Ground Round

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Johnson Company d/b/a Ground Round and William J. Burnand. Case 1-CA-22807 26 Feburary 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 13 November 1985 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision and cross-exceptions and a supporting 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Howard Johnson Company d/b/a Ground Round, Walpole, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings Ronald S. Cohen, Esq., for the General Counsel. Richard A. Gaucher, Esq., for the Respondent. FINDINGS OF FACT Respondent operates public restaurants and is admit- tedly an employer engaged in commerce as alleged. Charging Party Burnand was employed by the Company as a server at its Walpole, Massachusetts facility. He started about September 1, 1984, and worked at an hourly wage rate of $2.01 plus tips. He was discharged on February 8, 1985. Maria Carey-Sauerwein was then general manager of that facility, and Michael Phillips was and is assistant manager. Employee Burnand testified that he attended a "pre- meal" meeting at the Employer's Walpole facility during December 1984, "where Ms. Sauerwein discussed vari- ous changes at the Ground Round." Sauerwein an- nounced to Burnand and his coworkers "changes in hours and duties," which included a "cut back" in work- ing hours "after the holidays" and "staying around [to] wash dishes and do some maintenance work and extra side work." Some weeks later, on January 15, 1985, Sauerwein instructed Burnand that "she wanted to talk to [him] after [he] was finished working." The two then had the following discussion: I [Burnand] told her I wasn't happy about the things that were going on in the restaurant and that me and [co-worker] Dianne [Cercone]had made calls to the Labor Board, just to find out what our rights were, and that we had pressed no charges, and that we didn't really want to go outside the res- taurant, we'd like to have an employee meeting to discuss it with her. And, she said she was very displeased with us for going outside of the restaurant with these problems, for creating sensationalism among the employees, and that she wouldn't be dictated to by her help, but she said she'd have a meeting. I told her I thought, not only wasn't it fair, it was illegal that we should wash dishes for $2 an hour, less than minimum wage. That was my big gripe DECISION FRANK H. ITKIN, Administrative Law Judge. William J. Burnand filed an unfair labor practice charge in this case on March 27 and an amended charge on May 6, 1985. The General Counsel for the National Labor Rela- tions Board issued a complaint on May 10, 1985. The General Counsel alleges that Respondent Employer vio- lated Section 8(a)(1) of the National Labor Relations Act by issuing a written warning to and later discharging em- ployee Burnand, and by subsequently barring Burnand from its premises and refusing to pay him a "finder's fee," because he had engaged in protected concerted ac- tivities. Respondent denies violating the Act as alleged. A hearing was held in Boston, Massachusetts, on July 10 and 11, 1985. On the entire record, including my observation of the demeanor of the witnesses, I make the following In addition, as Burnand further explained, between the December "pre-meal meeting" and his January 15 "dis- cussion" with Sauerwein, he had "discussed the subjects of the [proposed] changes with other employees" in their homes, in the back parking lot and at a nearby restaurant on more than a dozen occasions. "Nobody was really very happy over the situation." Respondent later posted a notice at the Walpole res- taurant, that there was "going to be a meeting on Janu- ary 26." Burnand, as he testified: [T]old everybody during that week that we should get together before the big meeting on the 26th 1 Burnand explained on cross-examination that "I didn't make the actual telephone call, but Dianne [Cercone] did She did the talk- ing" during their telephone call to the "Federal Labor Board" or "De- partment of Labor " 278 NLRB No. 108 GROUND ROUND with the managers, and get our act together and go in as a team. The employees met 2 days earlier, on January 24, at a nearby restaurant. Burnand and about three other em- ployees were present. Burnand acknowledged that "ev- erybody was pretty disappointed with the turnout-we expected a lot more people." Thereafter, at the meeting of January 26, Sauerwein announced to the assembled employees: It has come to my attention that people aren't happy with certain things. This is your chance to speak up and get these problems in the open and re- solve them. Burnand then "complained about washing the dishes"-"not only is not fair, ii is not legal, you just pay us $2 per hour to wash dishes . . . minimum wage is $3.25 .. .." Other employee complaints were related to management. Later that same day, January 26, as Burnand further testified, Burnand was given his first "written warning." (See G.C, Exh. 2.) This "warning" faults Burnand for "loafing" and "performing poor work due to willful ne- glect," and cites: Extremely poor attitude toward Company, Manag- ers, and fellow employees. Also service is below standards. This"warning", signed by Manager Sauerwein and As- sistant Manager Phillips, concludes: The issuance of further warnings may subject you to disciplinary action such as suspension or dis- charge. Burnand protested to Sauerwein and Phillips that "they were wrong and the charges were wrong." Sauerwein and Phillips responded: "I [Burnand] had two weeks to shape up or ship out." In addition, Sauerwein and Phil- lips further faulted Burnand for "looking sloppy." Bur- nand previously had not been warned about "loafing," "willful neglect," "poor attitude," or any related of- fenses. On the contrary, some months earlier, former As- sistant Manager Michael Macedonio had evaluated Bur- nand as having "a good attitude and . . . coming along as a waiter."2 Burnand nevertheless promptly got a hair- cut and "made a point" of asking Phillips "if my haircut was allright." Phillips "said"it was fine." Burnand was discharged 2 weeks later on Friday, Feb- ruary 8, by Assistant Manager Phillips and Dining Room Manager Audrey Bower. Burnand recalled: Mr. Phillips said he felt my attitude hadn't im- proved enough and Audrey [Bower] said that last Wednesday two truck drivers from Colorado said my service was slow, and they felt they were going to have to let me go. Y Phillips replaced Macedomo about mid-December 1984. 745 Management previously had not mentioned any incident with truckdrivers to Burnand. Burnand admittedly returned to the Walpole facility on three occasions after his discharge. He assertedly wanted a $25 "finder's fee for referring an employee to employment there"-"it's money we would get for refer- ring someone there." He had "referred" one Alex Strath- opoulus "for employment" about November 1, 1984. During his first postdischarge visit, Bower said that Bur- nand "would have to come back Monday and talk to Maria Sauerwein." During his second visit, Sauerwein apprised Burnand: "You're no longer an employee, no longer entitled to the Company, and you can go file a complaint with whoever you feel like." On the third visit, March 1, 1985, Burnand again asked Sauerwein for "the money," and attempted to have a drink with a former fellow worker-it was his "20th birthday." How- ever, Sauerwein said: She still wasn't going to pay me and she had in- formed all the help not to serve me. Sauerwein then stated that Burnand was there "to start trouble"; "she didn't want me talking to the other em- ployees"; he was "barred from the premises for life"; and Sauerwein threatened Burnand with arrest if he "didn't leave peacefully."3 Maria Carey-Sauerwein was employed by Respondent for about 3-1/2 years. She left the Employer in May 1985. During the pertinent period, she was the manager at the Walpole restaurant. Initially, Michael Macedonio was her assistant manager; later, Michael Phillips became assistant manager. Sauerwein issued employee Burnand (G.C. Exh. 2) the "written warning" dated January 26, 1985. She claimed that this was "a joint effort with Mi- chael Phillips," although she "made the decision." She assertedly "made the decision" to issue this warning on January 26. She could not recall whether this decision was "in the morning or the afternoon." Elsewhere, she testified: Q. [If] you decided to issue the written warning to Mr. Burnand on the 26th, it would have to have been sometime around 4 o'clock. A. I would assume so, yes. She was asked, "What was the specific incident that made you decide it's time to issue Mr. Burnand this writ- ten warning?" She responded: "There was no specific in- cident. There were several incidents." She later added: "approximately two days prior" there was a guest com- plaint"-she could not remember the guest and admitted- ly made no notation of this customer complaint. She then asserted that she had "waited until the 26th" to issue Burnand a written warning because Burnand "was not in every day." Elsewhere, she conceded that Burnand had 8 On cross-examination, Burnand noted that at the January 26 meeting, other employees, including Dianne Cercone, "raised other issues " Bur- nand also noted that he has "filed a wage-hour complaint" against the Employer 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not worked on January 24-he had "worked on the 25th."4 Sauerwein was asked whether or not the January em- ployee meeting was held "before or after you gave Mr. Burnand his written warning?" At first, she responded: "I believe the meeting was after" the warning. Else- where, she acknowledged that the meeting "was a morn- ing meeting" and it "could have been held" on January 26. She then,recalled the January 26 employee meeting, in part as follows: Q. . . . And concerning the meeting itself, how was that conducted? A. . . . When I opened the meeting I said, "The first thing I'm going to do is let you know that I understand that there are some problems and I'd like to resolve those problems, therefore I open the floor, by raising of hands, to anyone that would like to speak at this meeting and talk about something they feel is going wrong so we can rectify it." Q. And after you made this opening statement who spoke next; do you recall? A. I believe Dianne Cercone spoke next. Q. What did she say? A. She said, "I'd like to start the meeting by making a public apology to Maria [Sauerwein] for having the need or seeing the need to go outside or to have any other things going on that she was not 'knowledgeable about. Because, I think that, had we gone to her we would have been able to resolve it in the first place and I didn't want to hurt her feel- ings." Q. Did she make some statement about apologiz- ing for calling the Labor Board? A. She made mention of that word. Q. Did she say which Labor Board she called? A. No, she said, "I know that you people under- stand that I called the Labor Board and I want you to know that I apologize for that." She made a statement about it. Q. Was this news to you at this meeting that she had called the Labor Board? A. No, I had heard from several people that the Labor Board was contacted. Q. Did you know which Labor Board she had contacted? A. No, I had no idea which one. Q. Who was it who told you that she had called the Labor Board? A. I believe-and again, I say I believe because I don't know exactly who, but I would say three people came to me and said, "You know, some of us got together and the Labor Board was contacted and we just wanted you to know." Q. But did they indicate to you that Dianne had been the one who,had"called? 4 Sauerwein later claimed that management was in fact "unsatisfied with [Burnand's] performance" as early as the "end of September" 1984 She instituted "the process of three-step-watching-and-counseling" which assertedly takes about 90 days Burnand would improve for brief periods and "go down hill again " She repeatedly cited to him, inter alia, "apear- ance," and he was "Constantly arriving late" at meetings A. Yes. Q. Do you recall the names of the people that told you that they had gotten together and decided to call the Labor Board and got Dianne to call? A. I believe Eileen Meisner was one. Denise McNamara was another one and Dianne herself, I think, had mentioned it to me. Q. And when Dianne told you that she had called the Labor Board, what did you say to her? A. I said, "Dianne, I'm disappointed that you couldn't come to me before trying to settle it through an outside source. It's somewhat like going over my head. If you had been able to come to me first I certainly would have been able to resolve it and now that I know, I will." Q. Now, Mr. Burnand spoke out at that meeting, didn't he? A. Yes. Q. And do you recall what complaints he brought? A. One of the things that was brought up at the meeting, not only by him but by other people, was the subject of doing dishes. And various other things. Q. What was the subject of doing dishes? What did that involve? A. It involved putting dishes, once they had been placed into racks, pushing them through a dish ma- chine and pulling them out. Q. Were the waiters and waitresses complaining about the fact that they were required to do that work instead of dishwashers? A. Yes, after certain hours they were. Q. That they were getting paid a $2.01 wage rate, which is below minimum wage rate while dishwashers-well, not getting the minimum wage rate required by federal law? A. Yes, that was one of the complaints that was brought up. In addition, Sauerwein testified: Q. Now, prior to the date of the meeting, you were aware that employees, including Mr. Burnand, had been meeting and talking to each other about various complaints that they had and which they voiced at the meeting? A. Yes, I was aware. Q. How did you become aware that employees had been discussing these complaints amongst them- selves? A. Various employees mentioned it to me. Q. Including Dianne Cercone? A. Uh-huh. Q. How long before the meeting . . . did Dianne Cercone inform you that employees had been dis- cussing their complaints about working conditions at their homes and at the 99 Restaurant? A. I would say approximately a week. Q. And she did tell you also, did she not, that Mr. Burnand had been involved in these discussions and meetings? GROUND ROUND A. Yes, she did. Sauerwein was questioned about the Employer's "writ- ten disciplinary policy." She claimed that she was not aware of any such written policy. She asserted that there was a "90-day three-step-coaching-and-counseling proce- dure"-a "very loosely handled procedure." She added: "At the last stage there may or may not be a written rep- rimand issued." She assertedly "never gave a second written warning." (Cf. G.C. Exh. 2, quoted supra.) She later acknowledged that, "after the-first written warn- ing" the employee would be given "normally one to two weeks" to "improve his performance." Elsewhere, she was asked if she had told the investigating agent of the Labor Board "that [her] policy was that [she] could give up to two warnings to an individual before discharging" him? She replied: "I may have said that if it's in the affi- davit?"5 Sauerwein went on vacation shortly after issuing the January 26 written' reprimand to Burnand. She assertedly had no discussions with her assistant manager, Phillips, concerning Burnand before, she left, because "if termina- tion followed this, I wanted it to be an unbiased termina- tion ...." Elsewhere, she acknowledged stating in her prehearing affidavit that she "discussed the matter" with Phillips "before leaving on my vacation." She added: "It may have been mentioned; we did not discuss it." She "first learned" of Burnand's termination when her vacation ended-"Mr. Phillips made the final decision."" Audrey Bower, now bookkeeper at Walpole, was dining room manager when Burnand was terminated. She testified that Burnand's performance was "very slow"; "he was never around when you needed him"; he avoided "side work";, his "Performance was not very good at all." Bower added: "he was very messy looking" and his "attitude" was "unsatisfactory." However, she could not recall "ever disciplining Burnand" in any way. She then recalled: "I have said things to him before." Shea further recalled: "I did once" "sit down with him in the dining room" after "a customer complaint," and the two had a discussion. She placed the above incident during the"beginning of February 1985"-"very close to his termination." She observed: "I kept an eye on every- body, but especially him."7' Bower assertedly discussed on various occasions her criticism of Burnand's perform- ance with both Sauerwein and Phillips. She could not, however, recall "any particulars." Elsewhere, she re- Sauerwein was later asked about the failure of Burnand's written rep- rimand (G C. Exh. 2) to cite any "guest complaints." She asserted: "Sometimes its's mentioned; sometimes it's not." Cf. G.C. Exh. 6, another employee's reprimand listing ^"guest complaints." She claimed that Phil- lips prepared G.C. Exh 2. 6 Michael Phillips was subpoenaed by the General Counsel to testify in this proceeding He did not appear Counsel for Respondent stated at the hearing (Tr 62-74). "Although I would prefer to have him [Phillips] here and available to me, . . . it was possible for us to proceed without him"-"this man had not had a vacation in a couple of years." No appli- cation was made by Respondent to continue the case until Phillips' return from vacation. However, the General Counsel moved for "sanctions" be- cause of Phillips' failure to comply with the subpoena. (Ibid ) I Bower further described the above incident in early February with Burnand. She claimed that two "truckclrivers from Colorado" had com- plaiq'ed about Burnand 747 called that the incident involving the two "truckdrivers from Colorado," noted ' supra, occurred when Sauerwein was on vacation, and she discussed this complaint with Phillips. Burnand was fired about 5 days later, on Febru- ary 8. She was uncertain of the dates. She was present when Burnand was terminated . Phillips "did most of the talking." Bower testified: I did bring to the attention of Michael [Phillips], after I got the complaint, that that's it . . . . We've given him, a lot of -chances. He lasted longer than anybody else did with such poor service and- poor attitude, etc.... . She assertedly had recommended to Phillips that Bur- nand be terminated and- "he agreed ." Phillips, during Burnand's termination, "explained to Bill that his per- formance had not changed" and "he had heard a lot of complaints." Burnand "did not agree with what we were saying." Burnand was fired because of "poor perform- ance, appearance and attitude."a' On cross-examination, Bower was further questioned about the incident involving the "truckdrivers from Col- orado." This customer complaint occurred, Bower be- lieved, on a Sunday-the "Sunday before he was termi- nated." The complaint was "about 6:30 p.m." Burnand, however, had checked out at 3:20 p.m. that day. Bower then asserted: These people had been in earlier that Sunday .. . they returned. I remember asking them, "Why did you come back if your service was so bad ... they said they liked the atmosphere ...." Nina Eliasson, previously employed by Respondent as a "hostess and bookkeeper," testified that Burnand was "not always on the floor at his table when he was sup- posed to be"; he did not "properly" do his "side work" such as sweeping; and he lacked "teamwork." Eliasson acknowledged that there were worse servers than Bur- nand. She agreed that no waiter likes to do side work and Burnand was not the "only one who didn't." She re- lated some of her complaints to management. Denise McNamara is employed by Respondent. She was critical of Burnand's performance as a server. Bur- nand did not "help anybody else"; "I thought he `was very selfish"; "he'd leave a dirty station"; "he would place [glasses] right on top" of the washer; and, when accused, he denied responsibility which was , in her view, "an out-and-out lie." She complained to Sauerwein about Burnand's "failure to load the glass washer " and her confrontation with Burnand over this incident. She then added: "Bill had a problem with his language that I find very offensive ... I had to ask him on more than one occasion to kindly curb his mouth." She discussed this 9 Bower also recalled Burnand's postdischarge visits to the restaurant He wanted his "finder's fee." Bower told Burnand that she would "dis- cuss it with Maria."' He came back. He assertedly was "in the service area" and was told to leave. He was not allowed in this nonpublic area. He came back a third time. Bower could not remember whether he was in nonpublic areas at the time. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too with management. She assertedly was assured by Sauerwein that "he would eventually be terminated." She could not recall when she related her complaints to management. She testified: Q. Do you personally dislike Bill Burnand? A. The only time that I've had to dislike him was when he worked at the Ground Round . I do not know Bill personally . So, I mean if you're asking me professionally, I though he was one of the worse waiters I had ever worked with . I asked him many-times to be considerate of the fact that I am a christain and it never seemed to make any kind of a change in his attitude at all. I have asked, you know, other people to be a little bit wary of swear- ing and most people are very considerate and will abide, Bill could have cared less. I credit the testimony of Burnand as detailed above. His recollection of the pertinent sequence of events cul- minating in his written reprimand and firing was com- plete, candid, and forthright. His testimony is also sub- stantiated in pertinent part by acknowledgments of both Sauerwein and Bower. He, impressed me as a truthful witness. On the other hand, I find the testimony of Sauerwein and Bower to be incomplete, vague, contra- dictory, and evasive. They did not impress me as candid or credible witnesses. It is true, as counsel for Respond- ent asserted, the record suggests that Burnand did not report his full tips for tax purpose . (Cf. Tr. 108-112.) I have taken this and related testimony into account for credibility purpose. Nevertheless, on this entire record, I find Burnand's recitation of the pertinent sequence to be reasonable, complete, and trustworthy. As the court ob- served in NLRB v. Universal Textile Mills, 372 F.2d 752 (1st Cir. 1967), the "Board's case is to be measured in the light of respondent's . , . marked by serious omissions and, to the extent ,given, fanciful to an extreme ...." Here, too, Respondent's testimony concerning this se- quence contained "serious omissions " and, "to the extent given, was fanciful to an extreme." In sum, as discussed below, I fmd and conclude that Burnand was in fact issued a written reprimand and then fired, not because of his cited deficiencies as a food server, but because of his participation with coworkers in complaining about terms and conditions of employment. I find here that Burnand's cited shortcomings were not a reason for his termination but, instead, are simply pretexts now belatedly advanced by management in an attempt to justify its illegally moti- vated conduct.9 Discussion Burnand started working for Ground Round as a food server during September 1984. He was paid about $2 an 9 I fmd the testimony of Eltasson, as recited above, to be truthful She principally faulted Burnand as a server because he was "not always on the floor at his table", did not like to do side work; and lacked team- work She agreed, however, that Ground Round had worse servers and no waiter or server likes side work. As for the related testimony of McNamara, I am persuaded here that her demonstrated, extreme sensitiv- ity to Burnand's language-not cited as a reason for the Employer's disci- plinary action-has caused her to exaggerate her recollection of Bur- nand's deficiencies as a server hour plus tips. Management asserts that it was unsatisfied with his performance from the outset; however, no formal or written warnings were issued to him. On the contrary, former Assistant Manager Macedonio had complimented Burnand as "coming along." During De- cember Manager Sauerwein announced to the Ground Round employees proposed changees in hours and duties, including a cut back and the requirement that servers "stay around [to] wash dishes and do some main- tenance work and extra side work." Burnand, Cercone, and other coworkers were upset over the proposed changes. They held meetings to discuss their complaints; they telephoned the Department of Labor to determine whether there was a possible wage-hour violation; they informed Sauerwein about their grievances and meetings; and they wanted a meeting with management. Sauerwein faulted the employees for going outside with these prob- lems, and she then agreed to a meeting. A meeting of employees was held at the Employer's facility on January 26, 1985. There, employee Cercone publicly apologized to Manager Sauerwein for "Seeing the need to go outside" to the Department of Labor. Burnand, however, did not apologize. He persisted in his complaint with other employees, "about washing the dishes . . . not only is it not fair . . . it-is not legal .. . you just pay us $2 per hour to wash dishes . . . mini- mum wage is $3.25." Other complaints were also voiced. Later that same day, Burnand was issued his first written reprimand, faulting him for, inter alia, loafing, perform- ing poor work, extremely poor attitude, and service is below standards. (See G.C. Exh. 2.) He was formally warned: "The issuance of further warnings may subject you to disciplinary action such as suspension or dis- charge." He protested the ' Employer's charges and, at the same time, attempted to comply with their criticisms. Management, in an attempt to justify this January 26 written reprimand, faults Burnand's performance from the beginning of his employment. Management, however, as noted, never issued a written reprimand to Burnand for these various shortcomings. Management also cites a guest complaint "approximately two days prior." The written reprimand makes no mention of this guest com- plaint, although the Employer has specifically cited such complaints to other employees in their written repri- mands. (Cf. G.C. Exh. 6.) Indeed, it appears that Bur- nand was not even working on the day of this undocu- mented guest complaint. And, about 2 weeks later, on February 8, Burnand was summarily fired. Again, an un- documented complaint by "two truckdrivers from Colo- rado" is cited by management as a reason for its action. According to management, this complaint as made. some 5 days earlier after Burnand had completed his shift and checked out. The two truckdrivers, we are told, -came back because they liked the atmosphere and, at the same time, to fault Burnand. No attempt was made to record or substantiate this complaint. Burnand was then fired, denied a "finder's fee" for referring a new employee to the facility,,and "barred from the premises for life." I find and conclude on the credited evidence of record that Respondent issued employee Burnand a written rep- rimand on January 26 and fired him on February 8 be- GROUND ROUND cause he, together with other employees, had complained in- concert over their wages and hours and other terms and conditions of employment. I reject as pretextual the belated, shifting, and unsubstantiated reasons cited by the Employer to justify its action. The Employer, for months, had accepted Burnand's performance. It was not until Burnand, and his coworkers, persisted in complain- ing about their wages, hours, and other terms and condi- tions of employment, that management wrote him up, fired him, denied him a finder's fee, and "barred him from the premises for life." The Employer's conduct was in retaliation for Burnand's protected concerted activity, in violation of Section 8(a)(1) or the Act. 10 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce as alleged. 2. Respondent violated Section 8(a)(1) of the Act by issuing a written reprimand to employee Burnand on January 26, 1985, by discharging Burnand on February 8, 1985, by denying Burnand a finder's fee, and by bar- ring Burnand from its premises, because Burnand had en- gaged in protected concerted activities. 3. The unfair labor practices found above affect com- merce as alleged. THE REMEDY To remedy the unfair labor practices found above, the Employer will be directed to cease and desist from en- gaging in such unlawful conduct or like or related con- duct and to post the attached notice. Further, the Em- ployer will be directed to offer employee Burnand imme- diate and full reinstatement to his old job or, in the event such job no longer exists, to a substantially equivalent job, and make him whole for any loss of pay he may have suffered by reason of his discharge, including the loss of his finder's fee, by payment to him of a sum of money equal to that which he would have earned, but for his discharge, from February 8, 1985, to the date of an offer of reinstatement, less his net earnings during this period, to be computed in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977).11 In addition, the Employer will be directed to remove from its files any reference to this disciplinary action,and discharge, found unlawful herein, in accord- ance with Sterling Sugars, 261 NLRB 472 (1982). 1° It may be contended that Burnand would have been fired anyway for his performance as a server It is true, as Eliasson explained, Burnand was a below-average food server. He was a young student with other in- terests However, the Employer had accepted his performance for many months And the Employer, on this record, has not sufficiently demon- strated that Burnand would have been reprimanded and fired on Febru- ary 8 for lawful reasons. In view of the recommended disposition of this case, I do not reach the question whether sanctions should be imposed on the Employer be- cause of Assistant Manager Phillips' failure to comply with the General Counsel's outstanding subpoena. 11 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962). 749 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'2 ORDER The Respondent, Howard Johnson Company, d/b/a Ground Round, Walpole, Massachusetts, its officers, agents, successors, and assigns, -shall 1. Cease and desist from (a) Reprimanding, discharging, denying a finder's fee to, and barring from its premises employees, because of their participation in concerted activity for the purpose of mutual aid and protection. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer employee William J. Burnand immediate and full reinstatement to his old job or, in the event such job no longer exists, to a substantially equivalent job, and make him whole for any loss of pay he may have suf- fered by reason of Respondent's action in discharging him, with interest, as provided in the remedy section of this decision. (b) Remove from its files any reference to the repri- mand or discharge of Burnand and notify him in writing that this has been done and that evidence of this unlaw- ful reprimand or discharge will not be used as a basis for future personnel actions against him. (c) Preserve and, on request, 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, as well as other records necessary or useful in analyzing and computing the amount of backpay due under the terms of this Order. (d) Post at its Walpole, Massachusetts facility copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by Respondent's representa- tive, shall be posted by Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. 12 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 °@ 13 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 Nation. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 750 DECISIONS OF 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 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 protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT reprimand, discharge, deny a finder's fee to, or bar from our premises any employee because of his or her protected activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer William J. Burnand immediate and full reinstatement to his former job or, if his former job no longer exists, to a substantially equivalent position of em- ployment, without prejudice to his seniority or, other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of pay that he may have suffered by reason of his unlawful discharge, including his finder's fee, with interest. WE WILL remove from our files any references to the reprimand or discharge of Burnand and WE WILL notify him that this has been done and that evidence of this un- lawful discharge will not be used as a basis for future personnel actions against him. HOWARD JOHNSON COMPANY D/B/A GROUND ROUND