Firehouse Restaurant

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Firehouse Restaurant and Sacramento Local Joint sors, and assigns, shall take the action set forth in the Executive Board of Culinary Workers, Bartenders said recommended Order. and Hotel Service Workers, AFL-CIO. Case 20-CA-9469 September 26, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 23, 1975, Administrative Law Judge Irv- ing Rogosin issued the attached Decision in this pro- ceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an opposition to the 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 conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Firehouse Restaurant, Sacramento, California, its officers, agents, succes- i In agreeing with the Administrative Law Judge that the three alleged discnminatees, Tolley, Vereschzagin , and Horn , were responsible for the newspaper articles which disparaged the Respondent 's restaurant for the purpose of harming Respondent's business, we find it unnecessary to adopt his conclusion that such adverse publicity was placed in the newspapers at the instigation of Tolley and the other waiters . It is clear from the record that the publicity was the result of their attorney's plan to coerce the Re- spondent into settling alleged grievances which were pending , and that such action was condoned, encouraged, and approved by Tolley and the other waiters. We further find that the depositions given to Attorney Hiroshima regarding a private lawsuit , involving an individual not known to the wait- ers, and not directly concerned with the merits of his claim against the Respondent about which they admitted they did not have any personal knowledge, had the same purpose: attempting to coerce the Respondent into settling the alleged grievances. In reaching this conclusion , we rely on record evidence which fully supports the Administrative Law Judge 's find- ings that a major purpose of the waiters' retaining Attorney Hiroshima was to harm the Respondent's restaurant, apart from their desire to enforce certain provisions of the collective-bargaining contract. 2 In his "Remedy" the Administrative Law Judge inadvertently found that Tolley and Vereschzagin gave their depositions disparaging the Respondent's business on December 18, 1974. However , the record shows that the correct date was October 18, 1974, and the inadvertence is hereby corrected. Moreover, this means that these employees are entitled to be made whole only up to October 18, 1974 , instead of December 18, 1974, as found by the Administrative Law Judge. DECISION STATEMENT OF THE CASE IRVING RoGOSIN, Administrative Law Judge: The com- plaint, issued October 31, 1974, as amended at the hearing upon prior notice, alleges that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Specifically, the complaint, as amended, alleges that Re- spondent (1) on May 20 and 23, 1974, threatened to dis- charge William R. Tolley because he had engaged in union or other concerted activities; (2) on various dates between April 17 and May 15, 1974, engaged in various acts of discrimination against said Tolley because of his union or other concerted activities; and (3) on or about May 31, 1974, discharged said Tolley and Peter Vereschzagin and, on or about October 8, 1974, discharged or refused to reemploy Guisto Horn, and refused to reinstate any of said employees because of their union or other protected con- certed activities, thereby discriminating in regard to their hire and tenure of employment, in violation of Section 8(a)(3), and interfering with, restraining, or coercing em- ployees in the exercise of rights guaranteed in Section 7, thereby violating Section 8(a)(1) of the Act.' Respondent's answer admits the procedural and jurisdic- tional allegations of the complaint but denies generally and specifically the substantive allegations and the commission of any unfair labor practices. The allegations of the amend- ment to the complaint, made at the outset of the hearing, have been deemed to be denied. Pursuant to due notice, a hearing was held before me on January 29, 30, and 31, and February 5, 6, and 7, 1975, at Sacramento, California. All parties were represented by counsel, were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. The parties waived oral argu- ment but, pursuant to leave duly granted, filed briefs on March 7, 1975. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case and, based upon the appearance and demeanor of the witnesses, and the briefs ' Designations herein are as follows- The General Counsel, unless other- wise stated or required by the context, his representative at the hearing: Newton Cope, Lawrence "Larry" Cope, and Carl E. Cope, copartners d/b/a Firehouse Restaurant, herein collectively, Respondent or the Em- ployer; Sacramento Local Joint Executive Board of Culinary Workers, Bar- tenders and Hotel Service Workers, AFL-CIO, the Charging Party or the Union; the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S C. Sec. 151, el seq ), the Act ; the National Labor Relations Board , the Board. The original charge was filed and served on August 19, 1974; the first amended charge, on November 21, 1974 Unless otherwise stated, all events occurred in 1974 220 NLRB No. 135 FIREHOUSE RESTAURANT of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and it is hereby found that, at all times material herein, Newton Cope, Larry Cope, and Carl Cope, copartners d/b/a Fire- house Restaurant, with its place of business in Sacramento, California, have been engaged in the operation of a restau- rant selling food, liquors, and wines, and rendering services at retail to the general public. During the year preceding issuance of the complaint, in the conduct of its business, Respondent has sold such products and rendered services valued in excess of $500,000. During the same period, Respondent has pur- chased and received such products valued in excess of $5,000 directly or indirectly from suppliers located outside the State of California. The complaint further alleges , Respondent's answer ad- mits, and it is hereby found that, at all times material here- in, Respondent has been an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Sacramento Local Joint Executive Board of Culinary Workers, Bartenders and Hotel Service Workers, AFL- CIO, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Since about 1960, when Respondent opened its restau- rant to the public, it has voluntarily recognized and been a party to a collective-bargaining agreement with the Union, covering employees of Respondent . The current union-se- curity contract covers the term from June 1, 1970, to May 31, 1975, automatically renewable in the absence of speci- fied notice, and subject to wage reopenings . This contro- versy arises out of the application of the following provi- sions of the contract: Section 8 . MEALS: r s ► s (b) Any employee working a six (6) hour shift shall receive two (2) hot or cold meals of food comparable to that served to the customers. (c) Any employee working a shorter shift shall receive one (1) hot or cold meal of food comparable to that served to the customers. (d) Where one or more hot or cold meals are required to be furnished, pursuant to this Section, and the Em- 819 ployer fails to furnish such meal, or meals, he shall pay the employee eighty-five cents (85¢) for each meal not furnished. (e) An employee working a full shift shall be given an opportunity to eat his second meal within not less than three (3) or more than five (5) hours from the com- mencement of the shift. The minimum wage scales and working conditions relat- ing to waiters contained in the contract provide: Any shift over 6 hours shall receive the 8 hour scale. Any shift over 4 hours shall receive the 6 hour scale. The General Counsel contends that the efforts of the waiters, primarily William Tolley and, to a lesser extent, Peter Vereschzagin and Guisto "Gus" Horn, to enforce the meal provisions, provoked Respondent to retaliate against Tolley, and subsequently discharge all three employees. B. Discrimination in Regard to Hire and Tenure of Employment; Interference, Restraint, and Coercion 1. The discharges of Tolley and Vereschzagin Early in March, waiters at Respondent's restaurant com- plained to the Union that they had not been consistently served the second meal required under the contract. The first meal, a "sit-down" meal, was usually served the wait- ers sometime between 5 p.m. and the commencement of their shift at 6 o'clock. The second meal was due to be served toward the close of the shift, sometime between 10:30 p.m. and midnight, depending on when the waiters had finished serving their last customer. According to Re- spondent, food was always available to the waiters on their shift, and employees helped themselves whenever they wished. Whether or not this constituted compliance with the second meal requirement of the contract, it is evident that food was supplied to the waiters in addition to the regular first meal. Tolley, himself, conceded that the chef served him a slice of prime rib of beef about once a week, and the broiler cook testified, without contradiction, that he served Tolley a prime rib sandwich about 10:30 p.m. three or four times a week. Nevertheless, when the union representatives complained to Larry Cope, he agreed that the waiters would be served a second meal, and this was done commencing March 11. Early in April, the waiters again complained to the Union, this time about the poor quality of the meals and the lack of variety, claiming that they were being served the same meal twice a day. Secretary-Treasurer Ralph Blay- lock discussed the complaints with Larry Cope. According to the Union's minutes of a grievance meeting, subsequent- ly held on May 23, later mentioned, Respondent took steps to remedy the situation. On or about April 18, Larry Cope assigned Tolley to work a 4-hour shift, from 7 p.m. to 11 p .m., instead of the regular 6-hour shift, at the 6-hour wage scale, and compen- sated him 85 cents in lieu of the meal, ostensibly because of Tolley's dissatisfaction with the food. It may be reasonably inferred that the reduction of Tolley's hours of work would probably have resulted in a corresponding loss of tips. Ac- 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Tolley, he was informed that the change had been made because business was slow . Newton Cope testi- fied that the change was made because Tolley appeared tired and the change was made for his benefit . Larry Cope, however, testified that he assumed that the change was made because of Tolley's dissatisfaction with the second meal, and so that Respondent could pay him in cash in lieu of the meal . Between March and May, Tolley was the only waiter who worked the 4-hour shift and was paid cash in lieu of meals. On Friday, April 19, Tolley complained to the Union about the change in his work shift. Tolley told Blaylock that Larry Cope had advised him to take the mat- ter up with the Union. Blaylock agreed to look into it. That night, April 19, while Tolley was on the 4-hour shift, Larry Cope assigned Horn to take over one of Tolley's tables. Presumably, this incident was offered as an example of Respondent's reprisals against Tolley because of his protests concerning the second meal issue . The rec- ord discloses, however, that a party had been seated at one of the tables at Tolley's station shortly after 10 o'clock and that Larry Cope had asked the hostess why she had seated a party at Tolley's station at that late hour since he would not have been able to finish serving the guests by 11, Tolley's quitting time. The evidence does not support a finding that Cope assigned Horn to wait on one of Tolley's tables on this occasion as an act of retaliation. When Tolley arrived at work on April 23, he discovered that Greg Hernandez , another waiter, had taken over his station, which was considered more desirable . Tolley ques- tioned Larry Cope about this in Vereschzagin's presence. Cope told Tolley that he and Hernandez were to exchange stations. Although there is no seniority provision in the collective-bargaining agreement, as a matter of policy, waiters were assigned to stations according to their prefer- ence based on seniority . Larry Cope later told Vereschza- gin that, in view of his seniority, he should have been of- fered Tolley's station before it was offered to Hernandez, and asked him if he wanted to be assigned to that station. Vereschzagin asked Cope why, he was making this change, and Cope said that Tolley would be quitting in the very near future. Vereschzagin declined the station. Following the discussion, Cope told Tolley that he hated to "eat crow," but that, beginning next day, Tolley would be restored to his 6-hour shift, and served one meal and paid for the other. During the conversation , Cope asked Tolley why he did not quit if he was dissatisfied . Tolley told him that he needed the job, was satisfied with it, and had no intention of quitting. Cope instructed Tolley to per- form certain chores after he had finished serving the last of his guests, including "set[ting] up the whole dining-room," and when he had finished that, folding napkins in the backroom until quitting time at midnight . Cope also told Tolley that he would prefer not to have him in his employ because he feared that Tolley would "sabotage his busi- ness." Tolley replied that he would only be hurting himself since he depended on tips for his income rather than his wages. In contrast to the other waiters , who were permitted to take their second meal when they had finished serving their guests, and were permitted to leave work after 4 hours, if they had no more guests to serve , Tolley was re- quired to remain until midnight, performing side duties, such as setting tables , folding napkins, and similar chores. Larry Cope testified that he changed Tolley's station, as well as his hours of work , on the recommendation of Union Representative Blaylock because Respondent was unable to satisfy Tolley's demands regarding the second meal. Cope further explained that Tolley's regular station had been at the entrance to the main dining room. Since Tolley would now be commencing his shift at 7 p.m., the tables at his former station would be unoccupied between 6 o'clock, when the restaurant opened for dinner, and 7 o'clock, Tolley's starting time. This, according to Cope, would create a bad impression upon customers observing the empty tables when they first arrived . He therefore re- moved Tolley from the front of the dining room, replacing him with another waiter, and assigned Tolley to the middle of the dining room. Tolley was restored to his full 6-hour shift and provided with two meals as of May 1. In Newton Cope's view , since Tolley was insistent upon following the union contract , it was decided to adhere to the letter of the contract with regard to the length of the shift and the second meal. Larry Cope, however, main- tained that, since Tolley had been restored to the 6-hour shift upon the Union's recommendation , the Employer felt justified in requiring him to remain for the full length of the shift. After he was restored to the 6-hour shift, Tolley continued to work at Hernandez' former station , but was permitted to leave work after serving his last party instead of being required to remain on the premises until midnight. No explanation was offered as to why Tolley was not re- turned to his former station. During this same period , in a conversation with Carl and Larry Cope concerning the second meal problem, Carl asked Vereschzagin why he did not quit if he was dissatis- fied. Larry accused Vereschzagin of creating problems where none existed. Several days later, Vereschzagin noti- fied Larry Cope that he was giving him a week's notice of his intention to quit. In the next few days, however, Carl Cope told Vereschzagin that he did not want him to leave. Vereschzagin indicated that, if the problem concerning the second meal could be resolved , he might be willing to stay. Soon afterward, Vereschzagin told the chef that the em- ployees did not enjoy their late meal and that some would prefer to prepare their own sandwiches if the chef would leave the necessary fixings in the refrigerator . The chef agreed. Next day, which would have presumably been Vereschzagin's last day of his notice to quit , Larry Cope, referring to the notice, told Vereschzagin that he thought the two of them had always gotten along well, and re- marked that he had never treated him unfairly. Vereschza- gin told Cope that he disapproved of the way Tolley had been treated, and said that he felt that he, Vereschzagin, had been as much involved as Tolley. Cope replied that Tolley was "the man out front-that he was easier to see." Cope asked Vereschzagin whether he actually intended to leave. Vereschzagin said he wanted to stay , and told Cope of the suggestion he had made to the chef regarding the sandwich meal. Cope consented to the arrangement. About a week after Tolley had returned to his full 6-hour shift, Tolley was having a sandwich and soft drink in the kitchen at about 11 :15 p.m. Larry Cope came into the FIREHOUSE RESTAURANT kitchen, and asked Tolley if the parties he had been serving had left. When Tolley answered that they had, Cope asked him whether he had clocked out. Tolley replied that he had not, and Cope told him to do so because he did-not want him eating on the Employer's time. Tolley clocked out and left. Several days later, while both men were in the kitchen, Vereschzagin told Tolley that Carl and Larry Cope had agreed to Vereschzagin's suggestion of sandwiches for the waiters' second meal, so that they could have their meal after work before leaving for home . A few nights later, Larry Cope came upon Tolley in the kitchen while he was having a sandwich. Again, Cope asked Tolley whether he had clocked out first. Tolley told him that he had not, and asked Cope whether he could go home. Cope told him to clock out and leave. As Tolley clocked out and prepared to leave, Cope turned to him and asked, "Why do you keep trying to [obscenity deleted] me?" Tolley replied, "Well, Mr. Cope, you have been [obscenity deleted] me for years!" With that, Cope retorted, "Well, maybe I can get you back on that six-hour shift," implying that Tolley would be required to remain on duty for the entire dura- tion of the shift. Cope told him that he was going on a trip, but was leaving a note with the hostess that Tolley was to go back to work on the full 6-hour shift. Next day, Tolley confirmed this with the hostess, who told him that Larry Cope had also left instructions that, after Tolley finished with his customers, he was to polish glasses and silver and fold napkins until it was time for him to clock out at mid- night. About this time, five waiters, including the three alleged discriminatees, decided to retain Attorney Phil Hiroshima to file a lawsuit to collect for the second meal which they claimed they had not been receiving, as well as to seek improvement in the quality of the second meal. On or about May 8, each of the five waiters contributed $ 100, for a total of $500, towards Hiroshima's fee. On the night of May 20, after working until midnight, Tolley clocked out and went to look for his meal. When he found nothing, Tolley went to the bar and told Carl Cope that he had clocked out but had been unable to find any- thing to eat. With that, Cope remarked that he was "getting tired of this [obscenity deleted]". Tolley replied in kind. Thereupon, Cope told Tolley, "Take a hike-or get lost. Take a vacation." Tolley bade Cope goodnight and said that he would see him next day. To the extent that this is alleged to constitute a threat of discharge, it is evident that Cope did not so intend it but rather that it was a manifesta- tion of his momentary irritation. Moreover, in view of Tolley's response, it is obvious that he did not take the remark seriously. When Tolley reported for work on May 22, the hostess informed him that two union officials were in the office. Tolley asked the hostess where she had been the day be- fore. She told him that she had been ill and that her doctor had diagnosed her condition as food poisoning, which she believed she had contracted at the restaurant. Tolley went into the office where he found Union Repre- sentatives Blaylock and Dulaney with Carl and Larry Cope. Tolley asked whether there were any complaints about his service to patrons. Carl Cope said, "No-but we 821 have complaints." Asked the nature of the complaints, Carl Cope told him that "under the circumstances, they didn't want me working in the Firehouse anymore. That they wanted me either to take a leave of absence, or to take a vacation; or, he says, `What I would really like to do, is to get nd of you . . . I would like to fire you, right now.' " Tolley suggested that since he and his wife had a vacation due, he would like to take a vacation. Larry Cope told him that he did not want him working at the restaurant because he feared that Tolley might do something to hurt business. Blaylock, however, told Carl Cope that he could not dis- charge Tolley because he had done nothing to warrant such action. Although the union contract contained no provision for a grievance or arbitration procedure, Blaylock proposed that a grievance meeting be held, and a meeting was sched- uled for the following afternoon, May 23, at the union hall. Attending this meeting, in addition to the three alleged dis- cnminatees, were Carl and Larry Cope, the bookkeeper, the union officials, and some dozen representatives of the Local Joint Executive Board. After the formalities, Tolley voiced his protest against the Restaurant for failing to fur- nish the waiters their second meal in the past, and demand- ed compensation. Reading from a statement he had pre- pared, he complained about the poor quality of the second meal, which had been served since March 1974, citing spe- cific instances of the type of food that had been served, and characterizing the food by a vulgar epithet, a step from garbage and a source of food poisoning. Contrary to Tolley's testimony, it is improbable that Larry Cope con- ceded that what Tolley had said was basically true, consid- ering Cope's contention that the food served the waiters, as well as the customers, was generally of superior, if not gourmet, quality. Tolley admitted, on the other hand, that Cope had stated that it was virtually impossible to please Tolley. Cope expressed understandable resentment at the mention of food poisoning in connection with the food at the Firehouse Restaurant. Larry Cope told Tolley that he had learned from a for- mer hostess at the Restaurant that Tolley had attempted to persuade her to testify on his behalf in a suit against the restaurant. Tolley responded by asking Cope whether he had been served with any formal papers, and Cope ac- knowledged that he had not. With that, Carl Cope inter- jected, "We want this man out. I would like to fire him right now." Larry Cope then asked Tolley why he did not quit if he did not like his job. Tolley said that he was happy in his job and had no intention of quitting. Vereschzagin and Horn, as well as another employee who had joined in retaining the attorney, also protested the previous lack of a second meal and the inferior quality of the second meal after Respondent began to supply it. During this meeting, according to Vereschzagin's uncontradicted testimony, Carl Cope stated that he understood that the purpose of the meeting had been to authorize management to dis- charge Tolley, that he wanted to "fire Tolley so bad, he could taste it," and that he would do so sooner or later. Failing to resolve the meal controversy, it was agreed, despite the absence of such procedure in the union con- tract, to refer the matter to binding arbitration. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Late in May,2 Attorney Hiroshima telephoned Larry Cope and notified him that the waiters, specifically naming Tolley and Vereschzagin, were making a claim against the Firehouse for failing to provide second meals to the waiters in the past, and were complaining about the quality of the second meal which was then being served. When Hiroshi- ma threatened to file a lawsuit against the restaurant, Cope made no response but referred the matter to his attorney. The Cope brothers thereupon decided to terminate the em- ployment of Tolley and Vereschzagin. On May 31, Tolley arrived at work shortly after 5 o'clock and performed his usual chores before having his dinner. About 6 o'clock, while he was in the backroom folding napkins, Larry Cope informed Tolley that he would be taking care of a special banquet in the patio courtyard for a party of 20 about 8 o'clock that night. Tol- ley made the necessary preparations, complying with Larry Cope's instructions concerning the setting of the table. While waiting for the arrival of the party, Cope directed Tolley to carry some hot plates to Wine Cellar Room No. 2, and then asked him to assist in the serving of the dinner. Tolley said that if he were to assist in serving in the wine cellar he would expect to share in the tips. Cope told him that that was the waiters' concern with which management was not involved. Afterwards, Larry Cope told Tolley to return to his station in the courtyard. About 10 o'clock, Cope notified Tolley that the party had been canceled and directed him to clear the table. It was by then nearly 11 o'clock and Larry ordered Tolley to finish his shift folding napkins. While Tolley was perform- ing this task, Larry asked him, "Well, how does it feel?- You are going to be going home without any money in your pocket, at all." Tolley disagreed, mentioning that since he had helped wait on the party downstairs in Wine Cellar No. 2, he was entitled to a tip. Cope reiterated that that was not his concern. Asked at the hearing whether he had made the remark attributed to him by Tolley, Cope said he did not recall making such a remark. Since this does not constitute a denial, and it is unlikely that Cope would have forgotten such a remark, it is found that he made the statement substantially as testified to by Tolley. This remark, however, is not, in itself, sufficient to support the apparent contention that the "phantom" banquet party had been a sham, deliberately conceived to victimize Tol- ley. Although Tolley testified that he learned from the hostess that no printed menu for the party had been placed in the reservation book, and from the chef, that he had been unaware of any menu for that party,3 entries in the original reservation book, which appeared to be completely authentic, showing the name of the person making the res- ervation, the time, the entree and dessert, support Respondent's contention that a bona fide reservation had been made for the banquet party, which was subsequently canceled because of an illness of a member of that party. 2 There is some confusion in the record as to whether this occurred on or about May 21 or May 31. According to an affidavit of Larry Cope, prepared with the assistance of his attorney , the incident occurred on May 21. Other testimony indicates that it occurred on May 31. 3 According to Larry Cope, the menu for a party of this size comprised a single entree, usually prime nb of beef , which was customarily kept on hand in abundant quantities, so that no special menu would have been prepared or been necessary. The preponderance of the credible evidence does not sup- port a finding that Respondent conceived and executed such an elaborate scheme to retaliate against Tolley for his concerted activity in attempting to enforce the meal provi- sions of the union contract. Later the same evening, while Vereschzagin and Cope were smoking, Tolley asked Cope if he, too, could smoke. Cope refused him permission. Tolley asked whether this policy merely applied to him or whether it was applicable to the entire crew, in which case, he suggested that a notice should be posted on the bulletin board. Cope expressed indignation at Tolley for telling him how to run his busi- ness. That night, as Vereschzagin was leaving the Restaurant, Larry Cope stopped him, and asked him whether-he was happy in his job. Vereschzagin replied that generally speak- ing he was. Cope remarked, "Well, either you are happy, or you are not!" Vereschzagin replied that, while he liked working there, he thought conditions could be improved. Cope retorted, "Then you're not happy . . . why don't you quit?" "Well, why don't you get out the door, and go on?" According to Vereschzagin, Cope told him that he felt "harassed" (probably resentful might be more apt) because his employees had retained an attorney to file suit against him; that he could not have anyone in his employ who was suing him, but that if the waiters lost the lawsuit he could return to his job. On the other hand, if they prevailed, he told Vereschzagin, he assumed that he would not wish to work at the Restaurant. Vereschzagin was thereupon termi- nated on May 31, 1974. About midnight, the same night, after Tolley completed his shift, Larry Cope asked him why he did not quit if he was unhappy with his job. Tolley said that he was not un- happy, and had no intention of quitting. Cope then told him that he was laying him off because he could not have anyone working for him that was suing him. Cope further stated to Tolley that he felt harassed by the mere fact that Tolley showed up for work but that, when the suit was resolved, Tolley could return to work. Tolley was there- upon terminated. On June 7, pursuant to the understanding reached at the grievance meeting on May 23, the parties executed a sub- mission agreement for arbitration . When the parties met before the arbitrator on August 15, the Union insisted that the discharges of Tolley and Vereschzagin be decided in the same proceeding. Respondent demurred on the ground that the discharges were not covered in the submission agreement, and the arbitrator had no jurisdiction to decide the issue of the discharges. The arbitrator apparently agreed with Respondent, and the arbitration was aban- doned. 2. Conclusions Regarding the Discharges of Tolley and Vereschzagin and the alleged acts of interference, restraint, and coercion It can scarcely be doubted that Tolley, Vereschzagin, and Horn were engaged in protected concerted activities in attempting to enforce the meal provisions of the collective- bargaining agreement. Although Respondent contends that, in protesting Respondent's failure to provide a second FIREHOUSE RESTAURANT meal, as well as the quality of the food after it began to provide that meal, Tolley was acting merely on his own behalf, and solely out of self-interest , the record clearly establishes that he was seeking enforcement of the contract provision on behalf of his fellow-employees, as well as him- self, and that they all made common cause over this issue. Moreover, the events which transpired at the grievance meeting on May 23, at which all three employees expressed their views on the meal issue, clearly establish that they were engaged in protected activity for the purpose of mutu- al aid and protection. The fact that this group of employees had retained counsel to vindicate their position does not detract from this conclusion. In so doing, the employees were acting, not in derogation of their exclusive representa- tive, but to enforce the meal provision of the contract, thereby supporting the Union. Moreover, the absence of a grievance and arbitration procedure in the contract ren- dered it all the more feasible for these employees to engage an attorney to vindicate their rights. To this extent, this action was in reality an extension of their right to engage in protected concerted activities . Their action in retaining an attorney did not justify or permit Respondent to discharge these employees on the ground that a threatened lawsuit rendered it untenable for Respondent to retain these em- ployees while the controversy remained unresolved. Since these employees were engaged in protected concerted ac- tivities, it was impermissible for Respondent to discharge them for that reason. This conclusion is unaffected by whether the claim of these employees was meritorious or was lacking in merit. It may be argued that Respondent discharged these em- ployees because of the defamatory and disparaging man- ner in which they described the food at the grievance meet- ing rather than because of their. attempt to enforce the meal provision of the contract. Respondent made it abun- dantly clear, however, both at the time of the discharges and at the hearing, that the reason for the discharges was that the employees had retained an attorney to file a law- suit against it. The conduct in which Respondent engaged toward Tol- ley, after he embarked on his campaign to enforce the meal provision of the contract, gives every indication of retalia- tion. Except in the instances in which it has been found that the conduct did not amount to reprisals, the record justifies the conclusion that Respondent reduced his hours of work from a 6-hour shift to 4 hours, compensating him in cash, in lieu of a second meal ; changed his work station; after acceding to the Union's demand that he be restored to the regular 6-hour shift, required him to remain for the duration of the entire shift contrary to the prevailing prac- tice of permitting other waiters to leave after 4 hours, if they had finished serving their customers; required him to clock out before eating his second meal, and to perform side tasks, such as setting tables and folding napkins, after he had completed his regular tasks, until the end of the 6-hour shift at midnight. As to the allegations that Respondent threatened to dis- charge Tolley, apart from the evidence of implied threats, there is abundant evidence that both Carl and Larry Cope urged Tolley, as well as Vereschzagin, to quit and, particu- 823 larly during the May 23 grievance meeting, expressed a desire to be rid of Tolley. The reasons advanced by the Copes for the action taken against Tolley are wholly unconvincing, if not spurious. There is no doubt that the Copes were annoyed and irritat- ed with Tolley. Newton Cope regarded him as unstable, constantly complaining, and never satisfied. This, accord- ing to Newton Cope, was attributable only in part to Tolley's dissatisfaction regarding the meal issue. In any event, it is evident that Respondent's dissatisfaction with Tolley surfaced coincidentally with his protests regarding the meal issue. It is found that, by the acts of retaliation against Tolley, previously found, and by the threats, actual or implied, to discharge him, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a((1) of the Act. As for Vereschzagin, his activity in attempting to secure compliance with the meal provisions contained in the con- tract was only slightly less than Tolley's. Moreover, he openly supported Tolley's efforts, and expressed his disap- proval to Larry Cope of the way in which Tolley had been treated, asserting that he had been as much involved in the meal controversy as Tolley. In addition, Vereschzagin had actively promoted the idea for providing the waiters with sandwiches as their second meal. The record leaves no doubt that Respondent identified Vereschzagin with Tolley in the meal controversy, and resented the activity of both men in the attempted enforcement of the meal privileges. The fact that Respondent endeavored to satisfy the de- mands of these employees, and even agreed to a grievance meeting and arbitration, does not establish the absence of hostility toward these two men. The discharge of these em- ployees on the very same night, about a week after the grievance meeting, ostensibly because they had retained an attorney to prosecute their rights, in furtherance of their concerted activities, constituted discrimination in regard to their hire and tenure of employment for engaging in pro- tected concerted activities for their mutual aid and protec- tion. Despite the long and amicable history of collective bar- gaining between Respondent and the Union, the lack of union animus, Respondent's willingness to participate in a grievance meeting and binding arbitration to resolve the meal issue, even though the collective-bargaining agree- ment made no provision for such procedure, and finally, the existence of a presumptively valid union-security provi- sion, which would tend to negate a finding that Respondent's acts discouraged or encouraged or had the foreseeable effect of discouraging or encouraging member- ship in a labor organization, it is evident here that the ac- tions in which Respondent engaged are inherently discrim- inatory-or destructive of the employees' right to engage in concerted activities. It is, therefore, found that, by the conduct previously detailed, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. N L R B v Erie Resistor Corp, 373 U.S. 221 (1963), N L R B v. Great Dane Trailers, Inc., 388 U S 26 (1967). 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharge of Gus Horn Guisto "Gus" Horn, a 69-year-old waiter, had been highly regarded by the Copes. In fact, he had been deemed to lend an aura of distinction to the restaurant. Although he had joined with the other two waiters who had retained the attorney, and had attended and participated in the grievance meeting of May 23 , he was not discharged with the others. In fact, Respondent took no action against him until after he returned from what Respondent considered an unauthorized extended vacation. Under the terms of the union contract, employees were entitled to I week's paid vacation after a year of employ- ment; 2 weeks after 2 years; and 3 weeks after 10 years. Employees were also entitled to an additional week's vaca- tion, without pay, immediately following the paid vacation, provided arrangements were made with the Employer in advance. It was the policy at the restaurant for employees to sign up about 4 months in advance of their intended vacations. Horn put in his bid for the period from August 3 to October 8, informing Ann Preston, the hostess who, according to Horn, had authority to approve the vacation schedule, that he was taking a trip to Europe after 41 years to visit his family and relatives. She approved enthusiasti- cally. In addition, both Carl and Larry Cope were in- formed that Horn was taking the trip to Europe and wished him a pleasant vacation . Larry Cope himself testi- fied that he told Horn he would be happy to take him back when he returned. Although Horn testified that he had al- ways taken a vacation of a month to 5 weeks , payroll rec- ords established that between 1968 and 1973, Horn's long- est vacation was I month in 1973. Horn returned from his trip on September 25 and called the Restaurant to notify the hostess that he was ready to return to work. She told him that Larry Cope wanted to talk to him, and would call him when he had an opening because he would have to rearrange the schedule. Horn did not hear from Cope and on or about October 9 called the Restaurant and again talked to the hostess. She repeated that Larry Cope would call him when there was an open- ing. Eventually, Horn reached Larry Cope who told him that there was no opening at the time and that he would call Horn when one became available. Horn then told Cope that he would apply for unemployment compensa- tion. When he did so, he was refused compensation alleg- edly on the ground that the Employer had reported that he had not proceeded through proper channels to obtain his extended vacation. Horn then accepted employment at another restaurant and, on or about December 5, received a telephone call from Larry Cope, who told him that he wanted him to report for work the following evening at 6 o'clock. Horn explained that he was working and would have to give no- tice to his employer but that he could report for work the following Monday. Cope told him that if he did not report the following night he would notify the Union that Horn had refused to return to work. Next day, Cope called Horn and told him that he could report for work the following Monday at 6 p.m. When Horn reported for work, as direct- ed, he was assigned a station nearest the kitchen , generally regarded as the least desirable station in the Restaurant. According to Carl Cope, the reason he did not rehire Horn sooner was that he had been obliged to hire a waiter to replace Horn during his extended vacation, and there was no opening when Horn returned. The record suggests that Respondent intended to keep his job open for him, using a substitute in his absence . Apparently, Respondent decided against dismissing Horn's replacement and, rely- ing on the position that there was no vacancy, declined to reinstate Horn until a vacancy occurred. Respondent's rec- ords, however, reveal that three waiters were terminated during the month of October, thereby creating openings which Horn could have filled. With regard to the station assigned to Horn upon his return, Larry Cope claimed that the assignment was made out of consideration for Horn, because the station was closer to the kitchen, and he would not have been obliged to carry his trays as far. Horn had previously been offered more desirable stations, which were further away from the kitchen, but had declined them because it would have ren- dered his job more strenuous. On December 18, 1974, Horn was discharged, under cir- cumstances presently discussed. In November 1973, Hiroshima, the attorney whom the three waiters had retained, had dinner at the Restaurant with two guests, one of whom was V. R. Wiggins. The following May, presumably after the waiters retained Hiro- shima, they informed him that the waiters had been served contaminated or adulterated food, unfit for human con- sumption. Tolley and Vereschzagin informed Hiroshima that they had seen Larry Cope retrieving meat and bones from garbage receptacles, and depositing them in the stock pot from which gravies and sauces were concocted. Tolley admitted on cross-examination that he had no way of knowing whether the food served Hiroshima and his party had been contaminated. On August 6, Hiroshima telephoned one of the owners,5 and demanded $10,000 in settlement of Wiggins' claim that he had been served contaminated or adulterated food. On August 19, a civil action was filed on Wiggins' behalf claiming damages of $500,000. At the instigation of the waiters, Tolley, in particular, the suit was publicized in the Sacramento and San Francisco newspapers with attendant adverse publicity to the Restaurant. On December 18, the three waiters gave a deposition before trial in the action instituted by Attorney Hiroshima on behalf of Wiggins. The Copes were present during the taking of these depositions, and heard the waiters give grossly disparaging testimony against the Restaurant con- cerning the serving of contaminated or adulterated food. Although these employees corroborated each other on this subject, Respondent and its witnesses vehemently denied these accusations at the hearing in the instant proceeding. It is unnecessary for the purpose of this proceeding to de- cide whether these charges had any factual basis. The evi- dence is relevant solely for the purpose of deciding Respondent's actual motivation in terminating Horn, and for such bearing as it may have on the issue of reinstate- ment of the others. Following the deposition, Larry Cope 5 There is some confusion as to whether the call was made to Larry or Carl Cope FIREHOUSE RESTAURANT 825 called Horn and told him, "Of course, you know you're fired." Horn responded, "I know." It came as no surprise to Horn that he was terminated after giving his deposition in the Wiggins' case. Horn testi- fied that he had expected to be fired, though he placed his discharge on the ground that the Employer had rehired him'upon return from his vacation reluctantly and only under pressure. In his deposition in the Wiggins' case, Horn testified disparagingly regarding the quality of the food served in the restaurant, with frequent allusions to the food as adulterated or contaminated and a cause of food poisoning. He admitted personal dislike of Larry Cope as an employer. As for himself, he stated in his deposition that he intended to get what was coming to him, even though he had admittedly taken no meals at the Restaurant for 3 years, preferring to have his dinner meal with his wife at home. Nevertheless, he claimed that the quality of the food was bad and that he was tired of it. He conceded that he was unhappy about not having been recalled on his return from vacation, as well as with his working condi- tions and change of station when he was eventually re- hired. The issue, however, remains whether Respondent dis- charged Horn on December 18 because he had engaged in protected concerted activities with his fellow employees or because of the disparaging testimony he had given against his employer in the deposition. Although Horn had made common cause with Tolley and Vereschzagin in attempting to obtain compliance with the meal provisions of the union contract,,he was the least aggressive of the group . Never- theless, Respondent was aware of his participation in the concerted activity, at least as of the May 23 grievance meeting, and was aware that he had joined with the others in retaining an attorney . That Respondent made no effort to discharge Horn on May 31, as it had the other two wait- ers, may be some indication of lack of unlawful motivation with regard to him. Conceivably, Respondent may have regarded Horn as the least militant of the group, hence no threat to Respondent. Respondent's failure to restore Horn , upon his return from vacation, to his former position until December 9, despite three intervening terminations , seriously impugns Respondent's motives. This action, however, is insufficient to establish that Horn's discharge on December 18 was discriminatorily motivated. Horn's testimony, as well as that of his two fellow employees , at the deposition that day manifested an attitude of flagrant disloyalty, wholly in- commensurate with their grievances against their employ- er, culminating in blatant disparagement of the food served Respondent's cusomers, publicized in the press at the insti- gation of Tolley and the other waiters for the avowed pur- pose of doing harm to Respondent 's business. We are not concerned with whether the charges made by these em- ployees regarding the quality of the food being served pa- trons were true or false . The right to engage in union or concerted activities does not justify an employee in mali- ciously disparaging his employer's product or undermining his reputation. It is, therefore, found that Respondent discharged Horn on December 18 for disparaging the food served in Respondent's Restaurant and defaming its reputation with the avowed purpose of causing harm to Respondent's busi- ness, and not to discriminate in regard to the hire and ten- ure of Horn's employment because he had engaged in pro- tected concerted activities. By its failure, however, to restore Horn to the job previously held by him, from about October 8, when he applied to return to work after his vacation, until December 9, Respondent has discriminated in regard to his hire and tenure of employment, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Re- spondent, described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and 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 unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has engaged in certain retaliatory conduct against William R. Tolley, including changes in his work schedule, and work stations, threats of discharge, and other changes in his working conditions, because he had engaged in protected concerted activities. It has also been found that Respondent discharged, and thereafter failed and refused to reinstate, said Tolley and Peter Veres- chzagin, on May 31, 1974, because they had engaged in protected concerted activities. Ordinarily, it would be rec- ommended that they be reinstated to their former or sub- stantially equivalent positions with backpay. Since, howev- er, all three employees engaged in egregious conduct toward their employer by disparaging the quality of the food served in Respondent's Restaurant, and aiding and abetting in publicizing this information in the press, it will not be recommended that they be reinstated to their for- mer or substantially equivalent positions .6 It will, however, be recommended that Respondent make said Tolley and Vereschzagin whole for any loss of earnings they may have sustained by payment to each of them of the sum of money they would have earned from May 31, the date of the dis- crimination against them, to December 18, 1974, less their net earnings during such period, together with interest thereon at the rate of 6 percent per annum, in accordance with the formula established in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will further be recommended that Respondent also make Tolley whole for any loss of earn- ings he may have sustained during the period between April 18 and May 1, 1974, while he was assigned to work 6 Cf. N LR.B v. Local Union No 1229, IBEW [Jefferson Standard Broad- casting Company], 346 U.S. 464 (1953). 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only 4 hours of the regular 6-hour shift. As to Horn, it will be recommended that he be made whole for any loss of earnings he may have sustained by payment to him of the sum of money he would have earned from October 8, the date on which he notified Respondent he was available for work, after returning from vacation, until December 9, 1974, when he was restored to his job, less his net earnings during such period, together with interest as above provid- ed, and in accordance with the Board's usual formula. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Newton Cope, Lawrence Cope, and Carl Cope, co- partners doing business as Firehouse Restaurant , Respon- dent herein, 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. 2. Sacramento Local Joint Executive Board of Culinary Workers, Bartenders and Hotel Service Workers, AFL- CIO, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By the acts of retaliation against Tolley, previously found, and by the threats, actual or implied, to discharge him because he had engaged in concerted activities, Re- spondent has interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed in Section 7, thereby engaging in unfair labor practices within the mean- ing of Section 8(a)(l) of the Act. 4. By discharging William Tolley and Peter Vereschza- gin on May 31, 1974, and by failing and refusing to rein- state Guisto Horn from October 8 to December 9, 1974, because said employees had engaged in concerted activities for their mutual aid and protection, thereby discriminating in regard to their hire and tenure of employment to dis- courage membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3), thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER7 Respondent, Newton Cope, Lawrence Cope, and Carl 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Cope, copartners doing business as Firehouse Restaurant, Sacramento, California, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Reducing the hours of work, changing the work sta- tions or work shifts of employees or requiring them to per- form work tasks not normally or regularly performed by employees, requiring them to clock out before eating their second meal, or engaging in any other acts of reprisal or retaliation because they have engaged in concerted activi- ties for their mutual aid or protection. (b) Discharging or otherwise discriminating in regard to the hire and tenure of employees for engaging in protected concerted activities for their mutual aid and protection in violation of Section 8(a)(1) and (3) of the Act. (c) In any manner interfering with, restraining, or coerc- ing their employees in the exercise of the right to self-orga- nization, to form labor organizations, to joint or assist Sac- ramento Local Joint Executive Board of Culinary Workers, Bartenders and Hotel Service Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other protected concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which, it is found, will effectuate the policies of the Act: (a) Make William Tolley, Peter Vereschzagin, and Guis- to Horn whole for any loss of earnings each may have suffered by reason of Respondent's unfair labor practices in the manner set forth in the section entitled, "The Reme- dy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze and determine the amount of backpay due the employees under the terms of this recommended Order. (c) Post at its place of business in Sacramento, Califor- nia, copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted 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 cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. 8In the event that the Board's 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." FIREHOUSE RESTAURANT IT IS FURTHER ORDERED that the allegations not found to have been sustained , be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Sacramento Local Joint Executive Board of Culinary Workers, Bartenders and Hotel Service Workers, AFL-CIO, or any other labor organization of our employees , by dis- charging or otherwise discriminating in regard to the hire or tenure or terms or conditions of employment of our employees because they have engaged in protected concerted activities, except to the extent authorized by the proviso to Section 8(a)(3) of the Act, as amended. WE WILL NOT change the work schedules and work stations of our employees, threaten them with dis- charge, or change their working conditions because they have engaged in protected and concerted activi- ties. 827 WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the right to self-organiza- tion, to form labor organizations, to join, or assist Sac- ramento Local Joint Executive Board of Culinary Workers, Bartenders and Hotel Service Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of mutual aid or protection, or to refrain from any and all such activities, except to the extent that said right may be affected by an agreement requiring membership in a labor organization, as provided in the proviso to Section 8(a)(3) of the Act. WE WILL make William R. Tolley, Peter Vereschza- gin, and Giusto Horn whole for any loss of earnings they may have sustained by reason of the discrimina- tion against them in the manner set forth in the sec- tion of the Decision entitled "The Remedy." All our employees are free to become and remain, or refrain from becoming or remaining, members of the above-named labor organization or any other labor organi- zation. FIREHOUSE RESTAURANT