Fitzwilly's

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joshua's, Inc. d/b/a Fitzwilly's. Case l-CA-14334 December 5, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 27, 1980, Administrative Law Judge George F. Mclnerny issued the attached Supple- mental Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Adminis- trative Law Judge and to adopt his recommended Order as modified herein. The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(1) and (3) of the Act by implementing an employee evaluation system, to be used in granting wage increases, in retaliation against the protected activities of em- ployee union adherents, and to discourage such union activity in the future. We disagree. The Administrative Law Judge's finding of dis- criminatory implementation of the evaluation system is premised on his conclusion that the eval- I The Administrative Law Judge's initial Decision in this proceeding was issued on January 26, 1979. Thereafter, on December 11, 1979. the Board dismissed certain allegations of the complaint and remanded cer- tain other allegations to the Administrative Law Judge for further con- sideration and issuance of the instant Supplemental Decision. See 246 NLRB No. 147 (1979). Chairman Fanning did not participate in this earli- er stage of the proceeding, and he expresses no opinion on the positions taken by his colleagues therein. Thereafter, Respondent filed a motion for reconsideration of the Board's Decision; the motion was subsequently denied. 2 Subsequent to the issuance of the Administrative Law Judge's Sup- plemental Decision in this proceeding, the Board issued its Decision in Wright Line, 4 Division of Wright Line. Inc., 251 NLRB No. 150 (1980), in which it set forth a test of causation for cases, such as this one, alleging violations of Sec 8(aX3) of the Act. Having examined the question of causation in this case under the test formulated in Wright Line based on that used by the Supreme Court in Mt. Healthy City School District Board of Education v Doyle, 429 U.S. 274 (1977), we find and conclude, for the reasons set out by the Administrative Law Judge in both his initial and Supplemental Decisions. that the General Counsel has made a showing that antiunion considerations were motivating factors in Respondent's op- eration of its written warning system; its issuance of warnings under that system to employees Rooke and Alper; its denial of wage increases to Rooke and Alper; and its discharge of Alper. We further find and con- clude that Respondent has failed to demonstrate that it would have taken the same actions even in the absence of its opposition to the Union. 253 NLRB No. 82 uation system "bears very little relation to any le- gitimate business interest of Respondent." We need not pass on what such a conclusion, standing alone, might reasonably imply about an employer's motive in establishing such a system, since the Ad- ministrative Law Judge's conclusion to that effect in this case is largely premised on an erroneous evaluation of record evidence. Thus, the Adminis- trative Law Judge found that a low number of em- ployees-37 out of approximately 70 to 75 employ- ees, over a 6-1/2-month period-were evaluated, and that, of those who were evaluated, only 3 were shown by the record to be known union adher- ents, 3 thereby in the Administrative Law Judge's view indicating that the system operated to the det- riment of such adherents. However, the record es- tablishes that the employee evaluation system did not cover, and was not intended to cover, Re- spondent's entire work force. Only kitchen work- ers, bartenders, dishwashers, and hostesses were evaluated under the system; waiters and waitresses were not. And the record fails to show that the ap- plication of the evaluation system to the classifica- tions evaluated was based on any illegal consider- ations, or how many of the 37 employees evaluat- ed, other than the 3 indicated, were union sympa- thizers. In reaching his finding of unlawful implementa- tion of the evaluation system, the Administrative Law Judge also relied on the fact that supervisors failed in some instances to fill in the full names of the employees on the evaluation forms; the fact that final determinations as to employee merit raises were made by Respondent's general man- ager, Thomas Wooster, in what the Administrative Law Judge characterized as "subjective, indeed sometimes whimsical personal comments," some- times contrary to recommendations made by the employee's immediate supervisor; and the fact that the evaluation system was implemented with what the Administrative Law Judge characterized as a "random, haphazard, and subjective approach." Whatever the factual merit of these assessments of the Administrative Law Judge, we find them to have little probative value on the issue of whether Respondent discriminatorily implemented the em- ployee evaluation system, and we give them no further consideration. Ultimately, then, the Admin- istrative Law Judge's finding that the employee evaluation system was discriminatorily implement- 3 Those employees were, Charging Party Alper, alleged discriminatee Rooke, and employee Holt. Alper was denied a wage increase, with di- rections that she be reconsidered for a raise after 30 days Rooke was denied a wage increase with directions that he be reconsidered for a raise after 60 days Holt was evaluated twice; she was initially given a 10-cent raise, and within 60 days was given an additional 15-cent raise. 588 JOSHUA'S, INC. D/B/A FITZWII.LY'S ed is simply not supported by the facts upon which the Administrative Law Judge premises his finding. Beyond that, there is no showing by a preponder- ance of the remaining record evidence that the em- ployee evaluation system was discriminatorily im- plemented. Accordingly, and contrary to the Ad- ministrative Law Judge, we find and conclude that Respondent has not violated the Act as alleged in this regard.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Joshua's, Inc. d/b/a Fitzwilly's, Northampton, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph l(b) and reletter the subse- quent paragraphs accordingly. 2. Substitute the following for paragraph 2(b): "(b) Remove from the personnel files of Alper and Rooke all written warnings, and delete from their files any references to such warnings." 3. Substitute the attached notice for that of the Administrative Law Judge. I Therefore, in agreeing with the Administrative Law Judge's subse- quent finding that Charging Party Alper and employee Rooke were un- lawfully denied pay raises because they had been unlawfully administered written warnings (as more fully discussed by the Administrative Law Judge in his initial Decision at 246 NLRB No. 147), we do not subscribe to the Administrative Law Judge's reliance in part on his earlier finding that the written evaluation system was unlawfully implemented. Rather. we rely in this regard entirely upon the Administrative Law Judge's find- ing, which we affirm. that Rooke and Alper were denied pay raises pri- marily because of the unlawful warnings they had received (for lateness and unauthorized use of the telephone), rather than for any particular job shortcomings. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WIL. NOT implement or enforce a system of written warnings in order to dis- courage union activity among our employees. WE WILL NOT discourage membership in the Union, or any other labor organization, by dis- criminating against employees in regard to their hire and tenure of employment or any terms and conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees' exercise of the rights guaranteed by Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL offer Loretta Lynn Alper full and immediate reinstatement to her former position or, if that position no longer exists, to a sub- stantially equivalent position, without preju- dice to her seniority or other rights and privi- leges, and WE WILL pay Loretta Lynn Alper and Donald B. Rooke, Jr., for any loss of pay they may have suffered by the reason of our discrimination against them, together with in- terest thereon. WE WILL remove all written warnings from the personnel files of Loretta Lynn Alper and Donald B. Rooke Jr., and WE WILL delete from their files any references to such warn- ings. JOSHUA'S, INC. D/B/A FITZWILLY'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE GEORGE F. MCINERNY, Administrative Law Judge: On January 26, 1979, 1 issued a Decision in this case. Thereafter, on December 11, 1979, the National Labor Relations Board issued a Decision and Order in this case,' remanding the matter to me for purposes of issu- ing with respect to the 8(a)(3) and (1) allegations of the complaint a supplemental decision setting forth in full my findings of fact and the conclusions to be drawn therefrom, the specific violations found, the reasons for my determinations with respect to all material issues of fact and law, and my recommendations as to what ac- tions should be taken with respect to these allegations of the complaint, including appropriate remedies for any violations I may find. In its Decision, the Board dismissed those allegations in the complaint which alleged that the Respondent en- gaged in independent violations of Section 8(a)(l), spe- cifically, the complaint allegations designated as para- graphs 8(a), (b), (f), (g), (h), (i), (k), and (o) and the por- tion of paragraph 8(I) which alleged a threat to give a written warning. 2 I have carefully considered my findings, conclusions, and recommendations as made in my original Decision in this matter. Those findings, conclusions, and recommen- The Board's Decision is reported at 246 NLRB No 147. 2 In my original decision found that the General Counsel's allegation that Respondent iolated the law by granting Alper 2 days of paid sick leave was not supported by the evidence (Al.JD. fn 28 ) I did not. how- ever, specifically recommend that that allegation of the complaint, Sec 8{c), be dismissed. I do so now, 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dations are hereby incorporated by reference in this sup- plemental decision, and are affirmed as modified and sup- plemented herein, with the exception of these allegations of the complaint which have been dismissed by the Board. The Board has outlined four specific parts of my Deci- sion. These will be considered as listed in the Board's Decision. FINIANGS 01 FACT I. The written warning and job evaluation systems In my original Decision I found that the employee warning system was initiated by Thomas Wooster, the new manager, prior to his learning of the employees' union activity. I found, further, that the implementation of the warning system, in an atmosphere which I have found to exhibit hostility and animus toward the Union and toward employees known to favor the Union, led to the conclusion that the warning system was used both during and after the campaign, to intimidate its employ- ees during the campaign and to retaliate against them when the campaign was over. I now find that by the activity the Respondent has violated Section 8(a)(l) and (3) of the Act. Considering the Respondent's employee evaluation system, I found that due to a number of factors enumer- ated in my original Decision the system bore little rela- tionship to the Respondent's business interests, and, in fact, was invoked in retaliation and reprisal for the em- ployees' exercise of their rights under Section 7 of the Act. I, further, now find that by its discriminatory imple- mentation of the employee evaluation system the Re- spondent violated Section 8(a)(1) and (3) of the Act. 2. The written warnings to Rooke and Alper In my original Decision, I found that the first two warnings given to Donald Rooke, on November 26 and December 1, 1977, ostensibly for lateness, were the result of the Respondent's hostility toward Rooke as the leader of the prounion employees. What I did not make clear was my conclusion that because of my findings on the Respondent's unlawful motivation in enforcing the system of warnings, the whole system was tainted with illegal motivation, and any and all warnings given there- under were a part of the Respondent's overall struggle against the unionization of its employees. Thus, Rooke's unauthorized use of the Respondent's telephone, although it certainly was improper, would not have caused the Respondent to act as it did but for Rooke's union activities. A "last and final warning" was placed in Rooke's personnel file, and Kirwood engaged Rooke in a long conversation concerning the Union, which conversation made clear the Respondent's feelings of hostility toward the Union and its employees' efforts to organize. In these circumstances, I infer and find that if it were not for the Respondent's unlawful and coercive warning system Rooke would not have received the written warning that he did. I find the same to be true, for the same reasons, in the case of the telephone call made by Alper in January, in the warnings given to Alper for lateness prior to the elections, and, finally, in the warnings given to Alper and Rooke for lateness in March 1978. I find, therefore, that all of these warnings violated Section 8(a)(1) and (3) of the Act. 3. Denial of raises to Rooke and Alper As I have found, Alper was denied a pay raise on March 23, 1978, primarily because of warnings she had received. Rooke was evaluated on March 30, 1978, also primarily on the basis of warnings. Since I have also found that those warnings violated Section 8(a)(1) and (3), and since I have found that the employee evaluation system, like the warning system, was tainted with illegal motivation, it follows, again as in the case of the warning system, that any and all actions taken under the evalua- tion system were in pursuance of the Respondent's illegal aims. Therefore, since the warnings on which the denials of pay increases to Rooke and Alper were themselves un- lawful, and since the evaluation system itself is unlawful, it follows that these denials were unlawful, and in viola- tion of Section 8(a)(l) and (3) of the Act. 4. The discharge of Alper It is quite clear that my original Decision contains no findings of fact concerning Alper's discharge. On the basis of this omission alone, the Board's remand was in- evitable as well as appropriate. Alper's discharge was the subject of testimony by Wooster and Alper herself. There is no substantive dif- ference in their versions of events. However, I have relied primarily on Wooster's version since I have found him generally more credible than Alper. On the evening of March 30, Nancy Long, the Re- spondent's kitchen supervisor, noted that the evening sig- nout sheet showed that Alper had signed out at 9 p.m., whereas Long knew that Alper had in fact left the res- taurant at 8:30.3 The next morning Long noted also that Alper had signed in one half hour late. Long brought both sheets upstairs to Wooster's office. After looking over the sheets, Wooster called Kirwood on the tele- phone and told him that he thought Alper should be dis- missed, that she had been given "every break in the world." Kirwood agreed. Wooster then told Long of the decision and the latter went downstairs to the kitchen and informed Alper that she had signed out improperly the night before, and that, therefore, she was being fired. Alper testified that she had in fact signed out properly at 8:30 on March 30 and after some discussion of this with Long she said the same thing to Wooster. Finally, she went downstairs and found the sheet she had signed at 8:30 crumpled up in a wastebasket. 4 Alper brought this sheet upstairs and confronted Wooster with this evi- dence. Wooster pointed out to her that the sheet she had signed was obviously the wrong one because it lacked the names of a number of other employees who should ' Long did not testify on his matter, but there is no dispute as to her actions ofn these dates. 4 This testimony of Alper's is corroborated by Wooster 590 JOSHUA'S, INC. D/B/A FITZWILLY'S have been on the sheet ahead of hers. He asked her, "Doesn't it make some sense to you that the sign out sheet that you are signing out on was a bogus signout sheet?" Alper replied that it did make sense to her, that the sheet had been crossed out in crayon. She went on to deny that she knew who had signed the other sheet showing her departure at 9 p.m. At this point, Wooster's testimony leaves the impres- sion that he accepted Alper's signout sheet showing the 8:30 time, but then he took the signin sheet for that morning and asked Alper if that was her signature on it. She said that it was. Wooster went on to say "Okay, so now you are telling me that you did sign out properly last night, but that you signed in half an hour late this morning." She agreed, and he then said, "[t]hat is the reason you are being dismissed. You were half an hour late coming to work. You got three written warnings, and that's it."5 Alper indicated her interest in returning to talk to Kir- wood, but as matters turned out she did not return. It is, thus, clear from Wooster's own testimony that he made the determination to fire Alper on the dual basis of her perceived falsification of the signout sheet on the evening of March 30, and her late signin on the morning of March 31. He recommended to Kirwood that this action be taken, on those bases, and Kirwood agreed. As I previously noted, whatever the merits of the alleged falsification of the March 30 timesheet, when Alper pro- duced the other timesheet, showing that she signed out at 8:30, Wooster did not hesitate, nor did he consult with Kirwood over these altered circumstances. He picked up the March 31 signin sheet, confronted Alper with her signature thereon, pointed out that she had received three warnings, and discharged her, because of the fact that she was late that morning, and the accumulation of the three prior warnings. I have found that the employee warning system was implemented by the Respondent in a manner designed to interfere with, restrain, and coerce employees in viola- tion of their rights guaranteed under Section 7 of the Act, and in violation of Section 8(a)(1) and (3) of the Act. I have further found that the warnings given to Alper pursuant to that system were discriminatory and in violation of Section 8(a)(1) and (3) of the Act. In my original Decision I found that the discrimination and the discriminatory intent evidenced by the warning system, and embodied in the warnings, together with the intent to retaliate against Rooke, as well as Alper, because of their relationship to the Union and to each other was the only reason for the discharge of Alper. This discharge, based on those considerations and motivation I find to be in violation of Section 8(a)(3) of the Act. s There was some additional conversation in this meeting between Alper and Wooster, including Alper's assertion that she was a good em- ployee, and her accusations that other kitchen employees were stealing food from the restaurant. This has nothing to do with her discharge, since that had already been affected when the accusations were made, hut does reflect, as noted in my original Decision, on Alper's character and her credibility. TH RIMII)Y6 Having found that the Respondent has engaged in cer- tain unfair labor practices I shall recommend that it be ordered to cease and desist therefrom, and that it take certain affirmative action designed to effectuate the poli- cies of the Act. I shall recommend that Loretta Lynn Alper be reinstated to her former position or, if that posi- tion no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges, and that she be made whole for the dis- crimination suffered by her by the payment to her of backpay computed in the manner prescribed in F. WU: Woiolworth Company, 90 NLRB 289 (1959), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation. 231 NLRB 651 (1977).7 Further, I shall recommend that all written warnings and employee evaluations be expunged from the personnel records of Loretta Lynn Alper and Donald Rooke, and that the Re- spondent shall pay to Rooke and Alper sums of money equivalent to the sums of the raises they were not grant- ed in March 1978, computed in the manner described herein. In my original Decision I recommended that the Board adopt a broad cease- and-desist order. On recon- sideration, it does not appear that the Respondent has a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the statutory rights of employees. Accordingly, I shall recommend narrower injunctive lan- guage. Ilickmott Foods, Inc., 242 NLRB 1357 (1979). CONCI USIONS or LAW i. Respondent is an employer engaged in commerce within the meaning of Section 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. By engaging in the conduct described in section I of this Supplemental Decision and in section III of my original Decision, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Joshua's Inc., d/b/a Fitzwilly's, Northampton, Massachusetts, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: The sections of my original Decision entitled "The Remedy," "Con- clusions of Law." "Order," and "Appendix'" are hereby deleted and re- placed with those sections so designated in this Supplemental Decision 7 See, generally, Ais Plumbing d ealing Co. 138 NLRB 716 (1962) "In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National ahor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as pro ided in Sec 10248 of the Rules and Regulations, hbe adopted by the Board and become its findings, conclusions, and Order, and all objection, thereto shall be deemed aived for all purposes 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Implementing or enforcing a system of written warnings in order to discourage union activities among its employees. (b) Instituting or enforcing a system of employee eval- uation in order to discourage union activity among its employees. (c) Issuing written warnings to its employees in order to discourage union activity among its employees, or to retaliate against employees for engaging in union activi- ty. (d) Denying raises to its employees in order to dis- courage their union activity, or to retaliate against em- ployees for engaging in union activity. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Loretta Lynn Alper immediate reinstate- ment to her former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights or privileges, and to make Alper and Donald Rooke whole for any loss of earnings they may have suffered by reason of the dis- crimination against them in the manner set forth in the section of this Supplemental Decision entitled "The Remedy." (b) Remove from the personnel files of Alper and Rooke all written warnings and employee evaluations. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Northampton, Mas- sachusetts, copies of the attached notice marked "Appen- dix."9 Copies of said notice, on forms provided by the Regional Director for Region , after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 9 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 592