Adam'S Rib Restaurant

ADAM'S RIB RESTAURANT 717 East 74th Street Restaurant Corp. d/b/a Adam's Rib Restaurant and Oliver Trowell. Case 34-CA- 4403 September 14, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 14, 1990, Administrative Law Judge Howard Edelman issued the attached decision The Charging Party filed exceptions 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 has decided to affirm the judge's rulings, fmdmgs as modified,1 and conclusions and to adopt the recommended Order The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Cu 1951) We have carefully examined the record and find no basis for re- versing the findings The Charging Party's exceptions may be read to contend that the judge was biased against the Charging Party's case We are satisfied that any such contention is without merit Careful review of the record and the judge's decision shows no statements or other evidence indicating bias In par 13 of his "Findings of Fact," the judge indicated that Charging Party Trowell had testified that, shortly after he had a conversation with various waiters about his wage claim, the Respondent's manager, Donald Rolando, came to the rear of the restaurant and "simply told Trowell he was being discharged" According to Trowell's testimony, however. Ro- lando did make a general mention of a wage claim in the conversation in which Trowell was fired Trowell's testimony, however, was generally discredited by the judge In par 14 of his "Findings of Fact," the judge stated that "Rolando dented having any conversation with French concerning Trowell's filing a claim with any governmental agency or having any knowledge from any source that Trowell had filed a wage claim with any governmental agency" We find no such denials in the record Nonetheless, we are sat- isfied that the credited evidence does not show Rolando's knowledge of the wage claim prior to his firing Trowel] In that regard, as the judge noted, Trowell himself testified that he did not see French talking to Ro- lando after Troweil told French of his wage claim and French, though he testified, was never asked if he spoke to Rolando about the wage claim Also, it is undisputed that the Respondent was never notified by the state agency of the wage claim that Trowell had filed Further, the judge noted Rolando's testimony that he decided to fire Trowel! before Trowell appeared for work on the day of his discharge In such circum- stances, the General Counsel did not establish Rolando's predischarge knowledge of the wage claim nor, based on the judge's credibility resolu- tions, can such knowledge be inferred In the third paragraph of his "Analysis" section, the judge inadvertent- ly stated that the Respondent had faded to establish her Wright Line burden, it is clear from the judge's decision that he meant to say that counsel for the General Counsel had faded to establish her Wnght Line burden ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed Catherine M Roth, Esq , for the General Counsel Louis Charles Fink, Esq , for the Respondent DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge This case was tried before me on September 27 and 29, 1989, in New York, New York On October 13 and 19, Oliver Trowell, an individual, filed charges against East 74th Street Restaurant Corp d/b/a Adam's Rib Restaurant (Respondent) On Decem- ber 29, 1988, a complaint issued alleging that Respondent discharged Trowell in violation of Section 8(a)(1) of the Act The case was filed and docketed in Region 2, and the complaint which issued set forth the case number as 2-CA-23104 Because of certain allegations concerning fairness, a motion with the consent of all parties was made before me on September 27, during the opening of the trial, that the case be transferred to Region 34 Such motion was granted Briefs were filed by counsel for General Counsel and by counsel for Respondent On my consideration of the entire record, the briefs, and my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT Respondent is a New York State corporation located in New York, New York, engaged in the business of op- erating a public restaurant In the operation of such busi- ness, Respondent annually derives gross revenues ex- ceedmg $500,000 Respondent annually purchases and re- ceives at its New York City facility goods, products, and materials valued in excess of $5000 from other enter- prises located within the State of New York, each of which other enterprises has received the goods, prod- ucts, and materials directly from points located outside the State of New York It is admitted, and I find, that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act It is admitted, and I find, that Local 100 Hotel Em- ployees & Restaurant Employees' Union (the Union) is a labor organization within the meaning of Section 2(5) of the Act The Restaurant League of New York, Inc (the League) is an organization composed of employers in the restaurant industry The League exists for the purpose of representing its employer-members in negotiating and ad- ministering collective-bargaining agreements with labor organizations, including the Union Respondent has been for a period of well over 4 years a member of the League and through the League a party to a collective-bargaining agreement with the Union coy- 299 NLRB No 108 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD enng a unit which includes all waiters, bartenders, and kitchen employees Respondent operates a rather small expensive upper east side steak house Respondent is owned by Bess Nicholas The manager is Donald Rolando and the maitre d' is Mano Paezi All of the above individuals are admittedly supervisors withm the meaning of Section 2(11) of the Act There are approximately 10 waiters who service the restaurant The collective-bargaining agreement between Respondent and the Union provides certain minimum wages for waiters, but a large portion of their earnings is derived through customers' tips Trowell was an experienced waiter with periods of employment at some of New York City's fine restau- rants In September 1988 he was unemployed Upon a visit to the New York State Employment office Trowell was given an employment slip which indicated Respond- ent was looking for an experienced waiter The slip set forth a starting rate of pay of $3 35 per hour, plus tips However, the collective-bargaining agreement between Respondent and the Union provides for an initial starting rate for waiters of $3 20 per hour, plus tips On September 14, 1988, Trowell was interviewed by Owner Nicholas who agreed to hire him as a waiter Wages were not discussed Trowell assumed his starting rate was $3 35 as set forth on the employment office slip On September 16, Trowell began his employment His working hours were from about 4 p m to 10 p m For the first 3 to 4 days Trowell underwent a training period He followed waiters who had relatively lengthy employ- ment with Respondent to become familiar with the pro- cedures of Respondent's restaurant During this period he did not come into close contact with Respondent's customers On or about September 22 Trowell began waiting on customers On September 30, Trowell received his first salary check from Respondent The check in handwrit- ten form was in the amount of $46 15 and did not set forth a breakdown of deductions Other employees re- ceived computerized checks with the deductions set forth on the check Trowell calculated that he was not being paid the $3 35 per hour rate he believed to be his starting rate of pay Trowell was aware that Respondent was a "union house" As a result Trowell spoke with Manager Rolando and complained about the rate of pay and the failure of his check to set forth the deductions Rolando told him it would take a few weeks to place him on the payroll computer but that he was getting the starting rate provided by the union contract Trowell was not satisfied with this explanation On October 4 Trowell contacted the New York State Bureau of Labor Standards and filed a claim against Re- spondent For reasons not relevant to this decision, noti- fication of this claim was not served upon Respondent On October 6 Trowell reported for work at about 4 p m Trowell testified that at about 4 pm while working in the back of the restaurant with several of the waiters performmg the "side duties," i e, folding napkins, cutting lemons, etc, prior to opening the restaurant to serve cus- tomers, he told the waiters that he had filed a wage claim with the New York State Bureau of Labor Stand- ards and there would be an investigation According to Trowell, waiter Eugene French left the table when Trowel] completed his remarks and walked toward the front part of the restaurant where Rolando was working He did not see French talking to Rolando, but testified that a few minutes later Rolando came to the rear of the restaurant and simply told Trowell he was being dis- charged Rolando denied having any conversation with French concerning Trowell's filing a claim with any governmen- tal agency or having any knowledge from any source that Trowell had filed a wage claim with any govern- mental agency Rolando testified that throughout Trowell's short period of employment he received several complaints from customers, about Trowell's bad breath, attributable to his smoking, and offensive body odor He received similar complaints from maitre d' Mario Paezi and other waiters Further, he had observed Trowell lounging around the pantry area when he should have been at- tending to customers In addition there were several in- stances where customers complained to him that Trowell had failed to serve them items ordered Rolando testified that he spoke to Trowell several tunes about these short- comings, but that they continued It appears that Trowell's bad breath and offensive body odor were the most troublesome problems because of the customer complaints Rolando testified that on October 6, he discussed his problems concerning Trowell with Nicholas and it was decided to terminate him that day When Trowell came to work Rolando was busy with other matters, a short time later Rolando approached Trowell and told /um his services were not the caliber required by Respondent and he was being terminated Paezi, the maitre d', corroborates Rolando's testimony He testified that he personally received several customer complaints about Trowell's bad breath and offensive body odor and spoke to him about it On a number of occasions he gave him mints for his bad breath Trowell admitted that on one occasion Paezi spoke to him about his breath and gave him a mint but denied that he was spoken to more than this one time Paezi testified that he spoke to Nicholas about Trowell's odors and wanted to fire him but Nicholas wanted to give him some tune to improve Waiters Eugene French, Manual Bondi, and Shawn Ali all testified that Trowell had offensive breath and body odor and that they brought it to the attention of Rolando and Paezi several times Analysis General Counsel contends Trowell was discharged be- cause he filed charges with the New York State Bureau of Labor Standards in an attempt to require Respondent to pay him what he believed to be the contract rate of pay between Respondent and the Union Such activity is As set forth above Trowell's claim with the New York State Bureau of Labor Standards was not processed and Respondent was not notified of this claim by the Bureau ADAM'S RIB RESTAURANT 719 protected concerted activity In NLRB v City Disposal Systems, 465 U S 822 (1984), the Supreme Court en- forced the Board's Interboro doctrine (Interboro Contrac- tors, 157 NLRB 1295 (1966)) which recognizes that an employee's "honest and reasonable invocation of a col- lectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his nght was violated" In order to establish General Counsel's contention General Counsel has the burden of proving that Trowell's pro- tected concerted activities were a motivating factor in such alleged discrimination Once such motivating factor is established, the burden of proof shifts to Respondent to establish the same action would have taken place in the absence of the employees' protected concerted activi- ties NLRB v Transportation Management Corp, 462 U S 393 (1983), Wright Line, 251 NLRB 1080 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) In order to establish a prima facie case that Trowell's protected concerted activities were such motivating fac- tors, one must credit Trowell's testimony that he told several waiters, including Eugene French, about his wage complaint to the New York State Bureau of Labor Standards, that French left thereafter and went to the front where Rolando was working and that shortly thereafter Rolando came back and told Trowell he was fired Such testimony if credited would establish knowl- edge, an essential element, and timing However, I do not credit Trowell's testimony in this connection Such testimony was not corroborated by a single witness Al- though French was present at the trial, called as a wit- ness for Respondent to testify as to Trowell's bad breath and body odor, and cross-examined by General Counsel, he failed to corroborate Trowell's testimony Moreover, my general impression of Trowell's credibility is not fa- vorable, Trowell denied that Rolando or Paezi ever complained to him about his bad breath or body odor, which is the reason advanced by Respondent for his dis- charge However, the mutually corroborative testimony of Rolando and Paezi, Respondent's supervisors, support- ed by the additional corroborative testimony of employ- ees French, Bondi, and Ali contradict Trowell's testimo- ny While it could be argued that Rolando and Pam, as agents of Respondent, are witnesses who might be ex- pected to testify favorably for Respondent, I do not be- lieve that neutral employees French, Bondi, and Ali would give untruthful testimony In this regard Trowell admitted he was a smoker and reluctantly admitted dunng cross-examination that Pitezi had on one occasion given him some mints to conceal his smoker's breath In view of my credibility resolution, I conclude coun- sel for the General Counsel has failed to establish Re- spondent's knowledge of Trowell's concerted activity or timing, and therefore conclude that Respondent has failed to establish her Wright Line burden Moreover, in view of the credited testimony of Respondent's wit- nesses, I would conclude that such discharge would have taken place in the absence of Trowell's concerted activi- ty Accordingly, I conclude there is insufficient evidence to establish that Trowell was discnmmatonly discharged as alleged, and recommend dismissal of the complaint in its entirety 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 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent, by discharging Oliver Trowell, did not violate Section 8(a)(1) as alleged in the complaint In view of my findmgs and conclusions set forth above, and the entire record in these proceedings, I hereby issue the following recommended2 ORDER The complaint is dismissed in its entirety 2 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