Candlestick Waterfront Restaurant Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specialty Restaurants Corporation d/b/a Candlestick Waterfront Restaurant Corporation d/b/a Spider Healys and Sophie Sutherland and Hotel and Restaurant Employees & Bartenders Union, Local 28, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Case 20-CA- 11314 September 21, 1977 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 9, 1977, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to remand this case to the Administrative Law Judge for credibility determina- tions and the issuance of a Supplemental Decision. In his Decision, the Administrative Law Judge extensively quoted or summarized the testimony of witnesses for the General Counsel and for Respon- dent. However, subsequent to the recitation of this testimony, much of it conflicting with respect to material issues, the Administrative Law Judge failed to make the appropriate findings of fact or to resolve outstanding conflicts in the testimony through credibility determinations.' As a result, in reviewing the evidence submitted in this case, we are unable at this time to conclude, as did the Administrative Law Judge, that the General Counsel failed to introduce sufficient evidence to warrant a finding that Respondent was discriminato- rily motivated in discharging former employees Small and Atkins.2 On the contrary, if testimony most favorable to the General Counsel is credited, its appears that a prima facie case of discriminatory discharges has been presented, viz, that these employees had been engaged in protected concerted activity prior to their discharge, that Respondent through its supervisors was aware of this activity, and that the timing of and 'In his Decision, the Administrative Law Judge did include a section entitled "Credibility, Discussion, and Conclusions." but a careful reading of this section reveals that no express credibility resolutions are contained therein. 232 NLRB No. 48 other circumstances surrounding the discharges indicates that they were discriminatorily discharged. With respect to the discharge of Frank Atkins, testimony in support of the General Counsel's case indicates that in February 1976 he obtained a supply of union authorization cards, met with Union Agent Henry Mozell several times on Respondent's prem- ises, solicited other employees, and in early March attended a union meeting. Atkins testified that on March 8, 1976, 1 day prior to his discharge, he spoke with Ray Stanfield, who was then an assistant manager of another restaurant owned by Respon- dent. During this conversation Atkins revealed that he was engaged in helping organize a union, and was told by Stanfield that he felt it would be wise on Stanfield's part to report this to his superiors. The next day Atkins either quit or was discharged by Morad Afraimi, the kitchen supervisor. Respondent claims Atkins quit when he was discovered taking food in an unauthorized manner. As evidence given by Atkins and Afraimi is conflicting and because the general reliability of the entire testimony by each is crucial to establishing whether a violation occurred, the Administrative Law Judge, on remand, should state whether he credits the full testimony of Atkins or Afraimi, or to what extent and in what particular part he credits the testimony of one as opposed to the other. With respect to the discharge of Joyce Small, testimony favorable to the allegations in the com- plaint indicates that she met with Union Agent Mozell several times during February on Respon- dent's premises; that Terry Thompson, one of Respondent's general managers, witnessed some of these meetings; that she attended a union meeting and invited other waitresses to attend; and that, on March 17, 1976, a day prior to her discharge, she was seen by Thompson warmly greeting Atkins and Mozell as they entered the restaurant while she was on duty. Small testified that sometime in February 1976 Thompson approached her and told her not to talk about unions, that she received a raise and additional responsibilities less than 3 weeks prior to her discharge, and that some of the alleged reasons for her discharge had been tolerated or previously resolved. Respondent, on the other hand, offered testimony to the effect that Small was dismissed for being rude to customers, and following consideration of past warnings to Small regarding tardiness, lack of proper attire, and the quality of her work, as well as past complaints of rudeness to guests. Therefore, z We view the Administrative Law Judge's general reference to the "opposing evidence" to be insufficient to eclipse the need for credibility determinations regarding conflicts in the testimony. 248 SPECIALTY RESTAURANTS CORP. because the testimony of Small conflicts with evidence offered by Respondent's witnesses and because it is necessary to the resolution of the issue to determine the reliability of all the witnesses, the Administrative Law Judge, on remand, should state whether he credits the testimony in whole, or in what particular part, of Small, Haller, Reynolds, Ottobre, Alexander, Coe, Thompson, and Schoepp. At the hearing the Administrative Law Judge refused to allow the General Counsel to call two witnesses, Bill Reynolds and Henry Mozell. The General Counsel excepts to these rulings, contends that he was thereby denied the opportunity for a fair hearing, and requests that the hearing be reopened in order to admit this evidence. The General Counsel sought to call Bill Reynolds merely to elicit from him testimony regarding the specific date of a customer complaint regarding employee Small. The second witness whose testimony was excluded was Henry Mozell, a union agent. Subsequent to this ruling, the General Counsel submitted an offer of proof, indicating that Mozell was expected to testify regarding Respondent's knowledge of Mozell's iden- tity as a union agent. After a careful examination of the record and the offers of proof submitted by the General Counsel, we are not convinced that the Administrative Law Judge's exclusion of the testimo- ny of Reynolds and Mozell constituted prejudicial error. As we find no merit in these exceptions, we shall not order the hearing reopened for the introduc- tion of this testimony. ORDER It is hereby ordered that this case be remanded to the Administrative Law Judge for the purpose of making credibility determinations regarding the testimony of the witnesses referred to herein. IT IS FURTHER ORDERED that the Administrative Law Judge shall prepare and serve on the parties a Supplemental Decision containing credibility deter- minations, findings of fact,3 conclusions of law, and recommendations to the Board, and that, following service of such Supplemental Decision on the parties, the provisions of Section 102.45 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. 3 In his Decision. we note, the Administrative Law Judge inadvertently misstated the record regarding several undisputed facts. The evidence indicates that the union organizing drive began in September or October 1975, and not February 1976, and that Small first met Mozell in February and not April 1976. He also improperly ascribed to Schoepp certain statements that were, according to Small's testimony, made by Thompson regarding unions. He also incorrectly stated that Atkins admitted making a sandwich to share with another was a violation of company policy. Atkins never testified to this effect. Additionally, he misstated the date the complaint was amended, referring to the dates of the amendments to the charges. and erred regarding the date employee Elizabeth Coe attended a union meeting. DECISION STATEMENT OF THE CASE HENRY S. SAHM, Administrative Law Judge: Upon charges filed by Hotel & Restaurant Employees & Bartenders Union, Local 28, Hotel & Restaurant Employ- ees & Bartenders International Union, AFL-CIO, herein the Union, on April 13, 1976,1 the General Counsel issued a complaint on September 21, amended on April 28 and on August 19, which was heard on February 1 to 3, inclusive. 2 The complaint alleged the discriminatory discharges of two employees because of their union activities which Respon- dent denied, stating they were terminated for infractions of the restaurants' working rules. Upon the entire record, including observation of the demeanor of the witnesses, and after due consideration of briefs filed on March 15. 1977, there are made the following: FINDINGS OF FACT Respondent is a California corporation engaged in the restaurant business in Oakland. Respondent's interstate sales and purchases, respectively, exceed $50,000 annually. Respondent admits by its answer that it is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The aforesaid Union is a labor organization within the meaning of Section 2(5) of the Act. The Testimony of Small and Atkins In February 1976, Local 28 of the Hotel and Restaurant Employees Union, AFL-CIO, the Charging Party in this proceeding, hereinafter referred to as the Union, com- menced an organizational campaign aimed at Respon- dent's employees at "Spider Healys" and "Sophie Suther- land" restaurants. These two restaurants, owned by Respondent, shall be referred to as Spider's and Sophie's. Both are located in the same building in a shopping complex owned by Respondent; Spider's on the first floor and Sophie's on the second floor. The same kitchen is shared by both restaurants and both have a common management. Employees are transferred as needed from one restaurant to another. Spider's and Sophie's have separate cocktail lounges and bars. Joyce Small, one of the two alleged discriminatees, was employed as a receptionist in both restaurants from September 1975 to March 18, 1976. She started at a salary of $3.36 per hour, and received a raise to $3.50 on March 1, 1976, which rate was in effect at the time of her termination. She greeted patrons as they entered the All dates are 1976 unless otherwise indicated. The Union filed a representation petition (20-RC-13475) on April 8. 1976. signed by Union Official Henry Mozell, for an election among the employees of Spider Healys and Sophie Sutherland. the two restaurants involved in this proceeding. A hearing was held by the Board on June 22, 1976, which directed, on July 7, that an election be held on August 4. On July 30. the Regional Director postponed indefinitely the election scheduled for August 4. 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restaurants' premises and seated them at tables. She also took telephone reservations. Frank Atkins, the other alleged discriminatee, during the times relevant in this proceeding, worked as a combined dishwasher and pantryman. Sometime in April 1976, Small was approached by Henry Mozell, a union official, at the restaurant during her shift. He introduced himself as a union official and at his invitation they had lunch together at Sophie's after Small's afternoon shift. During lunch, Mozell talked to Small of the benefits of unionization and asked her to sign a union authorization card. Small continued that during the month of February she had lunch with Mozell on eight occasions in Sophie's. "We had lunch about two more times ... and about two times Mr. Atkins was present. [Also] Henry Mozell had brought some friends with him one time." Small explained that on these occasions when they met "in the cocktail lounge some customers [were] present." Small testified on three occasions when she met with Mozell in the cocktail lounge, Terry Thompson, general manager and her immediate supervisor, walked through the cocktail lounge, and that "he appeared to be, you know, steering toward our way." On another occasion, testified Small, she "was in the entrance of the restaurant, Sophie's, and Henry Mozell and Frank Atkins came in. I hadn't seen them for a while so I went up and hugged them. Terry Thompson was right by the hostess stand. He was just coming down into the entrance of the room and seen us . . . Mr. Thompson was at the hostess stand, about three feet from where I was .... This was on March 17th of '76 .... Because I got fired on March 18th of '76." Later in her testimony concerning this same incident, she stated that Thompson was leaning against the bar as she sat with Mozell and Atkins (the other alleged discriminatee) in the cocktail lounge, and that for a period of "about three minutes" Thompson "stared in my direction." Small further testified that she attended a meeting in the month of February at the Jack London Inn in Oakland and that she signed a union authorization card captioned "Authority for Collective Bargaining" which is dated March 5, 1976. At this March 5 union meeting, Small testified that Atkins and "some of the [Respondent's] cooks" whose names she was unable to recall were present. She added the day before this March 5 union meeting she notified, in Respondent's cocktail lounge, two other employees, Silvia Aragon and Pirko Jackson, about the organizational meeting to be held the next day. At this March 5 meeting, an attempt was made to arrange for another meeting but it appears there was not sufficient employee interest because no other union meeting was ever held. Small next testified to an incident in Sophie's "in February" when she inquired of Rich Schoepp, an assistant manager, "Why wasn't we union. And he said: 'Do you know what the union is and, you know, we don't want to be union.' . . . He came up to me, I had just finished seating a customer and was on my way back to the hostess stand, and [he ] asked me what was this he heard about me talking about union. I said: 'I just asked the question: Why wasn't we union?' And he told me he didn't want to hear any more talk about union." Concerning her discharge, Small testified that on March 18 she was summoned to the restaurant office. There she was confronted by Terry Thompson, Al Stuetzle, and Greg Worrel, all officials of Respondent. Small testified: Worrell said: "Joyce." And he stopped. And Terry Thompson came in and said that he had got a complaint that I was a little sharp tempered with one of the customers and I wasn't getting along with my employees and it seemed like I was working against the restaurant instead of for the restaurant. I sat and listened. And I asked him what did he mean, was I fired? And he said: "Yes." So he wrote my check out and I went upstairs and sat in the cocktail lounge. She denied that any customer had complained about her on the day she was discharged or at any other time during her employment, stating she had never received warnings with respect to her relationship with coworkers. On cross-examination, Small was shown an affidavit given by her to a Board investigator on April 20. She acknowledged that on that date her memory was "fresher" than on February 1, 1977, the date she testified. In this affidavit there is no mention of eight meetings with Mozell, the union official, in either Sophie's or Healys' restaurants during the month of February. Nor is there anything in Small's affidavit about her lunch with Mozell at Sophie's, nor of the incident to which she testified on direct examination that Thompson, the manager, kept "staring" at her. Her affidavit also makes no mention of the incident testified to on direct wherein Atkins, the other alleged discriminatee, met her and Mozell and sat at a table in the restaurant with them. Likewise, Small's direct testimony to the effect that on March 17, the day before she was terminated, she saw Mozell and Atkins enter Sophie's and was so delighted to see them that she "hugged" both of them, and that this was witnessed by Manager Thompson from 3 feet away, is not mentioned in her affidavit. She describes her interest in the Union during February as "very active" and states it culminated in her attendance at a union meeting on March 5 at the Jack London Inn in Oakland. Small admitted that she signed a warning handed to her by Supervisor Richard Schoepp on February 19 which reprimanded her for violations of company rules regarding tardiness and attire. This warning also stated: Please see that this does not happen again. A repetition of the offense, or condition or any infraction of house rules will make it necessary to take appropriate disciplinary action, without further notice, which may result in suspension or discharge. Reference was then made to Small's testimony on direct examination, supra, wherein she stated that she asked Schoepp, an assistant manager, in February, "Why wasn't we union," and he replied that Respondent did not desire to be union whereupon Schoepp, testified Small, later that same day inquired, "What was this he heard about me talking about the union.... And he told me he didn't 250 SPECIALTY RESTAURANTS CORP. want to hear any more talk about union." In her affidavit which she signed on April 20, it reads, in pertinent part, as follows: Sometime in February, I asked Rich Schoepp, another manager, why there was no union. Rich asked, had I ever been in the union. I said "No." Then he just walked away. When she was asked on cross-examination which version was correct, she equivocally insisted, "he also said that we don't want a union." She was shown her "Separation Report" which reads as follows: Rudeness to customers; tardiness and lack of proper uniform at time of warning. Sitting down while on duty. Continues not to greet customers properly. Had complaint on phone about her rudeness. The separation report dated March 18, 1976, was signed by G. Worrel, "immediate supervisor," and Terry Thompson, "Co. representative." Small denied seeing it at the time she was discharged. Nor did she remember that on the day she was discharged customers had complained about her rudeness, or that on the same day these same customers were kept waiting for about an hour before she seated them at a table. She admitted that she did not wear a blouse to be worn with the restaurant uniform supplied her by the Respon- dent, even after being told to do so by her supervisor. She testified that she was so warned on two occasions but that the reason for her not wearing the required blouse was that it was too large. When Assistant Manager Stuetzle brought this to her attention a third time, she complied. When asked if she had been reprimanded by Assistant Manager Schoepp for violations of the Company's no- smoking policy while on duty, she first denied it and then stated she could not remember it. Nor did she recall being warned by Schoepp about being in the bar rather than at her assigned station. She also denied that Schoepp warned her not to borrow money from her coworkers. She also denied Stuetzle ever warned her that, as guests entered the restaurant, she was not greeting them properly. She further denied that Stuetzle had brought customer complaints about her sarcasm toward them to her attention. She did admit that he had warned her "occasionally" not to sit down at the hostess stand located at the entrance to the restaurant. Not only did she deny she was unable to get along well with her fellow employees but, on the contrary, she stated that her relationship with them was fine except with one waitress, but she attributed that argument to her being upset on the day she was terminated. When asked if she was aware that some of the merchants in the shopping complex owned by Respondent, where Spider's and Sophie's also are located, had complained to the management that Small had purchased merchandise at their stores, paid for by her personal checks which "bounced" because of insufficient funds, she disclaimed any such knowledge. Upon futher cross-examination, she admitted that in March one of the stores in Respondent's shopping complex notified her that a check Small had written was returned by her bank. When asked if her check was returned for insufficient funds, her answer was that she did not recall. On redirect examination by the representative of the General Counsel, it was elicited that on three occasions she had received warnings from Stuetzle with respect to her "being out of uniform" and that on the third occasion he gave her an ultimatum. Reference was then made to a supplemental affidavit dated July 13 which Small gave to a Board agent. On recross-examination it was revealed that Small's supple- mental affidavit reads, in part, as follows: I also, after my shift was over, would talk to Mozell in the cocktail lounge on several occasions. I observed that Thompson walked through the cocktail lounge at these times. Mozell would often talk to groups of employees after their shifts were over or would come in with some friends. Frank Atkins, the other alleged discriminatee, was originally hired in August 1975 as a laborer during the construction of the two restaurants, which opened for business sometime between September and November 1975. When the two restaurants opened in September, Atkins was employed as a dishwasher for less than a month, then promoted successively to pantryman and in December to oyster-bar cook. His beginning salary was $3.37 and at the time of his termination on March 9, 1976, it was $3.66. His immediate supervisor was Morad Afraimi, chef and kitchen supervisor, also referred to in the record as "Morry." Atkins met Mozell, an official of the Charging Party Union "in the middle of February" at the oyster bar of Spider Healys. A "couple" of days later, accompanied by Small, they again met Mozell in Sophie's cocktail lounge. According to Atkins, Mozell told him he was interested in organizing Sophie's and Healys and inquired whether he might be interested in this effort. When Atkins indicated his interest, Mozell gave him union literature and six or seven authorization cards. Atkins continued that he later gave "two or three" of the union cards to Respondent's "kitchen" employees, whose names he did not recall. He also attended the union meeting on March 5, at the Jack London Inn in Oakland. Present in addition to Mozell, Small, and himself were "some of the cooks" whom he only knew by their first names. On March 4, Small and Mozell informed various employees of the meeting, but it appears that only some of the cooks attended. Atkins testified that on or about March 8 he met with Ray Stanfield, assistant manager of the Castaways Restau- rant. The Castaways is located in the same shopping center as are Sophie's and Healys, and all three restaurants are owned by Respondent. Atkins had applied to Stanfield for a job as a bartender, as "He had asked me to stop in and talk with him, he might have a part-time job for me." In response to a leading question by the General Counsel as to whether he "had occasion to discuss the Union with Stanfield," Atkins answered he had. Atkins testified that "towards the latter part of the conversation" an assistant manager appeared "in the area" whom he only knows by the name of Roland who inquired "how things were at the 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restaurant. And I told him it was going pretty good. And like when he had been working there as a cook, he had discussed, you know, trying to get the place to go union himself; because he thought it would be a better deal. And he just asked me, how was, you know, if any of the other employees were interested in that. I told him that we had had a meeting and some of the employees had signed pledge cards for the union and were interested in trying to get an election held at the restaurant.. . [I told him] that I was helping to organize the union at the restaurant." After Roland left, Atkins testified, "[Stanfield] told me that being that Roland was a supervisor and that he was new to the position that he was holding as manager of the Castaways, that he felt that it would be wise for him to tell his superiors rather than it coming up later on and, you know, that he had knowledge of union activity at [Sophie's and Healys]; and he told me that he was interested in keeping his job and that he thought he better say something about it." Atkins then testified to his discharge on March 9 by his supervisor, Morad Afraimi, who was chef and kitchen supervisor.3 The circumstance under which this occurred, testified Atkins, was sparked by him making a roast beef sandwich for himself, whereupon Afraimi asked him what he was doing with the sandwich to which Atkins replied that he was "going to eat it. And he [Afraimi] said that I wasn't going to eat it, that I shouldn't have it, and that he was - something about he was going to can me or something. .... I asked him, you know: 'Does that mean I'm fired.' And he said: 'Do you want to quit?' I said: 'No.' And he said: 'Well.' . . . [T]hen he just walked away, you know." When asked by the General Counsel whether he had ever received any warnings about eating roast beef sandwiches, Atkins answered in the negative, stating: "I never had any warnings either way." Atkins stated he had no lunch that day and he was instructed to eat, "Just whenever I had time, whenever it wasn't busy at the oyster bar" where he was told to eat his lunch. On further redirect examination, when asked how often he fixed his own lunch, he answered: "Just about every day." On cross-examination, it was ascertained that Atkins worked 5 days a week from 10 a.m. to 2 p.m. Atkins testified he was told by Afraimi "not to eat at the regular place where the other employees ate but to eat at the oyster bar." He denied that instructions from Afraimi were that employees working a short 4-hour shift had the choice of eating either before or after their shift but never during the shift. He admitted he ate a roast beef sandwich that day while working at the oyster bar which is located in the cocktail lounge, some distance from the kitchen. On further redirect, Atkins located the cooks' front line station, where they prepared and dispensed the food, as being in front of, or parallel to, the kitchen itself and that he left his duty station and walked to the "front line of the cook's station" which is located in another room,4 separate and apart from :' It should be noted that although Atkins placed his discharge as occurring on March 10, it actually occurred on March 9. $ Whether the "front line of the cook's station" is a part of the kitchen is not clear front the transcript, but Atkins admitted on his cross-examination that he was instructed by Afraimi to remain at his work station at the oyster bar "as much as possible; and if I were going to do some kitchen work, to try to do it at the oyster bar." However, on recross-examination, Atkins. the oyster bar. When he arrived there, he prepared a roast beef sandwich for himself. To do this, testified Atkins on cross-examination, required going "into the line" where the cooks are stationed. This is an area from which all the other employees are excluded during the times lunch and dinner are being served. When asked if he made the sandwich for a lady employee, he answered: "No. I made it for myself and offered to share it with a fellow lady employee." He did admit that making the sandwich and then giving it to the lady employee during the lunch hour was a violation of company policy which forbids any employee, including not only supervisors but also the chef, from eating until 2:30 p.m. when luncheon was no longer served to patrons. The employees' menu was posted each day and their meal was to be limited to only those food items listed on it for that day. On the day Atkins prepared his own roast beef sandwich, roast beef was not one of the items on the employees' menu. In reply to Afraimi's reprimand, Atkins denied that he was "taking care of his lady" and accused Afraimi of "hassling" him. He denied, however, that he then told Afraimi he was quitting. Later in the day, at 2 p.m., at the end of his shift, Atkins acknowledged that Afraimi "sent" him to the manager's office where he testified he signed a "separation report," dated March 9, and was given his termination check. The separation report, dated March 9, was signed by Atkins and reads in pertinent part as follows: "Quit in lieu of discharge; due to misuse giving away company property when confronted said he quit." When asked on cross-examination when an incident occurred which Small testified to regarding her hugging both Mozell and Atkins as they entered the restaurant, he stated it was on or about March 17. He was then referred to his affidavit given to a Board investigator and he admitted no mention is made in it of the so-called "hugging incident." Atkins acknowledged that he could not testify that Afraimi, his supervisor, ever overheard him talking to the cooks in the kitchen about the Union. Also, it was elicited that that part of Atkins' testimony which states he met Mozell at the downstairs oyster bar, his work station, and they spoke for approximately 5 minutes, about the "middle of February," is not mentioned in his affidavit. Atkins testified that "within the next couple of days" he and Small met with Mozell upstairs at a table "in the small dining area behind the hostess stand [of Sophie's ]." The conversa- tion consisted of Mozell stating "he was interested in organizing [Respondent], and asked if I might be interested in helping him .... I just told him I wanted to find out a little bit more about it. And he asked me to step down to his office, pick up some literature and look over the advantages to being in the Union." The next day Atkins went to Mozell's office where he gave him union literature and about six or seven "pledge cards" for the Union. He when asked if he prepared the sandwich in the "kitchen," stated it was not in the kitchen but at the "front line of the cook's station adjacent to the dining room. It's an exposed area for customers to watch the cooks while they work." When asked by Respondent's counsel whether there were times when he was not at the oyster bar and Afraimi had to find out where he was, Atkins testified: "There may have been. I'm really not sure." 252 SPECIALTY RESTAURANTS CORP. states he gave two or three of them to the employees: "Kit Curtiss; Jeffrey, cook upstairs; Franklin, a cook upstairs," and Atkins explained these were the cooks' first names and that he did not know their last names. Atkins admitted that none of the above events were in his affidavit, nor was his testimony that he met Mozell two or three times in Sophie's while he was employed by Respondent. On cross-examination, Atkins admitted that it was a rule of the restaurant that waiters and waitresses were not allowed in the kitchen, nor were busboys unless they were returning soiled dishes and utensils to the kitchen to be washed. As the oyster-bar attendant, Atkins testified he was only allowed in the kitchen when the restaurant was not yet opened to the public and then only to clean and prepare vegetables. Al Stuetzle, an official of Respondent, was called as a witness on behalf of the General Counsel. He testified that the Castaways Restaurant, which is owned by Respondent, is located in the same shopping complex as Sophie's and Healys and that it has had a collective-bargaining agree- ment with the Charging Party Union for approximately 15 years. Another restaurant, "His Lordships," located in Berkeley and also owned by Respondent, has had a collective-bargaining agreement with the Union herein for 7 or 8 years. Testimony for Respondent Cathie Haller has been employed by the Kaiser-Aetna Realty Corporation for about 3-1/2 years as an executive secretary. She testified to the following incident: Sometime in March she went to lunch with a friend Bill Reynolds at Sophie's. As they entered the restaurant, the hostess, whom she identified as Joyce Small, ignored them and when they got her attention, they asked for a table for two. Small told them there would be a 20-to-30 minute wait. They informed her they would go downstairs to Spider Healys to have a drink and return in 20 or 30 minutes. When they returned they asked Small if their table was ready and she replied that there would be an additional 20-minute wait. They told Small they would be waiting in the downstairs cocktail lounge for her to notify them. They sat at a table from which they could see Small at the hostess stand facing the entrance to the restaurant. As they did so, other customers entered and were seated. Ms. Haller asked her escort "to check it out" and he then inquired of Small who told Reynolds that she had paged them. Hailer testified: "I know that she didn't .... She was rude to us and didn't apologize. So she told us it would be five more minutes." When that time elapsed they were shown to a table, but she does not recall by whom. She described Small's manner as "cold and indifferent" and testified they first arrived at 11:45 a.m. and were not seated "at least until I p.m. or sometime after that." When she returned to her office 2 or 3 hours after her designated lunch hour, she phoned the restaurant and complained to the manager. She related to the manager the basis of her complaint, describing Small as "not very friendly." Haller related to the manager that Small "did not greet us well" and that they were kept waiting for a table for over an hour and further that they disbelieved Small's excuse that she had paged them but they did not answer the page. Bill Reynolds, who has been employed by the city ot Oakland for 5 years in the Office of Community Develop- ment, corroborated the testimony of his guest, Ms. Haller. When Reynolds complained to Small about their waiting for a table for over an hour, he testified, "She was somewhat rude to me." He received a telephone call from either the restaurant manager on his assistant the following day who informed him that Ms. Haller had filed a complaint. Reynolds told the manager that "what I was upset about was essentially the rudeness of the hostess who was, you know, saying that I was a liar essentially." Nancy Ottobre, who has been employed by Respondent at Spider's and Sophie's from September 1975 to the present time as a waitress, testified that sometime in January 1976, Small's "attitude began to change, she began to complain about work." She testified as to an incident which occurred in "late November 1975" when her husband telephoned the restaurant "because it was an emergency situation" and he explained that on the phone to Small but "she was very rude to him, and he had to call the office in order to get to me. He had to demand to speak to someone else in order to get in touch with me .... [T]wo weeks later he came in to pick me up from work towards the end of my shift. And she was again rude to him and he again complained to me that he was treated rudely and harshly and [SmallJ told him to sit down as I was real busy at the moment." Ottobre testified that towards the end of February she waited on customers whose names she does not know and they told her that they enjoyed their lunch and the service "but they did not enjoy the way they were first welcomed to the restaurant, that there was a delay, that they weren't spoken to until about five minutes after they had approached the hostess stand, that [Small] was on the telephone constantly or not where she should be." She testified she recalled receiving complaints about Small of a similar nature on three other occasions. Ottobre also testified about attending a union meeting in November 1976 at the Jack London Inn presided over by Henry Mozell. Small was not present at the meeting. She reported her attendance at this meeting to Terry Thomp- son, the manager. On cross-examination by the General Counsel's representative, she testified that she heard for the first time in April 1976, after Joyce Small was terminated, that Small "was involved in trying to get the [UJ]nion into the restaurant." Catherine Alexander and Elizabeth Coe, who have been employed as waitresses at Respondent's two aforemen- tioned restaurants at all times pertinent to the proceeding herein, testified, in substance, that customers complained to them that Small was "rude" to them. They also testified that they attended a meeting of the Union in November 1976, chaired by Mozel!, and that they both reported this to their supervisors. Gregory Worrel was employed by Respondent as assistant manager at Spider's and Sophie's during Small's tenure there. He testified that he handed her termination notice to her on March 18, and that she read it but refused to sign it. Worrel also corroborated the testimony of Cathie 253 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haller, whose incident with Small is detailed above, testifying that he received a telephone call from Haller about 3 p.m. on March 17, in which she complained about Small's inefficiency and rudeness to her and her escort, Bill Reynolds. He telephoned Reynolds approximately 30 minutes later, at which time Reynolds corroborated what Haller had told him. Worrel then reported to Terry Thompson, manager, his telephone conversations with Haller and Reynolds. Thompson, Stuetzle, and Worrel then discussed Small's prior February warning notice and also the warning regarding the quality of her work, tardiness, lack of proper uniform, complaints of rudeness to guests, and other problems regarding her work. Thompson, after discussing Small with his supervisory colleagues, decided to terminate her. When she was so notified the following day, testified Worrel, Small stated: "This has to do with the Union, doesn't it." Thompson denied this, stating that the reasons for her termination were specified in the written discharge notice handed to her. Richard Schoepp was assistant manager at Healys and Sophie's when Small was employed there. He identified a written warning given to Small on February 19, 1976, prepared by him as Small's supervisor and signed by her.5 Schoepp denied Small's testimony on her direct examina- tion to the effect that when Schoepp gave her the written warning notice he told her not to worry about it as he had "gotten one" himself. He testified that he gave her verbal warnings on approximately four occasions between De- cember and March for violations of work rules, including borrowing money from him which she failed to repay. He also denied ever having a conversation with Small in which she asked him why the Respondent's two restaurants involved here, did not have a union. The Alleged Termination of Atkins It will be recalled that the incident leading up to the severance of Atkins' employment occurred between Atkins and his immediate supervisor Morad Afraimi. Afraimi worked at Spider's and Sophie's from August 15, 1975, until April 16, when he was laid off due to economic reasons. He described his duties as chef and administrator of the kitchen, explaining that he "was taking care of both restaurants through the common preparation kitchen . . . which was located on the first floor [explaining] each restaurant had its own separate line, which we called a production line, where food was finalized and put out ... kitchen line is the area where the last stages of the food is finalized. That's a critical area .... That's where the line cooks work.... [I]n the line we cook the [food] to order. .... [in the line when the restaurant is open only] the line cooks are allowed there. That was more important in Spider [Healys than Sophie's] because [of] the nature of the food [being prepared there]...." Afraimi testified that it was very important that only the cooks worked in the line. All other employees were ordered to keep out of that area "because it was meant to look organized" and "professional" in order that the patrons of the restaurant could obseve the line cooks preparing the food. In March, Afraimi had 20 to 30 employees working under his supervision including Atkins. Among the tasks assigned to Atkins was that of a pantryman. That job entailed cleaning vegetables and lettuce and peeling onions and potatoes. Later he was "promoted" to the position of oyster-bar man with no pay increase. This job consisted of filling orders for oysters and clams. The oyster bar, testified Afraimi, was located approximately "50-60 feet" from the cooking line where the cooks were preparing and serving food. The oyster bar was a "small room" which was "part of the bar" where drinks were served in the cocktail lounge. Atkins' working hours were from 11 a.m. to 2 p.m. and on Saturdays he also worked the dinner shift. At approximately I p.m. on Tuesday, March, while Afraimi was checking "all the working stations upstairs and downstairs," which included the cooks' line and the oyster bar, he observed Atkins. Afraimi testified that Atkins was holding a "nice, healthy portion of roast beef sandwich in his hand and walking toward the oyster bar. Approaching Atkins from the opposite direction was one of the cocktail waitresses." And just about when Atkins was handing the roast beef sandwich which was on a plate to the cocktail waitress, "I got there and grabbed his wrist as he was about to hand the sandwich to the waitress and I asked him what he was doing. He just stood up very cool and said: 'I got to take care of my ladies, you know.' And I said: 'What do you mean by that?' He says: 'Well, you know, I got to take care of my cocktail waitresses.' I said: 'You know that you're not supposed to have this roast beef [sandwich] at this time . . . to give it to somebody else.' He says: 'I know. But you've been hassling me too much.' I says: 'Well, do you know you could be fired . . . for stealing. This is considered stealing, because you are taking unauthorized food in an unauthorized time, in an unautho- rized place, giving it to an unauthorized person.' He says: 'Well, you just been hassling me too much. I'm quitting.' So I said, 'Well, if that's how you feel about it, let's go take care of it.' So we went to the office." Afraimi added that when he apprehended Atkins, he was not at his assigned work station in the cocktail lounge at the oyster bar but "in the hallway." Afraimi's testimony continued as follows: That he immediately went to the cooks' station and asked them if they had prepared the sandwich for Atkins at their station in the cooks' line. In questioning them, he learned that Atkins "had gone into the line during the rush hour which is between 12:00 and 1:00 ... and had made himself a roast beef sandwich. I blamed one of my cooks for letting him in there and letting him pick up the food; because I felt they were as much to blame. He [cook] says they were not to blame. He says: 'Well, we told him.' " Afraimi then questioned the two line cooks whose work station was in the area where the roast beef was prepared and served and Afraimi then inquired whether Atkins had asked them to prepare the sandwich for them. "They said: 'We told him, this is not the food for the help today.' And he [Atkins] said, according to the two cooks, 'Don't worry about it, that's my business.' And he I See Resp. Exh. 1. 254 SPECIALTY RESTAURANTS CORP. went ahead and made the sandwich and carried it out of the cooks area." A discharge paper was then prepared to the effect, testified Afraimi, that Atkins was terminated for "giving away property," whereupon Atkins said "he quit." Afraimi stated both he and Atkins then signed the discharge paper and that Atkins received his termination pay and left the Respondent's premises. James Oberhausen, a bartender, worked in close proxim- ity to Atkins' assigned duty station as the oyster bar was adjacent to the cocktail lounge. Oberhausen testified that in February Atkins served two female bar customers clams and oysters and that he did not charge them for this food. Atkins, testified Oberhausen, neither wrote out nor gave them a check so that "they were just eating the oysters and clams on the house." Credibility, Discussion, and Conclusions In this proceeding, the bare recital of the facts is sufficient to show no restraint, coercion, or interference within the meaning of Section 7, nor substantial evidence of unfair labor practices encompassed by Section 8(a)(3) of the Act. In arriving at this conclusion, recourse was had and reliance placed upon accompanying circumstances and consideration has been given also to all the attendant circumstances in the context of this overall perspective here presented. These circumstances have been considered compositely and inferences drawn which are reasonably justified by the cumulative, probative effect. The fact that there is evidence considered in and of itself, to support a decision is not sufficient where there is opposing evidence so substantial in character as to detract from its weight and render it less than "substantial on the record as a whole." Moreover, there is no probative evidence that prior to the discharges of Small and Atkins that Respondent knew of their involvement in union activity or that an organization- al effort was then underway. In addition to the foregoing. the General Counsel's claim of discrimination is further compromised by the fact that Specialty Restaurants Corporation, the parent corporation, has had a long bargaining history with the Union herein with respect to restaurants other than Spider's and Sophie's relative to its employees at other restaurants owned by Respondent, and the further fact, that there is no evidence of union animus or a history suggesting that Respondent harbored any resentment to employees' assertion of their statutory rights. The Board has in other cases held that union animus or 6 In the interests of accuracy. virtually all of the witnesses' testimony has been quoted copiously and in haec verba to avoid the ambiguities and impreciseness created by paraphrasing which often loses the flavor and nuances of some of the witresses' testimony I Accordingly, it is unnecessary to pass on the General Counsel's contention that the small plant theory is applicable here. 8 Cf. N L.RB. v. Great Dane Trailers. Inc., 388 U.S. 26. 33-34 (1967); Jervis Corporation. Bolivar Division v. N.L.R.B.. 387 F.2d 107. 113, fn. 4 (C.A. 6, 1967): N.L.R.B. v. Crosby Chemicals, Inc., 274 F.2d 72. 74. fn. 5 (C.A. 5, 1960). As the testimony indicates, supra, Small and Atkins' organizational hostility of an employer in itself is sufficient to base a finding of a violation of the Act. It would seem that evenhanded justice would also require that, where there is not sufficient evidence produced by the General Counsel to show such antiunion bias, this factor should be considered in evaluating whether the Respondent in this proceeding has committed any unfair labor practices. The evidence produced by the General Counsel fails to raise even a suspicion that Respondent's discharge of Atkins for dishonesty and Small for inefficiency and untrustworth- iness was motivated by other than legitimate and lawful reasons as detailed in extenso above. See Section 10(c) of the Act. 6 The General Counsel must show improper motivation for alleged 8(a)(3) violations. Assuming, arguendo, that the Respondent was aware of the employees' union activities, nevertheless, the General Counsel has failed to establish that their discharges were unlawfully motivated. 7 This has not been shown. On the contrary, the Respondent came forward with affirmative evidence of good and proper as well as valid reasons as justification for the terminations of Small and Atkins as provided for in Section 10(c) of the Act.8 Thereupon the burden of going forward with evidence to show that the alleged discriminatees, as alleged in the complaint, were "discharged because of their membership in or activities on behalf of the Union," shifted to the General Counsel.9 This burden of proof of antiunion purpose, General Counsel has failed to carry. Moreover, the record reveals an absence on Respondent's part of either union animus or discriminatory motivation. Furthermore, aprimafacie case of discrimination was not established within the meaning of Section 8(aX3) of the Act. It is found, therefore, that the General Counsel's representatives have failed to sustain their burden of proving by a preponderance of the evidence that Respondent discriminatorily discharged Small and Atkins because of their union activities in violation of Section 8(a)(3) of the Act. Accordingly, it shall be recommended that the 8(aX3) allegations of the complaint be dismissed. to CONCLUSION OF LAW Respondent Company has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] activities were such that they could not be charactenzed as noticeably prominent union proponents. "' In G W Davis Corporation, 202 NLRB 204. 205 (1976), the Board stated: Even assuming that Respondent's reasons for terminating Carter are suspect, it is not the Respondent's burden to prove that it discharged her for just cause. The burden is on the General Counsel to establish a discriminatory motive for the termination by a preponderance of the evidence, if a violation is to be found. This the General Counsel has failed to do. 255