MacCafferty's Irish Pub

MacCAFFERTY'S IRISH PUB Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub and Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 18-CA- 5177 June 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On April 18, 1977, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub, St. Paul, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon a charge filed by Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (referred to herein as the Union) on November 9, 1976,1 the Regional Director for Region 18 issued a complaint on December 22, which he amended on February 9, 1977. The complaint, as amended, alleged that Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub (referred to herein as the Respondent) had violated Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), referred to herein as the Act, by threatening to discharge an employee for engaging in union activity. The complaint also alleged that the Company discriminated against Michael J. McGibbon in violation of Section 8(a)(3) and (1) of the Act. In its answers to the complaint and the amended complaint, the Respondent denied commission of the alleged unfair labor practices. The hearing in this case was held before me on February 22, 1977, at Minneapolis, Minnesota. Upon the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS Raymond C. MacCafferty is, and at all times material to this case has been, an individual proprietor doing business under the trade name of MacCafferty's Irish Pub, with office and place of business at St. Paul, Minnesota, where he has been, and is, operating a retail restaurant, selling food, beverages, and related products to the public. Raymond C. MacCafferty is and at all times material to this case has also done business as an individual under the trade named of Regal Homes, with office and place of business at St. Paul, Minnesota, where he has engaged in advertising and selling homes to the public. MacCafferty's Irish Pub and Regal Homes are, and at all times material to this case have been and are affiliated enterprises, enjoying common ownership and management, constituting a single-integrated enterprise with a common labor relations policy formulated and administered by Raymond C. MacCafferty. I find the two enterprises, which began their respective operations on August 15, have enjoyed gross revenues which, when projected for I year from that date, show that jointly or individually the Respondent and Regal Homes will derive gross revenues exceeding $500,000 from their business operations. Also, based upon Respondent's operations since August 15, I find that Respondent will annually purchase and cause to be transported and delivered at its St. Paul, Minnesota, establishment goods and materials valued in excess of $50,000, of which goods and material valued in excess of $50,000 will be shipped to its St. Paul establishment directly from points outside the State of Minnesota, or will be received from suppliers located in Minnesota, each of which will have received said goods and materials delivered to them in Minnesota from points situated outside the State. From the foregoing admitted commerce data, I find, and the Respondent concedes, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Unless otherwise stated all dates referred to henceforth are in 1976. 230 NLRB No. 6 49 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Respondent admitted, and I find, that Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts In mid-October, the Respondent permitted the Union to post the following notice in its establishment: To all employees of maccaffertys There will be a meeting to discuss the possibility of becoming a union shop and its benefits, on Thursday, 10-21-76, at 4:00 p.m. Approximately 10 of Respondent's employees, including bartender Michael J. McGibbon, attended the union meeting on October 21, held at Respondent's pub. After a union spokesman explained health and welfare benefits and other reasons for employees to seek union representa- tion, Union Official Gene Tonda solicited and obtained six signed authorization cards from the assemblage. Toward the meeting's close, McGibbon signed a card and volun- teered to assist the Union's organizing effort at Respon- dent's pub. He received several blank authorization cards from Gene Tonda. Thereafter, McGibbon actively sup- ported the Union as its prime solicitor among the pub's employees. He solicited and obtained about 10 signed authorization cards, engaging in such union activity openly during his working hours at the pub. Between 3 and 4:30 p.m. on November 6, Raymond MacCafferty went behind the pub's bar and asked bartender Patrick R. Leahy where "the cards" were. MacCafferty was referring to the authorization cards McGibbon had stored in a drawer behind the bar. Leahy responded by pulling the blank authorization cards from the drawer and handing one to MacCafferty. Immediately, MacCafferty read the authorization card and asked Leahy if he had signed such a card. Leahy answered, "Yes I did." MacCafferty continued: "Do you know what it says?" Leahy replied: "It says that we will have an election to see whether we want a union." MacCafferty rejected Leahy's opinion, noting that the card authorized the Union to represent the signatory and that "it reads to me as if you are joining the union." After returning the authorization card to its drawer, MacCafferty sought out the pub's manager, Patrick Igo, and told Igo that he, MacCafferty, wanted to talk to McGibbon when he came on duty. McGibbon appeared for work at 5 p.m. that same day. At approximately 5:30 p.m. MacCafferty summoned McGibbon to his office. With no other persons present, MacCafferty began the discussion.2 First, MacCafferty 2 MacCafferty and McGibbon's testimony regarding this discussion present the only substantial issue of credibility. As between the two, McGibbon impressed me as the more reliable witness. McGibbon testified fully in a forthright manner and without self-contradiction. In contrast, remarked that he was disappointed in McGibbon because of his lack of loyalty towards MacCafferty as shown by his "support to the Union and . . . soliciting of cards." McGibbon responded in substance that it was up to the employees, and not MacCafferty, to decide if they wanted a union to represent them. To this, MacCafferty retorted: "Well I don't want union people working for me and I don't want the Union here. You may not realize but some people are probably going to get screwed if the Union comes in to represent them." McGibbon responded again that the question of whether or not a union would represent the employees was up to the employees to decide and that it was not up to MacCafferty. McGibbon then went on to discuss the benefits which he thought union representation would obtain for the employees including time and a half for overtime, and a health program. MacCafferty came back with "I will never pay any union health plan." McGibbon responded that if the employees selected a union to represent them that he, MacCafferty, would "be legally bound to pay into a union health plan plus what other stipulations there may be in the contract." MacCaf- ferty declared that, "I don't want a union in here. I'm not going to give in to a union. I don't want union people working for me. You work for me .... You do not work for the Union." MacCafferty also accused McGibbon of using sneaky tactics in his soliciting for the Union. MacCafferty warned McGibbon, "Mick, if you turn in one more union card you are fired." McGibbon warned MacCafferty that his right to solicit on behalf of the Union was protected by state and Federal law and that if MacCafferty discharged McGibbon for that reason that he, McGibbon, would litigate the matter. After a further discussion MacCafferty concluded their argument with, "O.K., Mick if that is the way you are going to be I want you to work until I o'clock tonight, punch out and Pat Igo will have your check ready for you." At this point it was approximately 6 p.m., less than an hour into McGibbon's shift behind the bar. However, realizing that, "I was being fired," McGibbon declined to work until 1 a.m. and said that if MacCafferty was firing him, he was fired at that moment and McGibbon "wasn't about to work until I o'clock for him." MacCafferty protested: "But Mick, the only reason you're doing this is because you know I will be short a bartender then if you go out now." McGibbon did not answer and started walking out. MacCafferty called him back saying, "Mick, what are you going to do?" McGibbon answered that he was going to begin looking for another job. MacCafferty remarked, "No, not that. What about you said you might sue me?" McGibbon answered, "Well, Ray, we will soon find out." McGibbon went to the bar, took his vest off, placed it on the bar, put his coat on and left. In a short while MacCafferty appeared at the bar and in response to bartender Leahy's question about what had happened between MacCafferty and McGibbon, MacCafferty re- plied, "We need a new bartender." When Leahy pressed him for a reason MacCafferty answered, "I told him to quit MacCafferty found it difficult to remember details and, as shown later in this Decision, contradicted himself in attempting to explain his motive for seeking the November 6 confrontation with McGibbon. Accordingly, I have credited McGibbon's version of their conversation on that date. 50 MacCAFFERTYS IRISH PUB selling those cards and he refused." At this, Leahy complained about working alone behind the bar. MacCaf- ferty responded: "Don't worry about it, I will have another bartender here." B. The Respondent's Defense, Analysis, and Conclusions General Counsel contends that Respondent violated Section 8(a)(1) of the Act by threatening McGibbon with discharge if he continued to solicit union authorization cards and Section 8(aX)(1) and (3) by discharging McGib- bon on November 6. 1 find from MacCafferty's remarks to McGibbon on the evening of November 6 that the Company violated the Act as alleged in the complaint. Here indeed is one of those unusual cases in which the employer in his parting remarks to a leading union advocate reveals his true motive. Clearly included in the remarks to McGibbon was MacCafferty's warning that continued union activity by McGibbon would result in discharge. Such a remark clearly restrains, coerces, and interferes with employees' Section 7 rights. Finally, when McGibbon refused to surrender his right to engage in union activity, MacCafferty discharged McGibbon, not- withstanding that MacCafferty indicated that McGibbon could work to the end of the shift. Having been informed of the end of his employment, McGibbon was under no obligation to work until the end of his shift. For he was effectively terminated by MacCafferty's words. It was merely the effect of those words which was delayed. In sum, I find from MacCafferty's interview with McGibbon that the Respondent violated Section 8(aX 3) and (1) of the Act, as alleged. Analysis of the Company's defense reveals fatal infirmi- ties. First, I note the presence of inconsistent and shifting reasons. At the time of the discharge on November 6, MacCafferty did not confront McGibbon either with complaints of harassment from pub employees, or com- plaints about confusion in the pub's operations, or a no- solicitation rule. Instead, at the hearing for the first time MacCafferty testified on direct examination that he had "various complaints from a few of the staff about another member of the staff." MacCafferty also testified that one employee complained that McGibbon "was strong arm- ing" employees into signing union cards; that he had heard from his counsel, Mr. O'Toole, that an employee, Nina, had complained to O'Toole "about Mick McGibbon threatening her into joining the Union." At a later point in the Company's defense, Manager Patrick Igo testified that he complained to MacCafferty that McGibbon's activity was causing confusion in the operations of the pub. Finally, in its brief the Respondent added a fresh complaint that McGibbon violated an established no- solicitation rule. These tardy attempts to offer lawful reasons for McGibbon's termination suggest that they played no part in MacCafferty's decision to discharge McGibbon. MacCafferty's inconsistent and contradictory testimony provides further ground for discrediting the Company's defense. When asked to identify employees who com- plained to him about McGibbon's tactics MacCafferty testified: Pat Igo mentioned to me about several employees had talked to him. I don't recollect any employees com- plaining directly to me except Nina afterwards. By "afterwards" MacCafferty meant after November 6. When questioned again about the identity of the persons complaining to him he said "from various people." When asked again to identify who complained to him he testified: "I don't remember. The hostess, Nina, Pat Igo, Mr. O'Toole." More confusion flows from the following cross- examination: Q. The hostess complained to you after Novem- ber 6? A. I don't remember when it was. I know she did complain afterwards. I don't remember the people who complained before. Again, on redirect examination, a contradiction arose when MacCafferty answered "Yes" to the following questions: "Mr. MacCafferty were you aware [of] Nina's complaints when you talked to Mr. McGibbon?" Finally, under examination by the Administrative Law Judge, MacCafferty testified that he had received complaints from Mr. O'Toole, Mr. Igo, and Nina, the hostess. When asked if he remembered when he got the complaint from the hostess, he testified, "I had three or four over the previous couple of days. So it was building up." Finally, when the Administrative Law Judge asked MacCafferty, "Who else did you get a complaint from?" He answered "several employees." And then asserted that he had received them himself. In sum, MacCafferty's vacillating testimony does not persuade me that employee complaints provoked him to confront McGibbon and attempt to restrain him. Nor do the Respondent's other witnesses substantiate its defense. Hostess Nina Hiers testified that, while she was tired of McGibbon's unsuccessful attempts to obtain her signature on an authorization card, she did not complain to anyone about his bothering her. According to Manager Igo's testimony, he complained to MacCafferty about McGibbon only once and that was on the afternoon of Saturday, November 6. However, MacCafferty's testimony regarding his conversation with Igo that afternoon con- tained no reference to a complaint regarding McGibbon. Instead, the record shows that on November 6 MacCaffer- ty's interest in seeking out McGibbon arose when he discovered that the purpose of the authorization cards was to obtain union representation rather than an election. This discovery ran counter to MacCafferty's plan to sharply limit the Union's organizing effort. Thus, in relating his concept MacCafferty testified as follows: I told the Union they were very welcome to come into the bar. They were very welcome to organize. They could post their notices. I would give them a room, anything. There was only one stipulation and that would be that my employees would make up their mind for themselves without any pressure from me or Pat Igo or any member of the staff. Thus it appears that MacCafferty was unwilling to countenance union activism among his employees. When 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confronted with McGibbon's leading role in obtaining union authorization cards from his fellow employees, MacCafferty reacted by calling him into the office in an attempt to thwart his union activity. The Respondent's attempt to show that McGibbon's union activity impaired the pub's efficiency also fell short of the mark. There was no showing that the pub's performance suffered loss of trade or customer complaints because of McGibbon's union activity. Finally, there was no showing that complaints regarding the pub's operations were relayed to MacCafferty by Igo or any of Respon- dent's employees. Finally, contrary to its belated claim, there is no record evidence even suggesting that Respondent promulgated any no-solicitation rule prior to McGibbon's discharge. On the contrary, MacCafferty's testimony included a denial that he had any intent to establish such a rule. In sum, apart from its pretextual nature, I find the Respondent's defense wholly without substance. I have, therefore, rejected it. Upon the foregoing findings of fact, and the entire record, I make the following: CONCLUSIONS OF LAW 1. Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with discharge because of their union activity, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices violative of Section 8(aXI) of the Act. 4. By discharging employee Michael J. McGibbon because he engaged in union activity, the Company engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices effecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices I find it necessary to order Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged employee Michael J. McGibbon I find it necessary to order the Respondent to offer full reinstatement to employee McGibbon. In accordance with the usual requirements, reinstatement shall be to McGibbon's former position or a a 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. substantially equivalent position, without prejudice to his seniority or other rights and privileges. I shall also order the Respondent to make McGibbon whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned from the date of the initial discrimination to the date the Respondent has offered or shall offer him reinstatement, less net earnings if any during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, I shall order the Respondent to post the usual notice to employees. The unfair labor practices committed by Respondent strike at the very heart of employees' rights safeguarded by the Act. I shall therefore place Respondent under a broad order to cease and desist from in any other manner infringing upon the rights of employees guaranteed in Section 7 of the Act. N.LR.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, I hereby issue the following recommended: ORDER 3 The Respondent, Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub, St. Paul, Minnesota, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in support for or activities on behalf of Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire and tenure of employment or any term or condition of employment because of their union membership, sympathies, or activities. (b) Threatening employees with discharge because of their membership in, or support for, or activities on behalf of Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including Hotel, Motel, Restaurant, Bar and Club Employ- ees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: 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. 52 MacCAFFERTYS IRISH PUB (a) Offer employee Michael J. McGibbon immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges. (b) Make whole employee Michael J. McGibbon for any loss of earnings suffered by reason of Respondent's discrimination against him in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of backpay under the terms of this Order. (d) Post at its pub in St. Paul, Minnesota, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Regional 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event the Board's Order is enforced by a Judgment of the 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, the National Labor Relations Board found that I, Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub, violated the National Labor Relations Act, and ordered me to post this notice and to keep my word about what I say in this notice. The law gives you the right: To form, join, or help unions To choose a union to represent you in bargaining with us To act together for your common interest or protection To refuse to participate in any or all of these things. The Board has ordered me to promise you that I will not discharge you or otherwise discriminate against you because you have engaged in organizing activity for, or are a member or supporter of Hotel, Motel, Restaurant, Bar and Club Employees Union, Local No. 17, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO or any other union. I WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. The Board found that I violated the law because I discharged employee Michael J. McGibbon. I WILL offer to reinstate Michael J. McGibbon to his former job without loss of seniority or other rights. I WILL make Michael J. McGibbon whole for any loss of earnings he may have suffered because I discharged him, together with 6-percent interest. RAYMOND C. MACCAFFERTY D/B/A MACCAFFERTY'S IRISH PUB 53