London Chop House, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD London Chop House, Inc. and Timothy P. O'Neill. Case 7-CA-19098 September 30, 1982 DECISION AND ORDER By MEMBERS JENKINS, ZIMMERMAN, AND HUNTER Upon a charge and an amended charge duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing, dated May 1, 1981, against London Chop House, Inc., hereinafter referred to as Respondent. The complaint alleges that Respondent has engaged in, and is engaging in, certain unfair labor practices af- fecting commerce within the meaning of Sections 8(a)(l) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, and amended charge, and complaint and notice of hearing were duly served on the parties. Respondent filed an answer to the complaint, deny- ing the commission of any unfair labor practices and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of fact, conclusions of law, and Order. The parties stipulated that they waived a hearing before an ad- ministrative law judge, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge's decision. The parties also agreed that no oral testimony was necessary or desired by any of the parties, and that the charge and amended charge, the complaint and notice of hearing, the answer to the complaint, and the stipulation of facts, including the exhibits attached thereto, con- stituted the entire record in the case. On June 16, 1982, the Board issued its order ap- proving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel and Respondent filed briefs in support of their positions. 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 stipulation, includ- ing the exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of, the laws of the State of Michi- gan, engaged in the operation of a restaurant locat- ed at 155 Congress, Detroit, Michigan, which pro- vides food and beverages to the general public. During the year ending December 31, 1980, which period is representative of its operations during all times material herein, Respondent, in the normal course and conduct of its business operations, de- rived gross revenue in excess of $500,000. During this same period of time, Respondent purchased and cause to be transported and delivered at its Detroit place of business beer, wine, liquor, and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in Detroit, Michigan, directly from suppliers located outside the State of Michi- gan. The parties stipulated, and we find, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 24, Hotel, Motel, Restaurant Employees, Cooks and Bartenders Union, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Facts On March 7, 1981,1 following a lawful economic strike and intervention by a state mediator, Re- spondent and the Union reached tentative accord on the terms of a collective-bargaining agreement. Employee Timothy O'Neill, the Charging Party herein, served as a member of the Union's bargain- ing committee. While O'Neill personally did not agree to the tentative collective-bargaining agree- ment, he did consent to recommend, in his capacity as a member of the Union's bargaining committee and as part of the state mediation process, that the Union's membership ratify the proposed contract. On March 8, the Union conducted a ratification vote on the proposed contract. O'Neill participated in the ratification meeting as a member of the Union's bargaining committee in support of ratifi- I Unless otherwise noted, all dates refer to 1981. 264 NLRB No. 83 638 LONDON CHOP HOUSE, INC. cation. Thereafter, on March 10, Respondent and the Union agreed to conduct a second ratification vote because they believed that a quorum of unit employees had not been present during the March 8 ratification effort. At or about the same time, O'Neill wrote and distributed to fellow employees an unsigned document informing employees about health care and other issues contained in the pro- posed contract, believing that doing so would make rejection of the contract more likely, because he believed that a quorum had been present at the March 8 meeting. O'Neill did not secure authoriza- tion from other bargaining committee members, the Union, or Respondent prior to distributing the doc- ument. In response to O'Neill's actions as outlined above, on March 14 Respondent advised O'Neill that he would be terminated unless he resigned. On March 28, Respondent terminated O'Neill. B. Contentions of the Parties The General Counsel contends that it is well set- tled that the protections of the Act extend to activ- ities engaged in by employees in opposition to labor organizations as well as activities in support of such organizations, including activities engaged in to oppose ratification of a proposed collective- bargaining agreement. The General Counsel further contends that neither O'Neill's status as a member of the Union's bargaining committee nor his initial agreement to support ratification of the proposed contract changes this result. Accordingly, the Gen- eral Counsel submits that Respondent's discharge of O'Neill, an action taken in reprisal for O'Neill's activities in opposition to ratification of the pro- posed collective-bargaining agreement, violated Section 8(a)(3) and (1) of the Act. Similarly, the General Counsel also submits that Respondent's statement that it would discharge O'Neill for such conduct unless he resigned violated Section 8(a)(l) of the Act. Respondent contends that: (1) O'Neill's activities were not protected by Section 7 of the Act; (2) O'Neill's actions were an improper and unlawful interference with the legitimate business interests of Respondent and the Union; (3) O'Neill's actions were morally and ethically reprehensible; and (4) O'Neill's actions were indefensible. Hence, Re- spondent alleges that it had just cause to discharge O'Neill within the meaning of Section 10(c) of the Act. C. Conclusions We agree with the General Counsel that, by dis- charging O'Neill on March 28, Respondent violat- ed Section 8(a)(3) and (1) of the Act. We also agree with the General Counsel that Respondent's March 14 threat to discharge O'Neill violated Sec- tion 8(a)(l) of the Act. As contended by the General Counsel, it is es- tablished Board law that the Act protects employ- ees against actions taken in reprisal for their activi- ties in opposition to labor organizations. Margaret Anzalone, Inc., 242 NLRB 879 (1979); Sargent Elec- tric Company, 209 NLRB 630 (1974); Selwyn Shoe Manufacturing Company, 172 NLRB 674 (1968). Indeed, we specifically have held that the Act pro- tects employees against reprisals for their activities in opposition to contract ratification. Red Cab, Inc., 194 NLRB 279 (1971); Aerodex, Inc., 149 NLRB 192 (1964). We further have held that such protec- tion is not lost because the employees, engaged in activities in opposition to the labor organization, concurrently held official positions in that labor or- ganization. Selwyn Shoe, supra,; Golden State Bottling Company, Inc. d/b/a Pepsi-Cola Bottling Company of Sacramento, 147 NLRB 410 (1964). Also, see Aerodex, Inc., supra. Applying these principles to the facts of the instant case, it is clear that O'Neill's distribution of a document portraying the terms of the proposed collective-bargaining agreement was protected under the Act and, inasmuch as Re- spondent stipulated that it threatened to discharge and thereafter did discharge O'Neill solely for having distributed that document, that the General Counsel established a prima facie case that Re- spondent violated the Act as alleged in the com- plaint. Respondent's argument that it had just cause to discharge O'Neill is, in our opinion, without merit. Contract ratification votes and procedures are in- ternal union affairs upon which an employer is not free to intrude. The Greensboro News Company, 244 NLRB 689 (1979); Martin J. Barry Company, 241 NLRB 1011 (1979); North Country Motors, Ltd., 146 NLRB 671 (1964). See also M & M Oldsmobile, Inc., 156 NLRB 903 (1966). The fact that O'Neill initially supported ratification but later changed his mind and decided to oppose ratification is irrele- vant-both of those decisions, as well as the ac- tions taken in support of them, were protected by the Act. Thus, we cannot agree with Respondent that O'Neill's conduct was "ethically and morally reprehensible." Respondent further argues that O'Neill's actions were not "concerted" within the meaning of Section 7 of the Act, and were there- fore unprotected. However, the gravamen of the instant complaint alleged that he was engaged in union, or intraunion, activity. Accordingly, the fact that O'Neill was acting alone is immaterial to our analysis. 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on all of the foregoing, we find that Re- spondent violated Section 8(a)(3) and (1) of the Act, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth above, oc- curring in connection with its operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We shall order that Respondent offer Timothy P. O'Neill immediate and full reinstatement to his former job or, if his job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights and privileges pre- viously enjoyed. Moreover, we shall order that Re- spondent make O'Neill whole for any loss of earn- ings he may have suffered as a result of the dis- crimination practiced against him by payment to him of a sum equal to what he would have earned from the date of his discharge to the date of a bona fide offer of reinstatement, less net interim earnings during that period. Backpay shall be computed in the manner prescribed in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977).2 We also shall order that Respondent expunge from its files any reference to O'Neill's unlawful discharge on March 28, and notify him in writing that this has been done and that evidence of Respondent's unlawful conduct will not be used as a basis for future personnel ac- tions against him.3 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). Member Jenkins would award interest on the backpay due based on the formula set forth in his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 3 Sterling Sugars, Inc., 261 NLRB 472 (1982). 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to discharge Timothy P. O'Neill on or about March 14, 1981, Respondent interfered with, restrained, and coerced its employ- ee Timothy P. O'Neill in the exercise of rights guaranteed him in Section 7 of the Act, and there- by has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By discharging Timothy P. O'Neill on or about March 28, 1981, for intraunion activities, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, London Chop House, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any of its employees to discourage them from engaging in intraunion activities. (b) Threatening to discharge its employees for having engaged in activities protected by Section 7 of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Timothy P. O'Neill immediate and full reinstatement to his former job or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any losses he may have suffered by reason of the discrimination against him as set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files any reference to the unlawful discharge of Timothy P. O'Neill on March 28, 1981, and notify him in writing that this has been done and that evidence of Respondent's unlawful conduct will not be used as a basis for future personnel actions against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- 640 LONDON CHOP HOUSE, INC. ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Detroit, Michigan, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent 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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives em- ployees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge, threaten to dis- charge, or otherwise discriminate against any of our employees for the purpose of discourag- ing their participation in union or intraunion activities, or in reprisal for having engaged in such activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Timothy P. O'Neill immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previ- ously enjoyed. WE WILL make whole Timothy P. O'Neill for any loss of pay he may have suffered as a result of the discrimination against him, with interest. WE WILL expunge from our files any refer- ence to the discharge of Timothy P. O'Neill on March 28, 1981, and WE WILL notify him, in writing, that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. LONDON CHOP HOUSE, INC. 641