Avatar, Inc., d/b/a Downtowner Motor Inn

National Labor Relations Board - Board Decisions

Jul 20, 1982

262 N.L.R.B. 1058 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avatar, Inc., d/b/a Downtowner Motor Inn and
Ethel Stevenson. Case 26-CA-8799
July 20, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On March 12, 1982, Administrative Law Judge
Leonard M. Wagman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief to Respondent's
exceptions. '
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, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
' Respondent also filed with the Board, on May 17, 1982, a document
entitled "Respondent's Supplemental Brief in Support of Its Exceptions
to The Decisions [sic] of the Administrative Law Judge." This document
was submitted in order to call the Board's attention to a recently issued
Board decision, G.T.A. Enterprises, Inc. d/b/a "Restaurant Horikawa,"
260 NLRB 197 (1982), which it contends is controlling of the instant
case. The document does not contain any argument in support of this
contention. Thereafter, the General Counsel filed with the Board a
motion to strike Respondent's "supplemental brief." The General Counsel
contends correctly that this document was filed subsequent to the time
permitted for the filing of exceptions and briefs, pursuant to Sec. 102.46
of the National Labor Relations Board Rules and Regulations, Series 8,
as amended.
Respondent did not technically comply with Sec. 102.46(a) of the
Rules and Regulations. However, in this situation, since the document
proffered by Respondent contains no argument, we find that it need not
be excluded as a late-filed brief. We note that the Rules and Regulations,
Sec. 102.121, specify that they "shall be liberally construed to effectuate
the purposes and provisions of the Act." Furthermore, the decision to
allow receipt of such a document under these circumstances is a proce-
dural step and as such is within the discretion of the Board. Additionally,
the General Counsel has failed to show that it was prejudiced by our re-
ceipt of this document. We therefore conclude that the purposes of the
Act are best effectuated by accepting this document. and we hereby deny
the General Counsel's motion to strike. See, generally, Otis Elevator Com-
pany, a wholly owned subsidiary of United Technologies, 255 NLRB 235, fn.
I (1981). We find, however, that the case cited by Respondent is clearly
distinguishable from the instant case.
I 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 relevani 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 revel-sing his findings.
I In his recommended Order, the Administrative Law Judge inadvert-
ently failed to provide a narrow cease-and-desist order. We will modify
his recommended Order to so provide.
Member Jenkins would compute interest on Stevenson's backpay in the
manner set forth in his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
262 NLRB No. 131
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,
Avatar, Inc., d/b/a Downtowner Motor Inn, Mem-
phis, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1 of the
Administrative Law Judge's recommended Order:
"1. Cease and desist from:
"(a) Interfering with, restraining, and coercing
employees by discharging, refusing to reinstate, or
otherwise discriminating against them because they
have engaged in activity protected by Section 7 of
the Act.
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
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-
,;xty 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.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, refuse to reinstate,
or otherwise discriminate against our employ-
ees because they engage in a work stoppage in
support of their demand for timely payment of
their wages.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
1058
DOWNTOWNER MOTOR INN
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL reinstate Ethel Stevenson to her
former job or, if that job no longer exists, to
substantially equivalent employment with full
backpay covering the earnings she lost because
we unlawfully terminated her, with interest.
WE WILL expunge from Ethel Stevenson's
personnel record all references to her unlawful
discharge on October 22, 1980.
AVATAR, INC., D/B/A DOWNTOWNER
MOTOR INN
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
This proceeding was heard before me at Memphis, Ten-
nessee, on August 31, 1981, pursuant to a complaint
which was issued on January 30, 1981, and amended on
February 4, 1981. The underlying charge was filed by
Ethel Stevenson on December 31, 1980, and amended on
January 23, 1981.
The complaint, as amended, alleges that the Company,
Avatar, Inc., d/b/a Downtowner Motor Inn, violated
Section 8(a)(1) of the National Labor Relations Act (29
U.S.C. § 151, et seq.), herein called the Act, by discharg-
ing employee Ethel Stevenson because she engaged in a
concerted work stoppage protected by Section 7 of the
Act. The Company, by its timely answer, denied com-
mission of the alleged unfair labor practice.
Upon careful consideration of the entire record, from
my observation of the witnesses as they testified, and
upon consideration of the post-trial briefs received from
the General Counsel and the Company, respectively, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
From the pleadings, I find that the Company, Avatar,
Inc., d/b/a Downtowner Motor Inn, is a corporation
with office and place of business in Memphis, Tennessee,
where it operates a motor inn. During the 12 months
ending January 30, 1981, the Company, in the course and
conduct of its business, purchased and received at its
Memphis, Tennessee, motor inn, goods and materials
valued in excess of $5,000 from other enterprises located
within the State of Tennessee, each of which other enter-
prises had received the said goods and materials directly
from points outside Tennessee. During the same 12-
month period, the Company derived gross revenues in
excess of $500,000 from the operation of its motor inn.
The Company conceded, and I find from the foregoing
data, that the Company is, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
The following facts are undisputed. On the morning of
October 22, 1980, Ethel Stevenson, a cashier and wait-
ress at the Company's motor inn, clocked in at aproxima-
tely 5:30 to begin work. As Stevenson clocked in, she
read the following notice typed on a company letterhead
and signed by John Manser III, manager of the Compa-
ny's Downtowner Motor Inn:
A TTENTION ALL PERSONNEL:
DUE TO CIRCUMSTANCES BEYOND OUR
CONTROL, WE WILL BE UNABLE TO ISSUE
PAYROLL CHECKS UNTIL AFTER 2:00 PM,
THURSDAY AFTERNOON.
IF THIS PUTS ANY OF YOU IN AN IMMEDI-
ATE POSITION OF JEOPARDY, PLEASE
COME TO SEE ME ON AN INDIVIDUAL
BASIS.
WE ARE SORRY FOR THIS DELAY, AND
WISH TO APOLOGIZE FOR THE INCON-
VENIENCE.
Waitress Roxanne Williams observed the same notice
when she clocked in shortly after 5:30 a.m., as did wait-
ress Tijouna Edwards, who reported to work at approxi-
mately 6 that same morning. Amy Jones, who was em-
ployed there as a cook, reported to the inn shortly after
6 o'clock on the morning of October 22 and learned of
the notice from her daughter, Roxanne Williams.
Shortly after Stevenson and her colleagues had report-
ed to work, a number of persons scheduled to take the
Armed Forces entrance examination began arriving at
the Company's restaurant seeking breakfast. The three
waitresses served breakfast to the so-called AFEES until
approximately 7 a.m. when the last of them departed
from the restaurant. The waitresses did not remove the
dirty dishes left by the AFEES on the inn's dining room
tables.
Instead of cleaning up and preparing the tables for
other patrons, Stevenson, Williams, Edwards, Jones,
Debra Key, a cook, and Marvin Reed, a dishwasher, sat
down at a table and began discussing the announced
delay in the issuance of their paychecks. Stevenson, Wil-
liams, and Edwards decided that they would not clean
off the dining room tables until Manager Manser had ex-
plained the I-day delay in the issuance of their pay-
checks. The two cooks, Amy Jones and Debra Key, and
Marvin Reed, the dishwasher, also expressed interest in
receiving their paychecks on time. However, they re-
turned to their duties in the kitchen, while the three
waitresses remained at the table awaiting Manager
Manser's arrival.
John Manser arrived at the dining room between 8
and 8:30 a.m. Upon his arrival, he became annoyed when
he noted the three waitresses sitting at a table and saw
the dirty dishes and the remains of breakfast. Manser de-
manded an explanation of the apparent work stoppage
from the waitresses. Stevenson replied, "Johnny, we
wants to know why we are not going to get paid today."
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manser did not respond. Instead, he turned away from
Stevenson and retreated into the kitchen. Stevenson
quickly led the other waitresses into the kitchen seeking
the manager.
When Stevenson and her colleagues arrived in the
kitchen, they found Manser discussing the matter with
cook Amy Jones. Prior to their arrival Manser had asked
Jones what the problem was. She replied, "Johnny, it
seems to be a money problem." Manser replied, "No, it
is no money problem." At this point, waitresses Steven-
son, Edwards, and Williams arrived in the kitchen.
Manser, while continuing to talk to Amy Jones, turned
around, looked straight at Ethel Stevenson, and said, "I
am tired of this shit." When Stevenson expressed resent-
ment at his language, Manser apologized. Manser then
asked the waitresses to return to the dining room and
clean up the tables. Stevenson asked, "Well, are we
going to get paid?" Manser answered, "We will talk
about it." At this, Stevenson, Edwards, and Williams re-
turned to the dining room and cleaned the dishes off the
tables and reset them.
Manser went back to his office. He told his assistant
manager, Debbie Capps, that the dining room employees
had stopped working because their paychecks were late.
Manser's first impulse was to give Ethel Stevenson her
paycheck. He called the dining room and requested Ste-
venson to appear in his office. After she arrived, he de-
cided to give all the waitresses and the kitchen staff their
paychecks. Manser telephoned the restaurant, told the
night auditor to watch the restaurant, and instructed her
to tell the remainder of the kitchen and dining room staff
to come to his office.
When the kitchen and dining room employees had as-
sembled in his office, Manser asked which employees
wanted their paychecks immediately. All six indicated
their desire to be paid. Manser also informed the employ-
ees that their checks were late because the Company had
not received payments from St. Jude's Hospital and the
Armed Forces entrance examination station. These two
clients provided the Company with the bulk of its rev-
enues. After they were paid, the employees left the office
and returned to their work stations.
Ethel Stevenson went back to the restaurant's cash
register where she began ringing up dining room checks.
At approximately 11 a.m. Manser came to her with an
envelope and said, "Ethel, here is your second check."
Stevenson thanked him and left the premises. Manser did
not provide Stevenson with an explanation for her termi-
nation.
B. Analysis and Conclusions
The General Counsel contends that the Company vio-
lated Section 8(a)(1) of the Act by discharging Ethel Ste-
venson because she led the work stoppage on the morn-
ing of October 22, 1980. The Company argues that, al-
though the work stoppage was concerted activity, it was
unprotected, and that Stevenson's use of obscene lan-
guage after Manser distributed the paychecks was mis-
conduct serious enough to deprive her of the protection
of Section 7 of the Act.' However, for the reasons stated
Sec. 7 of the Act provides in pertinent part:
below, I find that the Company discharged Ethel Steven-
son in violation of Section 8(a)(1) of the Act on October
22, 1980.
The announced l-day delay in the issuance of their
paychecks was a change in a condition of employment
which directly concerned employees Stevenson, Wil-
liams, and Edwards. Interstate Transport Security/Division
of PJR Enterprises, Inc., 240 NLRB 274, 276 (1979).
Their resort to a work stoppage pending receipt of Man-
ager John Manser's explanation of the delay constituted
concerted activity protected by Section 7 of the Act not-
withstanding that the stoppage may have interfered with
the Company's business American Truck Stop, Inc., 218
NLRB 1038, 1041 (1975); IPC, Inc., 238 NLRB 1221,
1225 (1978). As the Board stated in Plastilite Corporation,
153 NLRB 180, 183-184 (1965):
When a "labor dispute" exists, the Act allows em-
ployees to engage in any concerted activity which
they decided is appropriate for their mutual aid and
protection, including a strike, unless, unlike the situ-
ation here, that activity is specifically banned by an-
other part of the statute, or unless it falls within cer-
tain other well-established proscriptions. "
" E.g., strikes which are unprotected because they are other-
wise unlawful (Southern Steamship Company v. N.LR.B., 316 U.S.
31), violent (N.LR.B. v. Fansteel Metallurgical Corporation, 306
U.S. 240), or in breach of contract (N.LR.B. v. Sands Manufactur-
ing Co., 306 U.S. 332), and activities which are "indefensible" be-
cause they evidence a disloyalty to the employer (N.LR.B. v.
Local Na 1229, International Brotherhood of Electrical Workers, 346
U.S. 464, 477).
It is also well settled that an employer who discharges
an employee for engaging in a work stoppage protected
by Section 7 violates Section 8(a)(l) of the Act.
N.LR.B. v. Washington Aluminum Co., 370 U.S. 9, 17
(1962); American Truck Stop, Inc., 218 NLRB at 1041.
The Company in its brief, as did Manager Manser on
October 22, 1980, recognized Ethel Stevenson as the
leader and spokesperson in the work stoppage. It was
Stevenson who asked Manser to explain the announced
delay in the issuance of the employees' paycheck. She
persisted in pressing Manser to issue the paychecks on
schedule.
When Manser withdrew to the kitchen after his initial
encounter with Stevenson, he began discussing the an-
nounced delay in the issuance of wage checks with
kitchen employees. When Stevenson arrived on the
scene, he exclaimed, "Damn it. I am tired of this shit."
As he spoke, he focused his eyes on Stevenson. Undaunt-
ed by Manser's harsh remark, Stevenson asked for his as-
surance that the employees would be paid that day when
he asked her and her associates to clean off the dining
room tables. In his testimony before me, Manser ad-
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection ....
1060
DOWNTOWNER MOTOR INN
mitted that the stoppage irked him and that he consid-
ered it to be "like a mutiny."
Manser's special attention to Stevenson in the kitchen,
and his initial impulse to pay her separately from her col-
leagues, was followed quickly, that same day, by his de-
cision to discharge Stevenson. Thus, the train of circum-
stances leading up to Stevenson's discharge strongly sug-
gests that Manser decided to get rid of her in reprisal for
her role in the work stoppage.
Review of Manager Manser's statements following
Stevenson's discharge, including his testimony at the in-
stant hearing, reveals the pretextual nature of the Com-
pany's defense. Fatal to Manser's credibility was his offer
of shifting and inconsistent reasons for discharging Ste-
venson.
Initially, however, Manser gave Stevenson no explana-
tion for her discharge as he gave her a final paycheck. A
separation notice which Assistant Manager Capps pre-
pared on Manser's instructions on October 22 bears an
"X" in a box captioned "Voluntarily Quit." However, on
the same form I noticed an effort to cross out a mark in
a box captioned "Discharge." Elsewhere on the separa-
tion notice in an area marked "Detailed Explanation" the
Company inscribed the following: "([G]iven upon re-
quest.)" 2
In a statement which Manser prepared for the State of
Tennessee, he explained Stevenson's separation as fol-
lows:
On Ethel Stevenson's separation notice, we indicat-
ed she quit her job.
We did this because of a work stoppage the morn-
ing she was terminated, that we feel was instigated
by Ethel, and due to this she was discharged. She
was out of line in her actions that day, and due to
this, we feel she should not receive any unemploy-
ment compensation.
Detailed information about the occurrence that day
were noted in the files, and are available upon re-
quest. In addition, Ethel was not discharged for ex-
pressing her opinion, which I welcome to any of
the employees, but rather for her actions, and caus-
ing an inconvenience for the guests and customers
in the dining room.
In a report which he prepared on October 22, after
Stevenson's termination, and which he and Assistant
Manager Capps signed, Manser provided a detailed ac-
count of the work stoppage and Stevenson's termination.
Discussing Stevenson's termination, he reported his
thoughts and recollections regarding Stevenson's termi-
nation as follows:
After a few additional thoughts on the matter, and
after all the employees had since gone back to
work, I felt there was no excuse for this situation to
2 Manager Manser admitted that he instructed Capps to make out Ste-
venson's separation notice to show that "she quit," In her testimony As-
sistant Manager Capps admitted that the separation notice contained an
"X" next to the caption "Voluntarily Quit" and that a mark had been
placed in a box next to the word "Discharge" and the "scratched
through."
have occurred, and since the work stoppage had oc-
curred in the dinning room serving area, I felt some
immediate action needed to be taken in this area.
At that point, Debbie Capps computed Ethel Ste-
venson's final wages, due in addition to the check
she had just received, and prepared a proper separa-
tion notice. The notice reflected the reason for her
termination was due to the fact that she voluntarily
quit her job, with no consultation with manager, in
full at that point in time, and I felt that she was the
individual person responsible for the work stoppage
in the dining room serving area. Marvin Reed, the
dishwasher, told me later on that he made an at-
tempt to clean and bus the tables in the dining
room. and that he was told to stop and not clean
any of the tables, which he obeyed his instruction.
In a separate note rep-Iorting his exchange with Steven-
son, Manser for the firs, timc, in writing, reported that
after he said "goddam it." ,tid after she left his office
with her paycheck in hand, he heard Stevenson say, "I
bet the m-r f-r bounces."
In a letter to the Tennessee Department of Employ-
ment Security dated January 2, 1981, Manser, without a
word about Stevenson's language after the issuance of
paychecks to her and her colleagues, again explained his
decision to discharge Stevenson as follows:
Fact: This company has met payroll on time,
every two weeks, in four years, on the 7th and 22nd
of every month If payroll dates fell on Saturday or
Sunday, checks were often released on Friday as a
courtesy to our employees. Ms. Stevenson received
her check in this manner many times.
Fact: Our payroll was delayed one during the
month of October, 1980 due to a large accounts re-
ceivable being delayed. A notice was posted on the
21st of October to this effect, (please see enclosed
copy of notice). I will emphasize that the notice
states: "If this puts any of you in an immediate posi-
tion of jeopardy, please come to see me on an indi-
vidual basis". Paychecks were passed out on Octo-
ber 23rd, at 2:00 pm.
Fact: When I entered the restaurant on the morn-
ing of October 22nd, every table (15 tables) were
piled full of dirty dishes. The restaurant had been
opened two hours at this time and not one table had
been cleaned, for a guest to eat. Let me make sure
this point is clear. We do a large amount of business
between 6:00 and 8:00, am. and every meal that
morning had been left on the tables. No considera-
tion was given to our customers in regard to their
comfort and health safety. Not only had Ms. Ste-
venson broken our policy but also health depart-
ment laws.
Fact: Ms. Stevenson instigated the action, as
pointed out from attempts by the dishwasher to
clean the tables, and being told by Ms. Stevenson to
not touch the dirty dishes. No employee in the res-
taurant would have taken this uncalled action with-
out Ms. Stevenson's direction and the situation
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would no [sic] have occurred, had she not stopped
the dishwasher from cleaning the tables.
Fact: It was Ms. Stevenson's job to see that
guests were given a clean table and a proper setting
to eat their meal from. She accepted this responsi-
bility when she became an employee of this compa-
ny.
Fact: This is a viable corporation and claimant
had no reason to suspect serious financial difficulty.
Fact: Separation notices stated Ms. Stevenson
had quit. It was my contention at the time she had
quit work when she dropped her responsibilities and
job duties.
It is my opinion that Ms. Stevenson was insubor-
dinate in her actions ...
However, in a precomplaint affidavit which Manser
gave to a Board agent he declared:
Approximately 10 minutes after the employees left
the office was when I made the decision to termi-
nate Stevenson for the following reasons: I felt that
she instigated the work stoppage even though the
notice on the timeclock indicated that I would
confer with employees over any problems the late
paychecks presented; the alleged work stoppage
had an impact on guests in the motel (dirty dishes
being left in the dining area); and, the statement she
made as she left my office I described above. ["That
she bet the m-r f-g check would bounce."]
In the next paragraph of his affidavit, Manser said, "As
stated above, at the time I made the decision to terminate
Stevenson I based it on all three factors listed in the
prior paragraph."
At the hearing, when asked by counsel for the General
Counsel to present reasons for his decision to discharge
Stevenson, Manser testified, "I discharged Ms. Stevenson
for failure to perform assigned job duties and other rea-
sons, Manser reduced it to one reason, "[T]he statement
made leaving the office after picking up her paycheck."
Later in his testimony, under further pressure, Manser
testified that there was one other factor which he "took
into consideration" and that was that "notice had been
given to Ms. Stevenson and the other employees about
the problem was with the paychecks." At a further
point, Manser said that the main reason for discharging
Stevenson "was the comment she made out of the
office." Then he added:
I couldn't say that she would have been fired for
just the dishes being left on the tables or just the
comment alone, but the two of them together. If it
was another employee that made the comment, pos-
sibly they would have been fired.
When asked again whether Stevenson's leading role in
the work stoppage was one of the real reasons for the
discharge, Manser replied, "I felt she was the instigator,
that is true, but I took the comment into consideration
with that." Manser's inconsistencies and his addition of
reasons for Stevenson's discharge evidenced an attempt
to obscure detection of an unlawful discharge.
In light of Manser's written statements to the State of
Tennessee, and his written report, and the inconsistencies
in his testimony before me, I have rejected the latter to
the extent it was inconsistent with, or sought to explain
away, those statements or the report. Nor have I cred-
ited Manser's assertions of reasons for Stevenson's dis-
charge as set out in his affidavit. For he gave this affida-
vit after he was confronted by her initial unfair labor
practice charge alleging that discharge to be violative of
Section 8(a)(1) of the Act.
Nor do I credit Debbie Capps' testimony that Manser
told her that he was discharging Stevenson "[b]ecause of
the work stoppage and what they had done in the restau-
rant that morning affecting the business and what have
you and about her comment about the check had a little
bit to do with that, too." Capps' reliability was cast in
doubt by her apparent hostility toward the questioning
by counsel for the General Counsel, her unfounded com-
plaint at the close of her testimony that she had been
badgered, and the fact that on October 22 she had signed
Manser's report which declared that Stevenson's partici-
pation in the work stoppage was the sole reason for her
discharge.
In any event, the additional reasons belatedly urged do
not withstand scrutiny. Thus, the harm the work stop-
page may have caused the Company's restaurant oper-
ation did not remove that concerted activity from the
Act's protection. The above-quoted excerpt from the
Board's decision in Plastilite Corporation, 153 NLRB at
183-184 is instructive in this regard. For it teaches that
the broad protection affored by Section 7 of the Act to
primary work stoppage is not withheld where the stop-
page hampers an employer's business operations, unless
such a stoppage "is specifically banned by another part
of the statute, or unless it falls within certain other well-
established proscriptions" (id.) not shown here.
Further, I find that Stevenson did not make the ob-
scene remark which the Company attributed to her. The
credited testimony of General Counsel's witness Tijouna
Edwards shows that soon after she had received her
check and as she was walking away from Manser's
office, she overheard some remark that "the check
would bounce." However, Edwards did not know who
make the remark. Ethel Stevenson, a frank and forthright
witness, flatly denied that she made the obscene remark
attributed to her by Capps and Manser, whom I have
found to be unreliable witnesses. Thus, although the
remark was made by one of the employees, within ear-
shot of Manser's office, Stevenson was not the one who
uttered it.3
s The Company's reliance upon Sullair P.TO., Inc. v. N.L.R.B.. 641
F.2d 500, 502-503 (7th Cir. 1981), and cases cited in that decision, is mis-
placed. In Sullair the court found, contrary to the Board, that an employ-
er lawfully discharged an employee for insubordination because he re-
peatedly addressed obscene language to members of management while
engaged in concerted activity protected under Sec. 7 of the Act. The
court found support for its decision in, inter alia. N.LR.B. v. Truck Driv-
ers Oil Driyers Filling Station and Platform Workers Union. Local 705. In-
ternational Brother of Teamsters. Chauffeurs. Warehousemen and Helpers of
America, 630 F.2d 505 (7th Cir. 1980); Florida Steel Corporation v.
N.L.R.B., 529 F.2d 1225, 1234 (5th Cir. 1976); Chemvet Laboratories, Inc.
v. N.LR.B., 497 F.2d 445 (8th Cir. 1974); and Boaz Spinning Company, a
Continued
1062
DOWNTOWNER MOTOR INN
In sum, I find that Manser discharged Stevenson solely
because she was the apparent leader among his waitress-
es in the work stoppage on October 22, 1980. According-
ly, I further find that, by Manser's discharge of Ethel
Stevenson, the Company violated Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. The Company, Avatar, Inc., d/b/a Downtowner
Motor Inn, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging employee Ethel Stevenson on Octo-
ber 22, 1980, and thereafter failing and refusing to rein-
state her, the Company has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and continues
to do so, and has thereby engaged in the continues to
engage in unfair labor practices violative of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in and
continues to engage in unfair labor practices in violation
of Section 8(a)(1) of the Act, I shall recommend that it
be ordered to cease and decision therfrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act. Having found that the Company unlaw-
fully discharged employee Ethel Stevenson, I shall rec-
ommend that it be ordered to offer her full reinstatement
to her former position or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or other rights and privileges previously en-
joyed. Additionally, I shall recommend that the Compa-
ny make Ethel Stevenson whole for any loss of pay,
benefits, or other rights and privileges she may have suf-
fered as a result of her unlawful discharge. Backpay
thereon is to be computed in the manner set forth F. W
Woolworth Company, 90 NLRB 289 (1950), with interest
as prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). 4 Finally, the Company shall be ordered to ex-
punge from Ethel Stevenson's personnel records all ref-
erences to her unlawful discharge on October 22, 1980.
subsidiary of Standard-Coosa-Thatcher Company v. VNLR.B., 395 F.2d 512
(5th Cir. 1968). In each of the cited cases, the court disagreed with the
Board's assessment of employee conduct of language directed at an em-
ployer, a principal shareholder, or a manager, respectively, in the course
of conduct otherwise protected by Sec. 7 of the Act. Here, however, I
have found that Stevenson did not make the obscene remark attributed to
her by the Company. Thus, the instant case is clearly distinguishable
from the foregoing authorities.
· See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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:
ORDER5
The Respondent, Avatar, Inc., d/b/a Downtowner
Motor Inn, Memphis, Tennessee, its officers, agents, suc-
cessors, and assigns, shall:
i. Cease and desist from interfering with, restraining,
and coercing employees by discharging, refusing to rein-
state, or otherwise discriminating against them because
they have engaged in activity protected by Section 7 of
the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Ethel Stevenson immediate and full reinstate-
ment to her former job or, if her job has been eliminated,
to a substantially equivalent position, without loss of se-
niority or other rights and privileges, and make whole
for any loss of earnings she may have suffered, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Expunge from Ethel Stevenson's personnel records
all references to her unlawful discharge on October 22,
1980.
(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
records necessary to ascertain the backpay due under the
terms of this Order.
(d) Post at its Memphis, Tennessee, motel copies of the
attached notice marked "Appendix." · Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's au-
thorized representative, shall be posted by 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 Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall. as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
s 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."
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