Nicola'S

860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nicola's and Lawrence Leach. Case 32-CA-10373 September 26, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On January 26, 1990, Administrative Law Judge Clifford H Anderson issued the attached decision The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in opposition to the General Counsel's 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 m light of the exceptions and briefs and has decided to affirm the judge's rulings, findmgs, 1 and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The General Counsel 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 Cir 1951) We have carefully examined the record and find no basis for re- versing the findings The judge stated that the meeting between Lawrence Leach and Rich- ard Trot= occurred on March 18, 1989 The record is clear that the meeting occurred in May This error, however, does not affect our deci- sion Georgae Velastequl, Esq , for the General Counsel Thomas M Govacchuu, Esq , of Fresno, California, for the Respondent DECISION , STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard this case in trial on October 2, 3, and 4, 1989, in Fresno, California, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 32 of the National Labor Relations Board (Board) on July 19, 1989, based on a charge docketed as Case 32-CA-10373 filed on June 1, 1989, by Lawrence Leach, an individual, against Nicola's (Respondent or the Employer) The complaint alleges that Respondent, on or about May 18, 1989, issued a written disciplinary warning to Leach and 5 days later discharged him because of his protected concerted activities in seeking to change Re- spondent's policy respecting cash shortages The General Counsel alleges that this conduct violates Section 8(a)(1) of the National Labor Relations Act (Act) Respondent admits the disciplinary action as well as the discharge, but contends the acts were predicated on reasons inde- pendent of any activities of Leach protected under the Act All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine and cross-examine witnesses, to argue orally, and to file postheanng briefs On the entire record, including helpful briefs from the General Counsel and Respondent, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT' I JURISDICTION Respondent is a California corporation engaged in the operation of a restaurant in Fresno, California Respond- ent as part of its business operations annually enjoys rev- enues in excess of $500,000 and annually purchases and receives goods or services from outside the State of Cali- fornia of a value in excess of $5000 The complaint al- leges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent is a corporation wholly owned by Nicola and Caroline Troiam—husband and wife Respondent owns and operates Nicola's, a restaurant and bar, located in Fresno, California The restaurant has been in business for many years with Caroline Troiam remaining active m its operation Richard Troiam (Troiam), son of the owners, has been general manager since November 1, 1988 The supervisory staff at relevant times included Assistant Managers Millie Ortiz, Dons Nicole, and Patti Morgan Respondent's employees are represented by a local of the Culinary Workers and were covered by a collective- bargaining agreement at relevant times This relationship is not directly relevant to the issues in controversy, how- ever, in as much as contract rights were not asserted by any party, union membership was not mvolved, and the Union was not contacted nor invoked by any party Lawrence Leach was hired as a food server by Re- spondent on or about March 7, 1989 2 His previous work experience included restaurant and bar management There is no dispute that in the first weeks of his employ- ment Leach was an impressive employee On two occa- sions up to mid-April, Richard Troia= discussed with Leach the possibility of his promotion into management with Nicola's Throughout his employment Leach was concededly "a proficient waiter who knew his dunes and was capable of training other employees" (R Br 35-36) 1 As a result of the pleadings and the stipulations of counsel at tnal, there were few disputes of fact regarding collateral matters Where not otherwise noted, the findings herein are based on the pleadings, the stipu- lations of counsel, or unchallenged credible evidence 2 Unless otherwise specified, all dates are in 1989 299 NLRB No 137 NICOLA'S 861 B Leach's Activities Respecting Respondent's "Shortage" Pohcies At relevant times Respondent maintained a policy that food servers make up from their own pockets cash short- ages resulting from billing mistakes The shortages were determined without consideration of overages on other checks, if any The policy was apparently longstanding having either originated with or been maintained and supported by C Tromm In practice the shortages were caught in the clencal process and referred back to the server with the shortage and the amount owing noted on the bill As perhaps might be anticipated, this policy was not favored by employees, at least some of whom com- plained of the policy and made it a practice not to pay the shortages returned to them Leach testified that he had been presented with "short- ages" for payment and had generally complained of the practice to other employees After Mother's Day—a busy day in the restaurant—he was presented with sever- al shortages and became more determined in his unhappi- ness respectmg the policy Leach testified he spoke with two other employees, Savage and MacChesney, over the period of May 16 to 18, respectmg his mtention to raise the shortage policy with Richard Tromm Tactics and specific proposals were discussed among the employees, a course of action was agreed on, and Leach was sent on his way with good wishes The critical conversation between Leach and Troiam occurred on or about May 18 The versions of the con- versation differ Leach testified that he approached Tromm on the floor of the restaurant, away from the customers, and asked to talk to him about Respondent's rule that servers had to make up shortages on checks Leach testified that he told Troll= he "had spoken with a couple of the other wait staff and that we felt strongly against the house policy" Leach then discussed alterna- tives to the policy and gave his view that the policy was an insult to the employees as well as being illegal Leach testified that Tromm answered that the shortage walceup policy was longstandmg, was his mother's policy, and that he believed she would continue it Leach replied that Troiam would have to talk to his mother about it because the employees were "really upset" Leach re- called that Troiam did not respond but rather became visibly upset and walked away Richard Tromm, who was present throughout the trial, testified that the conversation descnbed by Leach in his earlier testimony was more of an informal passing remark than a conversation and did not stand out with particulanty in his memory He testified that on a day roughly in the period around May 18 on the restaurant floor during lunch preparations, Leach approached him with a comment, "I got a problem with your mother" As the two continued walking, Troiam asked what the problem was and Leach said that it was ridiculous that he had a minuscule amount referred to him as a shortage Troll= responded that Nicola's hoped to "account for every penny and that's the way we do it here" Troiam described the conversation as simply ending there and of being of such minor consequence that he gave it little thought at the time, discussed it with no one and recalled it only durmg the Board proceedings Further, Tromm testified that the Union had not challenged the shortage rule so long as Respondent supplied employees with cal- culators which, in fact, Respondent had done C Other Events During Leach's Employment with Respondent Various events and circumstances mvolvmg Leach and other employees were descnbed and characterized as rel- evant to Leach's termination Some of these are de- scribed below in chronological order In mid-April, Leach and cocktail server Christine Charters had a heated discussion at the restaurant after the dinner hour in Richard Troiam's presence Charters had not received what she perceived to be her proper al- location of a table's gratuity from Leach Leach had given her some 10 percent of the tip rather than the then customary 15 percent because, in his view, her service did not merit the full allocation The two were unable to resolve their differences and the discussion took on some heat Troiam intervened in the dispute telling the two that employees should not talk to one another in that fashion Later that day, Leach asked Tromm to modify the tip allocation policy to reduce the cocktail server's portion of the gratuity from 12 percent to 10 percent Troiam agreed In mid-April, Leach and cocktail server Charlene Sharp argued heatedly over tip allocation Sharp sought an accounting of Leach's transactions that evening which request Leach refused Leach and perhaps Assistant Manager Dons Noble brought the dispute to Troiam's attention On May 6, Respondent held a mandatory menu meeting for employees at which a new menu was introduced and the new foods tasted and discussed Cer- tain employees missed the meeting Troiam testified that those employees who had obtained pnor permission to miss the meeting were excused, but that two other em- ployees missed the meeting without prior approval Mi- chael Stafford and Lawrence Leach Troiam testified that he prepared warning notices on May 8 for the two employees suspending each for 2 weeks After preparing the notices, however, Troiam determined to defer the de- livery of the notices and the commencement of the sus- pensions until the conclusion of the Mother's Day week- end and the upcoming prom nights so that the restaurant would not be shorthanded during those busy times Staf- ford ultimately was issued the notice and served his sus- pension Leach's notice was discarded as will be dis- cussed, infra Leach testified that he had had pressing personal business which prevented him from attendmg the menu meeting and that he had discussed this fact with Troiam prior to the meeting and had obtained Tromm's permission to miss the meeting Tromm denied this assertion On May 13, after the dinner hour, Leach was using a calculator in the wait station to tally his tickets During this process, fellow server Louis Vargas arrived and cleared Leach's entries in the calculator to use it himself The result was that Leach's figures had to be reentered Leach was upset by this and, apparently after Vargas left, cursed him to fellow employee Jeff MacChesney Vargas returned to the area and Leach, apparently un- 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD aware of Vargas' return, again cursed Vargas to Mac- Chesney using strong expletives MacChesney, while complaining about Vargas and other servers' inadequate spirit of cooperation, mentioned the Leach-Vargas events to Troiam who later called Vargas at his home to con- firm the facts including, pnmanly, the use of strong Anglo Saxon epithets by Leach Troiam testified that after learning of this final alterca- tion, he tentatively decided to terminate Leach but that he wanted to think on the decision and to consult with Assistant Managers Noble and Ortiz Trounn then de- stroyed the, as yet unissued, May 8 warning and suspen- sion notice for Leach and prepared a new notice dated May 18 This notice contained check box references to (1) unexcused absence, (2) dissension with staff and cli- ents, (3) verbal abuse, and (4) negative attitude The fol- lowing entry appeared in the "explanation of offense" Unexcused absence to mandatory meeting of new menu, items, procedures and tasting (5/6/89) In- creasingly negative attitude about customers, tips and operations Also, run-ins with cocktail waitress- es and complaint about tipping policies Due to the fact that Larry [Leach] is still on his 90-day proba- tionary period, we feel a week suspension and possi- ble discharge are in order Troiam testified he later discussed the matter with Ortiz and Noble and they each agreed that Leach should be fired Ortiz, however, told Tromm, in Troutm's recollec- tion, to postpone any action until after the upcoming prom night of May 20 Leach worked the evening of May 19, and had diffi- culty with a table occupied by Richard Moorehouse and his party Moorehouse complained to Troiam about Leach's service Leach testified that Moorehouse was un- reasonable and abusive Leach further testified that his conduct was proper, if stiff, and that Moorehouse was simply drunk and not to be pleased On May 20, prom night, Leach entered tips on two checks issued to student tables Leach testified he ob- tamed permission to do so from Troiam and Noble Without permission such an entry was against Respond- ent's policy The next day two parents complained of the tip entries on their children's bills Troiam testified he was able to identify the waiter involved as Leach from the descriptions given by the parents Leach did not work on May 21 or 22 When Leach came to work on May 23, he was brought to the office and given the May 18 written warning and terminated Leach complained of the severity of his punishment given his lack of previous warnings No accommodation was reached The conversation ended and Leach left Leach has not been offered reinstatement D Analysis and Conclusions 1 The position of the parties The General Counsel argues that Leach was a promis- ing employee until he complained on behalf of himself and his fellow employees about Respondent's shortage policy after which he was quickly discharged Thus, the General Counsel compares and contrasts the praise and encouragement given Leach initially with his—in the General Counsel's view—precipitous fall from grace and ultimate termination followmg hard upon his complaints to Troiam about the shortage policy The General Counsel also attacks Respondent's assert- ed reasons for Leach's warning and discharge as pretext designed to cloak Respondent's true illegal motive Thus, the General Counsel offers the testimony of Leach chal- lenging, inter aim, Troiam's versions of the May 18 con- versation, the May 6 menu meeting circumstances, and the events of May 19 and 20 The General Counsel fur- ther urges that I draw adverse inferences from Respond- ent's failure to call Assistant Managers Ortiz and Noble as witnesses to corroborate the testimony of Troiam that he discussed Leach's suspension and termination with them Further, the General Counsel argues that Re- spondent's defenses were shifting and inconsistent and that Respondent's treatment of Leach was disparate com- pared to its treatment of other employees in similar cir- cumstances Respondent argues that, even if Leach's complaints re- specting Respondent's shortage policy were concerted and hence protected activity, Troiam simply took little note of Leach's inarticulate complaints They were of no consequence to Troiam and certainly were not a factor in Respondent's subsequent treatment of Leach Rather, argues Respondent, while Leach was at all times a good server with previous restaurant and bartendmg manage- ment experience, over time it became apparent to Re- spondent's management and Troiam in particular that Leach could not get along with either staff or customers, as evidenced by the events described above This simple fact combined with the fact that Leach was a new em- ployee in his probationary period led to management's reappraisal of him and his ultimate discharge Thus, counsel for Respondent argues on brief, it was not so much a single event or even one or two events which caused Troiam to come to believe that Leach should be fired Rather, Troutin over the period observed that Leach was having regular run-ms with staff and was reg- ularly hostile to customers who were not satisfactory from his perspective Trouun, in this analysis, did not so much concern himself with the rights or wrongs of any particular event but rather the growing sum of problems Leach was experiencing with others 2 Leach's complaint as protected concerted activity I credit Leach's uncontradicted testimony (1) that he discussed Respondent's shortage policy with other em- ployees, (2) that they discussed the problem with him, and (3) that they wished him luck in his announced in- tention to raise the matter with Troiam Such employee consultation and planning rendered Leach's subsequent complaints concerted as noted by General Counsel citing on brief Adelphi Institute, 287 NLRB 1073 (1988), and Daly Park Nursing Home, 287 NLRB 710 (1987) Whether or not Leach's concerted conduct was pro- tected turns on the question of whether or not Troiam knew or reasonably should have known that Leach was in fact acting concertedly New England Fish Co, 212 NICOLA'S fi63 NLRB 306 (1974) On the facts of this case, the question turns on which version of the March 18 conversation be- tween Leach and Troiam is credited If Leach told Troiam he had talked to other employees and they agreed with him on the policy, Respondent is charged with the knowledge of the concertedness underlying Leach's complaints If Troiam's version of the conversa- tion is credited, there is no basis to charge Respondent with knowledge of Leach's concerted activities Turning to that narrow question, I credit Leach over Troiam and find that Leach told Tromm that he "had spoken with a couple of the other wait staff and that we felt strongly against the house policy" I credit Leach largely because Tromm admitted paying little attention to Leach's remarks at the time and could not recall either the date or the specifics of the conversation Leach on the other hand recalled the conversation in detail and with conviction Inasmuch as I do not believe either individual deliberately nustestified regarding the conversation, I credit Leach's clearer recollection Having found that Leach told Troiam that other employ- ees had been consulted on the matter, I find that Re- spondent is at the very least charged with constructive knowledge that Leach's activities were concerted Therefore, I find Leach's conduct protected 3 Was Leach's protected activity responsible for his suspension and/or discharge'? The parties were well aware of the Board's standards in discharge cases of this type, Respondent citing both Wright Line, 251 NLRB 1083 (1980), and NLRB v Transportation Management Corp, 462 U S 393 (1983), on brief If the General Counsel meets his burden of proof of establishing a prima facie case that an employee was discharged because of protected activities, the burden of proof shifts to the employer to demonstrate that the employee would have been discharged in all events irrespective of the protected activity In the instant case, the General Counsel relies most heavily on circumstantial evidence such as the timing of events to establish his prima facie case The cases ably marshalled by counsel for the General Counsel on brief, as well as a host of other Board and court cases, find such indirect and circumstantial evidence appropriate and at least potentially sufficient to sustain the prosecu- tion's burden of proof It is often impossible otherwise to establish the subjective motivations of an employer taking adverse action against an employee The General Counsel also supports this case by attacking Respond- ent's defense that misconduct was the basis for Respond- ent's actions against Leach Thus, the General Counsel argues Respondent's reasons for Leach's suspension and discharge were either insufficient or pretext Further, the General Counsel argues that many of the contentions of R Troiam at the hearing were not corroborated by other supervisors, who were available as witnesses but were not called by Respondent Against this argument, Respondent argues the credibil- ity of R Troiam, who denied Leach's protected activity was a factor in the actions against him and who de- scribed a pattern of conduct by Leach, in the incidents noted above, which over time convinced Troiatu that Leach should be discharged Respondent further argues the unlikelihood that Leach's complaints respecting the shortage policy—even conceding arguendo Leach's ver- sion of the March 18 conversation—would have logical- ly been of any significance to Troiam at all, let alone of much importance as to cause Leach's subsequent dis- charge I have considered the record as a whole on the ques- tion with particular reference to the testimony of Leach and Richard Troiam For the reasons set forth, infra, I have determined that the General Counsel has failed to sustain the allegations of the complaint that Leach was discriminated against in any way because of his protected activity of complaining about Respondent's shortage policy In reaching this conclusion, I have assumed that the General Counsel has established his prima facie case and that the burden of proof has shifted to Respondent Even in such a circumstance, I find no violation of the Act as alleged The primary aspects of this case which command the result reached follow from my evaluation of the testimo- ny of Richard Troll= First, I am unable to accept the General Counsel's main contention that the May 18 com- plaints of Leach would likely have generated the animus in Troiam necessary to cause him to, in effect, turn against and soon discharge the previously favored Leach solely because of his complaints on May 18 The conver- sation in either version was simply too low key and Tromm's reaction, both then and after, too benign to carry the load the General Counsel would place on it Leach himself believed up until this conversation that Tromm was not hostile to his suggestions and, indeed, was willing to listen to and act upon his recommenda- tions respecting policy changes The General Counsel suggests on brief that the shortage policy involved Re- spondent's revenues and, hence, was forbidden territory for Leach I find the argument farfetched The sums in- volved in Leach's example to Troiam were small and there was no suggestion that large sums of money are in- volved m the policy in any event I similarly reject any contention that the reference to Troiam's mother would have put Leach in jeopardy Having observed Troll= through his substantial testimony and, in particular, during his testimony concerning the March 18 conversa- tion and its sigtuficance to him and his reaction to it, I credit his testimony that Leach's remarks were not sig- nificant to him and that he took no further note of them I further credit Troy:miss testimony that the conversation was simply not the basis of any animating hostility to Leach Second, the General Counsel's theory of the case re- quires that I find that Troiatu engaged in a pattern of deceit and falsification to generate a pretext to fire Leach Thus, the General Counsel's theory that Leach was perceived as being of star quality until March 18, re- quires a rejection of all Respondent's contentions that Leach's conduct before that time was becoming unsatis- factory Under the General Counsel's theory, Troutm's written warning and suspension of Leach—as testified to by Troiam—prepared on May 8, as well as the unex- cused absence on May 6 must have been concocted on 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or after May 18 and the events manipulated or misper- ceived by Troiam in order to create an excuse for ad- verse action against Leach Based in significant part on my credibility resolutions including my favorable impres- sion of the demeanor of Troiam, I credit his denials that he engaged in such a pattern of conduct 3 Third, and finally, for similar reasons, I do not believe that Troiam, if he had decided to take adverse action against Leach because of the May 18 complaint, would have gone to the lengths the General Counsel's theory suggests to conceal his motive I credit Troiam that he did not realize that Leach's conduct on May 18, was protected The corollary of this finding is that Troiam did not realize that he could not legally fire Leach for his complaint Thus, Troiam ivould not have believed he had a reason to conceal his niotives Therefore, if he had in fact fired Leach for his complaint, he would likely have told Leach so or at the very least would not have attempted to conceal his actions by the manufacture of pretexts as the General Counsel contends The General Counsel's arguments and evidence are not so much rejected as found insufficient The record reflects, as the General Counsel points out on brief, in- consistencies in Respondent's defense Tromm testified to several important conversations with his fellow supervi- sors which were not corroborated by those individuals, even though no suggestion as to witness unavailability was made Counsel for the General Counsel correctly argues that I may make a variety of adverse inferences and findings on indirect evidence in these regards I agree with the General Counsel that the timing, incon- sistencies, and inferences had the potential to carry the 3 Where necessary I discredit contrary, inconsistent testimony, such as Leach's assertion that he got permission from Trolam to miss or be late to the menu meeting Leach's demeanor simply did not match Troiam's case for the General Counsel were I less taken with the credibility of Tromm The inferences and findings ad- vanced by the General Counsel, however, are permissive rather than mandatory On this record, I simply decline to draw them because of my conviction, described supra, that Troiam had neither the animus to initiate adverse action against Leach because of his March 18 protected concerted activity, nor the scienter necessary to cause him to attempt to conceal his motivation for that action I have weighed the General Counsel's case against this conviction and found it lacking Accordingly, I find the General Counsel has failed to sustain the allegations of the complaint and I shall recommend dismissal of the complaint in its entirety On the basis of the above findings of fact and on the entire record, I make the following CONCLUSION OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent did not violate the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The complaint shall be dismissed 4 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