Shin Nihon Kosan, Inc.

SHOGUN RESTAURANT 755 Shin Nihon Kosan, Inc. d/b/a Shogun Restaurant and Kathy Masaoka. Case 31-CA-12304 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS , On 14 September 1983 Administrative Law Judge Earldean V. S. Robbins issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an an- swering brief. The National Labor Relations Board has delegat- ed 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,' and conclusions2 and to adopt the recommended Order. Our dissenting colleague contends that the judge erred in relying on statements allegedly made by the Respondent's president Kanenobu in his pre- hearing affidavit, finding them more reliable than his contrary and inconsistent testimony at the hear- ing. The record demonstrates, however, that the judge is correct. Kanenobu used an interpreter at the hearing, but he testified that he spoke English when he gave his affidavit to the Board agent. He also testified that after the Board agent had finished taking his state- ment, Kanenobu initialed each of the pages, attest- ed that he had read and understood its contents, and "certified that it was true and correct to the best of [his] knowledge." In addition, he requested and received a copy of the affidavit, but did not then or later notify the Board agent that it con- tained any errors. At the hearing Känenobu read a portion of the affidavit aloud, finding difficulty , The Respondent has excepted to some of the Judge's credibility find- ings 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 Cm 1951) We have carefully examined the record and find no basis for reversing the findings We note the following minor errors in the administrative law Judge's decision (1) It is not "undisputed" that Takee became head waitress in March 1982, the record indicates that she most likely became head wait- ress in February 1982, (2). Kanenobu, the Respondent's president, stated in his preheating affidavit that one of the reasons he considered Takee to be a bad waitress was that she changed schedules without permission, not with permission, (3) employee Kondo testified that Takee was told about her discharge by the Respondent's manager Kamm, not by assistant man- ager Cluwa, and (4) Takee's health card shows that she had family cov- erage in November 1981, not December We find that these errors do not affect the validity of the judge's conclusions In her conclusions the Judge inadvertently found that the Respond- ent's discharge of Takee on 1 June 1982 violated Sec 8(a)(3) as well as Sec 8(a)(1) 273 NLRB No. 102 only with the words which the judge found were illegible. In , short, Kanenobu can speak and read English, and had ample time and opportunity to correct or clarify those portions of the affidavit which allegedly contained errors. Accordingly, we find no grounds for impugning the authenticity of the affidavit. Our dissenting colleague contends that the judge erred in crediting Takee's testimony without making specific findings concerning employee Yuka's testimony that Takee offered her a bribe to give testimony at the hearing. Takee denied having made this offer. In footnote 19 of her decision 'the judge Jejected the Respondent's argument that Takee's testimony was not credible and based on her observation of the demeanor of the witnesses and the entire record, the judge discredited the Re- spondent's witnesses' testimony and credited Takee's testimony where they conflicted. Thus, as Yuka's testimony is part of the entire record, the judge implicitly . discredited Yuka's testimony with respect to the alleged bribe. See, e.g., Kimball Tire Co., 240 NLRB 343, 344 fn. 5 (1979). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Shin Nihon Kosan, Inc. d/b/a Shogun Restaurant, Pasadena, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. MEMBER ,HUNTER, dissenting. The findings in this case rest largely on the credibility of alleged discriminatee Voravan Takee. The Respondent's witness Hyon-ChaCha (Yuka) testified that Takee attempted to bribe her to give testimony, the clear implication being that 'such tes- timony was to be favorable to Takee's interests. Takee denied this, but the administrative law judge made no attempt to resolve the credibility of this serious allegation. In the absence of such resolu- tion, the propriety of the judge's overall crediting of Takee over other witnesses is necessarily cast in doubt. On such an important matter, which needs a specific resolution, I would not rely as my col- leagues , do on the judge's summary credibility com- ment at footnote 19 of her decision. Moreover, the comment at footnote 19, read in proper context, appears to be a resolution of credibility between the Respondent's witness Kajino and four employ- ,ees, including Takee, as to whether Kajino told the employees that Takee was fired for her participa- tion in a walkout. That resolution has nothing to do with the issue of whether Takee bribed Yuka. Takee's attempted bribery of a witness impliedly to 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fabricate testimony would. cast such a deep shadow over her own credibility as a witness that the judge's failure to rule on whether or not it oc- curred is fatal to any reliance on her testimony. In addition, the judge erred in relying on state- ments allegedly made by the Respondent's 'presi- dent Kanenobu in an affidavit as being "more reli- able" than his contrary testimony at the hearing. Kanenobu testified through an interpreter. Describ- ing the affidavit, which was given in English, Kan- enobu said that he did not read it before he signed it; that he was told to sign it so he did; and that he did not understand what was written. When asked whether he had sworn to its veracity, he responded that he did not understand that well. When asked to read a position of his affidavit in English, he did not read it verbatim. The General Counsel himself described •Kanenobles reading as simply the "es- sence" of what the affidavit stated. Kanenobu was unable to read two phrases of the affidavit but the judge concluded that this resulted from -the illegi- bility of the handwriting and not from any inability to read English. However, Kanenobu was never asked if this was the reason for his difficulty. In these circumstances, I am not satisfied that the affi- davit was properly relied on.' Because the judge's error in failing to resolve the "question of Takee's bribery attempt has a major impact on her general crediting of Takee, and as -her error concerning Kanenobu's affidavit reflects to some extent on her overall credibility findings, I would remand the case to the judge for the making and reviewing of such credibility findings as may be necessary consistent with the foregoing. My colleagues indicate that Kanenobu testified that at the time the affidavit was taken he had *attested that he understood its contents While Kanenobu signed the affidavit with its attestation clause, he testified that he had not read that clause before he signed the affidavit Further, in view of the above, it is unclear whether he understood the clause DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on various dates in April and June 1983. The charge was filed by Kathy Masaoka, an individual, on July 7, 1982, and a copy thereof was served on Shin Nihon Kosan, Inc d/b/ Shogun Restaurant (Respond- ent), on July 12, 1982. The complaint, which issued on April 5, 1983, alleges that Respondent violated Section 8(a)(1) of the National Labor Relations. Act (the Act) The basic issue herein is whether Voravan -Takee' is a sn- pervisor within the meaning of Section 2(11) of the Act and, if not, whether she was discharged for participating in a protected concerted walkout of employees. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by Respondent, I make the following FINDINGS OF FACT I. JURISDICTION At all times material herein, Respondent, a California corporation with an office and principal place of business in Pasadena, California, has been engaged in the business of operating a restaurant. Respondent, in the course and conduct of its business operation, annually derives gross revenue in excess of $500,000 and annually purchases and receives goods or services valued in excess of $10,000 from sellers or suppliers located within the State of Cali- fornia, which sellers or suppliers receive such goods in substantially the same form directly outside the State of California. The complaint alleges, Respondent admits, and I find that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE SUPERVISORY STATUS OF VORAVAN TAKEE A. Facts At the times material herein Respondent's employee complement consisted of 6 cooks .and 2 dishwashers who worked under the supervision of Head Takayoshi Na- kagawa; 12 waitresses and 6 busboys whose supervision is in dispute; the hostess, the host, the bartender, the barboy, 2 cocktail waitresses, 2 cashiers and 2 sushi chefs who worked under the supervision of Assistant Manager Morihito Chijiwa. Takee began work for Respondent as a waitress in February 1981. In June 1981 she left Respondent's employ. According to her, she quit. According to Re- spondent's president Sadaki Kanenobu, he discharged her because she did not have sufficient experience. Thereaf- ter, Respondent rehired Takee According to Kanenobu, she was rehired because Respondent needed a waitress and because he had heard that in the interim she had been Working at Horikawa's Restaurant and that Hor- - ikawa was very strict in its training. Consequently, he thought that by this time Takee should be a good wait- ress. Takee testified that she was away from Respond- ent's employ for only a week. Kanenobu testified it was about 3 months. The parties later stipulated that Takee's break in service was no more than 2 weeks.' It is undisputed that Takee became head waitress in March 1982, 2 that Respondent announced such to the other waitresses, and that her name was posted, along with those of the two office employees, the manager, the assistant manager, and the head chef, as one who was permitted access to the -office. However, the testimony is in conflict as to her duties and authority as head wait- ress. Kanenobu and Takee testified in this regard prior to a 3-week recess in the hearing herein The stipulation was entered into after the recess 2 All dates hereinafter will be in 1982 unless otherwise indicated 757 SHOGUN RESTAURANT As evidence of Takee's supervisory status, Respondent introduced into evidence minufes of a January 9, 1982 meeting attended by Respondent's president, .manager, assistant manager, and maitre d'. Kanenobu, Respond- ent's president, testified that the chart depicts the organi- zational structure of the restaurant as discussed at this meeting which he describes as the annual front meeting.3 According to him, this was the management structure implemented when the restaurant opened and thereafter reconfirmed the first of each year. The chart shows three department heads reporting directly to the manager—the head 'chef, the assistant manager, and the head waitress. Reporting to the head chef are the cooks and dishwash- 'ers. Reporting to the assistant manager are the cashiers, the bar-personnel, and the front personnel. Reporting to the head waitress are the busboys and waitresses. Kanenobu testified that the head chef and the assistant manager had the authority to hire and fire employees only in their respective departments, the head waitress had the authority to recommend the hiring and firing of busboys and waitresses, and that he thinks Takee recom- mended that Pepe Castillon, the head busboy, be termi- nated. He then- testified that Takee actually terminated Pepe -for thievery without any prior investigation by him or Manager- Kajino. Kanenobu also testified that Kajino had the authority to hire and fire all employees without first consulting with `Kanenobu. However, his preheanng affidavit states that Kajino had such authority only with regard to part-time employees, that he can hire and fire ,full-time employees only in an emergency. Kanenobu testified that the duties of the head chef were to admimster. and instruct his subordinates, to order food, and that he had the authority to discipline kitchen employees and to make their schedules The duties of the assistant manager were to substitute for the manager in -his absence, and to administer and supervise the cashiers, the bar personnel, the front personnel, and the sushi chefs. The duties of the head waitress were to supervise her 18 subordinates. Specifically, he testified, one of her important responsibilities was the training of new wait- resses; and she had the authority to discipline_ waitresses and busboys and to change their schedules. Kanenobu also testified that the bar manager was responsible for training the barboy and the cocktail waitresses and the head busboy was responsible for training the busboys. According to Kanenobu, the wages and salaries of res- taurant personnel were: manager—$1800 a month; assist- ant manager—$1600 a month; head chef—$1200 a month; maitre d'—$900 a month; cashier $3.35 to $4 an hour; head waitress,– $3.60 an hour plus tips; cooks— $750 to $900 a month; hostess—$3.75 an hour; bar man- ager—$5.75 to, $6 an hour; head busboy—$3.60 an hour; bartender—$5.25 or $5.50 an hour plus tips; barboy- .$3.35 an hour plus a portion of the bartender's tips; sushi chefs—$1100 a month; and waitresses—$3.35 an hour, plus tips. Kanenobu testified that the maitre d', the cashiers, the cooks, and the waitresses who worked a minimum of 30 hours a week and had completed the 3 months' proba- tionary period are entitled to receive health insurance covering the employee and his or her spouse. He later testified that waitresses were entitled to health insurance after 6 months. Further, according to Kanenobu, only the manager, assistant manager, head chef, and head waitress are entitled to health insurance covering their children as well as their 'spouses and that no other em- ployees receive such additional coverage. On direct ex- -amination, Kanenobu testified, in regard to when Takee began receiving this additional insurance, "I think we began to cover her entire family after she became the head waitress." On cross-examination, he testified that she received the additional coverage in January before she became head waitress. According to him, at that point he had decided to make her head waitress. He did not explain why, if the decision was made in January and the former head waitress quit in January, Takee did not become head waitress until March. Takee testified that she has had coverage for her spouse and children since November 1981, and in sup- port thereof the General Counsel offered intO evidence her health plan card indicating family coverage as of No- vember 1981. Kanenobu admits that, although she receives a slightly hikher rate of pay than the other waitresses, Takee re- ceived this raise in pay in December 1981 at the same time that the former head waitress received a raise Takee testified she received the wage increase in either December 1981 or in January 1982 According to her undenied testimony, Kajino called her and Nonko, an- other waitress, into the cocktail lounge and told them, "Both of you going to get increase. Just please help to train the new waitress." Kajino testified that when Takee was promoted to head waitress toward the end of February he explained to her what her duties and responsibilities would be. Ac- cording to him, he told her she was to train the new waitresses, make the weekly schedules for the waitresses, make the daily assignments as to tables each waitress would service, and relay directions or requests from the kitchen to the waitresses. He further testified he told her if she was dissatisfied with the performance of any new waitresses as she was training, she could terminate them. He posted a written announcement near the timecards of the date she would become head waitress. Also, at the monthly waitress meeting held on the first Saturday in February, he announced to the waitresses that Takee had been promoted to head waitress and that when she di- rected them to do something they were to listen to her and follow her instructions. Kajino admits that 90 percent of- the time Takee worked the same number of stations, referred to as "tep- pans," as did the other waitesses However, according to Kajmo, he told Takee that from time to time she should not work any teppans so she co*. observe what the other waitresses were doing and instruct them as to what needed to be done. He also testified that Takee was per- mitted to use the office, whereas the other ' waitresses could not do so. Further, according to him, she disci- 4 There is no evidence as to whether Nonko, in fact, received a wage Increase at that time 3 The front employees are the maitre d' or host and the hostess 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plined waitresses. However, the only instance of disci- pline that he related was one occasion when he asked waitress Hyon-ChaCha, .also known as Yuka, v'vhy she was crying, and Yuka said she had been scolded by Takee. As to the termination of head busboy Pepe, Kajino tes- tified, "she [Takee] said to me, 'I saw Pepe taking tips from the table, so I'm going to have him terminated.' I just nodded and said, yes . . On that same day she came to me and said she had fired him." When asked what exactly she said, he first testified she said, "I had Pepe quit." Then he testified she said, "I fired Pepe." Kajino further testified that he did not speak to Pepe before he was fired nor did he investigate prior to the termination to determine if Pepe had in fact been stealing tips. Takee testified that her sole additional responsibility as head waitress was to relay to the waitresses orders and requests from management and the kitchen. According to her undenied testimony this type of liaison was neces- sary because the waitresses worked different shifts and it was easier for management or the chefs to give instruc- tions and requests to one waitress who could ensure that each waitress received the information Further, she tes- tified, without contradiction, that the cooks had been complaining prior to her becoming head waitress that there was no one to perform this function. 5 She denies that any member of management ever specifically ex- plained to .her what her citifies and responsibilities would be as head waitress and testified that she first learned she was the new head waitress at the monthly waitress meet- ing. At that time, Assistant Manager Morihito - Chijiw . a announced that from then on Takee would be head wait- sess.6 Takee denies that she was in charge of the busboys or that she told anyone she saw Pepe, the head busboy, stealing tips or that she discharged Pepe. She also denies that she made out the schedule or_ made assignments of, or changes as to previously assigned, work stations. Ac- cording to her, the schedules were prepared by Kajino or Chijiwa, as were station assignments. She admits that she trained new waitresses, but testified that she did this both before and after she became head waitress and denies that either Kajino or Chijiwa ever asked her to report on the performance of any waitress she trained. Also, she had access to the office both before and after she became head waitess for the sole' purpose of obtain- ing uniforms for the waitresses she was training Kajino admits that Takee trained new waitresses before she became head. waitress. She denies that she had authority to grant time off or that she relayed requests for time off to management. According to her, the waitresses went directly to Kajino or Chijiwa to request time off. Employee Diane Yoa7 testified that when she wanted _ time off she requested it from Kajino or Chijiwa. Also, 5 The request relayed between the cooks and waitresses had to do with things such as use of proper abbreviations when writing an order 6 Yuka testified that Kamm announced at the meeting that' Takee would be head waitress and would be in charge of all the waitresses and busboys Yoa left Respondent's employ on June 13 or 15 she contacted ,them directly if she was going to be late or absent However, Yuka testified that about June she asked Takee if she could leave about 30 minutes early, and Takee immediately gave her permiision to do so. Takee was not questioned in this regard. Yuka also testi- fied that on one occasion, when she wished to change her day off, she asked Takee to change her schedule and Takee did do. Further, according to Yuka, Takee changed her work station on one occasion. However, in this regard, she tes- tified that Takee came to her and asked if they could change work stations because she could not tolerate the customer's perfume. As to the change in her- day off, Yuka does_ not recall whether Takee simply exchanged days off with her. She did not ask Takee to exchange. She simply requested that she be allowed to change her day off that week and Takee said she could. Yuka fur- ther testified that, when one of the .waitresses who was to work with Takee on the late shift did not come in, Takee "asked me if I could stay late with her or not. And I answered, okay, I'll stay late." .Of the three waitresses who testified, Kondo did not testify with regard to Takee's supervisory status, -Yuka testified that Takee was her supervisor, and Yoa testified that she did not consider Takee as her immediate superi- or, but rather so considered Kajnio. However, in Yoa's prehearing affidavit, she stated,- "My immediate supervi- sor was the head waitess, Rose Takee." Yuka testified that Takee has disciplined her and that she has observed Takee disciplining other employees. When asked what she observed, she testified that when one of the new waitresses was putting garnishes on a cocktail glass, Takee shouted at her, "That's the wrong garnish" She also testified that she observed Takee disci- plining Pepe by telling him to pick up various things from, or place things on, tables She admits that she, Yuka, and other waitresses also told busboys to clean tables. However, according to her, when she did so, she was -requesting; when Takee did it, Takee did not say • "please," but was ordering. Yuka further testified that Takee disciplined her, that she 'scolded her frequently. The only specific incident to which she testified was once in the locker room when Takee scolded her and told the other three waitresses present that Yuka was a bad waitress. ' When Yuka was asked what she meant when she testi- fied that Takee disciplined waitresses, she testified, "[S]he let the new waitresses carry everything. And she just was watching behind the new waitress." When asked if she considered that discipline, she answered, "Yes." She admits that Takee did the same thing when she trained new waitresses prior to becoming head waitress. She also testified that, after Takee became head waitress, other waitresses assisted in the training of new waitress- es. B. Conclusions - . For reasons set forth more fully below, I do not credit Kanenobu and Kajino as to their conversations with Takee regarding her supervisory status or as to her su- pervisory authority or as to statements at the May 29 SHOGUN RESTAURANT 759 meeting regarding her-authority to discharge employees, nor does other evidence establish such authority Con- trary to Respondent's argument, I do not find the 'docu- ment, containing the organizational Chart which is al- leged as minutes of the annual front meeting; to be a reli- able indication that Takee was considered to be one of Respondent's three department heads on an organization- al level with the assistant manager and the head chef. I do not credit Kanenobu's and Kajmo's characteriza- tion of that meeting as an annual meeting of front em- ployees. In that regard, I note that the minutes indicate nothing identifiable as "front" problems or - concerns. Further, neither Kanenobu nor Kajino explained why Respondent's organizational structure would be reaf- firmed in a meeting with one "front" employee and was not stated to other employees. In the circumstances, I conclude that the document is not what it purports to be, and cannot be relied on to establish Takee's placement in the management and supervisory hierarchy. Also, I find that Takee's wage rate belies the assertions that she was on the same level as the head chef and the assistant manager, whose supervisory authority is undis- puted Thus, the 25-cent-an-hour differential between her rate of pay and that of other waitresses is more compara- ble to the differential of 25 cents an hour and 50 cents an hour received by the head busboy and bar manager, re- spectively, who are not department heads and whose sole responsibility with regard to other employees ap- pears to be training, than it is to the more than $500- and more than $300-a-month differential received by the as- sistant manager and head chef, respectively. The only other evidence supporting Respondent's con- tention that Takee was a supervisor' is the testimony of Yuka that Takee disciplined waitresses, directed waitress- es and - busboys in the performance of their duties, changed work assignments, and changed scheduled days off. Yuka's testimony clearly does not encompass any conduct which could be considered' as either discipline or responsible direction. 'Thus, her instructions to bus- boys were admittedly no different than the instructions that Yuka herself gave to busboys. That Takee may not have been particularly polite is not an indicia of supervi- sory authority Similarly, the instructions or observations as to errors made to other waitresses is consistent with her role as trainer. The one occasion involving a change of work station appears to have been a favor between two waitresses.. Also, I conclude that the change in Yuka's day off and the request that she remain with Takee for 30 additional minutes, on an occasion when the second late shift wait- ress was absent, was nothing more than an informal ac- commodation between two waitresses or,, at most, an iso- lated overstepping of her authority. In this regard I note that, despite his ,testimony, which was denied by Takee, that Takee prepared the schedules, in his prehearmg affi- davit Kanenobu stated that one of the reasons he consid- ered Takee to be a bad head waitress was that she changed schedules without permission I further note the testimony of Takee,.Yoa, and Kondo that waitress dissatisfaction with scheduling was one of the complaints made at ,the May 29 meeting and Takee's testimony, which I credit, that Kanenobu promised that prePäration of the schedule would be transferred from Chijiwa to Kajino. If Takee, in fact, prepared the sched- ule, there would have been no reason for Takee and the other waitresses to include this complaint in a' list of grievances which were clearly directed, in large part, toward Chijiwa. Further, if Takee actually had the su- pervisory authority claimed by Respondent and if Chijiwa supervised only the front, bar, and sushi employ- ees, there would have been no reason for waitresses to complain about Chijiwa. In all of the circumstances, I credit Takee's denial that she possessed and/or exercised the various indicia of su- pervisory authority as contended by Kanenobu and Kajino or that she was ever told that she possessed such. I further find that her duties and responsibilities in train- ing other waitresses and in being an information conduit from management and kitchen personnel to the waitress- es do not establish that she possessed supervisory author- ity, Poor Richard's Pub, 220 NLRB 1363 (1975).8 III. THE ALLEGED UNFAIR LABOR PRACTICES. A. Facts During the period of March, April, and May, the 'wait- resses became upset over working conditions and began to discuss their dissatisfactions among themselves. During the latter part of May, after they were informed that Respondent would no longer furnish cream and sugar for their coffee, the waitresses began considering taking some action to improve their working conditions. On ,Friday, May 28, they discussed their various dissatis- factions with working conditions and what they should do about it. They first decided they should walk out that evening. They then decided that they should wait until after their regular monthly meeting with management which was scheduled for the following day. On Saturday, May 29, about 1 to 2 hours before the regularly scheduled meeting with management, about eight of the waitresses, including Takee, met at a nearby restaurant. They made up a list of their complaints and decided that waitress Jennifer Lee would be their spokesperson in presenting these complaints to manage- ment They further decided, if management did not like it or disagreed or would not respond, they would walk out. Among the-complaints they listed were the posting by management of notices, considered by the waitresses to be derogatory, on the door to, and inside of, the Wait- resses' changing room regarding their personal grooming habits; the new requirement that they schedule a week in advance the meals they planned to eat in the restaurant, and the new requirement that they be tested as to their knowledge of cocktails Also included in their list of complaints was the change in the tip system from one where all tips were deposited into one box to be divided among the waitress- es and other employees 8 to a system which retained the 8 In reaching this conclusion, I have fully considered the cases cited by Respondent and find them to be distinguishable 9 Tips are shared with management and front personnel, sushi chefs, bar personnel, kitchen personnel, and busboys 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pooling feature but which would have each waitress de- posit her tips in a separate box, the amount of which would be considered by management as a factor in deter- mining the quality of a waitress' job performance; the changes in work schedules which had resulted in a cut in hours for some employees; the requirement that waitress- es make up any deficit if they undercharged a customer whereas Respondent would retain any overage; and the requirement that waitresses clean the soup and hot water urns. About 3:35 or 3:40 p.m. that day, Kajino, .Chijiwa, and the head chef, Nakagawa, met with the waitresses. There is no dispute about much of what was said at the meet- ipg. 1 o Kajino commenced the meeting by chiding the waitresses for arriving late. Lee said they were late be- cause they wanted to have a special meeting and they wanted Kanenobu to be present. Kajino said it was not necessary for. Kanenobu to be present and he might not be present. Lee said they needed Kanenobu there. At that point, Kanenobu walked in. Kajino then distributed a tip chart showing the amount of tips each waitress had received and explained that tips indicate whether a waitress was giving good service and that this was a means of helping an individual waitress recognize whether her service was good, or whether she needed to improve. The reaction of the waitresses to this was generally hostile. Takee, in particular, was rather vocal. Kanenobu, then asked each of the waitresses her opinion of the, tip charts. After they all responded nega- tively, Kanenobu instructed Kajino to stop preparing the tip charts. The waitresses mentioned not being furnished cream for their coffee. Kondo, Takee, and Yoa testified that they discussed their concerns With the work schedule, ,complaining that Respondent was unfairly cutting the number of hours some waitresses worked, and regarding the uncertainty as to when they would be working. Kajino testified that he does not think any scheduling problems were discussed, but he does not recall. Kanen- obu does not specifically deny that scheduling problems were discussed; however, his account of the meeting does not include any mention of scheduling. The principal difference in the various accounts of this meeting is the testimony of,-Kanenobu and Kajino re- garding an interchange between Kajino and Takee, which none of the employee witnesses included in their .accounts. Kanenobu testified that during Kajino's expla- nation as to the purpose of the tip charts, Kajmo men- tioned how bad the service had become and said the re- sponsibility was with the head waitress. Takee denied this and said the responsibility was that of the waitresses, that they were not well trained. Kajino said that was be- cause Takee's training was bad. Takee said there were so many new waitresses that it was difficult to train them all at one time. Takee then became excited and said,"Well then, is it all right for me to fire the employ- ees." Kajino said, "Well, naturally, of course." is Except as otherwise indicated, this account of the meeting is a com- posite of the testimony of all the witnesses which I find more accurately reflects what occurred It was at this point that Kanenobu interrupted and said he would poll each waitress as to whether she wanted the tip system Changed. Kajino testified in general cor- roboration of Kanenobu as to the interchange between him and Takee. According to him, when he insisted that •she was responsible for the recurring mistakes of the new waitresses, Takee said, -"Well, if that is my responsibility, then is it all right to fire the waitress- who makes the same mistakes." Kajino said, "Of course, you could do that." About 4:30 p.m., the time for the early shift to prepare to commence work, Kanenobu said it was time to go to work. The waitresses said they had a number of things to discuss. Takee suggested that she, Lee, and Yoa remain to continue the discussion and that the other waitresses begin work, which they did. Kanenobu suggested that they continue the discussion ' the office. The three waitresses went to the office but ' neither Kanenobu, Kajino, nor Chijiwa came in. Shortly thereafter Takee and Lee reported to the other waitresses that Kanenobu did not come in to talk to them. They decided to' walk out immediately and had commenced doing so when one of the chefs advised that they should first change out of their uniforms. They then went to the changing room. Both Kajino and Morihito came to the changing room door and attempted to per- suade them to return to work. A commitment was made to continue the discussions. All of the waitresses except Lee and Takee returned to woll." Lee and Takee then went to the office. Kanenobu said he would meet with the waitresses regarding their com- plaints, but he wanted to speak to Kajino first. They agreed to meet in a nearby restaurant that evening after work, which they did. Present at the meeting were 'all of the waitresses who had worked that day, Kanenobu, and Nakagawa. 12 Much of what occurred at this meeting is undisputed. Kanenobu apologized, saying he was busy with another restaurant and had not realized the situa- tion. He had Kondo, who speaks both English and Japa- nese fluently, read a letter of apology he had written. Kondo testified that the letter requested that Chijiwa be given another chance, stating that Chijiwa did not under- stand a lot of American ways but he was willing to learn and further stated that the schedules would be redone. Yoa testified in general .agreement except her account includes no mention of redoing the schedule. Takee testi- fied in generalities that the letter explained how Kanen- obu was feeling, that he understood them and requested that they understand him, and that they forgive manage- ment's attitude toward them. As to the schedule, Takee testified that Kanenobu said in the future Kajmo would prepare the schedule instead of Chijiwa: Takee also testi- fied that someone asked if any of them would be dis- charged because of the situation; to which Kanenobu re- plied, "Why should I? Just go back to work, and . I prom- ise you will be happy." " They were away from work about 20 minutes 12 According to Nakagawa, Kanenobu asked him why he was present and Nakagawa replied that the waitresses had requested that he attend the meeting SHOGUN RESTAURANT 761 Both Nakagawa and Yoa testified that Kanenobu said they had discovered the person who was stealing tips" and that person was no longer in Respondent's employ. According to Nakagawa, this was in response to a ques- tion. However, Kondo and Takee testified that nothing was said at this particular meeting regarding the stealing of tips Further, in the account of this meeting given in Yoa's preliearing affidavit dated July 29, there is no men- tion of any remarks regarding tip stealing. Kanenobu testified -that in the letter Kondo read, he stated that Chijiwa had only recently come from Japan and was not very proficient in English but he wanted to improve the business and perhaps some of the employees had taken it the wrong way. Kanenobu further stated in this letter that what Chijiwa was saying was not wrong, and Kanenobu hoped they would try to understand Chijiwa's English and give him an opportunity to im- prove his language so he could 'communicate better. Takee did not work on the following day, May 30. She did work on June 1. According to her, at the end of her shift Kajino told her he was sorry, he would have to fire her because of the walkout on Saturday. He said as head waitress, Takee had responsibility for that, so he would have to fire her. Takee said, "but I asked the waitresses to go back to work." Kajino replied, "Yes, but you should not have let it happen at all." Kajino then said that, personally, he liked Takee a lot but he had to discharge her because of the walkout. . Kondo testified that later that same evening , when she went into the changing room, she saw Takee kneeling down. She asked her what was the matter? Takee said Chijiwa fired her. Kondo asked why. Takee said Chijiwa felt that she was responsible for the walkout and she was fired for that reason. On the following day according to Kondo, she telephoned Kajino and told him she could no longer work in an environment where Takee could not be present. Kamp said the only reason Takee was dis- charged was because she was the head waitress and she was responsible for the walkout. He said even if someone else had been the head waitress that person would have been discharged. Yoa testified that on June 2 she and another waitress asked Kajino why Takee was discharged. Kajino replied that she was discharged because she was -head waitress and was responsible for the walkout. He said when someone was hired into management Respondent wanted that person to help Respondent, not go against Respond- ent in any way, and if anything was wrong to let man- agement know first so it could figure out some way to solve the problem. He said it was for that reason only, that personally Takee was a very nice person and very honest, but they had to let her go because of the walk- out. Nakagawa testified that he was discharged on June 13. Kajmo told ,him he was discharged because most of the chefs at the restaurant did not want to work with him During the course of their conversation, which lasted more than an hour, Nakagawa asked why Takee was dis- " Yoa testified that he said they compared the work schedule with all the times that money was stolen in order to single out the one person who was working on each of these occasions charged. According to him, Kajino replied that the reason he had to fire Takee was because, as head wait- ress, they wanted her to take the responsibility for the walkout, for damaging Respondent's image. Kajino fur- ther said that Nakagawa had also participated, that he had been seen talking to the waitresses, agitating them to engage in the walkout." Kanenobu testified that Takee was discharged for two reasons. one, service had deteriorated, which meant that Takee was unable to lead or guide the other waitresses; and; two, Takee had been stealing tips. According to him, on May 30, he met with chefs Okhawa and Hir- oyuki Matsuura." Matsuura said if present conditions continued, he and Okhawa did not wish to remain in Re- spondent's employ. Kanenobu asked what the situation was. Matsuura said, "You have a terrible head waitress and a terrible head chef. Kanenobu asked what he meant. Matsuura said the head chef tried to avoid work as much as possible and gave some examples. As to Takee, Kanenobu testified, Matsuura said she was not guiding the waitresses, that she was telling the new waitresses the wrong thing, that the cooks would report this to the head chef, but that he never relayed these complaints to the head waitress or to the others so that the same mistakes were repeated over and over again. Matsuura said the head waitress should be a model for the other waitresses but Takee would bring cakes from outside and eat them while she was working. He said neither Takee nor Nakagawa had the qualifications to be "heads." According to Kanenobu, Matsuura further said that Takee was stealing tips, that she would tell the other waitresses that she would do the counting so they did not need to come near to where she was doing the work, and so they had to stay a distance away. He further said they all thought this was rather odd, and that while this was happening he saw Takee stealing some of the tip money. Matsuura and Okhawa said that, if Kanenobu did not discharge Nakagawa and Takee, they would quit. Kanenobu further testified that prior to this Kajino had complained once or twice that the head waitress' training was not going well. _ Matsuura testified in general corroboration of Kanen- obu as to what he said regarding the head chef. In addi- tion, he testified that he said Nakagawa did not train the new chef and he was "picking on" food at another de- partment, the sushi bar. As to Takee, Matsuura testified he told Kanenobu, that Takee was treating very well the waitresses she liked, but did not treat well those she did not like, that she drank coffee in the dining room and used the sugar that was there for the customers. He agreed that he said he saw Takee stealing tips. Accord- ing to him, on two occasions in April he observed Takee counting tips. No one else was present. On one occasion, he saw her put money in an envelope without a name on 14 In his account of this conversation in his preheanng affidavit dated July 26, there is no mention of a reason for Takee's discharge However, that affidavit as given in support of the claim that Nakagawa was unlaw- fully discharged and was not concerning Takee's discharge 15 At the time of the hearing herein, Matsuura was head chef and ap- parently had been since sometime in June 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it," take the envelope, and leave On a second occasion, he saw her put tip money in her obi, which was unusual Takee testified that all of the late shift waitresses sit at a table and count the tips. Matsuura admits that is the way,tips are supposed to be counted but testified that on a number of occasions only one person counts the tips Takee testified that she cannot recall any occasion when she counted tips with no other waitress watching what she was doing. Kanenobu testified that on May 31 he related to Kajino what Matsuura and Okhawa told him and asked him to check what the amount of tips was. Later that day, Kann() reported to him that there was a total of about $1000 in tips missing per month since Takee became head waitress." Kanenobu said he had to think that this de- crease was because the head chef and the head waitress were not good and that the tips were being stolen. He then told Kajino to discharge Takee and to tell her that service was bad, business was very bad, and they no longer needed a head waitress so they were discharging her. He further specifically instructed Kajino not to men- tion the stealing of tips to Takee. When questioned as to the reason for this latter in- struction, Kanenobu testified, "We did not tell Pepe at that time, when he was thought to have stolen, and also we 'do not mention these personal matters." In further justification of these instructions, he testified: A . if that were said then we Would have to say who saw it. Because we didn't want to create any bad feelings there and she was going to leave • and we wanted things to be left in a peaceful manner • Also, in our Oriental society, which is a very small society, it would not be good to bring up peo- ple's names in such a way. And so. we tried to keep the problem as small as possible. . . . . JUDGE RoBBINS: Are you saying that in the Ori- ental society it is never mentioned if someone sees someone else stealing? A No, it's just that one does not throw rocks at a departing person. But, however, if the person is coming towards me like a fire squad then I would have to 'do something about it. However, in his statement of position submitted to the Board's Regional Office in response to the charge herein, he stated: On June 1, 1982 our head. waitress, Voravan Takee was terminated. She was dismissed, due to the fact that business slowed down considerably and there was no improvement on the service to our custom- ers, so we saw no advantage of maintaining a head waitress system. 16 All of the envelopes normally have names on them 17 According to Kanenobu, this was based on 10 percent of gross sales Further, in his prehearing_affidavit he states that the two chefs told him they would not remain in Respondent's employ if Nakagawa remained There is no mention of any ultimatum with regard to Takee. Nor did he state in his affidavit that a reason for discharging Takee was that she was stealing tips. According to Kanenobu, he did not mention the steal- ing of tips in his affidavit for the same reason he did not include it in his statement of position and also because he felt that he should only tell the Board agent the reason given by Kajino to Takee. In his prehearing affidavit, he does detail, as follows, why he considered Takee a bad head waitress: As a head waitress, Takee was very bad in that she would eat at the restaurant while she was working. She would bring food from the outside and eat it in the restaurant. She would drink soft drinks during work; she would change waitresses schedules with- out permission from the manager; she talked too much Takee was never given any written warnings about any of the above-mentioned matters. It is the practice of the restaurant to give only oral warnings or reprimands, never in writing. I never gave Takee any oral warnings myself. That is the responsibility of Mr. Kajino and Mr. ‘Monhito, the assistant man- ager Kajino testified in corroboration of Kanenobu as to the reasons for Takee's discharge and as to his conversations with Kanenobu with regard thereto. He denies the state- ments attributed to him by Takee, Yoa, Kondo, and Na- kagawa that Takee was discharged because, as head waitress, she was involved in the walkout. He admits that Yoa did ask him why Takee was discharged; to which he replied that Takee was not suitable as a head waitress. According to him, he felt it was not necessary to mention the stealing of tips. B Conclusions I (16 not credit Kanenobu and Kajino as to the reasons for Takee's discharge. I find them to be unreliable wit- nesses who attempted to tailor their testimony in the manner deemed to be most advantageous , to Respondent. In this regard, I note the inconsistencies in Kanenobu's testimony as to whether Takee discharged the head busboy or only recommended that he be discharged; his testimony that he discharged Takee in 1981 because she was inexperienced and rehired her after a break in serv- ice of approximately 3 months because in the interim she had worked in a restaurant that had good training of waitresses, which length of time was directly, and reason for rehire and characterization of her separation as a dis- charge were indirectly, contradicted by a subsequent stipulation of the parties that Takee's break in 'service was no More than 2 weeks; and his testimony that family health insurance coverage was restricted to management, which was contradicted by Takee's health plan card which shows she had family coverage in December 1981 before she became head waitress. I further note the conflicts between his testimony and his prehearing affidavit set forth above; particularly the SHOGUN RESTAURANT 763 statements in his affidavit that Kajino can hire and fire. full-time employees only in an emergency; that one reason for dissatisfaction with Takee's performance as head waitress was her changing of schedules without Kajino's permission, whereas he testified that Takee pre- pared the schedules; and the failure, in his affidavit and in his statement of position, to give the stealing of tips as' one of the reasons for her discharge or to relate the al- leged ultimatum given by Matsuura with regard to Takee. I do not credit Kanenobu's explanation of the rea- sons for these conflicts. Kanenobu, who speaks English but testified through an interpreter, testified that when he gave his affidavit he spoke to the Board agent in Eng- lish, but did not understand what was written in the affi- davit. He denies that he read the affidavit but admits that the Board agent showed it to him and he looked at it. According to him, he signed it because the Board agent told him it would be disadvantageous to him and he would lose the case if he did not sign it ,fight then and there. Kanenobu admits, he ,received a copy of the affidavit but never contacted the Board agent to tell him it was incorrect. According to him, he could not read the affi- davit so he just left it that way. However, he also testi- fied that he is a university graduate in electrical engi- neering and that he has been in business for 3 years. Fur- ther, he admits that he can read English and, on the wit- ness stand, did read in English that portion of the affida- vit regarding Kajmo's authority to hire and fire. He was unable to read two phrases but I conclude that this re- sulted from the illegibility of the handwriting and not from any inability to read English. He read without diffi- culty or error, "he [Kajino] can hire and fire full-time employees only in an emergency." In the circumstances, I conclude that Kanenobu's affidavit is a reliable account of the statements he made at that time, and that his affi- davit is more reliable than his testimony. • I do not credit Kanenobu and Kajino that during 'the May 29 meeting Kajmo told Takee she could fire wait- resses who did not perform satisfactorily. In his affidavit, Kanenobu states that even Kajino did not have such ad- thority. Further, I find it unlikely that the waitresses who testified would not recall such a statement. More- over, if she had, in fact, fired Pepe, as Kajino and Kan- enobu contend, there would have been no reason for her to ask such a question. Nor do I credit Kanenobu and Matsuura that Matsuura and •Okhawa had told Kanenobu they would guit if Takee remained or that Matsuura saw Takee stealing_ tips." I find it unlikely, considering the concern of the waitresses as to their stolen or decreased tips, that they would have tolerated, without complaint, their exclusion from the counting of tips as allegedly de- scribed by Matsurra to Kanenobu. Further, there is no reason apparent from the record why two cooks would threaten to quit because the head waitress was treating the waitresses unfairly or because the head chef was not relaying their complaints. 18 I do not credit Yuka as to the incident she descnbed as tip stealing Further, there is no evidence that Respondent had knowledge of this in- cident when Takee was discharged .I also do not credit Kajino's denial that he told Takee, Yoa, Kondo, and Nakagawa that Take& was discharged because she participated in the walkout The testimony of Takee, Yoa, Kondo, and Nakagawa, which I credit," tend to be mutually corroborative and, on a consider- ation of the demeanor of the witnesses and the entire record, more credible than that of Kajino. In all of the circumstances, I find that the reasons asserted by Re- spondent for Takee's discharge are pretextual and that she was discharged because she engaged in a walkout, along with other waitresses, in protest of their working conditions. 2° Accordingly, I find that Takee was dis- charged on June 1, 1982, in violation , of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Voravan Takee is an employee within the meaning of Section 2(3) of the Act. 3. By unlawfully discharging Voravan Takee, Re- spondent has committed unfair labor practices in viola- tion of Section 8(a)(1) of the A'ct. 4. By telling employees that a fellow employee was discharged because she participated in a protected con- certed walkout of employees, Respondent has committed unfair labor practices in violation 'of Section 8(a)(1) of the Act. • 5 The above-described unfair labor practices are unfair labor practices affecting commerce within the Meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain affirma- five action in order to effectuate the purposes of the Act. Having found that Respondent unlawfully discharged Voravan Takee in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to .offer Voravan Takee immediate and full reinstatement to her former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to her se- niority or any other rights or privileges previously en- joyed, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, plus interest, in the manner prescribed in F. W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).21 19 I have fully considered and reject Respondent's argument that their testimony is not credible 20 Contrary to Respondent's contentions, I find that Respondent has not established that Takee would have been discharged, even absent this protected activity See NLRB v Transportation Management Corp, 462 U S 393 (1983) Si See generally Isis Plumbing Co, 138 NLRB 716 (1962) 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the folloWing recommend- ed22 ORDER The Respondent, Shin Nihon Kosan, Inc d/b/a Shogun Restaurant, Pasadena, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise descriminating against employees because of their protected concerted activi- ties. (b) Telling employees a fellow employee was dis- charged because she participated in a protected concert- ed walkout of employees. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. • 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to employee Voravan Takee immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to her seniority or any other rights and privileges previously enjoyed, .and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, plus interest. (b) Expunge from its files any reference tothe dis- charge of Voravan Takee on June 1, 1982, and notify her' 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 her. (c) Preserve and, on reqiist, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Pasadena, California, copies of the attached notice in English and Japanese marked "Am pendix." 23 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and ,22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 23 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" maintained for 60 consecutive days in conspicuous places inéluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken' to comply. 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 or- dered us to post and abide by this notice., Section 7 of the Act gives employees these rights.' To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protecL. tion • • • To choose not to engage •in- any of these protect- ed concerted activities WE WILL NOT tell our employees that fellow employ- ees were discharged because they participated in a pro- tected concerted walkout of employees. WE WILL NOT discharge, and thereafter refuse to rein- state, employees because they engaged, in protected con- certed activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL offer to Voravan Takee immediate and full reinstatement to her former job or, if her former job no longer exists, to a substantially equivalent position of em- ployment without prejudice to her seniority or other rights and WE WILL make her whole for any loss of pay that she may have suffered by reason of our discrimina- . tion-against her, with interest WE WILL expunge from our files any references to the discharge of Vorvan Takee on June 1, 1982, 'and WE WILL notify her that this has been done and that evi- dence of , this unlawful discharge will not be used as a basis for future personnel actions against her SHIN NIHON KOSAN, INC. D/B/A SHOGUN RESTAURANT