The Blue Note

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ben Susan Restaurant Corp. d/b/a The Blue Note and Mary Bruschini. Case 2-CA-22046 March 8, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On November 16, 1987, Administrative Law Judge D. Barry Morris issued the attached deci- sion. The Respondent filed exceptions and a sup- porting 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 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, Ben Susan Restaurant Corp. d/b/a The Blue Note, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. a 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an admimstrative 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. James Wasserman, Esq., for the General Counsel. Steven S. Goodman, Esq. (Jackson, Lewis, Schnitzler & Krupman), of New York, New York, for the Respond- ent. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in New York City on 17 and 18 June 1987. 1 On a charge filed on 29 January, a com- plaint was issued on 13 March alleging that Ben Susan Restaurant Corp. d/b/a The Blue Note (Respondent or The Blue Note) violated Section 8(a)(4) and (1) of the National Labor Relations Act by discharging Mary Brus- chini on 17 January. Respondent filed an answer denying the commission of the alleged unlair labor practices. The parties were given full opportunity to participate, produce evidence, examine, and cross-examine witnesses, All dates refer to 1987 unless otherwise specified. argue orally, and file briefs. Briefs were filed by the General Counsel and by the Respondent. On the entire record of the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Respondent, a New York corporation, with an office and place of business in New York City, is engaged in the operation of a restaurant selling food and beverages and providing entertainment to the public. Respondent admits, and I so find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IL THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background On 30 September 1986 Administrative Law Judge Arthur A. Herman issued a Decision and Order in The Blue Note, Case 2-CA-2139 et al, finding that Respond- ent, a restaurant and jazz club, unlawfully discharged five waitresses, including Mary Bruschini. Respondent did not file exceptions to the judge's decision and on 12 November 1986 the decision was adopted by the Board. On 22 December 1986 Respondent notified the Region that it had posted the required notice. In January 1987, prior to the issuance of the backpay specification, the Regional Office requested documents from Respondent relating to backpay computations. On 3 February the Region issued a backpay specification alleging that the five discriminatees were owed a total of $25,160. 2. Bruschini's discharge As of 17 January Bruschini was the last of the four discriminatees who had accepted reinstatement the previ- ous March and was still at work at the club. 2 On 17 Jan- uary John Thomas, a former manager of The Blue Note, entered the club with a party of seven friends. The de- tails about when the party arrived and what subsequently transpired is the subject of confficting testimony. Brus- chini testified as follows: Thomas and his friends arrived at the club around 3 a.m. and immediately ordered drinks. After the first round of drinks, Thomas asked Bruschini whether the kitchen was open. Bruschini re- plied that the kitchen was closed, inasmuch as the kitch- en regularly closes at 2 a.m. Sometime afterwards, Norman, who was a regular attendee of the club, went outside and returned with bagels and cream cheese. Bruschini saw the bagels, cream cheese, silverware, and napkins on the table at which the Thomas group was sit- ting. Bruschini testified that she did not place the cutlery on the table. Bruschini also testified that Norman would 2 Linda Meyers had declined Respondent's offer of reinstatement. Gavito, Miller, and McLemore had returned to work, but had later either quit or had been discharged 288 NLRB No. 6 BLUE NOTE 17 often bring food into the club after the kitchen was closed, that it was "nothing unusual," and that on occa- sions she had seen him go to the soda stand and serve himself and go to the kitchen. Bruschini testified that Danny Ben Susan, owner of The Blue Note, saw the bagels and cream cheese on Thomas' table. Ben Susan took Norman into the waitress station and Bruschini overheard Ben Susan "yelling at him about bringing in the food and did he want to cost the waitress her job." At 4 a.m., as Bruschini was check- ing out, Everett, one of the managers, told Bruschini there was a problem because of the "food on the table." Bruschini testified: . . . at that point Danny jumped in. I was lying and I embarrassed him in the club and I told John Thomas that he, Ben Susan, was angry about the food. And that it was because of me that he . . . had a lawsuit in the club and get out. Did I know that a lady from the Labor Board. . . came. Bruschini also testified that sometime prior to her dis- charge she wrote "thank you" or "service not included" on a customer's check, which was against the club's rules. In addition, she testified that she accidentally spilled a drink on a woman customer. Leila Gastil, also a former waitress at The Blue Note, testified that she worked at the club on the morning of 17 January. She stated that Norman was a habitue of the club and he was there almost every night after the last show. She testified that Norman brought bagels into the club around 3 a.m. on 17 January and that Bruschini did not provide cutlery or plates for the Thomas group. Ben Susan testified as follows: At approximately 1:30 a.m. Thomas entered the club and told Ben Susan that he was there with seven friends and asked Ben Susan to waive the music charge, which Ben Susan agreed to do. Fifteen minutes later Ben Susan noted bagels, lox, cream cheese, plates, and cutlery on the Thomas table. Ben Susan then asked Norman to accompany him to the coat room and asked Norman whether anyone gave him per- mission to bring in food from the outside. Norman re- plied that Thomas had asked him to do it. Thomas subse- quently approached Ben Susan and apologized for asking Norman to bring in food from the outside. Ben Susan asked Thomas why he was apologizing and Thomas re- plied because he had heard that Ben Susan was angry. Ben Susan then asked Thomas who had told him that he was angry and Thomas replied that it was Bruschini. Ben Susan testified that this made him even more angry be- cause she got a "customer involved in something he is not supposed to get involved" in. At closing time Ben Susan spoke to Bruschini and asked her why she told Thomas that he was angry about the food. Bruschini re- plied that she did not tell him. He then asked her why she allowed food to be eaten from the outside and re- ferred to Bruschini's having written on a customer's check and having spilled a drink on a customer. Ben Susan testified that he then told Bruschini: [I]ts too much . . . I don't want you to work here for me any more . . . . She stated then you [are] going to hear from me. I'm going to sue you. You [are] going to have another Board case against you. Ben Susan also testified that after the decision of the ad- ministrative law judge in September 1986 he was aware that there would be a further backpay proceeding. Thomas testified that he arrived at the club between • 1:15 and 1:30 a.m. He did not ask Ben Susan to waive the music charge nor did he have any discussion with Ben Susan at the time he entered the club. He testified that Norman "usually had gotten bagels" and he gave Norman money and asked him to go outside and buy some bagels and lox. He further testified that he asked Bruschini to bring silverware to the table, which she did. Lee Kerrigan, the night manager, testified that Thomas and his group entered the club arotmg 1:30 a.m. He also stated that during the first week of January there was a meeting at which time the waitresses were told that nothing was to be written on a customer's check. He testified that subsequent to that meeting he saw that Bruschini had written something such as "service charge not included" on a patron's check. He discussed the matter with Ben Susan who told him to give Bruschini a warning. He testified that "at the time I told her that she would not be fired for it." 3. Concluding findings Bruschini, Gastil, and Kerrigan all testified in a forth- right manner and appeared to me to be credible wit- nesses. On the other hand, Ben Susan appeared to me to be evasive in his testimony. Ben Susan and Thomas con- tradicted each other on certain important points. Based on the foregoing, I find that Thomas and his friends en- tered the club at approximately 1:30 a.m. Soon after the group entered they ordered drinks. After the first round of drinks, which occurred sometime after 2 a.m., Thomas asked Bruschini whether the kitchen was closed. She re- sponded that it was. Thomas then asked Norm to pur- chase some bagels and lox from the outside. I credit Bruschini's testimony, which was corroborated by Gastil, that Bruschini did not place the silverware on the table. I further credit Bruschini's testimony that when she was checking out at 4 a.m. Ben Susan told her that it was be- cause of her that he had a lawsuit in the club and that someone was coming from the "Labor Board." I also find that Bruschini had accidentally spilled a drink on a customer prior to the discharge but there is no indication in the record that she was reprimanded for this. In addi- tion, I find that in January, Bruschini wrote a notation on a customer's check contrary to club policy. She was given a warning concerning that but was told that "she would not be fired for it." Discussion The complaint alleges that Respondent discharged Bruschini because she testified in the prior proceeding. Bruschini testified during March 1986. On 30 September 1986 the administrative law judge issued his decision finding that Respondent unlawfully discharged five wait- resses and issued an order that Respondent make them whole for lost earnings. On 12 November 1986 the 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD judge's decision was adopted by the Board and on 22 December 1986 Respondent notified the Region that it had posted the required notice. Ben Susan testified that he was aware that there would be a further backpay pro- ceeding. I have credited Bruschini's testimony that when Ben Susan fired her he told her that it was because of her that "he had a lawsuit in the club" and he made ref- erence to "someone coming" from the National Labor Relations Board. Thus, the General Counsel has shown that animus existed on the part of Respondent and, with respect to timing, the discharge came soon after the prior order had become final. I find Respondent's reasons for the discharge to be pretextual. Respondent's brief states that Bruschini was discharged for allowing a customer to consume food purchased outside the club. I have credited Bruschini's testimony that at the time the food was brought in the kitchen was closed and that Norman often brought food in from the outside. Indeed, it was Thomas, a former manager, who asked Norman to bring the food and Thomas testified that Norman "usually had gotten bagels." I find Ben Susan's statement that "nobody ever brought food from [the] outside" to be not credible. Con- cerning Bruschini's having accidentally spilled a drink on a customer sometime prior to her discharge, there is no indication in the record that she was reprimanded for that. With respect to her having made a notation on a customer's check, while she was giveit a warning for doing that, Kerrigan credibly testified that he told her "she would not be fired for it." If a trier of facts finds that an employer's stated motive for an action, such as a discharge or a refusal to hire, is false, he can infer that there is another concealed motive for such action. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Daniel Construction Co., 229 NLRB 93, 95 (1977); John P. Bell & Sons, 266 NLRB 607, 610 fn. 6 (1983). In addition, if there are "shifting defenses," it makes the "claim of non-discrimi- nation the less convincing." Grede Foundries, 211 NLRB 710, 711 (1974); F. & M. Importing Co., 237 NLRB 628, 632 (1978). Respondent's letter dated 3 March 1987 to the New York State Department of Labor lists two rea- sons for Bruschini's discharge, viz, writing on a custom- er's check and serving food purchased elsewhel e. It does not mention that she allegedly embarrassed a customer nor does it state that she spilled a drink on a customer. Having found Respondent's defenses to be pretextual,3 I find that Respondent discharged and has failed to rein- state Bruschini because of her testimony at the prior pro- ceeding, in violation of Section 8(a)(4) and (1) of the Act. CONCLUSIONS OF LAW 1.Ben Susan Restaurant Corp. d/b/a The Blue N te is an employer engaged in commerce within the me' ging of Section 2(2), (6), and (7) of the Act. 2. By discLarging and failing to reinstate Bruschini be- cause of her testimony in the prior proceeding, Respond- 8 See United Plastics, 261 NLRB 1328 (1982); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). ent has engaged in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 3. The aforesaid unfair labor practices constitute 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 unfair labor practices, I find it necessary to order Respondent to cease and desist therefrom and to take certain affirma- tive action necessary to effectuate the policies of the Act. Respondent, having discharged Mary Bruschini in vio- lation of the Act, I find it necessary to order Respondent to offer her full reinstatement to her former position or, if such position no longer exists, to a substantially equiv- alent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings that she may have suffered from the time of her discharge to the date of Respondent's offer of reinstate- ment. Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).4 The complaint seeks as part of the remedy that the order include a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure for the purpose of securing compliance with the Board's Order. However, the General Counsel has not shown any special circumstances necessitating a de- parture from the standard remedy in similar cases. Ac- cordingly, I will not include that requested remedy in this Order. See Northwind Maintenance Co., 281 NLRB 317 (1986); 0. L. Willis, Inc., 278 NLRB 203 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER The Respondent, Ben Susan Restaurant Corp. d/b/a The Blue Note, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees for activities protected by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Mary Bruschini immediate and full reinstate- ment to her former position or, if such position no longer exists, t( a substantially equivalent position, without prej- 4 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.0 § 6621. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regule4ons, the findings, conclusions, and recommended Order shall, as pro ■ 'Wed m Sec. 102.48 of the Rules, be adopted by the Board and all objection, to them shall be deemed waived for all pur- poses. BLUE NOTE 19 udice to her seniority or other rights and privileges, and make her whole for any loss of earnigns with interest, in the manner set forth in the remedy section. (b) Remove from its files any reference to the unlawful discharge of Bruschini and notify her in writing that this has been done and that the discharge will not be used against her in any way. (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, 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 New York, New York, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the 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 the Re- spondent has taken to comply. e 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." 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. WE WILL NOT discharge employees for activities pro- tected by Seciton 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer full and immediate reinstatement to Mary Bruschini to her former position or, if such posi- tion no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges and WE WILL make her whole for any loss of earnings that she may have suffered by reason .of her discharge, with interest. WE WILL remove from our files any reference to the discharge of Mary Bruschini and notify her in writing that this has been done and that evidence of the unlawful discharge will not be used against her in any way. BEN SUSAN RESTAURANT CORP. D/B/A THE BLUE NOTE