halloran answered that if the Union got into the Cathedral City restaurant "it also would then try to get in all the branches and that would cost the com- pany a lot of money." Later in the conversation, O'Hal- loran asked McLaughlin whether she was grateful that the Company had given her a-job. She said she was, and O'Halloran said, "Well, this is the way you show your gratitude. You are stabbing us in the back ." The inter- view ended with Swanson telling McLaughlin she could go back to work. The next morning O'Halloran approached McLaughlin &ad asked her if she had a work permit.. She said she did not , and O'Halloran said he would have to check with the head office to see "if this was all right." About 5 hours later, McLaughlin was told to see Swanson in the office. He told her that in view of her not having a work permit the Company had to let her go. He paid her wages in cash.' 6 As we have noted, the Administrative Law Judge specifically found McLaughlin to be a credible witness McLaughlin's credited testimony con- cerning what another employee told her about Fredericks' actions is, of course, hearsay It was admitted without objection That part of the hearsay testimony referring to Fredericks' comment when she saw McLaughlin with Romero is made plausible by the testimony of Simmons regarding Fred- ericks' warnings to her against talking to picketers and by Respondent's interrogation of McLaughlin and Simmons on the same day as the events -recited in the text Fredericks, although she testified , did not deny the hearsay testimony In these circumstances it is of probative value NL.R.B v. International Union of Operating Engineers, Local Union No 12 [LedfordBros.], 413 F 2d 705 (C A. 9, 1969); NL.R.B. v. Imparato Stevedor- ing Corporation, 250 F 2d 297 (C A 3, 1957) We think all of this makes a rather strong prima facie case, especially when considered in the context of Re- spondent's other unlawful conduct. O'Halloran testified that he and Swanson had de- cided on June 18 to discharge McLaughlin because she was not qualified as a bookkeeper, and that, while they talked about transferring her to another capacity, there were no openings . As a second reason for terminating her O'Halloran testified that he did not think she had obtained a work permit . He said they decided to put only the work permit reason on her termination slip so as not to hurt her chances to get another job. Swanson's testimony was remarkably different. He did not testify as to any discussion with O'Halloran on June 18, but did state emphatically and repeatedly that the sole reason for the discharge was that McLaughlin was unable to produce a work permit . He stated that on June 19, "probably between 8:30 and 9 :00" a.m., he left company headquarters in Newport Beach, Cali- fornia, for Cathedral City (a distance of approximately 100 highway miles) with a check, which is in evidence, made to the order of the branch restaurant , to reim- burse it for paying McLaughlin off in cash.' Thus, both Swanson and O'Halloran, in their sepa- rate ways, sought taestablish that the decision to termi- nate McLaughlin was made before they had knowledge of her union proclivities . To explain why he did not actually discharge her until June 20, Swanson testified that he was unable to do so on June 19 because she finished work and left while he was talking on the telephone. The Administrative Law Judge believed both Swan- son's testimony that he left Newport Beach with the check when he said he did and O 'Halloran's testimony that he and Swanson discussed McLaughlin's dis- charge on June 18, on the basis that it "was not chal- lenged or contradicted." We find such reliance to be prejudicial error in the circumstances presented here. Needless to say, the fact that the General Counsel was unable to provide witnesses to dispute this tes- timony lends no stature to Swanson's and O'Halloran's accounts since there were no other witnesses . That the General Counsel was not able to undermine their ac- counts through cross-examination is one factor to be considered. But their accounts of the actions taken are inextricably linked with the motives they assigned for these actions. Taken as a whole, their stories are hope- lessly contradictory and, in the light of other known facts, incredible. It is also noteworthy that throughout his Decision the Administrative Law Judge usually dis- credited, and rarely relied on, the testimony of Swan- 7 June 20, the date of the discharge, was a Thursday The record does not reveal when the applicable pay period ended 8 The check has McLaughlin's name typed in a margin at the top Swanson engaged in a somewhat elaborate explanation of why it was necessary to use such a roundabout way to effect this payment COLONY KITCHENS, INC 673 son or O'-Halloran when it was contradicted or uncor- roborated. Where they corroborated each other in the case of the interrogation of McLaughlin, he discredited them both. That O'Halloran and Swanson each assigned a dif- ferent reason for the discharge is itself a serious matter. Their stories did not reflect a mere difference in empha- sis. Swanson gave no hint to the discussion on June 18 which O'Halloran stated was responsible for the deci- sion. And, although O'Halloran said the subject of a work permit came up, any substantial reliance on this ground is negated, in O'Halloran's account, by his lack of certainty that she lacked a permit and by the discus- sion of transferring McLaughlin to another job but decided against it because there were no openings. Ex- traordinarily, Swanson, who was firm in his testimony that the lack of a permit was the sole cause for dis- charge, agreed with O'Halloran's version on this one point: that transferring McLaughlin back as a dish- washer had been considered, but there were no openings.' Respondent is thus in the peculiar position of requiring a work permit for McLaughlin only if she remained a bookkeeper. Each of the two different reasons assigned for McLaughlin's termination falls independently of its own weight. McLaughlin's alleged shortcomings as a bookkeeper trainee are hardly persuasive after 1 week on that job, especially after the restaurant manager acknowledged that, the fault was his in failing to train her. O'Halloran's story that McLaughlin's inadequa- cies were kept off her termination slip so as not to jeopardize her future job opportunities does not explain why the so-called "real" reason was concealed also from her. And it strains the imagination that O'Hallo- ran, a high management official, could have believed that a termination for lacking an alien work permit would hurt her less than one for being found unquali- fied for a specialized job after 1 week. That McLaugh- lia's lack of a work permit could hardly have been the principal reason for her termination has already been demonstrated. Suffice it to add that Swanson acknowl- edged that prior to his action no one in management had followed up in getting her to obtain a permit. Yet he discharged her without warning her that it was nec- essary for her to do so. And, while it was crucial for Respondent to establish that the decision was made before it learned of McLaughlin's union membership and advocacy on June 19, O'Halloran asked her on June 20 whether she had a permit and then told her he would have to check with the head office about what should be done. 9 In the light of the evidence in the record showing a considerable amount of turnover in several job categories about this time, the contention that there were no openings for her, standing on its own , strains credulity Were all this not enough cause to discredit their representations, it will be remembered that Swanson and O'Halloran discussed employment conditions with McLaughlin at length on June 19 and then sent her back to work; She received no hint from them that they had already decided to fire her and that Swanson had a check in his possession to reimburse the restaurant for paying her off)° Another facet of Swanson's story that does not go down easily is that after going to the trouble of arranging this elaborate financial transac- tion, supposedly accounting for the exact amount of money McLaughlin was due through June 19, he managed to let her leave without paying her. Presuma- bly the special financial procedure was "necessary" in the first place only because Respondent could not wait until the end of the pay period and pay her in the normal way. Going specifically-to the matter of the June 19 check, Swanson's testimony is fatally improbable. He testified that he left Newport Beach with the check, intending to discharge her before she started work but to pay her for the day anyway. When he arrived and she had started work already, he decided to let her work out the day and pay her the same amount as he had originally planned. But, if Swanson left Newport Beach between 8:30 and 9 a.m., he knew well before he left that McLaughlin would have started work before he ar- rived. In fact, she was scheduled to start work before he left Newport Beach. t l Since nothing changed be- tween the time he left with the intention of paying her off and the, time he arrived, there was no reason to change his intended course of action of discharging her when he arrived. Had there been such a reason, the original plan could have been effectuated a day later, before she started work. Instead, he let her work her whole shift on June 20. All this delay, after Swanson had been in such a hurry to get her off the job, is incomprehensible. Although he have no way of know- ing exactly when the check was issued, we cannot be- lieve it was issued in its present form at any time before Respondent knew that McLaughlin had signed a union card and was thus, in its view, "stabbing us in the back." We conclude that her discharge violated Section 8(a)(1) and (3) of the Act. The Administrative Law Judge found that Respond- ent violated Section 8(a)(1) by coercively interrogating McLaughlin, Nicky Simmons, and Ronda Murphy. These findings are supported by the record. He also found that during the interview in which O'Halloran interrogated Murphy he also threatened her by saying that Respondent would shut down if necessary to stop 10 Aside from the session at which McLaughlin was interrogated about why she had signed a union card, Swanson testified that he talked to her that morning about how she should be keeping certain accounts No mention was made, however, about any possible change in her employment status 11 He stated that her 4-hour shift ended at noon. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. Unlike the testimony of McLaughlin and Simmons, the Administrative Law Judge made no gen- eral evaluation of the credibility of Murphy's tes- timony. He credited her account of the alleged threat, stating that it was not challenged or contradicted by O'Halloran or Swanson, who was present at the inter- view. We believe the Administrative Law Judge erred in finding no challenge or .contradiction to this testimony. Respondent's counsel attempted to ask O'Halloran a direct question as to whether he told Murphy that Colony Kitchens would shut down . This question was objected to,as leading and the objection was sustained. We do not disturb that ruling. Thereafter O'Halloran testified that he did not discuss with any employee what would happen if the restaurant were unionized and later that he did not explain to Murphy what would happen if a union came in. Swanson also denied -that any mention was made during that conversation about what might happen if the Union came in. While one could construe these denials as having no reference to the alleged threat, we do not think that in the circum- stances it would be fair to Respondent to do so. This leaves us, however, with no resolution of the conflict between the assertion that the threat was made and the denials we have found in the record . Since we have found other violations of Section 8(a)(1) and (3) which make a broad cease-and-desist order appropri- ate, we find it unnecessary to remand the issue of the occurrence of a threat . We therefore must take the only other available alternative and dismiss that allegation of the complaint. The Remedy Board hereby orders that the Respondent, Colony Kitchens, Inc., Newport Beach, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union membership, activities, or sympathies. (b) Discharging or otherwise discriminating against any employee in regard to his or her hire, tenure, or terms and conditions of employment, so as to discour- age membership in, affiliation with, sympathy for, or lawful activity on behalf of any labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Connie McLaughlin immediate and full reinstatement to her former job or, if her job no longer exists, to substantially equivalent employment, without prejudice to her seniority or other rights-and privileges, and make her whole for any loss of earnings she may have suffered by reason of the unlawful action against her in the manner set forth in the section in this Deci- sion entitled "The Remedy." (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. Having found -that Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee Connie McLaughlin, we shall order that Respondent offer her immediate and full reinstatement and make her whole for any loss of earnings she may have suf- fered as a result of the unlawful action against her, by payment to her of a sum of money equal to what she normally would have earned as wages from the date of her discharge until Respondent offers her reinstate- ment, to be computed in accordance with F W. Wool- worth Company, 90 NLRB 289 (1950), with interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962).12 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations 12 In any compliance proceedings, it will be appropriate to raise the question of the effect, if any, of McLaughlin's alien status on the remedy (c) Post at its premises at Cathedral City, California, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Re- gional Director for, Region 21, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 13 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." COLONY KITCHENS, INC APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board, the judgment of any court, and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT coercively interrogate employees concerning their membership in, support of, or activities for a union. WE WILL NOT discharge or otherwise discriminate against any employee because he or she has joined, helped, or supported a union. WE WILL offer Connie McLaughlin full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her former rights and privileges, and make her whole for any loss of earnings she has suffered. COLONY KITCHENS, INC DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This mat- ter was heard at Palm Springs, California, on October 9, 10, and 11, 1974.' The complaint,' issued August 16, is based upon a charge filed June 19, and an amended charge filed June 30 by Lionel Richman. The complaint alleges that Colony Kitchens, Inc., hereinafter referred to as Respondent, violated Section 8(a)(1) and (3) of the National Labor Rela- tions Act, hereinafter called the Act. Issues The principal issues are whether Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discharging Donald Wiley, Cheryl Romero, and Julie Neale, because said employees All dates are within 1974 unless otherwise stated 2 As amended at hearing Included among the minor amendments was change of name of Respondent from Colony Kitchen, Inc., to Colony Kitch- ens, Inc 675 engaged in protected, concerted activities for the purposes of collective bargaining or other mutual aid or protection, and by discharging Connie McLaughlin3 because she engaged in union or other protected activity. Additional issues are whether Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union membership, activities, and sympathies, and the union membership, activities, and sympathies of their fellow employees, and by threatening employees with loss of em- ployment if they selected the Union as their collective-bar- gaining representative. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been care- fully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT At all times material herein, Respondent is and has been a California corporation engaged in the operation of approxi- mately 55 restaurants, primarily located within the State of California, including a restaurant at 69050 Highway 111, Cathedral City, California. In the normal course and conduct of its business operations, Respondent annually derives gross revenues in excess of $500,000 and purchases and receives goods and services directly from suppliers located outside the State of California, valued in excess of $12,000. I find that Colony Kitchens, Inc., is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Hotel Restaurant, Club Employees and Bartenders Union, Local 309, Hotel and Restaurant Employees and Bartenders International Union, herein referred to as the Union, is, and at all times material herein, has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background One of the restaurants, located at Cathedral City, Cali- fornia is involved in this controversy. During the period in- volved herein James O'Halloran was assistant manager of the southern section of Colony Kitchens, Inc., with responsibility for 16 restaurants, including the one at Cathedral City. O'Halloran visited each of the 16 restaurants for which he was responsible every 2 or 3 weeks, staying as long as necessary to discuss management problems. Charles Swanson is and has been area supervisor of Colony Kitchens, Inc., since mid-April of 1974. His area of responsi- bility covers eight restaurants, including the one at Cathedral City. He visits each of the eight restaurants about once each 3 Sometimes spelled McLoughlin. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week, to observe and discuss operations . His immediate supervisor during the period involved herein was O'Halloran. Management of the Cathedral City restaurant has been a problem for the corporation from the time of its construction in mid-1973. The first manager was Mike Kelly, followed by Rick Lynch, then Tom Grant (March of 1974), then Roger Steele (May 8, 1974). Steele was manager during the time involved in this controversy. Working directly under Steele during that time were two assistant manager trainees, Nancy Fredericks, who was in charge of waitresses commencing May 29, and Tom Sweeney, who was in charge of cooks, busboys, and dishwashers commencing May 29. However, Fredericks and Sweeney assisted in each other's area as re- quired, and if Steele was not present in the restaurant, Fred- ericks and Sweeney, or either of them if one was absent, was in complete charge of operations.' Undisputed testimony shows that the Cathedral City res- taurant was a marginal operation, and a corporate headache, from its inception . Even cleanliness was a problem . County health authorities gave the restaurant a rating of B or C (average or intolerable) in May of 1974. The frequent change of managers reflects management's attempts to solve the problems of poor customer service, poor food preparation, inadequate attention to cleanliness and appearance, pilferage, breakage, excess food costs, and inadequate profit. The res- taurant was substantially above company standards in costs' of operation, and below standards in profits. Swanson recognized the problems at Cathedral City upon becoming area supervisor in mid-Apirl. He found that the restaurant demanded more attention than other locations, because of its problems and high employee turnover rate. He discussed the situation with O'Halloran and Steele, and O'Halloran suggested they hold an employee meeting. Such a meeting was scheduled May 29 to be attended by the manage- ment team and the employees . During the morning before the employee meeting on May 29, O'Halloran, Swanson, Steele, Fredericks, and Sweeney held a management meeting to dis- cuss the pending employee meeting and to define the prob- lems and responsibilities of management . The managers were told by O'Halloran and Swanson that improvement was ex- pected, and required, within a month . Fredericks was specifi- cally instructed to improve waitress service. The employee meeting lasted between 60 and 75 minutes on May 29, during which time the employees were advised in detail of the problems of the restaurant, the action and cooperation that would be required by all, and some of the measures that management would adopt, including the instal- lation of Fredericks and Sweeney , who were introduced and identified as part of the management group . Their duties and areas ofresponsibility were explained . O'Halloran and Swan- son read aloud all, or much of, the company handbook, and rules relating to duties and responsibilities of waitresses and busboys. Specific problems were discussed . O'Halloran in- structed waitresses to consult Fredericks about their prob- lems, and said Fredericks would refer problems to Steele when she could not solve them . A postmeeting discussion was held by the management group, to go over the events of the ' This managerial arrangement was explained to all employees at a meet- ing May 29 meeting, and to review areas of responsibility held by Fred- ericks and Sweeney. On June 5, O'Halloran, Swanson, Steele, Fredericks, and Sweeney again met and O 'Halloran advised the group that he could see no improvement in conditions at the restaurant. He instructed Fredericks to put more pressure on the waitresses. He told the group they had 30 days to bring about improve- ments, else there would be "some head chopping."5 In order to control and reduce pilferage, a better lock system was placed on doors and refrigerators. A breakage sheet system was begun , to help control breakage. Following the meeting of May 29, a series of events oc- curred which gave rise to the charges involved herein , Donald Wiley, a busboy, was fired June 9. Cheryl Romero- and Julie Neale were fired June 14. Romero instituted a picket line outside the restaurant June 17. Respondent, through a meet- ing between Swanson and Sweeney and two union representa- tives, first learned of union interest in the Cathedral City restaurant June 19. Two waitresses , Nicolle Simmons and Ronda Murphy, had conversations with management person- nel about unions on June 19 and 20 . McLaughlin was dis- charged June 20. General Counsel contends ' the discharges were for engag- ing in union and other concerted activities, and that the dis- charges and conversations were in violation of the -Act. Re- spondent contends the discharges were for good cause, not related to union and other activities, and that the conversa- tions were outside proscriptions of the Act. B. Discharge of Donald Wiley Paragraph 8(c) of the complaint states: Respondent discharged, and has failed and refused, and continues to fail and refuse , to reinstate Wiley to his former position of employment because he engaged in protected concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. Wiley had been employed as a busboy about two months as of the date he was discharged , June 9. As of that date Romero, Neale, and McLaughlin still were employed by Re- spondent, there had been no union activity at the restaurant, and there had been no interrogation that later was the basis for charges. General Counsel argues that Wiley was discharged because he complained to Sweeney and Fredericks, the evening before his discharge, about work conditions. Respondent contends Wiley was discharged for failure and refusal to do his work properly and on occasion refusal to do it at all. ' Wiley testified that sometime in late May, after he learned during the employee meeting of May 29 that Fredericks was a management trainee, he overheard a waitress named Vickie and waitresses Ronda Murphy and Nicolle Simmons com- plaining"that Fredericks would not let them take a vacation they had planned. Wiley also said he "heard Julie Neale talking about outside work and Cheryl Romero talking about the side work." 5 Fredericks later, was fired, because of her inability to bring about sub- stantial improvements in her area of responsibility. In the interim, she had fired several waitresses, and hired others. COLONY KITCHENS, INC. 'Wiley stated that the night before he was fired , he talked wit h Fredericks about waitresses and told her if she were a little more lenient she would get a lot more out of them and the place would run a lot smoother, otherwise it was going to go down hill. Finally, Wiley testified that he was given no prior warning, and received no termination slip, when he was fired the next day by Sweeney, who said the reason was his work was not up to standard, and four waitresses had complained about him. Wiley stated that, a couple of days before he was fired, Fredericks asked him to pick up papers and clean up around the flowers outside, and he refused to follow her instructions because he was not hired for outside work . He said he later explained to her that he wasn 't going to do that sort of work for $2.50 an hour. He said O'Halloran once admonished him to get to work, and that a waitress named Helen once com- plained to him about his not doing certain work. Sweeney testified that Wiley's work was not satisfactory; that most of the time he was either on breaks or talking with other employees. Sweeney said Wiley was reprimanded on several occasions, once was instructed three times before he did a routine chore he was told to do, and on another occasion refused to perform a routine chore until he was threatened with discharge. Sweeney testified he told Wiley on June 9 to vacuum the floor, which was part of Wiley's regular duties, but that Wiley refused to do as he was told. Wiley allegedly told Sweeney, "Fire me." Sweeney then recommended to Steele that Wiley be fired, and Steele agreed . Wiley was fired in Steele's office, after Sweeney told Wiley the reason. Wiley said he knew it was coming. Sweeney said he had talked with Swanson about a week before, and advised him of the advisability of firing Wiley because he could not get Wiley to do his work. Sweeney's recital of Wiley's consistent refusal to obey rea- sonable and proper instructions was not contradicted and is credited. Wiley denied talking with Sweeney at any time during the day he was fired , thus it is necessary to make a credibility resolution on this point. Based upon the demeanor and conduct on the stand of Sweeney and Wiley, as well as the record itself, Sweeney's version of the June 9 incident is credited, and it is found that Wiley's discharge and events leading to that discharge are as related by Sweeney. Wiley acknowledged that he was aware of the busboy rules that applied to him. Wiley admitted that he refused to carry out a simple task (picking up papers outside the restaurant) after being instructed to do so by an acknowledged supervi- sor. It is abundantly clear that, if ever an employee earned a summary discharge, it was Wiley. His final refusal to do an assigned task that was one of his duties-vacuuming the floor-was followed by his challenge , "Fire me." General Counsel rests his case upon a single pedestal, that of "timing." It is argued that Wiley complained to Steele a week or so before his discharge, on behalf of the waitresses who were having a problem ' with their vacation, but that Steele just laughed ; further, that Wiley complained to Fred- ericks on behalf of all the waitresses, the night before he was fired. Based on Wiley's demeanor on the stand , and the uncon- vincing nature of his testimony , Wiley's statement about Steele's laughing about the alleged complaint is not credited. 677 Even if it were to be credited, it would not be proof, or persuasion, of anything; most certainly, Wiley was not fired or otherwise disciplined by Steele because of any such inci- dent. The record is devoid of any intimation that Wiley was fired by Sweeney wholly or partially because of the alleged Steele incident. So far as timing is concerned, it appears that Respondent can make a more convincing case than General Counsel. Sweeney told Wiley to carry out a regularly assigned task; Wiley refused, and said, "Fire me." Sweeney immediately talked with his supervisor , and within minutes, Wiley was fired. Such insubordination should be , and was, dealt with on the spot. A further weakness of the timing argument is that the record is devoid of any evidence that Fredericks talked with Sweeney at any time between her conversation with Wiley and Wiley's discharge. Although Wiley's testimony is not clear on this point, it appears that Sweeney-was present only during the first part of Wiley's conversation with Fredericks-that part devoted solely to Wiley 's telling Frede- ricks why he refused to carry out her instructions to pick up papers in the outside lot. It seems likely that Sweeney was gone during the rest of the conversation , since Wiley stated on direct examination, "He might have left, I don't know," and further, he said he had no conversation with Sweeney while Fredericks was away from the booth the first time. (Apparently she left several times, to take care of customers.) In any event, the record shows increased attention to work production at the Cathedral City restaurant, Wiley's poor record as an employee , and the minimal impact of Wiley's voluntary efforts on behalf of the waitresses . Sweeney's ver- sion of Wiley's discharge is much more nearly consistent with the record than that advanced by Wiley. It is found that Wiley was discharged for good cause not related in any way to concerted activity protected by the Act, and that this allegation was not proved. C. Discharge of Cheryl Romero Paragraph 10(c) of the complaint states: Respondent discharged , and has failed and refused, and continues to fail and refuse, to reinstate employee Romero to her former position of employment because she engaged in protected concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection. Romero was hired by Respondent as a busgirl the latter part of September 1973, and later became a waitress. She testified that she had no- complaints about or problems with Respondent until after Fredericks became assistant manager trainee in May of 1974. Romero testified that she and the other employees attended a general meeting called by management in May of 1974.6 She said they were told about the problems of the restaurant, and told that management was trying "to get the place shaped up and better than what it was already." She said there was lengthy discussion of, and extensive reading from , the Com- 6 Romero said the meeting was held during the first half of May , but the date was established as May 29. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany's waitress handbook and the employee manual. A copy of the waitress handbook was given to each waitress. Statis- tics on breakage and food costs were explained as excessive. Employees were told that failure to comply with rules and instructions would result in "automatic discharge." Employees were told at the meeting that Nancy Fredericks had been made assistant manager trainee and "would be looking over the girls' scheduling and so forth." She said employees then were advised that Tom Sweeney also had been made an assistant manager trainee. At a date not fixed by testimony but probably in early June, Fredericks told several waitresses and a busboy at a gathering just outside Fredericks' office, that they were not to come to Romero with complaints; they were to come to Fredericks, and she would handle the complaints. Romero stated that "all of the girls started complaining to her" a week and a half or 2 weeks after the employees' meet- ing, about improper or uncertain posting of work schedules by Fredericks. She said waitresses began complaining to her at approximately the same time, about side work not being properly carried out,' and about Fredericks' "changing around" the side work. Romero said Fredericks had hired approximately nine new waitresses prior to the time com- plaints started about scheduling and side work. Romero testified that she communicated the complaints she received to the then manager, Roger Steele, who said he would talk with Fredericks and see if something could be worked out. Steele did nothing about the complaints, so Romero said she called Swanson in Santa Ana on the tele- phone. She said she advised Swanson about the schedule and side work complaints, and about "the girls" not feeling very secure because some were being dismissed and "a new crew was being hired" by Fredericks. Swanson told Romero he would be at the restaurant the following week and would look into the situation at that time. Swanson did visit the restaurant the following week, and spoke with Romero while he was there. He told Romero he couldn't see too much going on at that time, and that he had agreed to the discharge of one of the girls. He told Romero he did not think there was anything that warranted a tele- phone conversation to him, and that he would not mention Romero's call to anyone. On June 14 Romero received a telephone call from Julie Neale, another waitress, who said she had been fired. Romero called Tom Sweeney' to see if she, too, had been fired and he said she had been. Romero said she went to the restaurant and met with Steele, Fredericks, and Swanson. She was given a termination slip by Fredericks, which listed reasons for discharge as "work does not meet company standards. Very unruly serv- ice. Very poor. Attitude very bad. You can talk and she will not listen. Wants to be her own boss. I feel that she will do 7 Side work is the miscellaneous work of waitresses such as cleaning and filling salt, pepper, and sugar containers, cleaning booths and tables, stock- ing condiment containers, cleaning juicers and other machines, and the like. Some such tasks must be done on a scheduled basis, and all the work is supposed to be done before going off work In addition, waitresses are supposed to check the side work just after coming on to a shift 8 No reason was given by Romero as to why she called Sweeney, who was in charge of cooks and busboys, rather than Fredericks, who was in charge of waitresses. the company more harm than good. Tries to keep hard feel- ings between help and management." Romero said she called Culinary Union No. 309 in Palm Springs after her discharge, which was the first time she had been in touch with the Union. The following Monday, Romero set up a picket line that lasted 1 week and 1 day.9 She talked others into picketing with her. One of the restaurant customers set up a mobile home in the restaurant's parking lot for use of the girls on the picket line. The mobile home could be seen from inside the restaurant. The picket signs read "Colony Kitchens Unfair to Management-Unfair to Employees, Unjust Treatment, Un- just Firing for Colony Kitchen Employees, Poor Manage- ment, Poor Management Trainee, Colony Kitchen Hurts Girls Chances, Poor Food and Poor Service." Romero testified that, prior to being fired , no management representative or supervisor ever complained to her about her work. She said she was an experienced restaurant worker who was trusted to pick up cash at the bank, who did hostess work for Respondent, and who gave advice to and trained other waitresses. She said she got along with Fredericks, and had never sworn at her. She said she had never complained about, or discussed with others, the subject of scheduling and side work, except to management . She testified that Fredericks was "stepping between" her and the other waitresses, and that Fredericks wanted the girls to come to her for advice and assistance, rather than to Romero. Swanson testified that he received a telephone call from Romero at his home, on May 21 , during which she told Swanson her feelings about "how the store was going and how she felt that what we said at the meeting wasn 't being enforced." Swanson said he went to Cathedral City because of the call from Romero. Swanson said he was at the restaurant on June 14, and that he reviewed Romero's proposed discharge with Steele, Sweeney, and Fredericks. He said he felt there definitely was hatred toward Fredericks, which made for a poor relation- ship between management and employees, and, for that rea- son, Romero should be terminated. Swanson said Steele told him that he agreed with the proposed termination of Romero. Swanson stated that he never had occasion to reprimand Romero, but he he had received a complaint from a waitress that Romero was pushy and bossy . He said Fredericks had complained to him in June that Romero tried to cause trouble among the employees by "bossing" them when it was Fred- ericks' responsibility to do so. Swanson said Romero was terminated after Fredericks suggested it, but that it was he who handed Romero her termination slip. Fredericks explained to Romero the reasons she was fired. Swanson testified that, as Romero picked up her final pay, she turned to Fredericks and said, "You are a lying bitch." Helen Gessel, a waitress who worked with Romero, testi- fied that Romero spent excessive time talking with customers, and with employees in the kitchen , and that Romero did too little work. She said that, on occasion, she had to get Romero out of the kitchen to serve customers. She said she had heard Romero on several occasions refer to Fredericks as "a lying 9 The Union took no part in the picketing COLONY KITCHENS, INC. 679 bitch," a "son of a bitch," a "slut," and other things so profane she did not want to repeat them. Fredericks testified that Romero told her during a tele- phone call about a week after Fredericks became assistant manager trainee (on May 29), "No, you can't help me. There is nothing you can help me with and I'd rather not discuss anything with you." During another telephone conversation about 10 minutes later, Romero allegedly told Fredericks "I don't think I like to work with the type of person like you." Fredericks said she asked to talk privately with Romero, after Romero asked for 2 weeks off because she was having dif- ficulty understanding the situation and working with Fred- ericks. Fredericks said Romero told her she should be in Fredericks' position and Romero swore profanely at her. Fredericks said she made positive and definite efforts to work with Romero, but that she was rebuffed. Fredericks testified to several specific instances wherein Romero gave poor service to customers, loafed in the kitchen, talked excessively, conducted herself improperly with cus- tomers, improperly did side work, failed to do side work, issued instructions to waitresses against Fredericks' orders, and cursed Fredericks personally and to others. Fredericks said that before Romero was fired, her conduct and susceptibility to discharge were discussed with Roger Steele, Tom Sweeney, and Chuck Swanson. Fredericks said she was not aware that Romero had complained to Steele and others about Fredericks' changing of work schedules. Tom Sweeney testified to one instance of improper cus- tomer service on Romero's part that he had witnessed. He said he discussed with Fredericks on June 13, Romero's pos- sible discharge, and that Fredericks told him the reasons for the discharge. Sweeney said he typed the termination slip as a matter of convenience for Fredericks, who was busy. James O'Halloran testified that he told two waitresses why Romero was fired, and said to them that the restaurant had to have people who would give proper service. He said Romero was not giving that kind of service. The record solidly supports Respondent's contention that Romero was fired for reasons not related to any concerted activity. It is clear that she was fired for good and proper cause, and it is so found. Aside from any credibility resolutions, Romero indicted herself by her own testimony. She had-,no problems or com- plaints until Fredericks became assistant manager trainee. She immediately embarked upon a program to dethrone Fredericks. Her alleged complaints were centered about three things: (a) Fredericks was "changing around" the side work. (b) Fredericks was inaccurately posting work schedules. (c) Fredericks was trying to "step in" between Romero and the waitresses. No independent evidence was introduced in support of (a) or (b).10 Further, as Romero admittedly knew, Fredericks was in charge of waitresses and their work. So far as (c) is concerned, Romero knew that Fredericks was the "boss" rather than she, and, further, Romero's testimony included only the sketchiest support of this complaint. Romero never, by her own testimony, complained to Fredericks. It is inter- esting that she called Sweeney, who was in charge of busboys Io Julie Neale testified she and Romero, along with others, were "jumped on" for not doing their side work and cooks, rather than Fredericks, to find out if she had been fired. She acknowledged that Swanson told her she called him without good cause." Aside from her own testimony, it is abundantly shown by others that Romero earned her discharge. It is established that all employees, including Romero, were told in a meeting on May 29 that Fredericks was in charge of all waitresses and their work, and they were told what was expected of them-that discharge was the penalty for not following the written rules. Fredericks later told sev- eral waitresses and busboys that they were to bring their complaints to her, rather than to Romero, pursuant to the managerial heirarchy that had been established. Romero deliberately ignored-this rule. Romero denied cursing Fred- ericks, but the testimony of Helen Gessel and Charles Swanson that Romero called Fredericks a "lying bitch," among other names that Gessel said were so bad she did not want to repeat them, is credited. That testimony supports Fredericks, who testified that Romero frequently cursed her; based upon that support, this testimony of Fredericks is credited. The testimony of Swanson, Sweeney, and Gessel that Romero was a poor waitress is credited-it is based upon specific, uncontradicted instances. Fredericks also testified to Romero's poor work; that testimony being supported by Swanson, Sweeney, and Gessel, it is credited. Fredericks' testimony that Romero told her she did not like to work with the type of person Fredericks is, was not challanged or contradicted. That testimony is, therefore, credited.12 O'Halloran told two waitresses that Romero was fired be- cause she did not offer proper service to customers. That testimony is uncontradicted, and is credited. Swanson testified that he felt there was a definite hatred of Fredericks by Romero, and that Steele told him he agreed Romero should be fired. That testimony is credited. Two postfiring incidents indicate that Respondent was serious and factual when it contended that it meant business in its crackdown at Cathedral City, and that Romero was caught in that housecleaning. First, Fredericks was fired after she was unable to improve conditions within the 30 days she was given. Second, the picket signs displayed by Romero and her supporters clearly show a vindicative attitude directed personally toward Fredericks and management, rather than toward any concerted activity, as that term is used in the Act. It is found that Romero was discharged for good cause not related in any way to concerted activity protected by the Act,13 and that this allegation was not proved. 11 Romero went to considerable length in her testimony to show her seniority at Cathedral City, her experience as a waitress, her advice to and training of other waitresses, and her position (until Fredericks' appointment as assistant manager trainee) as a "mother confessor" to the other wai- tresses A logical inquiry then is, did Romero substantially contribute to the obviously poor condition (physical and economic) of the restaurant? Such appears quite likely, and further supports her discharge 12 As pointed out by Respondent in its brief, Romero effectively placed Respondent in the position of choosing between Romero and Fredericks It chose to retain the latter, because of the poor work record of Romero Such was Respondent's prerogative, N.L.R B. v Font Milling Company, Inc., d/b/a Gladiola Biscuit Company 308 F.2d 230 (C A 4, 1962), Standard Brands, Incorporated, 196 NLRB 1006 (1972) 13 Joanna Cotton Mills Co v N.L.R.B., 176 F 2d 749 (C.A. 4, 1949) 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Discharge of Julie Neale Paragraph 9(c) of the complaint states: Respondent discharged, and has failed and refused, and continues to fail and refuse, to reinstate employee Neale to her former position of employment because she engaged in protected concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion. Neale was employed by Respondent as a waitress on July 29, 1973, and worked until her discharge June 14, 1974. Neale testified that she attended the employees' meeting of May 29 and that Fredericks ' duties were "to assign work schedules and tell us girls what to do." Neale stated that Fredericks ' son, Jim (hereinafter Jim), began working at the restaurant about the first of May. She said Jim walked off his job once about the middle of May, and again about June. (Neale was not present during the first alleged walk-off, which was not testified to by any other witness.) General Counsel's contention is that Neale complained about Jim being allowed to return to work after walking off his job in early June, that such action was against company rules, and that Neale was fired for so complaining. According to Neale, Jim walked off his job because his mother had fired a waitress , Sally Manning, which upset Jim. Allegedly Jim said, "Well, I have had it. I can't work with my mother. I know how she is." Neale said Jim came back to work the next day, as a prep cook , in violation of Rule 19 (G.C. Exh. 6).14 Neale testified that she complained to O'Halloran, Steele, and Fredericks the following day, and to Steele alone the day after that. She said no action was taken on her complaint. Neale testified that she previously complained to Steele about side work not being properly done, and that Steele said he ,would see what could be done, but nothing was done. Neale was fired June 14; her termination slip reads: "Fail- ing to comply to company standards , feels company cannot do without her and keeps customers waiting unnecessarily, attitude very poor, provokes discontent between help and management " Neale contended that her work had never been complained of, that her supervisors had praised her work, that Fredericks told her a few days before she was fired that she was doing a good job, that she did her work properly, and that her dress and her conduct at work were proper. She denied using profane language in reference to Fredericks, having an improper work attitude , or ever having been repri- manded or warned about her work . She stated that Fred- ericks said nothing to her the day she was fired. She testified that Sweeney gave her the termination slip and stated the 14 The rule reads as follows Don't fail to report to work on time. We will accept legitimate emer- gency only as an excuse. Arrangements mustbe made in sufficient time so that we can make replacement. (If you do not show up for work and have not made previous arrangements, it is the policy of this manage- ment to dismiss you It is also the policy never to rehire anyone who has been dismissed or who has quit without proper notice.) reasons for it, after first saying, "Julie, this is the hardest thing I've ever had to do." He allegedly stated to her that he had nothing to do with the termination. Neale testified that Fredericks- put much pressure on her and the other waitresses about side work, which in fact was not being properly done. Swanson testified that Neale was too friendly with some of her customers, with her work suffering because of that factor. He said he had received complaints about Neale's work, and that he had to reprimand Neale for selling a $1 09 breakfast for 65¢.". He testified to instances in early June wherein he corrected Neale on her personal appearance, and he set up her tables because customers were waiting too long. He said Fredericks consulted him before Neale was f red, ,and that he concurred with Fredericks' recommendation because of what he felt was Neale's definite hatred of Fredericks. Swanson testified that he reviewed the termination with Sweeney, Fredericks, and Steele, and that Steele told Swanson he agreed with the termination. Helen Gessel, a waitress for Respondent, testified that sev- eral customers had complained to her after May 29 about Neale's poor service and excessive talking and that she told Fredericks and Steele about the complaints. Fredericks testified that Neale's personal appearance was below company standards, that Neale did not properly do her side work, that other waitresses complained to her about Neale's work, and that she discussed Neale's termination with Swanson. She said she talked with Neale on many occa- sions about the complaints . She denied complimenting Neale on her work at any time. Sweeney testified that he discussed Neale's proposed termi- nation on the evening of June 13 with Fredericks, who sug- gested the termination on the basis of Neale's improper work and poor service On the subject of Jim Fredericks, Sweeney said Jim had talked with him prior to June 5, about becoming a prep cook. He said that, on the day he left his work, Jim came to Sweeney and said he had to "get out of here," and that "I've had it," because the waitresses were harassing him due to his mother's having fired Sally Manning. Sweeney said Jim was extremely upset because of the girls' treatment of him, and that because of Jim's condition, he felt it would be best to let Jim "get out and cool off and then come back and discuss it." That evening Jim apologized and asked Sweeney if he still had his job. Sweeney said to see Steele about it, and Steele told Jim to come back to work the next day. The prep cook did not come to work the next day, and Jim was allowed to help as prep cook, starting about 2 or 2-1/2 hours after he came to work. He was promoted to prep cook, and given a raise, June 22. Sweeney testified that Nancy Fredericks could not author- ize him to do anything about Jim's status as an employee; only Steele could take or authorize final action. O'Halloran said he looked into Jim's situation after Neale complained, and found that it was Steele's decision to put Jim back to work. O'Halloran said, he talked with Steele and Swanson, and that in view of the circumstances he under- stood why Jim walked off the floor. 15 The recipient later was alleged to be an elderly person on welfare COLONY KITCHENS, INC. 681 O'Halloran said he explained Neale's firing to other wai- tresses, saying she was not giving customer service required by Colony Kitchens, Inc. General Counsel bases his allegations upon two complaints by Neale: (a) the complaint about Jim Fredericks, and (b) the complaint to Steele about side work. So far as (a) is concerned, there is not even a scintilla of evidence that Neale was fired because of her complaint about Jim. The testimony of Fredericks, Swanson, Gessel, and O'Halloran about the nature of Neale's work, and the reason for her discharge, is credited. There is nothing upon which to base any other conclusion. Even if it is said, for sake of argument, that Neale's discharge after she complained about Jim is suspicious, that is not enough for finding a violation of the Act. Banner Biscuit Company v. N.L.R.B., 356 F.2d 765 (C.A. 8, 1966); N.L.R.B. v.. South Rambler Company, 324 F.2d 447 (C.A. 8, 1963). Another point of interest is the factual situation relative to Jim. Regardless of how the situation is viewed, it is something less than momentous. First, even the rule relied upon by Neale does not cover the facts. It is not at all clear that Jim quit his job. Even if he did quit, which is very doubtful, he first talked with Sweeney, who fully concurred with Jim's getting out of the restaurant "to cool off" from the heat the girls obviously were trying to apply to his mother, through Jim. Second, every member of management involved in the incident agreed that Jim should be brought back to his work-under the circumstances, it would be difficult to reach an y other decision. Third, Nancy Fredericks was not directly involved, and had no authority to take any action relative to Jim, much less authority to order him brought back to work. Finally, more than a week elapsed between Neale's complaint and her discharge, and there is nothing in the record to show that the complaint was mentioned during that time, other than by O'Halloran, who looked into the matter at Neale's suggestion. So far as (b) above is concerned, there is no evidence that Steele disciplined Neale in any manner because of her com- plaints about side work. Nor is there any evidence, or even suspicion, that Steele talked with any other member of man- agement about the complaint, or that the complaint was a basis for Neale's discharge. It is found that neither of Neale's complaints discussed above, nor the two of them together, was the basis, partially or wholly, for the discharge of Neale. Having found that concerted, protected activity was not the reason for discharge, the true reason is immaterial. An employee may be discharged by an employer for a good rea- son, a poor reason, or no reason at all, so long as the provi- sions of the Act are not violated. N.L.R.B. v. Condenser C2rporation of America, et al., 22 NLRB 347 (1940); Associ- ated Press v. N.L.R.B., 301 U.S. 103 1(1937). Respondent's arguments in its brief that Neale's complaint was advanced in bad faith, are persuasive, but those points are not, and need not be, reached. The record simply does not show, or permit an inference, that'Neale's complaints caused her discharge, regardless of the nature of the complaints. In fact, the complaints were not even mentioned by any em- ployee or supervisor after they were made, other than during O'Halloran's brief investigation. Respondent was troubled about far more serious problems that struck at its -existence and had, to be solved by a virtually complete turnover of employees if necessary. Neale's termination because she was not a good waitress is consistent with the picture of a deeply troubled business. Her termination is not consistent with two trivial complaints having been made by her about a busboy and about side work. It is found that Neale's discharge was not motivated, wholly or partially, by her engaging in concerted activity protected by the Act. E. Interrogation of Simmons by O Halloran and Swanson Paragraph 11 of the complaint states: On or about June 18, 1974, Respondent, through O'Halloran and Swanson, at Respondent's Cathedral City, California, facility described in paragraph 2(a) above, interrogated employees concerning their union membership, activities, and sympathies, and the union membership, activities, and sympathies of their fellow employees. Romero testified that her first contact with the Union was by telephone, after she was fired June 14. She said she estab- lished the picket line about 2 or 3 days, later, on Monday. Those on the picket line used a mobile home, parked on the restaurant lot, as headquarters. The record shows, and it is found, that the mobile home was clearly visible, through glass windows, from inside the restaurant. Romero solicited union authorization cards while picketing, and she circulated a "pe- tition" for signature, supporting the picketers. Nicky Simmons, a waitress for Respondent from Septem- ber 1973 until July 19, 1974, testified that she signed a union card June 18 after the picketing had continued a day or two. (G.C. Exh. 4.) Simmons testified that Swanson and O'Halloran talked with her during the lunch hour the day after she signed the union card. The conversation was in the restaurant lobby, with Simmons standing and the two supervisors seated. Ac- cording to Simmons, the conversation was as follows: A. He said to me, "Do you know what is happening outside?" And I said, "Yes." He said, "Do you agree with what is happening -outside?" And I said, "Yes." He asked me if I signed a union card and I said, "Yes," I had. Then Chuck asked me, "Why?" I said, "Because I need the benefits." Chuck goes, "Well, Colony Kitchens has benefits." And I said, "Well, I know it and when I was hired I just filled out a form and they just asked me to start working right then and they told me of no benefits that I could receive. So when the union gave me an oppor- tunity I took it." Simmons also testified that, after lunch, there was another short conversation: A. . . . When I passed their table I asked them if, because I had told them the truth, that I had signed a card, if anything would happen to me, and I also asked 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them if they were questioning other people besides me, and they said, "Yes." Q. Who answered you? A. Chuck did. He said, "Yes," they were questioning everyone and as soon as I left they sent for Denise Jefferson. And I seen her working on the counter and then I seen her go back to the table.' 6 pany, 487 F.2d 288 (C.A. 5, 1973); N.L.R.B. v. Associated Mills, Inc., 474 F.2d 1351 (C.A. 7, 1973); Webb Tractor and Equipment Company 167 NLRB 383 (1967); Blue Flash Ex- press, Inc., 109 NLRB 591 (1954). F. Interrogation of Murphy by O Halloran Simmons testified on cross-examination that Swanson and O'Halloran asked her if she signed a petition. Swanson denied that he ever asked Simmons if she signed a union card, but otherwise his recital of events was much the same as that of Simmons. O'Halloran's recollection of the conversation was some- what the same as that of Simmons, other than the fact that his version was considerably longer. O'Halloran said he asked Simmons if she signed the petition being- circulated at the picket line. Then: A. She said she signed a union card. JUDGE What was your- THE WITNESS Or authorization card. JUDGE What was your response to that? THE WITNESS I asked her why, and if she knew what it was, and then I went on from that point to try to, explain. Q. (By Mr. Wolfram) What did she answer to those questions before you went on? A. Number one, when I asked her why, she said, "I don't know." Number two, when I asked her if she knew what the union was, she said she didn't know. Q. Did you say anything after that to her? A. Yes. I tried to explain from my point of view that our company was not union and we had no union stores in our organization and I tried to explain to her what our benefits was and to show her that we had that same-pretty close to the same benefits that the Local Union had. Simmons was a convincing witness, and her version of the conversation is credited. Further, her version is largely, al- though not entirely corroborated by Swanson and O'Hallo- ran. The questioning under the circumstances here involved was inherently coercive . Simmons is a 16-year-old girl. Her questioners were two mature supervisors well up the manage- ment ladder of Respondent . They remained seated, while she stood during the questioning . The questioners had learned that morning that the union was involved in the dispute, and they made it quite clear and specific to Simmons that they did not want the restaurant unionized . This is a highly coercive situation, and could have but one implication ; Simmons must adhere to the obvious wishes of her questioners and forego further union contact, or she could quit or be fired. Simmons quit her job July 19. It is found that Respondent coercively interrogated Sim- mons as alleged in the complaint , in violation of Section 8(a)(1) of the Act. N.L.R.B. v. Birdsall Construction Com- Paragraph 12 of the complaint reads as follows: On or about June 18, 1974 , Rospondent , through O'Halloran, at Respondent's Cathedral City, California facility described in paragraph 2(a) above, interrogated employees , concerning their union membership, activi- ties, and sympathies, and the union membership , activi- ties, and sympathies of their fellow employees. Ronda Murphy was a waitress for Respondent from mid- May until the beginning of July 1974. Murphy signed a union card June 18 (G.C. Exh.' 7). Murphy testified that, on June 20, O'Halloran talked with her in the presence of Swanson and Steele. Although Mur- phy's testimony was largely limited to O'Halloran's alleged threat that the restaurant would close rather than go union,17 O'Halloran went considerably farther in his tes- timony; and stated: Q. Did you make any statements to Ronda about unions? A. THE WITNESS We talked on the Union, yes. JUDGE What did you tell her? THE WITNESS If I recall, if I recall the conversation right, she admitted that she signed an - authorization union card and, of course, I asked her why again, and she didn't know, and then I asked her if she knew what the union was and she still didn't know what the union was. Q. (By Mr. Wolfram) You said "she admitted." A. She admitted. I didn't have to tell her. Q You said she admitted. Did you ask her? A. About what? Q. Did you ask her if she signed a union authorization card? A. No. No, I did not. Q. Did she just volunteer that information? A. Well, yes. Yes, I believe so. As in the case of Simmons, discussed above, Murphy is a young girl, and was confronted in close quarters by three mature, experienced supervisors who spoke with the em- ployer's authority. O'Halloran made it quite clear that the Employer was prepared to fight the Union down to the wire, and that Murphy would be well advised to avoid further involvement with the Union. Such interrogation is coercive, and in violation of Section 8(a)(1) of the Act. It is so found. Birdsall Construction Co., supra; Associated Mills, Inc., supra; Webb Tractor and Equipment Co, supra; Blue Flash Express, supra I 16 On cross-examination, Simmons testified that Swanson and O'Hallo- ran, when Simmons asked if her response to their questions would hurt her 17 Murphy also testified that O'Halloran asked her to get out of the Union " ' Job, said, it wouldn t hurt at all " That testimony was not challenged, and is credited. COLONY KITCHENS, INC. 683 G. Interrogation of McLaughlin by O'Halloran Paragraph 13 of the complaint states as follows: 13. On or about June 19, 1974, Respondent, through O'Halloran, at Respondent's Cathedral City, California, facility described in paragraph 2(a) above, interrogated employees concerning their union membership, activi- ties, and sympathies, and the union membership, activi- ties, and sympathies of their fellow employees. Connie McLaughlin was employed by Respondent as a dishwasher the first part of April 1974 and was transferred to bookkeeper trainee about a week before she was ter- minated, June 20. McLaughlin testified that she signed a union authorization card June 19, and that later the same day Swanson and O'Halloran talked with her in a booth at the restaurant. She said O'Halloran asked her why she signed the card, and she told him. A general discussion about unions ensued, during which O'Halloran stated that Respondent did not want the Union in because the Union "would then try to get in all the branches and that would cost the company a lot of money." He also said, allegedly, that "it would cost me a lot of money." Swanson testified that McLaughlin was not asked by O'Halloran why she signed the union cards, and he said he did not know, at the time of,the conversation, whether or not she had signed. O'Halloran said he thought the conversation was the 20th, rather than the 19th, but he wasn't sure. He said the conver- sation was one of a general nature about unions, and that he asked McLaughlin if she signed the petition being circulated at the picket line. Swanson's first indication of the Union's interest in this matter's was on June 19 when two union representatives asked at the restaurant to speak with Swanson. They told him they were there because of a labor charge having been filed against the Union by Colony Kitchens, Inc. (the Denise inci- dent). Sweeney first knew of union involvement in the contro- versy June 20 or 21. It is clear that O'Halloran and Swanson were fully aware of union interest in the restaurant when they talked with McLaughlin, and they knew she signed a card McLaughlin was called to the booth, where the two supervisors questioned her in detail about her union sympathies. McLaughlin is a young girl, a native of Ireland. Her demeanor on the stand and her manner of giving testimony were impressive. Her testimony is credited in its entirety. The circumstances of the questioning, and the questions, were coercive and are so found. The interrogation was in violation of Section 8(a)(1) of the Act. Birdsall Construction Co., supra; Associated Mills, Inc., supra; Webb Tractor and Equipment Co., supra; Blue Flash Express, supra. 15. On or about June 20, 1974, Respondent, through O'Halloran, at Respondent's Cathedral City, California, facility described in paragraph 2(a) above, threatened employees with loss of employment if they selected the Union as their collective-bargaining representative. Murphy testified relative to her conversation with O'Hallo- ran on June 20, attended by Swanson and Steele: Jim O'Halloran said they weren't going to get into the union and if they had to, they were just going to shut down the doors and it was up to me if I wanted to be in it or not, but they would like me to get out, but they weren't forcing me to. That testimony was not challenged or contradicted by O'Halloran or Swanson,20 and is credited. A threat such as this, made under circumstances similar to those described in section F above, clearly is coercive and in violation of the Act. It is so found. The Singer Company, Friden Division, 199 NLRB 1195, Plastic Sealers, Inc., 200 NLRB 22 (1972). 1. McLaughlin's Discharge Paragraph 7(c) of the complaint reads as follows: 7(c) Respondent discharged, and has failed and refused, and continues to fail and refuse, to reinstate employee McLaughlin to her former position of employ- ment because she engaged in union or other protected concerted activities for the purposes of collective bar- gaining or other mutual aid or protection. This charge presents an interesting set of facts. McLaughlin said she went into the mobile home between 8 and 8:30 a.m. on June 19 at Romero's request, and, after a discussion about unions, signed an authorization card. So far as the record shows, this was the first time McLaughlin talked about unions with anyone at the restaurant, employee or supervisor or otherwise. McLaughlin said Swanson and O'Halloran interrogated her the afternoon of the 19th about unions (see sec. H above). McLaughlin testified that, when she went to work at 7 a.m. the following day (June 20), O'Halloran asked her if she had a work permit (alien card), to which she answered "No." McLaughlin said Swanson advised her about noon on the 20th that he would have to terminate her because she did not have a work permit. In explaining her situation, McLaughlin testified that she told Tom Grant, the then manager, when she was hired that she did not have a work permit. She said she later obtained some forms for applying for a permit, and gave them to Grant to fill out. She said she never received a permit, and that none of her supervisors discussed the subject with her thereafter. O'Halloran testified that he and Swanson decided on June 18 to terminate McLaughlin because they had learned she H. O Halloran's Threat to Murphy Paragraph 1519 of the complaint states as follows: 18 And probably O'Halloran's also 19 Paragraph 14 of the complaint alleges interrogation that is not covered by testimony or argument It is, therefore, found not proved In any event, the allegation is repetitious and an affirmative finding could not affect the remedy recommended below. 20 Steele was out of the State, and not available for testimony. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' was not qualified to do the bookwork she had been assigned to do, and no other job opening was available for her. He said management also' was concerned because McLaughlin still did not have a work permit. O'Halloran said he saw Swanson leave Cathedral City June 18 to return to Newport Beach. He stated that Swanson was supposed to bring McLaughlin's termination pay to Cathedral City on the 19th, but he did not arrive at the restaurant in time to terminate McLaughlin that day. Swanson testified that he, made the decision on June 19 to terminate McLaughlin "because Connie was an alien and couldn't produce a work permit." He said there was no other reason. He said he left Newport Beach with McLaughlin's termination' check (Resp. Exh. 7) between 8:30 and 9 a.m. on the 19th. The check was for $109.56, payable to cash, and was obtained from the home office at Newport Beach in accord- ance with customary procedure, to preclude reduction of cash at the restaurant. (McLaughlin was to be paid off in cash.) Because McLaughlin was already at work when Swanson arrived, it was necessary to pay her somewhat more than the check.21 Swanson testified that McLaughlin left work on the 19th while he was making a telephone call, thus he was unable to pay her off until the 20th. Her total pay was $117.01-she was paid for 4 hours on the 20th. (Resp. Exh. 8.) McLaughlin's credited' testimony shows that her first union contact was between 8 and 8:30 a.m. on the 19th. The termination check in evidence (Resp. Exh. 7) is dated the- 19th. Swanson's testimony that he obtained the check at Newport Beach between 8:30 and 9 a.m. on the 19th was not challenged or contradicted, and is credited. There is no- testimony or evidence that Swanson talked with anyone at Cathedral City the evening of the 18th or on the 19th before he arrived from Newport Beach. O'Halloran's testimony that he and Swanson discussed McLaughlin's ter- mination on the 18th was not challenged or contradicted, and is credited. There is some discrepancy between the testimony of O'Hal- loran and that of Swanson, but that discrepancy does not affect the ultimate question of whether McLaughlin was ter- minated, wholly or partially, for union activity. Swanson said he made the final decision, solely on the ground of McLaugh- lin's not having produced a work permit. McLaughlin testi- fied that the Immigration Service in Los Angeles told her of a number of requirements to obtain a permit, and that she told Tom Grant (then manager) "I didn't know whether I wanted to do all those things because I wasn't sure whether I was going to stay in America or not and he told me-to forget about it-." McLaughlin's termination slip explained the reason as lack of work permit. General Counsel's case thus rests solely upon timing-McLaughlin was terminated the day after she was questioned in violation of the Act. Respondent made a prima facie showing that the decision to terminate McLaughlin was reached prior to the interroga- tion, and before McLaughlin signed a union authorization card. 21 The check shows on its face the date of June 19 and the fact that it was drawn in the Newport Beach office. There is no evidence or testimony to disprove Respon- dent's showing, or to prove that Respondent terminated McLaughlin for any illegal reason. Under such circumstances it must be , and it is, found that McLaughlin was not terminated wholly or partially because of her union activities, and that this charge is not proved.22 N.L.R.B. v. Condenser Corp., supra; Associated Press v N. L. R. B., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent and described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. - V THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from in any like or related manner infringing upon its employees' Section 7 rights, and, to take certain affirmative action designed to effectuate the'policies of the Act. - Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Colony Kitchens, Inc., Respondent herein,, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel-Restaurant, Club Employees and Bartenders Union Local 309, Hotel and Restaurant-Employees and Bar- tenders International Union , is a labor organization within, the meaning of Section 2(5) of the Act. 3. By coercively interrogating and threatening employees concerning their, union activities, Respondent interfered with, restrained and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. Respondent did not, through alleged conduct, violate Section 8(a)(3) of the Act by discharging its employees Wiley, Romero, Neale, and McLaughlin for engaging in union ac- tivities as alleged in the complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 22 It is noted that both O 'Halloran and Swanson testified they saw several waitresses going in and out of the mobile home , clearly raising the probabil- ity of concerted or union activity However, none of those covered by this testimony was terminated