Fuqua, James, Wilson Daniel, Dominic Guida and Gary Cicci, a California Partnership, d/b/a The Black Kettle, Ltd., d/b/a The Drying Shed

DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Fuqua, Wilson Daniel, Dominic Guida and Gary Cicci, a California Partnership, d/b/a The Black Kettle, Ltd., d/b/a The Drying Shed and Hotel, Motel, Restaurant Employees and Bar- tenders Union, Local 19, AFL-CIO. Case 32- CA-3347 August 13, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On April 15, 1982, Administrative Law Judge Jay R. Pollack 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 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, find- ings,' 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, James Fuqua, Wilson Daniel, Dominic Guida and Gary Cicci, a California Partnership, d/b/a The Black Kettle, Ltd., d/b/a The Drying Shed, San Jose, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The General Counsel 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 re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Producs. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. In sec. III, B,. par. 16, of his Decision, the Administrative Law Judge inadvertently stated that Wilson Daniel testified that Shirley Ellison called him on the afternoon of October 7. Daniel actually testified that the call came on October 17. Similarly, throughout his Decision the Ad- ministrative Law Judge refers to Respondent's head chef as "Roy Hinosa." The chers last name is properly "Hinojosa." DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge: I heard this case at San Jose, California, on January 27-29, 1982. 263 NLRB No. 57 Hotel, Motel, Restaurant Employees and Bartenders Union, Local 19, AFL-CIO (the Union), filed an unfair labor practice charge on January 21, 1981, against James Fuqua, Wilson Daniel, Dominic Guida and Gary Cicci, a California Partnership, d/b/a The Black Kettle, Ltd., d/b/a The Drying Shed.' Following investigation there- of, the Regional Director for Region 32 of the National Labor Relations Board refused to issue complaint and dismissed the charge on March 25, 1981. Thereafter, the Union filed a timely appeal with the General Counsel. Upon receipt of the Union's appeal, the Regional Direc- tor rescinded his dismissal letter of March 25 and on June 30, 1981, issued a complaint and notice of hearing against Respondent, alleging, in substance, that Respond- ent engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. All parties were given full opportunity to appear, to introduce relevant evidence, to examine and cross-exam- ine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Based upon the entire record and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS I. JURISDICTION At the times material herein, Respondent, a California partnership with an office and place of business in San Jose, California, has been engaged, inter alia, in the oper- ation of several restaurants, including a restaurant known as The Drying Shed, the facility involved herein.2 During the 12 months preceding issuance of the com- plaint, Respondent derived gross revenues in excess of $500,000 and purchased and received goods valued in excess of $5,000 which originated outside the State of California. Accordingly, it admits and I find Respondent to be an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The parties stipulated and I find that the Union has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues As discussed above, at the times material herein, Re- spondent operated The Drying Shed restaurant in San Jose, California. The Union began attempting to organize Respondent's employees at The Drying Shed in Febru- ary 1980. On February 26, 1980, the Union filed a peti- tion in Case 32-RC-997 seeking to represent all full-time I The names of Respondent as corrected at the hearing. 2 Respondent no longer owns and operates The Drying Shed. The present owner of The Drying Shed appeared, by counsel, at the hearing herein for the sole purpose of responding to a subpoena served upon it by counsel for the General Counsel. 380 THE BLACK KETTLE, LTD. and part-time employees of The Drying Shed. A repre- sentation hearing was held on May 16. Thereafter, on June 16, the Regional Director issued a Decision and Di- rection of Election directing an election in a unit appro- priate for purposes of collective bargaining. 3 An election was held under the supervision of the Regional Director on July 16, 1980, at which election a majority of votes were cast in favor of representation by the Union. Re- spondent and the Union both filed timely objections to the conduct of the election. 4 On September 17, 1980, the Regional Director overruled Respondent's objections to the election and certified the Union as the exclusive bar- gaining representative of all the employees in the appro- priate bargaining unit. The General Counsel contends that because of its op- position to unionization, Respondent permitted harass- ment of union adherent Shirley Chalupa, eventually lead- ing to the constructive discharge of both Shirley Cha- lupa and Shirley Ann Ellison. Respondent denies the commission of any unfair labor practices. In addition Re- spondent contends that any harassment of Chalupa was a result of personal differences between the waitresses and certain nonsupervisory kitchen employees and, therefore, cannot be imputed to Respondent. Respondent contends that Chalupa and Ellison took leaves of absence requir- ing their replacement and that the two waitresses reject- ed Respondent's offer to schedule them to available posi- tions, insisting upon reinstatement to their former posi- tions of employment. Finally, Respondent contends that Chalupa was a supervisor within the meaning of Section 2(11) of the Act and, therefore, that the refusal to rein- state Chalupa cannot be violative of the Act. B. The Facts Shirley Chalupa was Respondent's head waitress on its evening shift. In the representation case, Respondent contended that Chalupa was a supervisor. The Regional Director found that Chalupa was an employee and per- mitted her to vote in the representation election. It is un- disputed that Respondent knew that Chalupa was a leader of its employees favoring the Union. In February 1980, Respondent first learned of the organizing cam- paign when Chalupa told Peter Lake, then manager of the restaurant, that the employees were organizing for the Union. Chalupa testified on behalf of the Union at the representation hearing and acted as an observer for the Union at the election.5 It is also undisputed that Re- spondent knew that Shirley Ellison, a close friend of Chalupa, was a union supporter. Lake reported to James Fuqua, Respondent's president, and Wilson Daniel, Re- spondent's director of operations, that Ellison supported the Union. Lake, who left Respondent's employ June 30, 1980, testified that Chalupa was an excellent employee and that Ellison was a very responsible employee. s All full-time and regular part-time employees of Respondent em- ployed at its Toyon Avenue, San lose, California, facility, known as The Drying Shed; excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 4 The Union later withdrew its objections. a Respondent filed objections to the conduct of the election based on certain alleged conduct of Chalupa. Chalupa testified that, in August, she was instructed to give Allison Libby,6 waitress and hostess, more shifts to work. According to Chalupa, on August 29, she saw a note from Daniel to Mark Swanson, then assistant man- ager, stating that Libby was to be given 3 or 4 days a week and another note for Swanson stating, "Make sure that Shirley gives Allison three to four days a week; I don't care where they come from." Upon seeing these notes, Chalupa asked Swanson why Libby was being given more shifts in spite of the fact that Libby was not a reliable employee. Chalupa said that, in order to give Libby these shifts, she (Chalupa) would have to lose one of her own shifts. Swanson laughed and said, "Those are Wilson's orders." According to Chalupa, she arranged the schedule accordingly and gave Libby one of her shifts. Daniel testified that, in August 1980, Libby requested additional hours of work. According to Daniel, he asked the assistant manager, presumably Swanson, 7 to look at the schedule and see if Libby could be accommodated. Daniel denied that he ordered anyone to give Libby ad- ditional hours. It is undisputed that Libby was known by Respondent to be against the Union in the election cam- paign. Libby testified that she was off from work, due to an accident, from February to May. When she returned in May, she was given work as a hostess8 and told she would be given hours as a waitress in time, as the sched- ule permitted. 9 The payroll records show that Libby av- eraged less than 25 hours each 2-week pay period from May through July. However, beginning with the payroll period ending August 10, Libby began averaging 40 hours a pay period. The General Counsel offered payroll records which indicate that Chalupa did not work on Tuesdays following August 29 and that Libby did. Prior to August 29, Chalupa had Wednesdays and Thursdays off. After August 29, she also had Tuesdays off. Howev- er, Chalupa's total hours per pay period did not de- crease. Chalupa testified that, on September 20, she had a dis- agreement with Glenn McAlary, a cook, concerning McAlary's preparation of food orders. ' During this ar- gument, McAlary threw a towel at Chalupa. Chalupa then said, "You'd better not throw anything at me again." McAlary answered, "I'd rather throw a knife at you." Chalupa asked if McAlary wanted her to get Blackwood and McAlary just laughed. Chalupa went to see Blackwood in the manager's office and told Blackwood that McAlary had just threat- 6 Libby testified under her married name, Parisi. ' Swanson, no longer employed by Respondent, did not testify. s A hostess earns less money than a waitress because a hostess does not receive tips. i After the election Libby asked the manager for more hours and re- ceived more hours beginning with the end of July. o1 Chalupa had previously had disagreements with kitchen personnel, including McAlary, concerning their preparation of food. Chalupa had frequently complained about kitchen personnel and had unsuccessfully sought to have certain kitchen employees terminated. Chalupa's disap- proval of the kitchen personnel was well known. Moreover, Chalupa's negative opinion of the kitchen employees was shared by many of the waitresses. The record is replete with evidence that disputes or argu- ments between waitresses and kitchen employees were common occur- rences. 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ened her." Blackwood said, "Oh shit, Shirley, when are you going to stop this Union thing. You know you're never going to get the Union in here anyway." Chalupa answered that Blackwood should forget that and come with her to the kitchen to solve the problem. Blackwood went to the kitchen and told the cooks not to fool around with the food. Blackwood then remained in the kitchen to make sure that the problem did not reoccur. Ellison testified that she witnessed the incident be- tween McAlary and Chalupa. According to Ellison, McAlary, after saying that he would like to throw a knife at Chalupa, picked up a knife and said, "I will stab you."' 2 Roy Hinosa, still head chef at The Drying Shed, 13 tes- tified that McAlary called him and told him of the inci- dent involving Chalupa. McAlary told Hinosa that he had a "hassle" with Chalupa the previous evening' and that he had raised his fist at Chalupa. Hinosa told McA- lary that the situation could not be repeated or either McAlary or Chalupa would have to be fired. McAlary said he would take care of the situation and would not have any further run-ins with waitresses. Shortly thereaf- ter, Hinosa reported this conversation with McAlary to Daniel. Daniel told Hinosa to take care of the situation. Hinosa then spoke to McAlary again and told the cook that such an incident could not be repeated. McAlary promised that there would not be a recurrence. Accord- ing to Hinosa, he never heard that a knife was involved in the incident. Hinosa further testified that after speak- ing with McAlary he did not hear of any other incident. On Sunday, September 21, Chalupa was involved in an incident with Nick Garcia, a busboy. Chalupa went into the walk-in refrigerator to get some spinach and lettuce for salads and was locked in by Garcia. Chalupa pound- ed on the door to get out but Garcia and Gene Galvan, a cook, did not open the door. Chalupa heard Garcia say to Galvan, "That ought to cool her heels." Galvan asked how long Garcia intended to keep Chalupa in the walk- in and Garcia answered that he had not decided yet. After a few minutes, Galvan opened the door and let Chalupa out. Chalupa was very upset and went to Black- wood's office, where she began crying. 15 Blackwood asked Chalupa, "How long are you going to continue on with this Union." Blackwood then made reference to a mutual friend of theirs, who almost got run over by a car while picketing at another employer's premises. Black- wood then asked if Chalupa was going to let things go that far. Chalupa remained in the office for a long time and, finally, asked Blackwood to go out and talk with Garcia. Blackwood told Garcia, "That's going too far; you don't lock anyone in the walk-in." Garcia said, "Oh, " Blackwood died prior to the instant hearing and, thus, could not tes- tify. Blackwood and Chalupa were personal friends. Chalupa testified that Blackwood was an older man and soft spoken. It was not in Black- wood's nature to yell or scream at employees. Moreover, at the time of these events, Blackwood was suffering from poor health. 1a Ellison's pretrial affidavit omits reference to a knife. " The parties stipulated that Hinosa was a supervisor within the mean- ing of the Act. '4 Hinosa, as head chef, worked from 7:30 a.m. to 4 p.m. McAlary and Chalupa worked during the evening. 's Chalupa cried at the hearing when relating this incident. I guess Shirley told you I did it," and Blackwood an- swered, "Yes, you did it." On Friday, October 3, Chalupa was again threatened by McAlary. Chalupa testified that, while she was plac- ing an order in the kitchen, McAlary said to her, "I am going to stab you, you know." Chalupa simply walked away. However, McAlary then walked to the dish room and, while picking up some dishes, again said, "I am going to stab you." Chalupa, after a discussion with some of her friends who were dining in the restaurant, went to Blackwood to tell him of this latest incident. According to Chalupa, she told Blackwood then she was threatened again by McAlary and that she wanted to walk out but was convinced not to do so by her friends. Blackwood said, "Oh, Shirley, how much more of this are you going to take." Chalupa asked Blackwood to stand close to the cooks that night to protect her. Blackwood, pursuant to Chalupa's request, oversaw the kitchen that evening.' 6 Ellison testified that she was also present when McA- lary threatened to stab Chalupa, the second time. Ac- cording to Ellison, the day after one of the two incidents involving McAlary and Chalupa,'7 she went to Daniel to complain about the threats to Chalupa. According to Ellison, she told Daniel that she "was sick and tired of these things that were going on" and that "these threats on Shirley's life were just going to have to stop." Daniel just laughed and said there was not anything that he could do about it.'s Chalupa testified that, following the second threat by McAlary, she was approached at work by Daniel. Daniel asked why Chalupa was crying. Chalupa answered that she could not take it anymore. Chalupa complained that Daniel hired "cooks to ruin the food and drive us crazy." She further complained that the dishes and sil- verware were "absolutely filthy since we've been orga- nizing and the managers won't do a thing about it." Cha- lupa said that she brought a lot of business into the res- taurant and that Daniel should care about the business and forget about the Union. Daniel answered that these complaints were all in Chalupa's imagination. Chalupa then went and retrieved some silverware and dishes to prove her point. Blackwood entered the room and said, "Shirley is from the old school, she wants things done right and her nerves have gotten to her." Daniel said that he would investigate and see if anyone else had complaints. According to Chalupa, during this conversa- tion she told Daniel that she had been threatened by McAlary and had been locked in the walk-in refrigera- tor. Daniel's response was to simply shrug his shoulders. Daniel testified that Chalupa complained to him about the cooks. However, according to Daniel, Chalupa com- plained about the preparation of food and made no men- tion of being threatened. Daniel heard about Chalupa being threatened by another employee from either Swan- son or Blackwood. Daniel told Hinosa to investigate the 'a Chalupa testified to different versions of this conversation. I have credited the version contained in her affidavit given to the Regional Office almost a year prior to the hearing. " Ellison could not recall whether it was the first or second incident. " Daniel denied having any such conversation with Ellison. 382 THE BLACK KETTLE, LTD. problem and take care of it. Daniel talked to several waitresses and told them that, if there were any problems with the cooks, not to try and settle it themselves but to inform the manager on duty. Thereafter, Daniel again spoke with Hinosa who reported that he (Hinosa) had spoken with all the cooks and instructed them that, if there were any disputes between cooks and waitresses, to have Hinosa or the manager in charge solve the prob- lem. Daniel testified that he heard of no further incidents involving Chalupa. Shortly after the conversation between Daniel and Chalupa, McAlary injured himself and was off from work for several months. McAlary's replacement did a good job and did not bother Chalupa in any manner. Further, Respondent hired some new dishwashers and the problem of dirty dishes was solved. On October 13, Chalupa visited a doctor and later ob- tained a doctor's note, dated October 16, stating, "She cannot work for the next 4 weeks because of nervous condition." According to Chalupa, she called the restau- rant on October 17 and spoke with Hinosa. Chalupa told Hinosa that she had to take time off from work but wanted to talk to Daniel. Hinosa did not recall this con- versation and Daniel denied receiving any such message. On October 16, Ellison also called the restaurant to report that she was taking time off. According to Elli- son, she told Daniel that her doctor had put her on a leave of absence. Daniel asked when she would be back and Ellison answered that she did not know exactly when but it would not be for a while. Daniel answered that it was all right but that Ellison should let him know, when she found out. According to Daniel, Ellison called him in the afternoon of October 7 and said she was ill and unable to work that evening. Daniel accepted her excuse and said he would try to get coverage. According to Daniel, Ellison did not indicate that she would be out more than that one night.19 On Monday, October 20, Chalupa went to the restau- rant and spoke with Daniel. According to Chalupa, she told Daniel that "because of all the things that happened, the doctor was putting her on four weeks' leave." Cha- lupa handed Daniel a doctor's note dated October 16, in- dicating that Chalupa would be off for 4 weeks. Daniel told Chalupa that she was leaving him in a terrible bind. Chalupa answered, "If it wasn't for those things that had happened, I wouldn't be taking this time off." Daniel an- swered that Chalupa should call him when she was ready to come back to work. Chalupa said she would do so.20 On October 30, Ellison called Daniel again. Ellison told Daniel that her doctor was releasing her to go back to work on November 8. Daniel answered that he could not put Ellison back on the next week's schedule and possibly not the week after that. Ellison asked about the third week and Daniel answered that he did not know. Daniel told Ellison that he was forced to hire replace- ments for Chalupa and Ellison because they had left him in a terrible spot. Daniel added that he doubted that Elli- 19 Daniel did not hear from Ellison again until October 30. 2' Employee Diane Harper testified that, during this time period, Blackwood told her. "Shirley had better have her ass covered because it [isl going to be a picnic." Blackwood's remark was not further explained. son was physically or mentally able and that he wanted to talk to her before putting her back on the schedule. Ellison asked if she could come in the next day but Daniel said no, he would not be at the restaurant that day. Ellison asked if she could come in on the weekend but Daniel said he would not be in on the weekend either. Ellison and Daniel agreed that she would come to see him on the following Monday. Daniel asked Ellison to call first, to make sure he was in. According to Ellison, she called on Monday and found out that Daniel had not been in. Ellison finally got to see Daniel a week later. 2 ' Ellison asked for her job back with her old schedule. Daniel said that he could not give her her old schedule because he had hired replacements for Chalupa and Ellison. Daniel told Ellison that, if she wanted, she could work as a fill-in. Ellison asked if she was going to get her regular schedule and Daniel said no. Next, Ellison asked if she was terminated and Daniel said no, that Ellison was not terminated but was not on the payroll either. According to Ellison, Daniel asked why she thought Daniel could not replace her and if she had talked to anyone about the matter. Daniel said that he was not obligated to take Ellison back to work, unless it so stated in her contract. Ellison answered that she had not signed any contract with the restaurant. On November 25, Chalupa called Blackwood and told him that she was ready to go back to work. Blackwood said, "Shirley, this is between you and Wilson." Chalupa asked if Daniel had gotten her message and Blackwood answered that he did not know. Chalupa then asked Blackwood to tell Daniel that she called and Blackwood said he would. Chalupa called Daniel on November 26 and told him that she was ready to go back to work. Daniel said that he had hired four waitresses to replace Chalupa and Ellison. Chalupa asked if Daniel was saying that she was not getting her shift back and Daniel an- swered yes. Daniel laughed and said, "You can call the Labor Commissioner because what I'm doing is legal and he'll tell you that it is." Daniel laughed and said, "Maybe in a few 4 weeks or a few months, I'll have a shift here or there." Daniel testified that Chalupa and Ellison were sched- uled to work on Friday, October 17. According to Daniel, Ellison called on the afternoon of October 17 and said she was ill and would not be able to work that evening. Daniel accepted her excuse and said he would try and obtain coverage. Ellison did not indicate that she would be off more than that one evening. Chalupa also did not come in that evening. Daniel testified that Cha- lupa did not contact him or anyone else at the restaurant. That Friday evening the restaurant operated with two instead of the usual four waitresses. On Saturday and Sunday, neither Chalupa nor Ellison called in or reported for work. Daniel then reviewed job applications and decided to hire replacements. Daniel hired one waitress full time and hired two part-time waitresses. The reason for hiring the two part-time wait- " Prior to meeting with Daniel, Ellison sent him a registered letter stating that she was capable of going back to work and that she wanted her job back. 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resses was to give Daniel an opportunity to observe their work and then decide which one to use full time. On Monday, October 20, Chalupa came to the restau- rant and gave Daniel her doctor's note. According to Daniel, Chalupa said she was being treated unfairly and that Respondent was doing nothing about it. Chalupa became hysterical and Daniel tried to calm her down. Daniel told Chalupa that it would be best if she went home and contacted him at a later date when they could sit down and discuss the matter in a rational manner. Gary Farrington, then a manager in training, substantial- ly corroborated Daniel's version of this meeting. Ac- cording to Farrington, Chalupa said, "This place is get- ting to me, I'm upset, I need some time off. The people are mean." Daniel tried to calm Chalupa down and asked her to come back when she was more able to dis- cuss the matter. According to Daniel, Ellison called him on October 30 to say that she was ready to return to work. Daniel told Ellison that the schedule had been made, replacements had been hired, and he would have to work her back onto the schedule on a part-time basis. However, Daniel told Ellison that, before he put Ellison on the schedule, he wanted to be assured that she was physically and mentally able to "maintain a constant level of attend- ance." 22 Daniel asked Ellison to come in to the restau- rant and discuss the matter with him. They then agreed to meet the following Monday. According to Daniel, Ellison did not appear for the meeting but came in a week later. On Monday, November 10, Ellison met with Daniel and asked for her former schedule. Daniel said that he would have to work her back on a part-time basis. Elli- son insisted that she was entitled, by law, to her full-time position and Daniel answered that he was not obligated to take her back at all. Daniel asked where Ellison re- ceived this information and she answered that she was so informed by her attorney. Daniel denied that there was any mention of a contract in this conversation. None of the restaurant employees had a written employment con- tract. Thereafter, Daniel received a letter from Ellison re- questing her job back. Daniel answered the letter setting forth the events as set forth above and again gave Elli- son the opportunity to return to work on a part-time fill- in basis until more work opened up.23 In late November, Chalupa called Daniel and told him that she was ready to go back to work. Daniel told her that replacements had been hired, the schedule had been made and he would have to work her back onto the schedule on a part-time basis. Chalupa answered that part-time work was not acceptable. Daniel then suggest- ed that Chalupa come in and discuss the situation person- ally. Chalupa refused to do so. Daniel testified that, based on past experience, it would have taken only 2 or 3 weeks to work Chalupa back into the schedule. Finally, the General Counsel alleges that Libby was given more shifts beginning on October 13 because of her antiunion activities and beliefs. In support of this al- l' Ellison had been absent for 26 days during the previous 2-month period. as Ellison testified that she did not receive this letter. legation, the General Counsel offered evidence that Cha- lupa had scheduled former employee Marlene Ebbitt24 to work on Friday nights. Chalupa testified that Daniel called Chalupa into his office and asked why Chalupa had not consulted him before putting Ebbitt on the schedule. Chalupa answered that she had discussed the matter with Blackwood, the manager of the restaurant. Daniel replied that he was manager and that Libby should be given an opportunity to work the shifts before going to an outsider. Daniel then took Ebbitt's name off the schedule. Daniel testified that it was his practice to try to accommodate requests for additional hours by part-time employees if additional hours were available. Both Daniel and Libby testified that Libby had requested more hours. Although Libby worked the last two Fri- days in October, Respondent's payroll records do not show any significant increase in hours for Libby after October 13. C. Supervisory Status 1. Facts As mentioned earlier, Respondent contends that Cha- lupa was a statutory supervisor and, thus, not protected by the Act. Chalupa was Respondent's head waitress on its evening shift. Chalupa had no authority to hire, fire, or discipline employees. The manager and assistant man- ager had the authority to hire, fire, train employees, make purchases, handle the money and make bank de- posits, schedule employees, and make reports to the home office. Chalupa assigned or scheduled the other waitresses to work specific stations during her shift. The purpose was to avoid the assignment of a poor waitress to a busy station. The assignment of stations could affect the amount of tips earned by a waitress. However, the assignment of stations and schedules was done in consul- tation with the manager or assistant manager. Chalupa also had the authority to allow employees to go home early, work permitting. This authority was also exercised in consultation with the manager or assistant manager. Chalupa's duties included instructing and train- ing new waitresses. However, the training simply con- sisted of having a new waitress watch Chalupa perform her waitress duties. Chalupa did not ordinarily interview job applicants but did so on occasion by request of the manager. Ninety percent of Chalupa's time was spent in waiting on tables. In early 1980, Chalupa and the head waitress on the day shift earned 35 cents an hour more than the regular waitresses and were later given raises so that they earned 65 cents an hour more than the wait- resses. The manager and assistant manager were paid on a salaried basis. 2. Analysis Section 2(11) of the Act reads: (11) The term "supervisor" means any individual having authority, in the interest of the employer, to 24 Ebbitt was a former waitress who had left Respondent's employ to open her own restaurant. 384 THE BLACK KETTLE, LTD. hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. As the Supreme Court noted in N.LR.B. v. Bell Aero- space Company, 416 U.S. 267, 280-281 (1974), the legisla- tive history of Section 2(11) indicates that Congress in- tentionally distinguished between "straw bosses, lead- men, set-up men, and other minor supervisory employ- ees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommenda- tions with respect to such action." Thus, a "leadman" or "straw boss" may give "minor orders or directives or su- pervise the work of others, but he is not necessarily a part of management and a 'supervisor' within the Act." N.LR.B. v. Doctors' Hospital of Modesto. Inc., 489 F.2d 772, 776 (9th Cir. 1973). The critical issue herein is whether Chalupa's assign- ment of the work stations of the waitresses on her shift involved the exercise of independent judgment. Consid- ering that the assignments were made in conjunction with the manager and the assistant manager and subject to their approval, it does not appear that Chalupa exer- cised independent judgment. Rather, it appears that Cha- lupa was a leadperson whose authority was attributable to her skills and experience as a waitress. See The Barn- sider, Inc., 195 NLRB 754, 756 (1972); Don The Beach- comber, 163 NLRB 275 (1967). D. Conclusions Regarding the Assignment of Work Shifts to Libby in August and October The credible evidence establishes that, on or about August 29, Chalupa saw two memoranda indicating that Libby was to be assigned three or four shifts per week. Chalupa, although in charge of scheduling for the night waitresses, did not want to give Libby an increase in shifts. First, Chalupa did not believe that Libby was a re- liable waitress and, second, shifts would have to be taken away from other waitresses in order to accommodate Libby. Thus, Chalupa told Swanson that she did not want to give Libby extra shifts and that Chalupa would have to give Libby one of her own shifts, if the memo- randa were to be complied with. Swanson simply laughed and told Chalupa to give Libby the extra shifts because those were "Daniel's orders." As a result, Cha- lupa gave her Tuesday night shift to Libby. However, as noted earlier, Chalupa's total hours per pay period did not decrease. I find insufficient evidence to connect this change in the work schedule with an attempt to retaliate against Chalupa for her union activities. First, since Chalupa drew up the schedule, she could have accommodated Libby's extra shifts without changing her own schedule. At no time was Chalupa told that the extra shifts had to come from her own schedule. Second, Chalupa's work- week was reduced by I day without adversely affecting her total hours. Thus, Chalupa did not suffer financially from the change. Finally, there was no reference to union activity during this conversation or at any time surrounding these events. The only activity referenced by counsel for the General Counsel is that, on August 13, Libby gave an affidavit in support of Respondent's objections to the conduct of the election. Similarly, I find insufficient evidence to connect the schedule change with an attempt to reward Libby for antiunion activities. For some time, Libby had been seek- ing more shifts. Daniel told Libby he would accommo- date her, if possible. As noted earlier, Swanson, no longer employed by Respondent or The Drying Shed, did not testify. While the General Counsel argues that the only explanation for this transaction is that Respond- ent sought to punish Chalupa and reward Libby for their conduct in the representation controversy, I find it just as plausible that Respondent was simply trying to ac- commodate Libby's request for nondiscriminatory rea- sons. In any event, I find that the General Counsel has failed to prove that Respondent was motivated by a desire to discourage union activities in this schedule change and, therefore, I recommend that the pertinent allegations of the complaint be dismissed. As mentioned earlier, there is insufficient evidence to establish that the granting of a Friday night shift to Libby instead of to former employee Ebbitt was discri- minatorily motivated. Rather, I find the evidence sup- ports Respondent's defense that Daniel, pursuant to usual policy, ordered that Libby be given first opportunity for the shift before a new employee was called in. E. Conclusions Regarding the Alleged Constructive Discharges The complaint alleges that Blackwood threatened em- ployees that Respondent would permit threats of vio- lence and physical harassment against union supporters. Further, the complaint alleges that Respondent permitted employees to direct threats of violence and physical ha- rassment against Ellison and Chalupa. Finally, the Gen- eral Counsel alleges that the conduct directed at Chalupa and Ellison resulted in constructive discharges. As mentioned earlier, when Chalupa reported McA- lary's threat of September 20 to Blackwood, Blackwood said, "When are you going to stop this Union thing. You know you're never going to get the Union in here anyway." The following day, after Garcia had locked Chalupa in the walk-in refrigerator, Blackwood asked, "How long are you going to continue on with this Union?" Then Blackwood made reference to a friend who was almost run over by a car while picketing. Fi- nally, after a third incident involving a threat by McA- lary, Blackwood asked, "How much more of this are you going to take?" While it appears that the threats to Chalupa were not related to the Union but rather to longstanding personal differences between Chalupa and the kitchen personnel involved, Blackwood's remarks could reasonably be taken to mean that this obnoxious conduct was directed at Chalupa because of her support of the Union. Further, the remarks imply that such conduct would be expected 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to continue in the future. Thus, I find that, by Black- wood's remarks, Respondent violated Section 8(a)(1) of the Act. However, the critical issue herein is whether Respond- ent acquiesced in, condoned, or ratified the obnoxious conduct directed against Chalupa.2 5 The credible evidence shows that, upon learning that McAlary threatened Chalupa, Hinosa, the head chef, told McAlary that such an incident would not be permit- ted. Hinosa reported the incident to Daniel who instruct- ed Hinosa to take care of the problem. Hinosa again told McAlary that such conduct would not be permitted. Hinosa, whom I credit, testified that he learned of no further incidents after his second talk with McAlary. While I have found that Blackwood implied that future conduct against Chalupa could be expected, Blackwood did take certain action to protect Chalupa. On September 20, Blackwood went to the kitchen with Chalupa and at her direction told the cooks to prepare the food properly. Thereafter, Blackwood remained in the kitchen to watch over Chalupa. On September 21, Blackwood told Garcia that Garcia had gone too far and that Garcia was not to lock anyone in the walk-in. Final- ly, after the last incident involving McAlary, Black- wood, at Chalupa's request, stayed in the kitchen to pro- tect Chalupa from the cooks. As discussed above, Daniel learned of the first incident in which McAlary threatened Chalupa. While Daniel did not personally take any action against McAlary, he di- rected Hinosa to take care of the problem. As mentioned earlier, Hinosa spoke to McAlary and the other cooks. Daniel further instructed the waitresses that they should go to the manager if there were any problems with the cooks: Credibility resolutions are necessary to determine whether Daniel knew of any further incidents. Chalupa testified that she told Daniel that "he hires cooks to ruin our food and to drive us crazy, that the dishes and sil- verware have been absolutely filthy since we've been or- ganizing and the managers won't do a thing about it." Chalupa, after a leading question, testified that, during this conversation, she told Daniel that she had been threatened by McAlary and had been locked in the walk- in. Daniel, on the other hand, testified that Chalupa com- plained about the preparation of food but denied that Chalupa made any mention of threats. Since Chalupa did not mention the threat until the General Counsel's lead- ing question, I am not inclined to credit that testimony. Further, based on my observation of Chalupa on the stand, and while I find her to be a truthful witness, the emotional distress caused by the incident appears to have adversely affected Chalupa's ability to accurately relate the events. Accordingly, I credit Daniel's denial that Chalupa mentioned threats in this conversation. On October 20, Chalupa told Daniel that she would be off from work for 4 weeks due to a nervous condition. According to Daniel and Farrington, whom I credit, Chalupa became hysterical. While Chalupa did say, "The people are mean," she did not specifically mention any employee or any threat. Moreover, this conversation 8' This issue can also be characterized as what did Respondent know and what did Respondent do about it. took place I week after Chalupa's last workday and while McAlary was away from work due to an injury. Finally, Ellison testified that she told Daniel that she "was sick and tired of these things that were going on" and that "these threats on Shirley's life were just going to have to stop." Daniel denied having any such conver- sation with Ellison. While I have doubts as to the accu- racy of Ellison's testimony, I do not believe that she cre- ated this conversation out of whole cloth. Thus, I credit Ellison's testimony over Daniel's denial. However, I do not find that this conversation gave Daniel any greater knowledge of the conduct directed at Chalupa; i.e., that McAlary had threatened Chalupa on one occasion. As stated earlier, Daniel and Hinosa took steps to prevent a recurrence of that conduct. Accordingly, while Re- spondent's attempts to prevent a recurrence of threats to Chalupa proved ineffective, I cannot find that Respond- ent acquiesced in, condoned, or ratified the threat or other obnoxious conduct directed towards Chalupa. The General Counsel, relying on Becton-Dickinson Company, 189 NLRB 787 (1971), argues "that if an em- ployer has knowledge of and acquiesces in harassment of employees by other employees, it may be accountable for not only the conduct but the results of the conduct unless it takes reasonable steps to insure the protection of the employee being harassed." The applicable law is clear and has been applied herein. However, this is a fac- tual issue and, as shown above, the General Counsel has not proven that Respondent acquiesced in the harassment of Chalupa. In Becton-Dickinson, the employer had formed an antiunion group and suggested that the group "needle" and "gouge" prounion employees. Thereafter, the employer revoked an employee's leave, warned an employee and reduced her pay, made an employee's job more arduous, discriminatorily enforced a work rule and made unfavorable job assignments, and fired an employ- ee all because of the employer's animus against unioniza- tion. Under these circumstances, the Board found that harassment of two prounion employees by unknown em- ployees had been permitted and acquiesced in by the em- ployer because the employer had taken no steps to pro- tect the two employees. Thus, Becton-Dickinson is factu- ally distinguishable from the instant case. Here, I find that the General Counsel has not sustained his burden of proof that Respondent acquiesced in or condoned the obnoxious conduct directed toward Chalupa. Finally, I turn my attention to Respondent's replace- ment of Chalupa and Ellison and its resultant failure to reinstate them to their former positions. As mentioned earlier, Chalupa and Ellison did not report for work on Friday, October 17, through Sunday, October 19. I credit Daniel's testimony that Ellison called in on Friday, October 17, but did not indicate how long she would be absent. Chalupa did not speak with Daniel until October 20. Respondent operated with only two waitresses on that weekend. Accordingly, Daniel decided to hire replacements. On October 30, when Ellison gave notice that she wished to return to work, she had been replaced. Daniel offered to work Ellison back on the schedule as a fill-in. However, Ellison demanded her old schedule back. No 386 THE BLACK KETTLE, LTD. evidence was offered to contradict Daniel's assertion that Ellison could have been assigned regular shifts in a few weeks. In any event, Daniel continued to offer Ellison work as a fill-in and Ellison refused, asserting her right to her old schedule. Similarly, Chalupa demanded her old shift and refused Daniel's offer to work her back onto the schedule. Chalupa further refused Daniel's offer to discuss the matter. In defining the elements of a constructive discharge, the Board in Crystal Princeton Refining Company, 222 NLRB 1068, 1069 (1976), stated: There are two elements which must be proven to establish a "constructive discharge." First, the burden imposed upon the employee must cause, and be intended to cause, a change in his working con- ditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union ac- tivities. As can be readily seen, the General Counsel has not proven these two elements in the instant case. It has been established that Respondent violated Section 8(a)(1) of the Act by implying that employees would be threatened and physically harassed because of their union activities. However, I do not believe that such conduct is suffi- ciently related to the failure to reinstate the employees as to establish its unlawfulness. Respondent had business reasons to replace Chalupa and Ellison and to work them back onto the schedule. Against this business justi- fication, the General Counsel has failed to prove that Re- spondent's failure to reinstate Ellison and Chalupa was motivated by a desire to discharge the waitresses because of their union activities. Assuming arguendo that Re- spondent was also motivated by the prounion activities of these two employees, it appears that the replacement and failure to reinstate the waitresses would have oc- curred even in the absence of such activities. Respondent was shorthanded and needed additional waitresses. Thereafter the employees, operating under the mistaken belief that they were entitled to their former work sched- ules, refused Respondent's offer to work back onto the schedule. In sum, it being found that Respondent did not acquiesce in or condone the obnoxious conduct directed at Chalupa, it follows that the allegation that Respondent constructively discharged Chalupa and Ellison has not been supported by a preponderance of the credible evi- dence. CONCLUSIONS OF LAW i. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By implying that employees would be threatened and physically harassed because of their union activities, Respondent violated Section 8(aXl1) of the Act. 4. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent acquiesced in, condoned, or ratified the conduct directed against Shirley Chalupa by certain of its nonsupervisory employ- ees. 5. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent construc- tively discharged Shirley Chalupa or Shirley Ann Ellison in violation of Section 8(a)(3) of the Act. 6. The unfair labor practices found above in Conclu- sion of Law 3 affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as specifically found above, Respondent has not committed any unfair labor practices. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As mentioned earlier, Respondent no longer owns and operates The Drying Shed restaurant. Accordingly, in order to assure that all employees affected be apprised of the unlawful nature of these acts and assured that they will not be repeated, in addition to the usual posting re- quirement, Respondent shall be ordered to mail copies of the remedial notice to all employees of The Drying Shed, employed during the period of September through November 1980, at their home addresses. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER2 6 The Respondent James Fuqua, Wilson Daniel, Domi- nic Guida and Gary Cicci, a California Partnership, d/b/a The Black Kettle, Ltd., d/b/a The Drying Shed, San Jose, California, their agents, successors, and assigns, shall: i. Cease and desist from: (a) Stating or implying that employees would be threatened or physically harassed because of their union activities. (b) In any like or related manner restraining or coerc- ing employees in the exercise of their rights as guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its offices in San Jose, California, copies of the attached notice marked "Appendix." 27 Copies of said 20 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. 27 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 387 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices, on forms provided by the Regional Director for Region 32, after being duly signed by Respondent's rep- resentative, shall be posted by it immediately upon re- ceipt 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 cov- ered by any other material. In addition, Respondent shall mail copies of said no- tices to all employees employed at The Drying Shed res- taurant during the period of September through Novem- ber 1980, at their homes. (b) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT state or imply that employees will be threatened or physically harassed because of their union activities. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights as guaranteed in Section 7 of the Act. JAMES FUQUA, WILSON DANIEL, DOMINIC GUIDA AND GARY CICCI, A CALIFORNIA PARTNERSHIP, D/B/A THE BLACK KETTLE, LTD., D/B/A THE DRYING SHED 388