Dearborn Big Boy No. 3, Inc.

DEARBORN BIG BOY NO. 3, INC. 705 Dearborn Big Boy No. 3, Inc. and Kimberly Kirby. Case 7–CA–38575 June 11, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME On November 5, 1997, Administrative Law Judge Earl E. Shamwell Jr. issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below, and orders that the Respondent, Dear- born Big Boy No. 3, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(d). “(d) Within 14 days after service by the Region, post at its Detroit, Michigan facility copies of the attached no- tice marked ‘Appendix.’41 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed its facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since May 17, 1996.” 1 The Respondent has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 In joining his colleagues’ finding that the Respondent violated Sec. 8(a)(1) of the Act by discharging Kimberly Kirby, Member Brame notes specifically that the Respondent excepted only to the judge’s finding that Kirby’s raising racial discrimination concerns to Rice was protected activity. As Member Brame finds that the content of those concerns was protected, he rejects the Respondent’s argument contend- ing otherwise. In so finding, he notes specifically that in its exceptions to the Board the Respondent did not contend that the manner in which Kirby presented her racial discrimination concerns to Rice on May 16, 1996, demonstrated she was not engaged in protected activity. Member Brame likewise finds a reinstatement and backpay remedy for Kirby is appropriate for the following reasons. While not approving Kirby’s May 17, 1996 postdischarge actions, Member Brame notes that these actions followed an unlawful discharge and that, as detailed by the judge, the Respondent had a history of tolerating similar miscon- duct on the part of Kirby, counseling her on previous occasions. Con- tinuing this pattern, and as more fully discussed by the judge, in his May 20, 1996 conversation with Kirby subsequent to her discharge and postdischarge outburst, the Respondent’s manager, Ali Baydoun, in- vited her to come back (after she delivered her baby which was then due in August) to talk about possible reemployment with the Respon- dent. In these unique circumstances, he concurs with his colleagues that the Respondent has failed to establish that Kirby was unfit for future employment with it. See generally Alto-Shaam, Inc., 307 NLRB 1466 (1992), enfd. 996 F.2d 1219 (7th Cir. 1993), cert. denied 114 S.Ct. 442 (1993). 3 We shall modify the judge’s recommended Order in accordance with our decision in Excel Container, Inc., 325 NLRB 17 (1997). John Ciaramitaro, Esq., for the General Counsel. Geno D. Salomone, Esq. (Logan, Wycoff, Okun & Salomone, P.C.), of Riverview, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE EARLE E. SHAMWELL JR., Administrative Law Judge. This case was heard before me in Detroit, Michigan, on April 7, 1997, pursuant to charges filed on May 23, 1996, against Dear- born Big Boy No. 3, Inc. (the Respondent) by Kimberly Kirby. The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) by dis- charging Kirby because she engaged in protected concerted activities. On August 7, 1996, upon the Respondent’s request, it was granted an extension of time to August 26, 1996, for filing an answer. On August 30, 1996, the Respondent filed an answer to the complaint denying the commission of any unfair labor practices. At the hearing, the parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION—THE BUSINESS OF THE RESPONDENT Dearborn Big Boy No. 3, Inc., a corporation, with an office and place of business in Detroit, Michigan, is engaged in the operation of a restaurant. During the calendar year ending De- cember 31, 1995, the Respondent, in conducting its business operations, derived gross revenues in excess of $1 million and purchased and caused to be delivered to its Detroit, Michigan facility directly from points located outside the State of Michi- gan, goods and supplies valued in excess of $20,000. The Re- spondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Kimberly Kirby began her employment as a waitress at the Respondent’s restaurant in October 1993. Kirby normally 328 NLRB No. 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706 worked the 7 a.m. to 2 p.m. shift 4 to 5 days per week. Kirby’s immediate supervisors at all times material to this matter were Ali Baydoun, manager of the restaurant, and Donna Lamentola, head waitress and assistant manager.1 Kirby worked with about six other waitresses and several other support staff, i.e., cooks, dishwashers, and hostesses. Eunice Rice and Dana DeLuco were waitresses employed at the Respondent’s restaurant and worked with Kirby on the morning to afternoon shift. The Respondent discharged Kirby on May 17, 1996. B. The May 16 Incident On May 16, 1996, Kirby reported for work to begin her nor- mal 7 a.m. to 2 p.m. shift. Later in the morning near the lunch- eon hour, Dana DeLuco and Kirby approached Rice and began a conversation with her which would lead to the unfair labor charges. According to Rice, who testified at the hearing, while she was stocking the back section of the restaurant, DeLuco said, “[T]his is racial discrimination,” Kirby repeated this, adding, “[T]his is a lawsuit.”2 Rice’s response at first was to ask what the two were talking about and thereafter to state that she did not want to be involved in whatever it was. Thereupon, Kirby explained to Rice that “they” (the Respondent) did not hire Rice’s daughter and that, essentially, Rice could file a suit alleging racial discrimination.3 Rice countered that race dis- crimination was not involved in the Respondent’s decision not to hire her daughter; however, she did not reveal to Kirby or DeLuco at the time why her daughter, Carolyn, was not hired.4 Both Kirby and DeLuco continued to press the matter, and Rice, attempting to end the confrontation, walked away from them to another part of the restaurant. Kirby and DeLuco fol- lowed Rice to the front waitress station where Rice continued to protest that she wanted nothing to do with a lawsuit. Kirby 1 Actually, Baydoun was Kirby’s manager for only about 1 year of the time Kirby was employed at the restaurant. Lamentola was respon- sible for the overall management of the restaurant when Baydoun was not available. 2 I have credited Rice regarding Kirby and DeLuco’s conversation with her regarding the nonhiring of her daughter by the Respondent. I found Rice to be a wholly credible witness, forthright, consistent, and steadfast in her testimony even as to possible embarrassing matters. Moreover, Rice’s version of events seemed more plausible and was corroborated by Lamentola, whom I also found generally to be very credible. I was not impressed with Kirby’s version of her conversation with Rice. Notably, Kirby insisted that she did not use the term “racial discrimination” or words to that effect. I do not find this to be plausi- ble, considering the totality of the record. I note that on this point that the General Counsel, while somewhat cagey in his brief (see p. 2 of G.C. Br.) regarding whether Kirby used the term, nonetheless, hinges his case on the theory that Kirby’s efforts (along with DeLuco) were calculated to encourage Rice to remedy the Respondent’s perceived racially discriminatory hiring practices and were, thus, protected. Thus, even the General Counsel evidently does not vouch for Kirby on this score. However, this is not to say that I found Kirby to be totally un- worthy of belief in other aspects of her testimony. 3 Rice is black. Kirby and DeLuco are white. Rice’s daughter is presumably black. 4 At the hearing, Rice explained that her daughter had made applica- tion for employment at the restaurant in May 1996, but she was not hired by Baydoun because the young woman was then pregnant and under the legal age to work at an establishment which sold alcoholic beverages. The daughter, who had never worked for the restaurant before, was eventually hired by Baydoun in late November or Decem- ber 1996. Neither Kirby nor DeLuco was aware of this information at the time. continued to tell her that she should sue the Respondent in re- gard to its not hiring her daughter.5 Rice also was concerned about the customers hearing the ex- change and admonished Kirby and DeLuco who, nonetheless, persisted in repeating “that this is a lawsuit” (for racial dis- crimination) and that Rice should sue the Respondent. After about 15–20 minutes of harangue from both Kirby and DeLuco, Rice eventually went to head waitress Lamentola to complain. Rice testified that she was in a state of extreme upset and con- fusion about Kirby’s interest in her or her family’s affairs. According to Rice, Kirby had on several prior occasions given her such a hard time6 that she had sought Baydoun’s assistance to get Kirby to leave her alone. In any event, Rice, reduced to tears, complained to Lamentola about Kirby and DeLuco’s conduct. Lamentola and Rice conferred briefly about the mat- ter in the bar area of the restaurant.7 Afterwards, Lamentola advised Rice to go back to her duties, but did not tell her what actions she (Lamentola) would take to resolve the matter. Rice had no further conversations (or incidents) with Kirby or De- Luco for the balance of their respective shifts. Rice did not discuss the matter further with Lamentola either. Kirby testified about her part in the events of May 16. Ac- cording to Kirby, she reported to work at 7 a.m. to begin her usual shift. At around 9 a.m.,8 she asked Rice how she felt about her daughter’s not being hired while the daughter of an- other waitress, Katherine Smittle, had been hired. Kirby testi- fied that Rice’s daughter had come to the restaurant on a couple of prior occasions, seeking employment. Rice, according to Kirby, had told her (and others) that her daughter would be hired soon, but she obviously had not. Kirby testified that Rice had also previously told her (Kirby) that her daughter had not been hired because of their mother-daughter relationship. Thus, with Smittle’s daughter coming on board, Kirby decided to ask Rice how she felt about the situation.9 Rice told Kirby that her feelings were hurt, but she thought that no one had noticed; that it was wrong because other workers’ family mem- bers were being hired while hers were not. Kirby then told Rice that she should hire a (cheap) lawyer and that she could sue the Respondent.10 After this advice, Rice, DeLuco, and Kirby separated and continued with their duties. At around 11 a.m., Kirby saw Rice and Lamentola walking out together near 5 Rice testified that “Kim said to me, that is a f—g lawsuit. And the customers turned around and I said, ‘I still don’t want to have anything to do with it,’ and they just kept nagging about it, and I went to Donna and I wasn’t pleased about [it], I was upset.” 6 Rice did not elaborate on these prior incidents or problems making for the hard times given her by Kirby. 7 Rice said that her conversation with Lamentola took place at about 12:45–1 p.m. and lasted for about 10 minutes. 8 Kirby freely admitted that her conversation with Rice took place on the floor of the restaurant (as opposed to the employee break area) and during a nonbreak period. 9 According to Kirby, Smittle’s daughter was hired about a week or two before the May 16 conversation. 10 Kirby testified that while Smittle and her daughter were white, and Rice and her daughter were black, she did not mention to Rice for what (legal action) the Respondent could be sued. Kirby was in fact em- phatic in her denial that she never used the term “racial discrimination” and claimed to have not even heard DeLuco say anything about racial discrimination in her conversation with Rice. Kirby admitted that on occasion, she used profanity in the workplace; however, she denied using any profane language such as “Kick their ass or sue their ass,” in advising Rice to sue. DEARBORN BIG BOY NO. 3, INC. 707 the banquet room; Rice was crying. After a time, Kirby saw Lamentola alone and asked what was wrong with Rice. La- mentola told Kirby that she and DeLuco had hurt Rice’s feel- ings—nothing more was said. Kirby next had occasion to speak to Rice at the waitress aisle at around 11–11:30 a.m. while they were placing food on trays for service to the lunch customers. Kirby asked Rice how she had hurt her (Rice’s) feelings. According to Kirby, Rice told her that Kirby had not hurt her feelings as much as had DeLuco,11 who Rice felt, by keeping the matter in a stir, in fact was antagonizing her. Rice wanted the matter dropped. After this conversation, nothing more was said between them, and they all continued to work together. However, Kirby noted that the employees (Lamentola and other waitresses) were talking among themselves.12 Kirby believed that they were probably talking about what she had said to Rice because near the end of her shift, she had separate conversations with DeLuco and Smittle. First, DeLuco ap- proached her and protested that the other employees were upset with both her and Kirby because Rice had said that they had intentionally tried to upset her (Rice) and Rice was angry. Then, at around this time, Kirby had a conversation with Smit- tle who had approached her. Kirby explained to Smittle that she thought it was wrong for Smittle’s daughter to be hired and not Rice’s daughter, and how did Smittle feel about this. Ac- cording to Kirby, Smittle told her not to worry about things because Rice really was angry with DeLuco, not her, and that Kirby should simply do her job and go home,13 which Kirby did. Donna Lamentola was called by the Respondent as a witness and gave her account of the events of May 16. Lamentola re- called that around the lunch hour (11:30–12), Rice pulled her aside in a separate room, and complained to her about Kirby and DeLuco upsetting her regarding Manageral: Baydoun’s not hiring her daughter. Rice, very upset and crying, wanted the two to stop bothering her about the matter because she knew that Baydoun had reasons for not hiring her daughter. How- ever, Kirby and DeLuco were making it a racial issue; Kirby and DeLuco felt that Baydoun should have hired her daughter. To Lamentola, Rice’s complaint centered on Kirby’s and DeLuco’s pestering her and repeatedly bringing up the nonhir- ing and insisting that she (Rice) should sue the Respondent. Rice merely wanted to be left alone but, as Lamentola testified, “[T]he gossip just kept going and going and going.” In reaction to Rice’s complaints and upset, Lamentola instructed Kirby and DeLuco to be quiet and do their jobs to get through the lunch- eon hour; she tried to soothe Rice by asking her to pay no atten- tion to Kirby and DeLuco and urged her to try to attend to her duties.14 Lamentola also decided to call Baydoun at home on his day off and advise him of the goings-on. This call was made after she conversed with Rice privately at around 12:15 or 12:20 p.m., but before talking to Kirby and DeLuco. 11 According to Kirby, Rice did not refer to DeLuco by name, but re- ferred to her as “your girlfriend.” 12 Kirby did not overhear the conversations in terms of the topic(s) being discussed. 13 Karen Smittle did not testify at the hearing. 14 Lamentola could not recall telling Kirby or DeLuco about what Rice had told her. Lamentola advised Baydoun that she could not handle the pressure of the “gossip”15 going on between Kirby, Rice, and DeLuco. Lamentola was asked by the General Counsel on cross-examination what she remembered telling Baydoun on May 16 in this telephone conversation. She responded: I said that Kim [Kirby] and Dana [DeLuco] are talking to Eunice [Rice] about not hiring her daughter. And it was upsetting Eunice because Eunice would like her daughter there [at the restaurant], but if Ali [Baydoun] doesn’t want to hire her, there is a particular reason why he didn’t want to hire her, and Eunice knew it, and it was nobody’s busi- ness why he didn’t want to hire her at that particular time. Lamentola could not specifically recall whether she told Bay- doun that Kirby had advised Rice to file a lawsuit against the Respondent. As a result of Lamentola’s complaints of her in- ability to handle the pressure caused by the “gossip” between Kirby, Rice, and DeLuco, Lamentola was told by Baydoun to fire Kirby and send her home. Lamentola refused, telling Bay- doun that she did not think the time was proper—she had cus- tomers to serve—and furthermore, she had never fired anyone before. After this conversation, Lamentola had no further con- tact with either of the three waitresses who finished their re- spective shifts without further incident. Ali Baydoun was called as a witness by the Respondent. Baydoun testified that he first learned of the May 16 incident involving Kirby through the telephone call from Lamentola. Lamentola was very upset and complained that no one was doing her work, that customers were walking out, and the res- taurant was in complete chaos. Lamentola told him that Kirby and DeLuco were involved and causing her (Lamentola) prob- lems by harassing Rice to the point of tears and preventing Rice from working her tables.16 Baydoun testified that he told La- mentola, “[If] you have a problem with Kim, send her home. When I come in, I will take care of it.”17 C. May 17, 1996— Kirby’s Discharge Kirby testified that she reported for work on May 17, her next workday, and worked her normal 7 a.m. to 2 p.m. shift. Nothing was said to her by her supervisor until the end of her shift, when she was approached by Lamentola who advised that Baydoun wished to see her. According to Kirby, Baydoun asked her what had happened on May 16. Kirby explained that basically, she had asked Rice how she “felt” about her daugh- ter’s not being hired. Baydoun then asked her why she had asked this, and then stated that it was none of Kirby’s business whom he hired. Furthermore, Baydoun told her she had no right to ask about whom he hires or does not hire. According to Kirby, Baydoun also stated that he understood she had told one of the girls that she should sue the Respondent for racial dis- 15 Lamentola repeatedly referred to the hiring issue between Rice, Kirby, and DeLuco as “gossip” or idle gossip, and sometimes “non- sense.” 16 The Respondent’s counsel asked Baydoun whether Lamentola ad- vised him as to what exactly Kirby had done. Baydoun responded vaguely, “Some kind of problems and that Eunice was in tears, and she [Kirby] was harassing Eunice and Eunice wasn’t able to pick up her tables, and that type of things.” 17 Baydoun steadfastly denied that he told Lamentola to fire Kirby on May 16. As proof, Baydoun testified that his policy, when he was absent, was to send the problematic employee home when incidents such as this arose, so that the problem could be eliminated and the employees could continue serving customers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708 crimination. Kirby emphatically denied saying this and insisted that all she had done was ask Rice how she felt. Baydoun also accused her of making disparaging remarks about Smittle’s daughter and claimed that Kirby had called her a “thing.” Kirby denied this also. Baydoun then asked her if she would be finishing out the weekend,18 which led Kirby to ask if she was being fired. Baydoun nodded affirmatively; in response, Kirby uttered expletives and walked out.19 Kirby returned to the restaurant a few days later (the next Monday) to pick up her termination letter, which she needed to obtain welfare assistance. Kirby then raised the matter of her discharge and questioned Baydoun’s firing her, considering her length of employment, and his merely suspending DeLuco (who had been employed by the Respondent for only about 5 months) for a week. According to Kirby, Baydoun did not respond to this and she stated, “[W]hat comes around goes around.” Also, Baydoun told Kirby that he was not going to give her a termination letter. Kirby protested and told him that was because he had no justifiable reason to fire her. Baydoun’s response was that it was her “attitude” which had caused her discharge.20 According to Kirby, Baydoun then said that after she had her baby, to come back and that he and she could pos- sibly talk about reemployment. Kirby testified that she has not worked for the Respondent since May 17.21 Baydoun testified about the events of May 17. Baydoun re- ported for work and after seeing to a few routine matters, talked to Rice who had come in to see him about the previous day’s incident.22 Baydoun testified that in this meeting, Rice was still upset and cried quite a lot while describing Kirby’s involve- ment in the harassment and her frustration in dealing with it. In essence, Rice told Baydoun that the matter was instigated by Kirby’s approaching her (Rice) and asking how she felt about his hiring Nicki Moote (Smittle’s daughter) as opposed to Rice’s daughter.23 18 Kirby was then 7-1/2 months pregnant and required by the Re- spondent to obtain written clearance from her doctor to work without restriction every week. 19 Kirby testified that she was very upset at the time and said f—k you, and may have called Baydoun a f—g asshole. 20 Kirby conceded that during this conversation Baydoun had said he had talked to her about her “attitude” a few times (before), and that he had in fact counseled her about her attitude at times before the May incident. 21 Kirby was to deliver the first week of August 1996. However, af- ter her baby was born, Kirby never approached Baydoun (the Respon- dent) about returning to work. 22 It is interesting to note at this juncture that Rice, in her testimony, did not mention having met on May 17 with Baydoun to discuss the May 16 incident. As will be seen, Rice did discuss with Baydoun other events occurring on May 17. 23 Baydoun was somewhat hesitant, vague, and nonresponsive in re- lating what happened in this supposedly highly emotional meeting with Rice. For instance, the General Counsel asked Baydoun what Rice told him that Kirby had done. Baydoun responded in the following ex- change. Q. Well did she say what Kim Kirby had done? A. Something, matter of fact, she said she told her I guess, Nicki was in that day. Q. Nicki? That Nicki Moote. A. The new girl that was hired. I guess the start of it is that Kim had gone up to her and told her how would you feel if Ali had hired that thing? Maybe she wasn’t a very pretty waitress, or anything but she was a good server. Hired that thing over your daughter. However, before his conversation with Rice, Baydoun had discussed the matter with Lamentola.24 In this conversation, Baydoun stated that Lamentola reiterated how rough the previ- ous day had been, and how she did not want a repetition of the incident, and again described to Baydoun that service that day was not performed properly and that customers had walked out. This conversation, according to Baydoun, was basically similar to the telephone conversation of May 16.25 Baydoun also met with Kirby in his office at the end of her shift. Essentially, Baydoun testified that he called Kirby in, told her her services were no longer needed, and discharged her. According to Baydoun, he had decided to fire Kirby on May 16, partly because of Kirby’s involvement in the uproar at the restaurant and the ensuing disruption of service, and partly because of Kirby’s involvement in past incidents for which he had disciplined her. Thus, in short, according to Baydoun, Kirby’s involvement in the incident with Rice was the straw that broke the camel’s back.26 D. Kirby’s Disciplinary History with the Respondent Prior to May 16 Baydoun recounted several incidents in which he was forced to counsel Kirby about her behavior, attitude, and language during the year he supervised her.27 Approximately 3 weeks to a month before the May 16 inci- dent, Kirby was involved in an incident with one of his cooks —Eddie. Baydoun explained that he reprimanded Kirby for having sworn at Eddie because, in her view, he had not pre- pared her customer’s eggs properly. Kirby’s behavior was so Q. Now, how did you know that? A. Eunice told me. Q. Eunice told you. And she told you that on the morning of the 17th? A. The following day, because she was crying. Q. So she tells you that the day before that Kim had come to her, right? A. Yes. Q. And said what to her? A. That she was hired, that thing, over your daughter. This was after a lot of tears, and . . .. Q. Did Rice tell you anything more that you can re- call? A. No. Q. That is all you can recall Rice saying? A. Yes. Q. And so as of the end of your conversation with Rice, these are the only details you know about this harass- ment that had occurred the day before, is that right? A. Yes. 24 Actually, Baydoun was not sure if he talked to Lamentola before talking to Rice, but thought that he probably talked to Lamentola first. 25 Lamentola basically corroborates Baydoun’s version of their con- versation. However, Lamentola also testified that Baydoun in this May 17 conversation asked her why she did not simply fire Kirby if she was so upset over the incident. Lamentola told him once more, in essence, that she could not fire someone when her customers were not being served or the restaurant was not functioning properly. 26 Baydoun explained the different disciplinary treatment he ac- corded to DeLuco by saying that he only suspended her for a week because of the Rice incident because he had never had problems with her and she was a good server, and good servers were hard to find. Baydoun also claims that he put up with Kirby’s problems partly be- cause of the difficulty of finding good help. 27 The Respondent does not have a disciplinary process that includes written warnings, or progressive stages. DEARBORN BIG BOY NO. 3, INC. 709 abusive that the cook walked off the job and had to be per- suaded by Baydoun to return to work. Afterwards, Baydoun counseled Kirby, advising her that her use of the “F” word, “asshole,” and demanding action from other workers without saying “please” and “thank you” were causing him much dis- ruption in service, and that he was losing cooks and servers because of her attitude. Baydoun also related an incident oc- curring about 8 months prior in which Kirby asked a customer to leave her area because he had overstayed and was causing her to lose money on the table. Baydoun received a letter from the Company regarding the incident because the customer complained. Baydoun counseled Kirby about this matter. Baydoun also testified regarding an incident which occurred a short time after the Eddie-the-cook matter, in which Kirby called one of the Respondent’s supervisors (Linda (last name not given)) a stupid f—king bi—ch right to her face and within earshot of the customers in the bar area of the restaurant. In addition to these specific incidents, Baydoun testified that there were many other incidents, mainly relating to Kirby’s interper- sonal deficits, her problems in communicating in a courteous way with the other workers, especially the cooks with whom he estimated were 90 percent of her communication problems, but also with customers. Baydoun explained that he did not termi- nate Kirby because of these incidents because, he, as her man- ager, wanted to bring out the good in her. Baydoun felt that Kirby simply needed to be positively motivated so that she would be polite. Consequently, he had many talks with her, urging her to smile and be pleasant. Baydoun testified that he felt that the incidents he described did not warrant Kirby’s dis- charge. Moreover, he did not like to fire people and had not fired anyone in his years with the Respondent. Baydoun also felt sorry for Kirby who was pregnant and emotional at the time she swore at supervisor, Linda; moreover, he felt that Kirby needed her job. Thus, because of these reasons, he put up with Kirby. However, on May 16, with Lamentola’s telephone call, he decided he was fed up with Kirby and decided to discharge her for, as he said, these series of events.28 At the hearing, Kirby acknowledged in the main her part in the Eddie-the-cook incident and the overstaying customer mat- ter; she also admitted that Baydoun had counseled her regard- ing her “attitude” in the past. Kirby also acknowledged having used profane language on the job during her tenure at the res- taurant. However, Kirby denied ever cursing any of her super- visors, Linda in particular. E. Kirby’s Postdischarge Conduct (May 17) As stated, Kirby was fired by Baydoun in his office on the afternoon of May 17. According to Rice, while standing near the cashiers’ station, she overheard parts of Kirby’s conversa- tion with Baydoun.29 According to Rice, Kirby was upset, and in a loud voice was using the “F” word, perhaps two or three times to Baydoun. Rice testified that she thought at the time that Kirby was really “going off” on Baydoun. Rice could not 28 Baydoun testified that his own wife was pregnant during this time. In fact, on May 16, he had spent 2 days at the hospital dealing with his wife’s protracted labor, and when he returned home, he was quite stressed and tired. Baydoun volunteered that if Kirby were not preg- nant, he might have fired her for swearing at her supervisor. 29 Rice testified that she did not tarry to listen to the whole conversa- tion because she was busy cashing out a customer; also, Rice could not hear what Baydoun was saying at all; only Kirby’s audible cursing came through the closed office door. say whether the cashier on duty or other customers standing near the cashier heard what she heard; however, the cashiers’ station was less than a foot away from Baydoun’s closed office door. Rice also testified that when Kirby emerged from the office, she proceeded to the back of the restaurant to pick up her belongings. As she was leaving, Kirby called her (Rice) a stupid, f—king bi—ch (s-f-b), adding that she (Kirby) was merely trying to help Rice. Rice then went to the front of the restaurant where Baydoun was now standing and protested to him Kirby’s addressing her as she had. Baydoun told her not to respond. Rice refrained from remarking to Kirby. Kirby then came by the cash register and, in Lamentola’s presence, again called her (Rice) a s-f-b. Kirby then departed.30 Rice testified that customers were only about a half-foot away when Kirby first cursed her (at the computer), and, besides, Kirby’s voice was raised as a result of her being upset. The second time Kirby cursed her at the front register, customers were only about 2 feet from Kirby who was still upset and speaking loudly as she left the restaurant. Lamentola testified that on May 17, after she discussed the May 16 incident with Baydoun, he asked her to cover for Kirby and to direct her to his office. Lamentola did not stay for the closed door meeting and did not hear any conversation between Baydoun and Kirby. However, after the meeting, Lamentola saw that Kirby, leaving the office, was very upset, angry, and crying, and as Kirby punched out, used some profanity, saying f—k this place. Also, as Kirby was leaving the restaurant, she turned to Rice and, in a loud voice, called her a f—king bi—ch, and said that she (Kirby) was defending her (Rice). Baydoun testified that after he had informed Kirby of her discharge, she immediately left his office, preparatory to leav- ing to leaving the premises. As Kirby walked to the rear of the restaurant, she cursed at him and Rice, using terms such as f—k you and stupid bi-ch. To Baydoun, Kirby was yelling these profanities within the dining area so that all could hear. Bay- doun described the scene as hectic and “not nice.” Kirby admitted that when Baydoun nodded in the affirmative to her question whether she was being fired, she said out of anger, f—k and may have called him a f—king asshole. Kirby did not recall calling Rice a s-f-b, although she believed she may have conversed with Rice as she was leaving. F. Discussion and Conclusions Section 8(a)(1) of the Act makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.” 29 U.S.C. §158(a)(1). One of the rights guaranteed in Section 7 is the right to engage in concerted activities—for the purpose of mutual aid or protec- tion. 29 U.S.C. §157. The Board has held that in order to find that activities are concerted, the employee activities must have been “engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself.” Meyers Industries, 268 NLRB 493, 497 (1984). Under the Meyers analysis, an 8(a)(1) violation will be found if the em- ployer knew of the concerted nature of the employee’s activity, the concerted activity was protected under the Act, and the adverse employment action at issue was motivated by the em- ployee’s protected activity. Id. 30 Rice could not recall whether Kirby mentioned that she had been fired before she left the restaurant. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710 G. Contention of the Parties The General Counsel, in essence, argues that Kirby (along with her coworker DeLuco) brought to the attention of another coworker Rice, her (their) perceptions that the Respondent had discriminated on racial grounds against a prospective em- ployee, Rice’s daughter; and that DeLuco and Kirby, acting on that perception, advised Rice that she may have grounds to sue the Respondent. In fact, they encouraged her to do so to rem- edy what Kirby and DeLuco perceived as the Respondent’s (racially) discriminatory hiring practices. The General Counsel further argues that Kirby’s actions were protected concerted activity and that she was fired for engaging in that activity. The General Counsel asserts that the Respondent’s proffered rea- sons for her terminating Kirby are mere pretexts, and that a violation of Section 8(a)(1) of the Act should be found. The Respondent acknowledges that concerted efforts by em- ployees to alleviate racially discriminatory hiring practices of their employer have been recognized by the Board as protected activity. However, first, because Kirby specifically denied mentioning racial discrimination to Rice, the Respondent con- tends that her comments to Rice that she may be entitled to or should sue the Respondent were not protected. The Respon- dent further asserts that because there was no prior history of racial discrimination on the Respondent’s part even if racial discrimination was mentioned by Kirby, a finding of concerted action with regard to race relations cannot be found.31 The Respondent principally argues, however, that it had le- gitimate reasons to terminate Kirby and, moreover, Kirby’s behavior prior to, during, and after the May 16 incident cost her the protections of the Act, irrespective of whether her initial conversations with Rice were protected. Specifically, the Re- spondent contends that Kirby’s prior problems on the job with customers, fellow employees, and supervisors for which she was disciplined, and her harassing of Rice in and of themselves justify her discharge. Additionally, Kirby’s upsetting the busi- ness of the restaurant during a peak time in front of the custom- ers warrants the action taken by it. Finally, the Respondent points to Kirby’s outrageous behavior and profane-laced speech directed at her supervisor and coworkers in front of the custom- ers at her discharge as additional actions causing her to forfeit the protections of the Act. H. The Alleged Concerted Activity The Board has long recognized that concerted efforts by em- ployees to alleviate racially discriminatory employment condi- tions are or can be protected activity, so long as the efforts in question do not interfere with other important labor law princi- ples, such as the rule of exclusive representation. Vought Corp., 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986). In Vought, a white employee communicated to several black employees that another white employee was ru- mored to be in line for promotion over a black employee, and suggested that the black employee take the matter up with man- agement at the next meeting. The Board concluded that the white employee’s remarks constituted protected concerted ac- tivity. Kirby’s and DeLuco’s statements to Rice are similar or 31 Respondent cites Pioneer Natural Gas Co., 253 NLRB 17 (1980), in support of this proposition. I have perused the decision and would conclude that this decision does not stand for the proposition as as- serted. Additionally, my research has disclosed no other Board or other authority supportive of Respondent’s argument; accordingly, I reject this argument. at least of the same genre and, in my view, were a matter of mutual concern. The statements appear to me to have been engaged in with the object of initiating or inducing or preparing for group action or had some relation to group action in the interest of the Respondent’s employees. Id. Here, it is clear that Kirby and DeLuco,32 according to Rice, approached her and communicated their perceptions that a white employee’s daughter had been hired and that Rice’s daughter had not; and that the Respondent had discriminated against Rice’s daughter on racial grounds. Kirby asked Rice how she (Rice) felt about this, but, more importantly, suggested that the filing of a suit was appropriate. Certainly, Kirby and DeLuco approached Rice in concert, and neither Kirby nor DeLuco suggested that they should take a file a suit for them- selves. Rather, the clear thrust of their conversation and ex- pressed concerns were for a fellow employee, Rice, and her daughter as a prospective employee at the Respondent’s restau- rant. In my view, the conversations had as their certain objec- tive inducing a current employee and perhaps a prospective employee to take an action which was in the interest of all of the Respondent’s employees.33 That Kirby’s (and DeLuco’s) actions were or proved to be unwelcome and her perceptions about racial discrimination on the Respondent’s part ill- founded, does not nullify their protected nature.34 I. Knowledge and Animus In my view, it can hardly be disputed that the Respondent did not know the content of Kirby and DeLuco’s conversation with Rice, i.e., that the two had approached Rice and advised her specifically that Rice’s daughter had not been hired and that another sister employee’s daughter had been, and that Rice should file a racial discrimination lawsuit. First, clearly Rice told her immediate supervisor, Lamentola,35 of the conversa- tions and complained to her that Kirby and DeLuco were har- assing her. Lamentola, describing Rice’s complaint as “gos- sip,” admitted that she understood from Rice that the nonhiring issue centered on alleged racial discrimination by Baydoun. Second, after conversing with and consoling Rice, Lamentola called Baydoun in a fit of exasperation and explained what was going on. It is not precisely clear, based on Lamentola’s testi- mony, whether she explained explicitly that Kirby and DeLuco had accused Baydoun of racial discrimination and were advis- ing Rice to bring suit. Lamentola testified that she could not recall mentioning a lawsuit. While I find Lamentola to be generally a credible witness, I do not believe that she was totally forthright in her response. It 32 I have credited Rice’s testimony regarding Kirby and DeLuco’s conversation with her on May 16, and specifically that both Kirby and DeLuco raised the issue of racial discrimination in the nonhiring of Rice’s daughter. I found that Rice was forthright, steadfast, and accu- rate in her testimony, and was thoroughly a credible witness. 33 It can hardly be argued, given the history of race relations in this country, that alleviating racial discrimination is not of interest to all employees in the workplace, irrespective of race or ethnicity of the person bringing the charge. 34 See Honeywell, Inc., 250 NLRB 160 (1980), where a suspended employee made derogatory remarks about supervisors and their em- ployer as part of his protest against his employer’s allegedly racial discrimination promotion policy. The Board, nonetheless, found his actions protected. 35 The Respondent has stipulated and agreed, and I find, that Donna Lamentola and Ali Baydoun were at all material times supervisors and/or agents of Respondent under Sec. 2(11) and (13) of the Act. DEARBORN BIG BOY NO. 3, INC. 711 is significant to me that Lamentola was in quite a state on May 16, and I find it hard to believe that she did not tell Baydoun that not only was there a major upset among the three wait- resses regarding Baydoun’s not hiring Rice’s daughter, but that he had been accused by Kirby and DeLuco of acting out of racial impulses or motivations. Lamentola testified that Bay- doun instructed her to fire Kirby and send her home. This was a very strong and unusual reaction from a man who testified that because he disliked firing people and had never before fired any one, his general policy for problematic employees was to send them home for the day so that the restaurant could function smoothly and he would have time to investigate the cause of the problem. I believe that Lamentola’s refusal to follow Baydoun’s order was a direct reflection of the unusual- ness of this reaction. I would infer that Lamentola told Bay- doun about the racial discrimination charge on May 16, and that he was angry, and perhaps disappointed over it because of his expressed sympathy for Kirby and his past tolerance of her problems. Be that as it may, the Respondent’s knowledge of the racial discrimination charge was certainly evident on May 17 when Baydoun came to work and discussed the matter with Lamentola and, as he claims, Rice. There is no record evidence tending to show that the Re- spondent, in general, harbored any animus toward employee concerted activity. The question here, nonetheless, is whether Kirby’s discharge was motivated by what I have found to be her having engaged in protected concerted activity. Baydoun becomes the focus of the inquiry since, clearly, Lamentola did not want to fire Kirby and in fact refused to fire her. Baydoun testified basically that he had experienced a series of on-the-job problems with Kirby and that the May 16 incident was the last straw, that he was fed up with her. Baydoun insisted that when Lamentola told him of Kirby’s upsetting and harassing of Rice, and the disruptive effect of her conduct on the business, he decided then that Kirby had to go. In short, according to the Respondent, Baydoun’s discharge of Kirby was based on le- gitimate reasons—her past problems with customers, fellow employees, and supervisors; the May 16 incident with Rice was merely the last in a series of similar problems. While Baydoun generally came across as a sincere and sympathetic manager, and was generally credible, I do not credit his testimony regard- ing his motivation or the reasons he offered to justify Kirby’s discharge. First, Lamentola credibly testified that Baydoun did not mention any other incidents when he instructed her to fire Kirby on May 16; thus, the only incident in question had to be related to Kirby’s racial discrimination charges. Second, Bay- doun testified that none of Kirby’s prior offenses, either indi- vidually or cumulatively, warranted even a suspension, let alone discharge; rather, Baydoun elected to counsel her. Even if Baydoun acted out of sympathy or pity, he certainly let slide some fairly egregious conduct on Kirby’s part with only the mildest of disciplines. Third, there is the matter of Baydoun’s responses to questions in a meeting he supposedly had with Rice on May 17. As earlier noted, Rice, who was eminently possessed of good memory, did not mention meeting with Bay- doun on that day to discuss preliminarily the previous day’s incident with Baydoun. Rice testified that she only spoke to Baydoun on May 17 because of Kirby’s profane remarks to her. Thus, in all likelihood, the meeting did not take place. Addi- tionally, Baydoun’s testimony regarding what Rice related to him in the so-called meeting was rather vague, nonresponsive, and sketchy; and considering the magnitude of the entire inci- dent, Baydoun’s recall was less than impressive. Baydoun was either mistaken or confused with regard to the meeting’s occur- rence in my view. But more important, he simply did not seem forthright, and his credibility suffered for it. Then there is the matter of the disparate punishment of Kirby and DeLuco, who was only suspended for 1 week by Baydoun for her part in the Rice incident. Baydoun explained the differences by noting that DeLuco had not caused him problems in the past and was a good server; however, he felt some punishment was in order. In my view, this does not wash. Clearly, the record evidence shows that both Kirby and DeLuco were, by their acts, equally culpable, although Kirby possibly had a larger role and kept the lawsuit harangue going a little longer.36 Lastly, there is the testimony of Baydoun’s decision to dis- charge Kirby. Baydoun testified that he decided to fire Kirby on May 16, after his conversation with Lamentola, who had just minutes before told him of Kirby’s allegations of racial dis- crimination. On balance, I would conclude that the Respondent was moti- vated to discharge her, at least in substantial part, by Kirby’s engaging in protected concerted activity. Reddicar Corp., 264 NLRB 997 (1983). Conclusions Since I have determined that the General Counsel has estab- lished a prima facie case of a violation of the Act, it remains to be determined whether the Respondent has satisfactorily shown that it would have terminated Kirby even in the absence of the protected activity. Baydoun’s credible testimony makes clear that over the time he supervised her, Kirby was a problematic employee who used foul language, had poor interpersonal skills, and could on occa- sion exhibit a bad work “attitude.” In spite of what I consider to be fairly egregious conduct on the job, nonetheless, Baydoun kept Kirby on. His reasons were several, ranging from his sympathy for Kirby’s pregnancy and her need for a job, his need to retain trained servers, his general disinclination to fire people, and perhaps, as Rice testified, his being an all around “nice guy” who tried to bring out the best in Kirby. Irrespec- tive of his reasons, Baydoun and the Respondent clearly toler- ated Kirby’s behavior, perhaps too long. It is also significant to me that when Baydoun told Lamentola to fire Kirby on May 16, he did not mention any of the past problems as a reason to fire Kirby and send her home.37 It is also of some note to me that if one were to separate Kirby’s allegation of racial dis- crimination from her subsequent actions (pestering Rice, etc.), her behavior does not seem nearly as disruptive of the Respon- dent’s business as some of her past actions. It is undisputed that Kirby exercised poor judgment in choosing the wrong time —the luncheon hour—and the wrong place—the serving—area to tell Rice of her suspicions, and perhaps she was not sensitive enough to anticipate the effect her charge would have on Rice, and even the Respondent’s customers who overheard the fracas. However, the whole affair lasted only about 30 minutes and, 36 I draw this conclusion from Rice, who testified that Kirby was the one who took the leadership role in suggesting that she file a lawsuit and was far more persistent than DeLuco in urging Rice to file a dis- crimination suit. 37 Lamentola testified credibly that Baydoun did not tell her to fire Kirby because of her past problems. Lamentola expressed her belief that Baydoun was firing Kirby for what had happened on May 16, his saying to her “we don’t need that extra nonsense.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712 according to Lamentola, fully abated, with everyone complet- ing their shifts without further incident. It seems to me that given Baydoun’s prior light discipline of Kirby for what I consider overall much more serious infrac- tions, were it not for Kirby’s discrimination allegations, she would not have been fired for causing the disruption of the Respondent’s business on May 16. Perhaps, Baydoun would have escalated her discipline to a suspension because of her involvement in the disturbance (as with DeLuco), but, given his sympathies for her, he probably would not have terminated her.38 I am not persuaded by the Respondent’s assertion that the May 16 incident was merely the last of a series of intoler- able behavior on Kirby’s part, and that it fired her for this rea- son. On the contrary, while I agree that Kirby’s behavior in the affair was less than laudable, her protected concerted activity —raising the specter of racial discrimination—was the trigger event for her discharge, which then became inextricably entan- gled in all that followed. Thus, I would conclude that the Re- spondent has not persuaded me that it would have terminated Kirby even in the absence of her protected concerted activity. Aroostook County Regional Ophthalmology Center, 317 NLRB 218 (1995). For the foregoing reasons, I find that the Respondent vio- lated Section 8(a)(1) of the Act by discharging Kirby. I further find that Kirby did not disqualify herself from the usual reme- dies of reinstatement and backpay by her postdischarge con- duct. The evidence of record indicates that Kirby, on other occasions, had used profanity in the workplace, had been dis- courteous to a customer, and disrespectful and uncivil to her fellow workers, including a supervisor. Baydoun testified that Kirby had been impolite to the staff on many occasions over the year he supervised her, causing him to counsel her to mind her manners. Baydoun never contemplated firing her, because he evidently thought she was worth retaining in spite of her prob- lems and “attitude.” Thus, while I view Kirby’s postdischarge conduct as beyond the pale,39 on balance it was little different (if at all) from her prior misconduct for which she was never, after several reprimands and counseling, even suspended. Moreover, it could be reasonably argued that Kirby’s intemper- ate reaction was provoked by the Respondent’s unlawful action against her. In any event, given the context of her history with the Re- spondent, Kirby’s postdischarge conduct on May 17 was not so outrageous so as to make her unfit for employment. Alto- Shaam, Inc., 307 NLRB 1466 (1992), enfd. 996 F.2d 1219 (7th Cir. 1993), cert. denied 510 U.S. 965 (1993); C-Town, 281 NLRB 458 (1986). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Kimberly Kirby because she concertedly told other employees that the Respondent engaged in racially discriminatory hiring practices, the Respondent has violated and is violating Section 8(a)(1) of the Act. 38 I note that Baydoun left the door open for Kirby’s return to work after she delivered her child. 39 I find that Kirby’s postdischarge conduct was egregious and rep- rehensible, and certainly not excusable because of her possibly hurt feelings and evident disappointment in Rice’s lack of appreciation of her intentions. Kirby, in my mind, had no right to curse her supervisors and a fellow employee, or to disrupt the business of the Respondent. 3. The aforesaid unfair labor practice is an unfair labor prac- tice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has violated Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist therefrom and from engaging in like or related unlawful conduct, and to take certain affirmative action de- signed to effectuate the policies of the Act. Having found that the Respondent discriminatorily termi- nated Kimberly Kirby, I recommend that the Respondent be ordered to offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of earnings and benefits that she may have suffered from the time of her discharge to the date of the Respondent’s offer of reinstatement. I shall further recommend that the Re- spondent be ordered to expunge from its records any reference to her unlawful termination, to give her written notice of such expunction, and to inform her that its unlawful conduct will not be used as a basis for future personnel actions against her. Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended40 ORDER The Respondent, Dearborn Big Boy No. 3, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees, or in any other manner dis- criminating against them with regard to their hire or tenure of employment or any term or condition of employment, because they engage in protected concerted activity by complaining to their fellow employees, the Company, or to governmental au- thorities about racially discriminatory hiring practices, or other terms and conditions of employment. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Kim- berly Kirby full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges pre- viously enjoyed. make her whole for losses she suffered by reason of the discrimination against her, as set forth in the rem- edy section of this decision. (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Kimberly Kirby, and within 3 days thereafter notify her in writing that 40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. DEARBORN BIG BOY NO. 3, INC. 713 this has been done and that the discharge will not be used against her in any way. (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (d) Within 14 days after service by the Region, post at its Detroit, Michigan facility copies of the attached notice marked “Appendix.”41 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 23, 1996. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 41 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment 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 Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge employees, or in any other manner discriminate against them with regard to their hire or tenure WE WILL NOT of employment or any term or condition of employ- ment, because they engage in protected concerted activity by complaining to their fellow employees, the Company, or to governmental authorities about racially discriminatory hiring practices, or other terms and conditions of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of their rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of this Order, offer Kimberly Kirby full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privi- leges previously enjoyed, and WE WILL make her whole for losses she suffered by reason of the discrimination against her, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of Kim- berly Kirby, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. DEARBORN BIG BOY NO. 3, INC.