Burger King Restaurant

BURGER KING RESTAURANT B. K. Restaurants Olean, Inc., d/b/a Burger King Restaurant and Tina M. Richards and Diana M. Bigelow.' Cases 3-CA-9235 and 3-CA- 9291 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENE.ILO On June 30, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, 2 find- ings, 3 and conclusions4 of the Administrative Law Judge and to adopt his recommended Order.5 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 and I In his Decision, the Administrative Law Judge inadvertently referred to Charging Party Diana Bigeloyw as "Diane Bigelow." 2 We find merit in the General Counsel's exception to the Administra- tive Law Judge's refusal to grant General Counsel's motion to amend the complaint to allege additional violations of Sec 8(a)(3) based on warnings issued to employee Richards. However, on the merits, we have carefully examined the record and we conclude that these additional alleged viola- tions have not been established by a preponderance of the evidence. In passing, we note that our finding with respect to these warnings does not disturb our conclusion that the Administrative Law Judge, based on his resolutions of credibility and on the record as a whole, properly found a violation of Sec. 8(aX3) in Respondent's discharge of Richards. 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found that, "on a rare occasion." Re- spondent's managers left the restaurant for a 15-minute interval, whereas the record reveals that the managers left on a regular basis to make bank deposits. This inadvertent error is insufficient to affect our decision. * The Administrative Law Judge concluded that Respondent violated Sec. 8(aX1) by unlawfully interrogating employee Cuddy regarding his union sentiments The General Counsel excepts to the Administrative Law Judge's failure to conclude that Respondent further violated Sec 8(aXI) by interrogating Cuddy about the union activities of other em- ployees. We find it unnecessary to pass on the General Counsel's excep- tion, since the finding of such an additional violation would be cumula- tive and would not materially affect the remedy herein a Member Jenkins would provide interest on the hackpay award in ac- cordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 252 NLRB No. 65 hereby orders that the Respondent, B. K. Restau- rants Olean, Inc., d/b/a Burger King Restaurant, Olean, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF ITHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WII.L NOT ask you about your support for Local 1, Amalgamated Meat Cutters and Butcher Workmen of North America, affili- ated with United Food and Commercial Workers International Union, AFL-CIO, or for any union. WE WILL NOT discharge any of our employ- ees because they join or support a union. WE WILI. NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Rela- tions Act, as amended. WE WILL offer Diana Bigelow and Tina Richards immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WI[Ll make them whole for any loss of earnings they may have suffered due to their unlawful termination of employment by paying each of them a sum equal to what they would have earned, less any interim earnings, plus in- terest. B. K. RESTAURANTS OLEAN, INC., D/B/A BURGER KING RESTAURANT DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge: These cases were heard by me on January 30 and 31, 1980, in Olean, New York. The consolidated complaint alleged that B. K. Restaurants Olean, Inc., d/b/a Burger King Restaurant (herein called Respondent), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The issues are: 1. Whether Respondent unlawfully interrogated its em- ployees as to their activities on behalf of Local 1, Amal- gamated Meat Cutters and Butcher Workmen of North America, affiliated with United Food and Commercial 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers International Union, AFL-CIO (herein called the Union). 2. Whether it discharged Tina Richards and Diane Bi- gelow because of their activities on behalf of the Union. 3. Whether Diane Bigelow, as a crew leader and oper- ating manager, was a supervisor as defined in Section 2(11) of the Act.' Upon the entire record2 in this case, including oral ar- gument made at the hearing and including the post-hear- ing briefs3 filed by the General Counsel and by the Re- spondent, and based on my observation of the demeanor of the witnesses at the hearing, I make the following: FINI)INGS Oi FACT I. JURISI)ICTION The pleadings establish and I find that Respondent op- erates a Burger King Restaurant in Olean, New York, and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THll UNION The uncontroverted testimony of the Union's repre- sentative establishes that it is a labor organization as de- fined in Section 2(5) of the Act and I so find: III. THE AI.I.EGE:I) UNFAIR lABOR PRACTICES A. Background In June 1976, Dennis Greenfield purchased the Burger King franchise then operating in Olean, New York, and another operating in Jamestown, New York. In late 1977 I denied the General Counsel's motion made at the outset of the hearing to amend the complaint to allege that warnings given to Tina Richards, the Charging Party in Case 3-CA-9235, violated Sec. 8(a)(l) and (3) of the Act. M ruling was without prejudice to the General Counsel's offering evidence thereon to establish that her later discharge was the culmination of harassing actions allegedly taken against her sup- porting the Union. The Employer in fact relies in part upon those warn- ings to shows that the reason it gave for her discharge was not a pretext. My ruling was based on the fact that the General Counsel, although aware of the significance of the warnings as possible violations, did not alert Respondent that the General Counsel viewed them as separate vio- lations of the Act until just before the first witness was to be heard. Also, it appeared that no independent evidence of union animus would be of- fered by the General Counsel in conjunction with the testimony respect- ing these warnings. In the General Counsel's post-hearing brief, the motion was renewed on the ground that the issue has now been fully liti- gated. The motion is again denied for the same reasons. 2 The General Counsel filed a motion to correct six asserted errors in the official transcript of the hearing. Respondent opposed the motion only as to the assertion by the General Counsel that the words "she" and "him" on p. 139, 1 10 of the transcript should be changed to read "he" and "her" respectively. The motion to so change p. 139, 1. 10 is denied I disagree with the General Counsel's assertion that the change is warrant- ed by the overall context of the testimony. Rather, the testimony as set out on . 10, p. 139, comports with the other relevant evidence in the transcript. In all other respects, i.e., the motion to correct the other five asserted errors, the General Counsel's motion is granted. 3 In connection with stating its opposition in part to the General Coun- sel's motion to correct the transcript, discussed above in fn. 2, Respond- ent wrote, in effect. a reply brief to that filed by the General Counsel Counsel for the General Counsel moved to strike it or alternatively to have considered her supplemental comments in the nature of a rebuttal argument. That alternate request is granted. That response and subse- quent correspondence from Respondent and the General Counsel have been considered. he obtained a third Burger King franchise, which is lo- cated in Fredonia, New York. He is Respondent's presi- dent and principal stockholder. He and Respondent's su- pervisor of operations Stephen Lata, visit these three lo- cations regularly each week. The Olean store, which is the only one of the three in- volved in this case, is supervised on a daily basis by a manager and two assistant managers. In early 1979, when the events giving rise to the complaint in this case took place, there were three employees classified as crew loaders at Olean. One of these was Diane Bigelow, the Charging Party in Case 3-CA-9291 and who, according to Respondent, was then a supervisor not protected by the Act. In early 1979, there were about 40 employees at the Olean location, almost all of whom worked on a part-time basis. When there were few customers expect- ed, e.g., during the early morning hours, only two or three employees were on duty. At the height of activity, e.g., Friday noontime, there were as many as 10 to 12. None of the Olean employees are represented for the purpose of collective bargaining. B. Relevant Facts as to Work Histories of Bigelow and Richards, Their Union Activities, Alleged Interrogation, Bigelow's Supervisory Status and the Discharges of Bigelow and Richards. 1. Bigelow's work history Diane Bigelow was hired by Respondent in September 1978 arid began work then on a part-time basis at the Olean restaurant. She quickly learned the operations and was made a crew leader 3 months later; i.e., in Decem- ber 1978. By then, she was working a full 40-hour week. Her starting wage rate in September was $2.65 per hour; in December she was receiving $2.80 per hour. In January 1979 the Federal minimum wage rate was raised to $2.90 per hour, and her rate was, therefore, in- creased to that level. Later that month, she was given the responsibility of opening the restaurant each week- day morning and a corresponding 10-hour raise. She re- ceived her last raise, also of 10 per hour, in late January or early February and was discharged on March 8, 1979. 2. Richards' work history Tina Richards started working for Respondent in Sep- tember 1978 as a hostess in the dining room. She worked 3 hours a day, from 11:30 a.m. to 2:30 p.m. As hostess, her job was to keep the tables clean, to greet, and to pass out promotional material to customers, and to keep the ladies room clean. Her starting wage rate was $2.65 per hour. She was given a 5-cent-per-hour raise in October 1978 and a 20-cent-per-hour increase in January 1979 in order to bring her rate in line with the minimum wage level. In October 1978 when she had been employed by Re- spondent for about a month, Respondent's supervisor of operations, Stephen Lata, made a routine visit to the Olean restaurant and observed that she was then spend- ing too much time greeting the customers and not enough time in keeping the dining room clean. He sug- gested to the individual who was then the manager of the Olean restaurant and who has since been replaced, 466 BURGER KING RESTAURANT that Richards be transferred to work in the kitchen. Richards was assigned to the kitchen and one of the kitchen workers was assigned to the hostess job. Within a few days, both of these employees persuaded the man- ager to switch them back to their former jobs and this was done about 2 weeks later. Richards continued on as hostess until her discharge on March 8, 1979. 3. Union activities and alleged interrogation Richards testified that, at noontime on a very busy Friday in mid-February 1979 (all dates hereafter are in 1979, unless indicated otherwise) Diane Bigelow had used the loudspeaker several times to call the manager and one of the assistant managers from the office to help care for the many customers waiting to be served. Her efforts were unsuccessful. It appears that the failure of the manager or assistant manager to come out to help serve the customers annoyed Richards. When the lunch- time rush was over, Richards told several of her cowork- ers that it would be a good time for the employees to have a union. Her coworkers corroborated her testimo- ny. Shortly afterwards and sometime before Richards first met with the Union's representative, as discussed below, she and another employee, Noreen Cook, were standing near the timeclock outside the manager's office, getting ready to punch in for work. They stated that Ste- phen Lata, Respondent's supervisor of operations, walked through the kitchen and into the manager's office. One of the crew leaders, Terry Ring, then arrived and, according to Richards and Cook, Richards told Ring that she "had a union representative to talk to." Richards testified that Ring then "just had a fit," "disa- greed," and "didn't want a union." She said that Ring stood 2 feet away from the doorway to the manager's office; and informed Lata who was inside that she, Ring, did not want any union because it would take too much money out of her paycheck. Richards testified that he heard Lata say that he agreed with what Ring said. Cook's account substantially corroborates Richard's. Lata testified that Crew Leader Ring never came to him to talk to him about any union. He also testified, when specifically asked about the incident involving Ring as testified to by Richards and Cook, that there was one oc- casion when Ring slammed her locker and "took off like a shot." Ring did not testify although, as a Crew Leader, she is considered a supervisor by Respondent. In the latter part of February, Richards was intro- duced to the Union's representative, Frank Licata, by a mutual friend who worked at a nearby supermarket. Richards told Licata that the employees of Respondent "did not want to step into anything too fast." Licata ad- vised her that two-thirds of the employees of Respond- ent would have to sign a petition before he could do anything. Licata testified that he warned Richards that she probably would be discharged if Respondent found out that she was engaged in union organizing. Alleged discriminatee, Diane Bigelow, testified that one day, while she was counting money in the office, Respondent's supervisor of operations, Lata, asked her if she had heard anything about a union. Bigelow testified that Respondent's president, Dennis Greenfield, was also in the office at that time. 4 Bigelow testified that she re- sponded to Lata's question by saying that Richards was getting a petition for signatures and that she, Bigelow, intended to sign it. ' Bigelow testified that neither Lata nor Greenfield said anything but that both remained silent. She stated that she completed counting the money, and left the office. Lata and Greenfield both denied that Bigelow ever mentioned anything to them about a union. Lata testified that there was an occasion in February when Bigelow was counting money in the office at a time when he and assistant manager, Diane Turek, were present. Lata testified that Bigelow said to them, "You know they're crying Union" apparently re- ferring to the employees outside. Lata stated that he re- sponded that every year, "it is the same thing and that Respondent holds crew meetings in the slow winter months to let the employees know where they stand." Lata said that he and Diane Turek may have chuckled when Bigelow left the office. Turek testified at the hear- ing but she did not, in her testimony, allude to any such incident involving Bigelow. Tina Richards met twice more with the Union's repre- sentative, Licata-once when he stopped in briefly for coffee at Respondent's restaurant during the course of an active organizational effort at a nearby location and again when she talked to him while passing that other lo- cation. She gave him a list of the employees at the Olean restaurant. At their last conversation, Licata suggested to her that she get interested employees together for a meeting with him. She, however, never spoke with him thereafter. In the latter part of February, Respondent's supervisor of operations, Lata, held a meeting among the entire crew of employees at the Olean facility to discuss ways of improving service and eliminating waste. Bigelow, Richards, and another employee who was present at the meeting testified that one of the crew leaders asked if anyone had heard anything about a union. Bigelow testi- fied that Lata simply replied in the negative, but that Lata then asked the employees present what knowledge they had as to a union. Richards said that Lata also said that a union would take a lot out of an employee's pay- check; and Cook recalled that Lata added that he did not think a union was beneficial. Lata testified that, when one of those present asked if anyone knew any- thing about a union, he then asked the employees if they knew anything. Lata stated that one employee responded by saying that he would quit if a union came in. Gary Cuddy, who was one of those in attendance at the meeting, testified that, a day or two after the meet- ' At one point in her testimony, Bigelow stated that this incident oc- curred at the beginning of March. Later, she stated that it took place before the crew meeting was held. That meeting is discussed elsewhere in the decision. 5 In Its brief Respondent urged that Bigelow's testimony was clearly contradicted by a statement in an affidavit she had signed that she was not certain but believed her remark to Lata that she told Richards she would sign her petition was "offered" by her (Bigelow), "rather than by any question by him" I see no direct contradiction. Bigelow maintained in her testimony at the hearing that Lata initiated the discussion by asking about the Union in general and not about any petition to be signed Bigelow further stated that she volunteered the information as to the petilion 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, Lata asked him to stop working and to accompany him to the dining room. There, according to Cuddy, Lata asked him if he had heard anything about a union; Cuddy stated that he told Lata that he had heard "people talking about it." Cuddy stated that he asked Lata whether a union would help the employees in any way and that Lata responded that a union could do no good because "we were too small." Lata's account con- firms Cuddy's testimony as to that discussion. 4. Alleged supervisory status of Diane Bigelow In December 1978, about 3 months after she began working for Respondent, Bigelow was promoted to the position of crew leader, and later, in January, she was also assigned the duties of "opening manager." In her latter capacity, she succeeded Susan Petersen who has worked for Respondent since 1975 mostly as a member of the "crew." Petersen had been a crew leader for sev- eral months in 1975, and had been opening manager from June 1978 until Bigelow replaced her as noted above. As opening manager, Bigelow opened the doors of the restaurant each weekday at 6:15 a.m., put the lights on, turned on the grille, and took money from the safe and put it in the cash registers for use during the day. She then assumed the duties of breakfast cook. One other em- ployee who reported for work at 6:30 a.m. did general clean up work. At 7 a.m. a third employee reported for duty as the cashier. They were the only three individuals on duty between 6 a.m. and 9 a.m. At 9 a.m. the man- ager and one of the assistant managers reported for work. At 11 a.m., approximately one to seven more em- ployees reported for duty, the number varying with the anticipated numbers of the lunchtime customers. It ap- pears that these employees had regular assignments. As crew leader, Bigelow was responsible for the smooth flow of customers, and she could reassign employees to different jobs. She testified that, in doing so, she fol- lowed routines established by her predecessor. It seems that one of her primary functions as crew leader was to ascertain where help was needed, and to go herself to that station to help the employees assigned there. The record is not quite clear as to what responsibilities are borne by the manager and the assistant manager in insur- ing prompt customer service during peak periods except that, at such times, everybody (manager, assistant man- ager, crew leaders, and the crew) should then be in the kitchen or on the serving line. At the end of the lunch- time period, several of the employees "carry over," that is, they stayed on for the slow early afternoon hours. Bi- gelow counted the moneys in the cash register about 1:30 p.m., and finished her workday about 2:30 p.m. On a rare occasion, both the manager and the assistant man- ager left the restaurant for a 15-minute interval. At such times, the crew leaders were in overall charge. The manager of Respondent's restaurant prepared the work schedules and assignments for all employees each week, and was responsible for seeing that they are on duty. Bigelow ordinarily could not ask an employee to "carry-over" at the end of the luncheon period. Any schedule changes must first be cleared with the man- ager. 6 Bigelow had no authority to discipline employees. She was expected to report to the manager any incident where an employee has balked at following her direc- tions. On one such occasion, she reported to the manager that employee Steven Teachman refused to "do some- thing" Bigelow asked him to do, and instead he slammed a microwave oven door. The manager, in turn, notified Respondent's supervisor of operations, Lata. Lata wrote a report thereon on an employee counseling form, and gave it to the manager who spoke to Steven Teachman. Teachman later apologized to Bigelow for his behavior. The manager and Bigelow both signed the counseling form on the line designated for the "supervisor's signa- ture." Teachman refused to sign the form. As crew leader, Bigelow did not evaluate employees. She wore a uniform distinct in style and color from the type of uni- form worn by the female crew members. She also was eligible to participate in a contributory hospital insurance plan. Respondent's president testified that most crew leaders do not participate in the plan as "they are under 19 (years of age)" and "are under their parents' (health plan)." He recalled that there had been a crew leader at the Olean restaurant who opted for Respondent's con- tributory plan. Bigelow had testified at an unemployment compensa- tion hearing, on behalf of Richards, that she was Rich- ards "supervisor." Respondent's supervisor of operations, had stated under oath prior to the hearing in the instant case that crew leaders are not part of management. 5. Richards' discharge on March 8, and reasons proffered by Respondent Richards testified that, on the morning of March 8, Lata came to the dining room, and appeared depressed. She testified that he had three personnel files in front of him when she served him coffee. About 1:30 p.m., she was called to the manager's office where Lata told her he was sorry but had to terminate her employment. She was given her paycheck and a copy of a personnel form which Lata signed and which reflected that she was ter- minated for "personal conduct and unsatisfactory work performance." Lata also noted on the form that Richards had been counseled on February 23 regarding her work performance but as "she is still not complying," Lata had "no alternative but to terminate her employment." Richards had been appraised by Assistant Manager Dawn Troutman on February 27, and was rated "gener- ally acceptable"-getting high marks for attendance, ap- pearance and customer relations, a low mark for "super- vision required" and average grades for job knowledge, work pace, and work attitude. No reference to this ap- praisal was made on the termination form given Rich- ards, as discussed in the preceding paragraph. Respecting the counseling given Richards 4 days before her written appraisal, a form thereon is contained in her personnel file and was prepared and signed by As- sistant Manager Diane Turek. Turek's notations thereon 6 On one occasion Bigelow called Assistant Manager Dawn Troutman when an employee failed to report to work as scheduled and when Bige- low was not able to reach the manager, Troutman came in and apparent- ly substituted for the missing employee. 468 BURGER KING RESTAURANT reflect that Richards had been given a verbal warning for talking with other employees on their breaktime in- stead of keeping the tables clean and that Richards had received advice from Turek "on how to improve." The counseling form has written provisions, which indicate that there exists a progressive disciplinary system leading to discharge; i.e., verbal warning, written warning, sus- pension, and then discharge. Lata testified that, on March 7, he made the decision to terminate Richards when he and Respondent's presi- dent were visiting the Olean restaurant and observed that she was talking too much and not keeping the dining room clean. Later in his testimony he said that he made up his mind to discharge Richards on March 8 after talk- ing with the manager and the assistant manager. Lata said that the dining room area was not clean on March 8. Richards and Bigelow testified that it was clean. Lata testified that he looked through Richards' personnel file on March 8 "trying to find a way . . . to save her job" Lata stated that the manager told him that Richards had been "very snotty" to a customer in December 1978, and that the manager told him also that Richards "couldn't express herself well with the customers." Respondent's manager testified at the hearing, but made no references to such matters. The General Counsel adduced evidence that another employee had received a lower appraisal than Richards did-i.e., Richards' point total was 50; the other employ- ee's was only 35. That other employee, Steven Teach- man, was not discharged by Respondent. He quit in March. He testified without contradiction that he told Lata several weeks afterwards that he planned on work- ing for the City of Olean during the summer, and that Lata asked him to come back to work in September. Another employee, Cindy Lohr, also received a lower appraisal than Richards, but was not discharged until several months later for tardiness. 6. The discharge of Bigelow, also on March 8, and reasons proffered by Respondent Bigelow testified that when she opened the restaurant on the morning of March 8, she saw three personnel files-Richards', Cook's and her own-laying on top of a cabinet. Later that morning, Lata took the files to the dining room. After the lunchtime rush period, Bigelow was told to report to the office. There, Lata informed her that she was being laid off because Respondent was reducing the number of its crew leaders. At the hearing, Lata acknowledged that he had told Bigelow that she was being laid off for economic rea- sons, and that that reason was not accurate. He said that she was laid off on March 8 because she was suspected of stealing money from the cash registers. He asserted that if the shortages had continued to occur after March 8, she would have been recalled from layoff as the con- tinued shortages would show that someone else was causing the cash shortages. Respondent's president, how- ever, also testified that when any employee is let go for suspected theft, everyone is extra careful and an appre- ciable period likely will go by before another theft at- tempt may be made. As noted earlier, Bigelow had the responsibility each weekday morning of opening the safe, transferring cash to the registers, making periodic counts of the monies in the registers, and recording these accounts on forms pro- vided by Respondent. On one morning in January, short- ly after she was given the responsibility for opening the restaurant, she noticed a sizable amount of cash laying on top of the safe. She reported this to the manager. Subsequent inquiries disclosed that an assistant manager had forgotten to put that money in the safe before clos- ing it the preceeding night. As a consequence of his der- eliction, the assistant manager was discharged. Sometime in mid-February, Respondent's manager as- signed a new employee to operate one of the cash regis- ters. Bigelow told the store manager that that new em- ployee did not have a good reputation. Bigelow testified without contradiction that in mid-February she reported a $20 shortage in the register to which that employee was assigned but nothing came of it. That other employ- ee continued to operate the cash register. That employee was relieved of her cash register duties sometime later, and assigned to work elsewhere. Respondent asserts that it has never suspected that employee of theft. Respondent asserts in its brief that it sincerely suspect- ed Bigelow was responsible for cash shortages, which apparently increased to an intolerable level by mid-Feb- ruary.7 Nevertheless, she was permitted to open the safe every morning and distribute cash to the registers each day up to and including the date of her discharge. Re- spondent's president testified that on March 7, the day before her discharge, he came to the Olean restaurant in part to check on her. He stated that he removed a $10 bill from the safe at the Olean restaurant that day, after making certain that no one had observed him doing this. He placed the $10 bill in one of the three registers being used that day. He stated that he then counted the money in that register, again making sure that no one was watching him, and then left the premises. He stated that he returned about 1 hour later and counted the drawer. He found it "even, instead of showing a $10 overage. Greenfield stated that as anyone may have removed the $10 bill to another register in the interval, it was neces- sary to count all the moneys at the restaurant-i.e., the amounts in each of the three registers and the amounts in the safe, to verify whether a shortage existed. Greenfield stated that he then felt that it was important to have wit- nesses to the count and that he, Lata, and the manager on duty counted all the moneys and found a shortage of about $15. Extensive testimony was taken at the hearing as to who made entries on the daily inventory and cash control sheet for that day, as to when those entries were made and as to their significance. In her brief, counsel for the General Counsel states that those sheets proved practically useless in supporting anything at all. In his brief, counsel for Respondent stated that Respondent will not attempt to deal in its brief with the complicated and detailed testimony concerning the discovery of the short- 7 Normal hortages are about $50 to S100 a month For Fehruary he shortage "nas 181 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD age.8 In any event, Greenfield stated that he decided then to lay Bigelow off because of the irregularities he attributed to her. As noted above, Lata gave Bigelow notice of her termination in the afternoon of the follow- ing day by advising her that she was laid off because the number of crew leaders was being reduced. C. Analysis 1. Supervisory status of Bigelow The essential facts are not in material dispute. Bigelow began work in September 1978 for Respondent and worked part-time with the other employees all of whom were about 19 years of age. In a few months, she pro- gressed to full-time work and was made a crew leader. On duty then at the Olean restaurant were a manager, two assistant managers, three crew leaders, and a large number of part-time employees. At any given time, the number of employees on duty varied from 1 to about 10. In addition, Respondent's supervisor of operations and its president regularly visited the Olean facility each week. The basic work schedules are made up by the manager. When a crew leader is on duty, he or she checks to see that the employees scheduled to work are on duty and if any are not, the crew leader notifies the manager or the assistant manager. Normally, all employees have regular assignments. At peak periods, crew leaders can transfer employees to trouble spots to handle volume. Employees are expected to follow their orders; infractions are re- ported to the manager for handling. The work assign- ments and reassignments are routine and do not require the exercise of independent judgment. Biclow opened the restaurant .'hout 7 a.m., and was there with two employees unti tc manager and an as- sistant manager reported or duty about 9 a.m. During that interval, she performed routine duties, including dis- tributing cash to the registers, and serving as breakfast cook. Noting the relatively unskilled work performed, the routine nature of the work, the fact that permanent trans- fers of work assignments are made by the manager, the relatively large number of admitted supervisors on duty and particularly the fact that any work reassignments made by Bigelow were dictated by the work routine itself and do not involve the exercise of independent judgment, I find that she possessed none of the supervi- sory indicia set out in Section 2(11) of the Act. Thus, I find that she was an employee, not a supervisor. D. The Alleged Unlawful Interrogation There are three instances of alleged unlawful interro- gation and no factual dispute as to two of these three. In its brief Respondent asserts that Counsel for the General Counsel has attempted to transform three innocuous and isolated incidents into violations of the Act and in con- nection with that assertion, it quotes language from parts I It appears that even a "shortage" in the total moneys may not in fact be due to a misappropriation, but may simply be the result of a tempo- rary delay in recording a credit, particularly when monies are removed from the safe to be delivered to a nearby bank. 9 American Diversified Foods. Inc.. d/b/a Arby's. 247 NLRB No, 9 (1980). of the opinions of several U.S. Courts of Appeal to the effect that interrogation by an employer of its employees as to their union activities is legal, absent any explicit threats or other coercive conduct. Respondent does not dispute that, on two of the occa- sions as to which the General Counsel offered evidence, its supervisor of operations, Lata, asked employees about the Union. At the crew meeting in mid-February, after one of the crew leaders asked apropos of nothing it ap- pears, whether anyone had heard about the Union, Lata then asked this same question of the whole crew. This occurred almost simultaneously with the first meeting Richards had had with the Union's representative, and in which she told him that the employees did not want to "to step into anything too fast." Shortly after the crew meeting, Respondent's supervi- sor, Lata, took one employee into the dining room and asked him if he heard anything about a union. The third alleged incident was based on Crew Leader Bigelow's testimony that Lata asked her sometime in February in the office if she had heard anything about a union. Lata denied so asking her. He said that Bigelow volunteered to him and Assistant Manager Turek that three employees were "crying union," and that they may leave chuckled over this. I credit Bigelow's account. Turek did not corroborate Lata's version; Lata's account struck me as improbable and I note that Lata's actions, as recounted by Bigelow, are consistent with the other two incidents of interrogation in which he participated. I do not agree with Respondent that these instances of interrogation by Lata are not coercive, or that they are isolated. The Board has characterized similar instances of interrogation as serious violations warranting the issu- ance of a remedial order. t Lata's questioning of the em- ployees of the Olean restaurant respecting their union ac- tivities violated Section 8(a)(l) of the Act. E. The Alleged Discriminatory Discharges of Bigelow and Richards The work force at the Olean restaurant consists of mostly young people just out of high school. It appears that several of them, particularly Richards and including Bigelow, began to think about joining a union when they became upset because the manager and the assistant man- ager did not come out of the office to help them out on a busy Friday afternoon despite being called repeatedly for assistance. Based on the earlier credibility resolution, I find that Respondent became aware of Bigelow's and Richards' support for the Union when Lata questioned Bigelow, in the office. Respondent's president also was present then. Lata had asked Bigelow as to her knowledge of union activities. I credit also her testimony that she responded that Richards was getting a union petition and that she, Bigelow would sign it. In its brief, Respondent contend- ed that her account defies logic and asked (rhetorically) what possible reason would Bigelow have had to make such a statement. In that regard, it seems fairly obvious to me that Bigelow was upset over what she and other ' Passavan Memorial Area Hospital, 237 NLRB 138 (1978). 470 BURGER KING RESTAURANT employees perceived as the unwillingness of the manager or the assistant manager to help out on the line, and that she wanted Greenfield and Lata to know that the em- ployees might even join the Union to, in their view, cor- rect this and perhaps other perceived inequities. It ap- pears that their silence may have discouraged her from commenting further. Within a few days, she was let go from Respondent's employ. She was told first that she was being laid off because of a reduction in crew leaders. This was patently a frivolous reason, as Respondent now concedes, as one of the regular employees, Lynn Fonzi, had just been made a crew leader. Respondent asserts that Bigelow was laid off because she was suspected of stealing money. At the hearing it seemed to back off from this position by stating that she was laid off because her accounting was inaccurate but it may be that this was a euphemism Respondent prefers. Regardless, I find that there is no evidence in the record in this case to support a finding that Bigelow stole any money from Re- spondent, that there is no evidence that Respondent ever had any suspicion that she stole money from it, and no evidence that her accounts were inaccurate. There is ample evidence that Bigelow has been an honest person in the course of her employment with Respondent; and that Respondent was fully aware of her honesty. She was the one who found moneys left on top of a safe and turned the moneys in. I cannot believe that Respondent would have allowed Bigelow free and unsupervised access to its safe and cash registers if it really suspected her of stealing money. In short, I find that the reason now advanced by Respondent for discharging Bigelow was unequivocally a pretext, even more so than the first reason it advanced when terminating her employment. In view of the timing of her discharge in relation to her known union activity, the union animus demonstrated by Respondent as previously found, and the baseless and shifting reasons it advanced for her discharge, I find that she was discharged on March 8 in violation of Section 8(a)(1) and (3) of the Act because of her support of the Union. Richards' discharge a short while earlier on March 8 was also because of her Union activities and, separately violated Section 8(a)(1) and (3) of the Act. She was always a borderline employee as her appraisal disclosed. Others were better and a few were worse. They were all paid at the minimum wage rate. Respondent's supervisor of operations, Lata, stated that, on March 8, he looked at Richards' personnel file to see if there was anyway he could save his job. He apparently overlooked her satis- factory appraisal made a few days before, and also failed to note that Respondent's franchisor, on the forms it sug- gests its franchises use, urges a progessive disciplinary system. Had Lata opted for the system, he could have saved her job. I find that he had no intention of doing so on March 8. I reject his testimony that the dining room area that day was not clean, and instead accept the testi- mony of Richards and Bigelow that the area was clean. Richards impressed me as very straightforward. She ad- mitted, and it upset her to do it, that she deserved the warning giving her in mid-February, stating that she did not do any work that day. I find that she heeded the counseling given her then, and that she did her work ac- ceptably thereafter. There is no credible factual basis to support Respondent's assertion that Richards was dis- charged for poor work performance on March 7 or 8. Her discharge was based solely on her activities on behalf of the Union. CONCLUSIONS 01 LAWV 1. Respondent violated Section 8(a)(1) of the Act by interrogating its employees at its restaurant in Olean, New York, as to their activities on behalf of the Union. 2. Diane Bigelow is an employee of Respondent within the meaning of Section 2(3) of the Act, and was not a supervisor as defined in Section 2(11) of the Act. 3. Respondent discharged Diane Bigelow and Tina Richards because of their activities on behalf of the Union, and thereby violated Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TH: REMI.i)Y Having found that Respondent engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom and that it take certain affirm- ative action to effectuate the policies of the Act. Respondent will be required to offer Tina Richards and Diane Bigelow immediate reinstatement to their former positions of employment or, if they no longer exist, to substantially equivalent positions, without preju- dice to any seniority or any other right or privilege they may have, and dismissing if necessary, anyone who was hired in their respective places. Respondent will also be required to make them whole for all moneys they may have lost by reason of their unlawful termination of em- ployment, with backpay to be computed quarterly, making deductions for interim earnings, and with inter- est, the amounts due to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing d Heating Co., 139 NLRB 716 (1962); and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, B. K. Restaurants Olean, Inc., d/b/a Burger King Restaurant, Olean, New York, its officers, agents, successors, and assigns, shall: i Respondenl would take this statement literally Obhi.usl. her manrl ager did not as evidenced h he appraisal she received I construe her remark as a colloquial expression that her work pertorrmance that Ida. was very poor I2 In the eent no exceptions are filed as pr. ilded b Sec 1)2 46 of the Rules and Regulations of the National Lahor Relalions Board. the findings, conclusions, and recommended order herein hall. as protlded in Sec 112 48 of the Rules and Regulations. be adopted hb the Hoard and become it. findings. conclusions, and Order, and all ohjectn,, thertio shall he deemed waised for all purposes 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Interrogating its employees regarding their union sympathies or their support for Local 1, Amalgamaged Meat Cutters and Butcher Workmen of North America, affiliated with United Food and Commercial Workers In- ternational Union, AFL-CIO. (b) Discharging any of its employees to discourage them from joining or supporting the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Tina Richards and Diane Bigelow immediate and full reinstatement to their former positions of em- ployment and make them whole for all losses they may have suffered as a result of their having been discharged on March 8, 1979, in the manner set forth above in the section entitled. "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records necessary to compute the backpay and reinstatement rights set forth above. (c) Post at its Olean, New York, restaurant, copies of the attached notice marked "Appendix."'3 Copies of the notice, on forms provided by the Regional Director of Region 3, after being duly signed by an officer of Re- spondent, shall be posted by Respondent at the Olean restaurant immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. l:' 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." 472