Bahama Joes, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1984

270 N.L.R.B. 1377 (N.L.R.B. 1984)

BAHAMA JOE'S, INC.
Bahama Joe's, Inc. and Hotel, Motel, Restaurant
Employees and Bartenders Union, Local 737,
AFL-CIO. Case 12-CA-10208
25 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 June 1983 Administrative Law Judge
Julius Cohn issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions except as modified below.
The judge found that prior to the election the
Respondent, through its manager, Jeffrey Martin,
and its assistant manager, Patrick Dee, violated
Section 8(a)(1) of the Act by telling employees that
working conditions would deteriorate if the Union
were elected. We agree with his findings of viola-
tions in all but two of these instances.
First, we disagree with the judge's finding that
Martin unlawfully told employees Richard Snell
and Vic Peterson that if the Union were present
they would no longer be able to come directly to
him to arrange for days off or to trade days off
with other employees and that instead they would
have to go through their union steward to make
such arrangements. The judge based his finding on
the testimony of Snell and Peterson that Martin
made no reference to negotiations during this dis-
cussion. The judge discredited Martin's testimony
that he responded to Snell's question about trading
days in rather indefinite terms. The transcript re-
veals Martin's version as follows:
Okay; I think he [Snell] said, if he and Vic
wanted to trade a day off, if the union came
in, could they still do something like that.
And, I said, "As far as I know, everything's
subject to negotiations. If you want to trade a
day off, and I'm no longer in charge of making
the schedules, you may have to go to your
shop steward to get a scheduled day off
changed. But I can't tell you what's gonna
happen, because I don't know."
The judge cited Martin's failure to refer to negotia-
tions within his affidavit to the Board as indicative
of the unworthiness of his testimony and in support
of his crediting Snell's and Peterson's version.
However, an examination of the record in this case
270 NLRB No. 211
reveals that while Snell maintained that Martin did
not say anything about negotiations during this
conversation, Peterson was unsure whether Martin
made any reference to bargaining affecting such
matters. Peterson first stated that he could not re-
member whether negotiations were alluded to and
thereafter admitted that Martin "could have" said
that what would happen would depend on the out-
come of negotiations. Clearly Peterson's account
does not corroborate Snell's testimony. Further-
more, the judge erroneously concluded that Mar-
tin's affidavit lacked reference to negotiations. Sev-
eral pages of the affidavit were admitted into evi-
dence and at pages 5-6 appears the following:
Snell may have asked me if they could still get
the days off they wanted if the union came in.
I don't specifically recall him asking me this,
but if he had I would have told him that he
might have to go through Vickie Franks to get
his days off. I told him that my flexibility
would depend on what a collective bargaining
agreement called for.
This evidence contradicts the judge's conclusion
that Martin made no reference to negotiations in
his statement to the Board. Given these flaws and
omissions in the judge's analysis of the existing evi-
dence on this issue we believe that his conclusions
are necessarily erroneous. Therefore in our inde-
pendent assessment of the testimony and supporting
evidence, we find that there is insufficient basis to
warrant a finding that Martin stated that in a
unionized setting employees would no longer enjoy
their right of access to him regarding scheduling
days off and trading days off. Accordingly, we re-
verse the judge's finding of an 8(a)(1) violation.
The second statement which we find the judge
erroneously determined to constitute a violation of
Section 8(a)(1) concerns Dee's discussion with em-
ployees about how benefits might be affected in the
presence of a union. According to Snell's credited
testimony, the judge found that Dee told a group
of employees that the Respondent could drop the
vacation checks that they had been receiving in ex-
change for another benefit wanted by the Union.
Member Dennis is not persuaded that the judge's credibility resolu-
tions should be overruled. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). Therefore, she affirms the
judge's finding that Manager Martin stated that in a unionized setting em-
ployees would no longer be able to come directly to him to schedule
days off or to trade days off and that instead they would have to make
such arrangements through their union steward. Contrary to the judge.
however, Member Dennis concludes that this statement was not an un-
lawful threat because "it is a 'fact of industrial life' that when a union
represents employees they will deal with the employer indirectly,
through a shop steward." NLRB v. Sacramento Clinical Laboratory, 623
F.2d 110 (9th Cir. 1980), enf. denied in pertinent part to 242 NLRB 944
(1979).
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peterson also testified about this conversation. He
had asked Dee specifically about sick benefits to
which Dee replied that vacation checks might be
taken away if the employees wanted sick benefits.
Dee's own version of this discussion was that he
probably did not use the word "negotiable" in de-
scribing how benefits might be determined in a
unionized setting, but that he used the example of
sick benefits in exchange for vacation benefits as
demonstrative of the give-and-take process of col-
lective bargaining.
The judge cited this possible loss of vacation
checks as one of several threats by the Respondent
of how benefits would diminish with a union. We
do not agree with his assessment. In the context in
which Dee's statement was made, the possibility of
losing vacation checks was not a threat of a unilat-
eral action by the Respondent in retaliation for the
employees choosing union representation, but
merely a description of how the negotiation proc-
ess involves gains and losses and trade offs in a va-
riety of benefit areas. By Snell's own account, Dee
referred to the Union's (and by implication the em-
ployees') involvement in deciding the relative im-
portance of various benefits. This stands in marked
contrast to other statements found to have oc-
curred during the preelection period. Accordingly,
we reverse the judge's finding of a violation.
In addition, while we agree with the judge's de-
termination that the Respondent violated Section
8(a)(1) by threatening Victoria Franks' discharge
because of her complaints of harassment resulting
from her union activities, which threat was over-
heard by another employee, we hereby amend his
Conclusions of Law to reflect more accurately the
substance of this violation.
The Conclusions of Law, Order, and notice are
modified to reflect our revised findings.
CONCLUSIONS OF LAW
1. The 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
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the
Act by:
(a) Threatening employees with reduced benefits
should they select the Union as their collective-bar-
gaining representative.
(b) Threatening employees with loss of wage in-
creases, or decreased wage increases, should they
select the Union as their representative.
(c) Threatening to discharge employees because
of their union activities in the presence of other
employees.
(d) Harassing employees by making their job
duties more onerous and difficult and overobserv-
ing them, because of their union activities.
4. The Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Victoria M. Franks
because of her union activities.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board Orders that
the Respondent, Bahama Joe's, Inc., Sanford, Flori-
da, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with lesser benefits
should they select Hotel, Motel, Restaurant Em-
ployees and Bartenders Union, Local 737, AFL-
CIO as their collective-bargaining representative.
(b) Threatening employees with loss of wages or
lesser wage increases should they select the Union
as their representative.
(c) Threatening to discharge employees because
of their union activities in the presence of other
employees.
(d) Harassing employees and making their jobs
more onerous and overobserving them because of
their union activities.
(e) Discharging employees or otherwise discrimi-
nating against employees because of their union ac-
tivities.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Make whole Victoria M. Franks for any loss
of earnings or other benefits in the manner set
forth in the section of the decision entitled "The
Remedy."
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Expunge from its files any reference to the
discharge of Victoria M. Franks, and notify her in
writing that this has been done and that evidence
of this unlawful discharge will not be used as a
basis for future personnel actions against her.
1378
BAHAMA JOE'S, INC.
(d) Post at its Sanford, Florida facility copies of
the attached notice marked "Appendix." 2 Copies
of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
a If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees that their ben-
efits will get worse should they select Hotel,
Motel, Restaurant Employees and Bartenders
Union, Local 737, AFL-CIO as their collective-
bargaining representative.
WE WILL NOT threaten employees with loss of
wages or decreased wage increases should they
select the Union as their collective-bargaining rep-
resentative.
WE WILL NOT threaten the discharge of employ-
ees in retaliation for their union activities in the
presence of other employees.
WE WILL NOT harass employees by making their
jobs more onerous and difficult and overobserving
them because of their union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because of that employ-
ee's union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you in Section 7 of
the Act.
WE WILL make whole Victoria M. Franks by
payment to her of backpay plus interest and any
other losses she suffered as a result of her dis-
charge.
WE WILL expunge from our files any reference
to the discharge of Victoria M. Franks on 24 May
1982 and WE WILL notify her that this has been
done and that evidence of this unlawful discharge
will not be used as a basis for future personnel
action against her.
BAHAMA JOE'S, INC.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. This pro-
ceeding was tried at Sanford, Florida, on October 18 and
19, 1982. Upon a charge filed by Hotel, Motel, Restau-
rant Employees and Bartenders Union, Local 737, AFL-
CIO (the Union), on May 27, 1982, the Regional Direc-
tor for Region 12 issued a complaint alleging various
violations by Bahama Joe's, Inc. (Respondent), of Sec-
tion 8(a)(1) and further that Respondent discharged an
employee because of her union activities, in violation of
Section 8(aX3) of the Act. Respondent filed an answer
denying the commission of unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. The
General Counsel and Respondent submitted excellent
briefs which have been considered. On the entire record
in the case, and from my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent, a Florida corporation, has an office and
place of business located in Sanford, Florida, where it is
engaged in the operation of a restaurant selling food and
beverages. During the 12 months preceding the issuance
of the complaint, Respondent derived from its business
gross revenues in excess of $500,000, and purchased and
received at its facility products, goods, and materials
valued in excess of S10,000 directly from points located
outside the State of Florida. The complaint alleges, Re-
spondent admits, and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is actually a subsidiary of another corpora-
tion whose office is in Daytona Beach, Florida, and
which operates a number of restaurants, presumably each
being a separate subsidiary. Kent Buckley supervises sev-
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral of these restaurants including the Sanford location
involved herein. The manager at Sanford is Jeffrey
Martin, and the assistant manager is Patrick Dee.
Victoria Franks, a waitress employed at Sanford, was
the principal organizer and activist on behalf of the
Union. She called and brought the Union in during Feb-
ruary. 1982, and as a result of her activity and assistance,
the Union filed a petition on March 24 and an election
was held on May 19. Thereafter the Union was certified
as collective-bargaining representative of the employees
of Respondent. During the campaign Franks wore a
union button constantly, and Respondent readily con-
cedes that it was aware of her activity on behalf of the
Union.
B. The Alleged 8(a)(1) Violations
Richard Snell, a kitchen employee, testified that about
a month before the election, he had several conversations
with Assistant Manager Dee in the kitchen, in the pres-
ence of several other kitchen employees, Ricky Washing-
ton, Ernest Wilson, and Vic Peterson. Snell said he
would ask questions about matters Buckley had told the
employees concerning the Union, and stated his own
feeling that under the working conditions and treatment
by managers which existed, and the benefits the employ-
ees had, he personally felt it would be good to have a
union. According to Snell, Dee replied that he believed
benefits would be worse if the Union came in, giving as
an example that if Snell wanted a day off he would have
to go to the shop steward. In addition Dee told them
that Buckley could drop the vacation checks the employ-
ees were receiving in exchange for another benefit
wanted by the Union. Dee also said that Buckley could
make the waitresses turn in their tips and Respondent
would pay them $3.35 an hour instead.
Victor Peterson, another kitchen employee who was
present during the discussion with Dee, corroborated the
testimony of Snell. He said that he himself asked Dee
about sick benefits and that the latter replied to the effect
that if they wanted sick benefits, Buckley might possibly
take away their vacation checks instead. In his testimo-
ny, Dee himself conceded that he may have used this as
an example of negotiations, commenting that if he had
used the word "negotiable to those guys, they probably
don't know what you mean."
Snell also testified to a conversation with Martin a
week and a half before the election with the same em-
ployees being present. During a discussion about the
Union, Snell reminded Martin he had been promised a
month before that he could have July 17 off for his sis-
ter's wedding. He asked Martin if the Union came in
could he still have that day off and Martin replied that
he could not because they would be under a union con-
tract and Snell would have to go to the shop steward
about the day off. Snell further stated that a month
before the election, in a similar conversation with
Martin, he asked the latter if employees would be able to
trade days off as they had been doing, and Martin re-
plied that once the Union came in, he would have to go
to the shop steward who would then present this to
Martin. It is undisputed that employees had regularly
scheduled days off but normally were able to trade them
merely by informing Martin. In his answers, according to
Snell, Martin did not refer to a contract or negotiations
or bargaining. He merely said that they would have to
go to the shop steward. In the conversation a month
before the election, Martin also pointed out that the em-
ployees had been getting 25- and 50-cent raises, but once
the Union came in they would only be getting a 10- or
15-cent raise. Snell further said that at this point Martin
looked at Peterson and said if the Union came in, he
would not have received a 50-cent raise.
Martin did not deny making statements of this type,
but he testified that anything of that nature said by him
was framed in the context of all these things being sub-
ject to bargaining and good-faith negotiations. For exam-
ple, he said it was possible Snell could have the promised
day off, but if that subject were contained in the con-
tract, it would be also possible that employees would be
tied into classifications which did not permit him to use
them interchangeably, and he might not be able to con-
sent to days off as he did previously. Neither Snell nor
Peterson indicated that Martin's statements were framed
in terms of negotiations, nor did Martin himself allude to
negotiations in his affidavit.
Martin, in his testimony, conceded he had referred to
the 50-cent raise given in the past to Peterson, stating
that he might not have gotten it if there was a contract,
but rather seniority may be the way to get a raise.
The General Counsel alleges that as a result of the
statements by Dee and Martin to the kitchen employees,
Respondent violated Section 8(a)(1) in several respects.
As to Martin's remarks that employees could not ask him
directly for a day off or trade days off, as was the
policy, both Snell and Peterson testified that these things
were said by Martin without reference to the condition
of negotiations, and I credit their testimony in view of
Martin's failure to mention negotiations in his affidavit.
These statements constitute a "reference to employees'
loss of access to management," and are violative of Sec-
tion 8(a)(l) of the Act. In Sacramento Clinical Laborato-
ry, 242 NLRB 944 (1979), the Board concluded that such
a statement "is a clear misstatement of employee rights
set forth under Section 9(a) of the Act and an unlawful
threat of loss of benefits." I find therefore by such state-
ments of Martin, Respondent violated Section 8(a)(1) of
the Act. '
It is alleged that Respondent further violated Section
8(a)(l) by the statements of Dee to kitchen employees
that employees may lose vacation benefits which could
be exchanged for another benefit, and similarly with re-
spect to sick leave benefits, and that waitresses may be
directed to turn in tips to Respondent and in lieu thereof
be paid minimum wage rates. Further violation is alleged
by Martin's statement that Peterson would never have
received a 50-cent raise through the Union but would
more likely obtain something like 10 or 15 cents. These
statements are not denied by Dee and Martin but rather
it is asserted they were made in the context that all of
these matters would depend on the outcome of good-
' Hahn Property Management Corp., 263 NLRB 586 (1982); Cardio
Data Systems Corp., 264 NLRB 37 (1982).
1380
BAHAMA JOE'S, INC.
faith collective bargaining. While the Supreme Court in
Gissel Packing Co. v. NLRB, 395 U.S. 575, 618 (1969),
has set forth an employer's right to be free to communi-
cate to employees his general views and may even make
predictions as to the effect of unionization, the Court
also noted that these communications may not contain
threats of reprisals or promise of the benefits and that
predictions must be based on objective facts. In the in-
stant case Respondent has perhaps overstepped the
bounds. It cannot cloak itself in the mantle of a statement
that all predictions are, in any case, dependent on the
outcome of collective bargaining, when its agents have
only predicted dismal and dire results flowing from that
mechanism. It is clear from Martin's remark that Peter-
son and other employees could no longer look forward
to 50-cent raises but may have to be content with 10 or
15 cents. As to his statements concerning benefits, his
references to good-faith collective bargaining do not
evoke any hopes since his examples point out only the
possibility of loss of benefit. Martin and Dee did not turn
to the other side of the coin so as to indicate that there
may be a possibility of gain to the employees as a result
of the collective-bargaining process. Nor was there any
showing that the predictions made have been based on
objective facts as no facts were set forth by the manag-
ers. Accordingly, I find that Respondent violated Section
8(aX1) of the Act by those statements made by Martin
and Dee which contained threats of losses to employees
through collective-bargaining procedures, should they
select the Union as their representative.
The General Counsel also maintains that Respondent
violated Section 8(a)(1) of the Act by harassing Victoria
Franks while on her job and further by threatening to
discharge Franks in the presence of another employee.
As has been previously noted, Franks was the prime
union protagonist and also acted as Union observer
during the election on May 19. On Friday, May 21, 2
days after the election, shortly before closing time,
Franks was talking to another waitress and saying she
was happy the Union won the election, when Dee came
over and told her she had better get back to work.
Franks then went to the kitchen where Dee told her he
was sick of hearing her big mouth. Franks asked him
why he was harassing her and whether it was because of
her activities with the Union. He replied, "Bull shit." In
addition, while Franks was finishing up the work, he told
her to keep her big mouth shut. In his testimony Dee did
not controvert this conversation but he did deny telling
Franks to shut up her big mouth. Dee said, regarding
this Friday night incident, that he did not discipline
Franks because she went back to her work and complet-
ed it, and he thought it was all over.
The next night, Saturday, May 22, about 9 p.m.,
Martin said something to Franks about sweeping. She
picked up a broom and started sweeping. Beverly
Adams, another waitress, came over and told Franks that
Martin was saying Adams was a lousy waitress and
ought to look for work elsewhere. Franks stated she then
asked Martin if he was harassing Adams because of the
Union and he replied no and she should get back to her
sweeping. According to Franks, Martin told her to get
back to work, he did not want to hear anything more
about the Union, and he shook his finger at her. Franks
then told Martin that this was not fair, that they were
being harassed because of the Union, and if it continued,
unfair labor practice charges would be filed. Martin told
her to do whatever she wanted. Adams basically cor-
roborated the testimony of Franks concerning this con-
versation and was perhaps more detailed than Franks.
She stated that Martin came up while she and Franks
were talking and told Adams to go to the lounge. As she
was leaving she heard Martin tell Franks to stay on the
clock or get off, but to keep busy. Adams noted that
Franks had been sweeping all the time she and Franks
were talking. She confirmed that Franks had stated she
was going to bring charges against the Company, and
had asked Martin whether he was harassing them be-
cause of the Union.
I credit both Franks and Adams concerning this con-
versation. Actually Martin confirmed, in most part, the
conversation with Vicky Franks. He said he did tell her
to grab a broom and start cleaning up and then later told
her to "lets get it going." He also said she asked him
why he was harassing them, and he replied that he was
not harassing anyone. Martin stated Vicky told him he
was harassing them because of the Union and she was
going to file charges, and he replied that she should go
ahead and file. He then went into the kitchen, but later
returned and told Franks he was not harassing anyone,
that all he wanted was for her to do her job, and if she
wanted to file charges, to go ahead. He said that he did
not "want to hear anymore of this stuff about harassing."
Martin conceded that Franks was doing her job and that
he had no intention of disciplining her.
Adams testified to another incident which occurred
the same night about 11 p.m., May 22. Franks had left
but Adams remained as one of the closing girls. At that
hour she was filling out her tip report by the cash stand.
Martin was sitting in a booth across from the cash stand
along with Geraldine Lauderbaugh, the head waitress.
Dee, who had left earlier that evening, returned. Martin
asked him if Franks was giving him any of that harass-
ment noise about the Union because of her union activi-
ties. Although Dee replied, Adams stated she could not
hear him. Then she heard Martin say that Franks had
given him some of that tonight and if she gives Dee any
tomorrow, he is to get rid of her, show her the door.
Martin said they had to get rid of her that day or on the
weekend or Buckley would get rid of her on Monday.
Both Martin and Dee denied that this conversation took
place and, indeed, insisted Dee was not there at that time
of the night. However, as to the latter point, Lauder-
baugh testified that at 11 p.m. on May 22, she was sitting
in a booth conversing with Martin, when Dee came into
the building, stood at the cash stand for a few minutes,
and then came over to where she and Martin were talk-
ing. Martin asked Dee if he had heard what happened to
him regarding Franks. Dee said no he had not, but he,
himself, had one with her last night. They interchanged
what happened. Then Lauderbaugh said one of the girls
came up to her and she had to get up and leave, and she
did not hear any more of the conversation.
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the corroboration of most of Adams' testimo-
ny by Lauderbaugh, I credit both of them. In this con-
nection I note that, while it appears that Lauderbaugh
was in the bargaining unit, nevertheless she was head
waitress and indicated during her cross-examination that
Martin did "generalize" about personnel matters with
her. In any case I found Lauderbaugh to be a very credi-
ble witness. As to Adams, Lauderbaugh was able to cor-
roborate that Dee and Martin spoke that night, a fact
which they had denied. I therefore credit the balance of
Adams' testimony that Martin said they wou!d have to
get rid of Franks or else Buckley would do so on
Monday. As to this, it is also noted Lauderbaugh did not
indicate that when she left to attend to other duties the
conversation between Martin and Dee had ceased but
rather stated that she did not hear anything further be-
cause of her departure. Finally, as will be discussed,
there was a truthful prediction in Martin's words because
Buckley did discharge Franks on Monday.
The next morning Adams called Franks and warned
that they were out to get her and would try to fire her
that day, Sunday, or Buckley would do it on Monday.
She counseled Franks to play it cool. That Sunday,
while at work, Dee kept watching Franks more so than
usual, according to Franks, and at one point even took
some bread and salad off her tray, on the grounds that
she was serving too much of those items. All this was
done despite admissions by Martin and Dee that Franks
had always been a good employee who did her job well.
I find in the circumstances described above that Re-
spondent has violated Section 8(a)(1) of the Act, by
reason of the harassment of Franks by its managers
during her workday, because of her union activities.
These incidents occurred over Friday, Saturday, and
Sunday, which were Franks' first workdays after the
union election, instigated either by Dee or Martin or
both. It has been held that the short interval between an
employee's protected activities and the steps taken by the
employer against such employee is sufficient to establish
a prima facie case. Union Camp Corp., 194 NLRB 933
(1972), enfd. 463 F.2d 1136 (5th Cir. 1972). This timing,
in conjunction with the obvious references by Martin to
the Union, that he did not want to hear any more about
it, and with Dee's prior statement that she should keep
her mouth shut concerning the Union, and their carping
concerning her talking to other employees during peri-
ods when the waitresses were not busy and had habitual-
ly talked to one another all add up to the coercive type
of harassment which is contrary to the dictates of the
Act.
Moreover, Respondent further violated Section 8(a)(1)
of the Act by Martin's instruction on Saturday night to
Dee to get rid of Franks over the weekend or else it
would be done on Monday by Buckley. This constitutes
a threat to discharge Franks, uttered within earshot of
another employee, Adams. The Board has held that a
threat to discharge employees because of their union ac-
tivities uttered in the presence of another employee, even
if unintentionally communicated to such employee, vio-
lates Section 8(a)(1). Viele & Sons, 227 NLRB 1940
(1977). Respondent has defended against this allegation
firstly on the basis that the conversation between Martin
and Dee did not take place, a contention I have discred-
ited based on the testimony of Adams as corroborated by
Lauderbaugh. It also urges that, even if such conversa-
tion did take place, Adams was in such a position near
the cash register that she could not have seen Martin and
Dee. I have credited the testimony of Adams that she
did, indeed, see them, but even if she had not, there is no
evidence that she could not have heard what they said.
Dee and Martin were obviously in a location where they
could have been overheard by other employees such as
waitresses in the vicinity, as they were, in part, heard by
Lauderbaugh, a unit employee, and accordingly they
should have been aware of these possibilities when they
spoke. In any case, Respondent's argument is met by the
Board's indication that, even if the threat is unintention-
ally communicated, a violation still exists. Ford Radio &
Mica Corp., 115 NLRB 1046 (1956).
C. The Alleged Violation of Section 8(a)(3) of the Act
Franks, whose workday begins at 4:30 p.m., testified
that on Monday, May 24, she arrived at the restaurant
about 3:30 p.m. Franks said she met another waitress,
Laverna Fisher, in the restroom who told her that Buck-
ley was there and something might happen. Franks said
they were after her and Fisher replied that she should
keep cool. After eating, Franks met Jimmy O'Brien, a
busman, in the waitress alley and told him there was
going to be a union meeting on Wednesday. She said she
wanted to hand O'Brien a map with directions to the
meeting, but Buckley appeared and snatched the map out
of her hand. According to Franks, Buckley told her not
to talk about the Union in the restaurant, and she replied
that it was her right to speak about the Union, that she
was not doing anything wrong, and it was her legal right
as long as she was not interfering with anyone's work.
She further said Buckley told her she had better not do
it and she insisted it was her right. Buckley said she was
sick and crazy and to stop it. He then said something to
her about getting out and she said she was not going
anywhere, that she had not done anything wrong and
wanted to go to work but Buckley told her to leave. She
also told him that he better not do anything without
advice of his attorney, and that he was trying to break
up the Union. She said she was going to wait in the bar,
but he told the bartender not to serve her, so she just sat
there. Franks said she did this because she did not want
to walk out. Buckley said he would call the police which
he did, and she remained until the policewoman came
and asked her to leave.
Buckley stated he had seen Franks talking to Jim, the
busboy, whom he had previously told to clean the wait-
ress alley. Franks told Buckley that she was giving Jim
directions to the union meeting and he replied that she
should not bother Jim while he was working. Buckley
said he told Franks to wait in the lounge until she was
ready to punch in, and that Jim should continue his
cleaning. He then went to the lounge, repeated to Franks
that he did not want her to bother anyone while they
were working, and then left for his office. Buckley stated
he returned a few minutes later and saw Franks, who
said she was punching in, and he told her to go ahead.
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BAHAMA JOE'S, INC.
Buckley said she started to walk to the timeclock but
then turned around and told him he was harassing her
and asked him why, to which he replied that he was just
doing his job. Franks said he was harassing her because
she is in the Union and he could not do that, and he
should talk to his lawyer. He said she was sick, that he
was just doing his regular job, that she should punch in.
According to Buckley this kept going round and round
with him repeating for her to go to work and she saying
he was harassing her, and should talk to his lawyer.
Buckley said he was not harassing her, but if she did not
go to work, he would terminate her. He claims that she
then turned around and said in a loud voice he could not
terminate her and she should see a lawyer. He then said,
"You are terminated, get out. She said she was not leav-
ing and he said she should either leave or he would call
the police. Franks went towards the dining room and
was very loud and he kept asking her to leave. He then
told Martin to call the police. Meanwhile, Franks went
to the lounge but he told the barmaid not to serve her a
drink. Buckley said he went to his own office and sat
there and never saw her again until she was reinstated to
work.
In his testimony, Buckley claimed that the conversa-
tion about handing the union map to Jim had nothing to
do with his action, because if she had quieted down she
would not have been terminated nor, he testified, had the
Union anything to do with it. He stated she was insubor-
dinate by telling him he could not terminate her, that he
had to talk to his lawyer, and that he was harassing her.
He also stated she was real loud and, as she became
more excited, she could be heard in the dining room.
Buckley also testified he had not talked to Dee before
firing Franks, but Martin told him in the morning that
Franks claimed he also was harassing her. On the other
hand, Buckley said Martin's information did not affect
his decision to discharge her. In conclusion, Buckley said
he discharged Franks because she would not go to work
and leave things alone and continued to holler that he
was harassing her.
The exact time of the conversation was not fixed for
certain, Buckley having testified at one point that it was
at 4:40 p.m., but thereafter stated it must have been
about 4:25 p.m., and at another point said it occurred just
before she was supposed to punch in.
Fisher, who was working at the time, testified that
none of the customers complained to her about loud
voices. Lauderbaugh, who witnessed the tail end of the
incident, said she had not heard anything unusual before
she went to the back of the waitress alley from the
dining room. As to the incident with O'Brien, Buckley
said it did not affect his decision. Nevertheless, it is fairly
well established in the record, particularly from the testi-
mony of Fischer, that solicitations and distribution of
material such as Avon products took place on working
time, as there were always some periods of slack time
during which employees could do these things. O'Brien,
incidently, stated that Franks' voice was normal most of
the time while talking to Buckley. In the dining room
she may have been a little louder than normal, but she
was not screaming. O'Brien further stated that Franks
did not really bother him in the performance of his
work, which involved sweeping the waitress alley at the
time.
A synthesis of the testimony regarding the Buckley-
Franks incident, which resulted in the latter's discharge,
resembles the proverbial tempest in a tea cup. Clearly
Buckley did not discharge her for refusing to work;
rather he put it on the basis of insubordination. While
presumably Buckley could have handled this matter as
he pleased, it could have been ended simply by his walk-
ing away after telling Franks not to disturb O'Brien in
his work. In assessing the matter, it must be taken into
account that Franks was an employee for almost 10
years, she had an excellent work record, she had never
been disciplined, and, more importantly, the managers
candidly agreed that she was indeed a good waitress
who did her work in good fashion. Moreover, manage-
ment was aware that Franks had suffered from diabetes
and was inclined at times to be "hyper." Admirably, the
managers were not only aware of this condition but
guided themselves accordingly, and apparently were so-
licitous of Franks in this regard. However, assuming she
had been a little "hyper" in the final incident with Buck-
ley, the question remains as to why their attitude to-
wards her changed. This must be laid to the fact that she
was the prime and indeed it appears, the only union pro-
tagonist and organizer on the premises and, of course,
the observer at the election. Moreover, the whole inci-
dent was undoubtedly built up for these reasons and rep-
resented the culmination of Martin's threat contained in
the discussion with Dee on the Saturday before. Martin's
prediction became a fact since he had stated to Dee that
if they did not get rid of Franks over the weekend,
Buckley would do it on Monday, and so he did. I find,
therefore, noting also that no evidence was produced of
other waitresses being discharged for this type of alleged
conduct, that the insubordination claimed by Buckley as
the rationale for his action was merely a pretext.
Respondent has urged that Franks' discharge be ana-
lyzed in accordance with the Board's decision in Wright
Line.2 Under the theory of that line of cases, it is incum-
bent on the General Counsel to prove a prima facie case
which has clearly been met by virtue of Franks' exten-
sive union activities concerning which Respondent had
knowledge. Thereafter, Respondent must go forward to
prove a valid reason for the discharge. Having found
that Respondent's contention of insubordination has been
pretextual, I further find that the only remaining valid
reason for discharge was Franks' union activities. Ac-
cordingly, I find that Respondent violated Section 8(aX3)
of the Act by its discharge of Franks.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
I Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir.
1981).
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged Victoria M.
Franks in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that Respondent be ordered to make
her whole for any loss of earnings and other benefits re-
sulting from her discharge, by payment to her of a sum
of money equal to the amount she normally would have
earned as wages and other benefits from the date of her
discharge to the date on which she was reinstated, less
net earnings during that period. As noted, Franks has
been reinstated, so the usual reinstatement remedy is not
recommended. The amount of backpay shall be comput-
ed in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).3
I shall also recommend that Respondent expunge from
its records any reference to the unlawful discharge of
Franks, and inform her that this will not be used as a
basis for future personnel actions concerning her.4
CONCLUSIONS OF LAW
1. 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. Respondent violated Section 8(a)(1) of the Act by:
(a) Threatening employees with reduced benefits
should they select the Union as their collective-bargain-
ing representative.
(b) Threatening employees with the loss of the right to
present grievances directly to management in order to
discourage support for the Union.
(c) Threatening employees with loss of wage increases,
or decreased wage increases, should they select the
Union as their representative.
(d) Threatening discharge of employees in the pres-
ence of other employees.
(e) Harassing employees by making their job duties
more onerous and difficult and overobserving them, be-
cause of their union activities.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Victoria M. Franks because of her
union activities.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
4 Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
The Respondent, Bahama Joe's, Inc., Sanford, Florida,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with lesser benefits should
they select Hotel, Motel, Restaurant Employees and Bar-
tenders Union, Local 737, AFL-CIO, as their collective-
bargaining representative.
(b) Threatening employees with loss of the right to
present grievances directly to management in order to
discourage their support of the Union.
(c) Threatening employees with loss of wages or lesser
wage increases should they select the Union as their rep-
resentative.
(d) Threatening to discharge employees in the pres-
ence of other employees.
(e) Harassing employees and making their jobs more
onerous and overobserving them because of their union
activities.
(f) Discharging employees, or otherwise discriminating
against employees because of their union activities.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole Victoria M. Franks for any loss of
earnings or other benefits in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Expunge from its files any reference to the dis-
charge of Victoria M. Franks, and notify her in writing
that this has been done and that evidence of this unlaw-
ful discharge will not be used as a basis for future per-
sonnel actions against her.
(d) Post at its Sanford, Florida facility copies of the at-
tached notice marked "Appendix."6 Copies of the notice,
on forms provided by the Regional Director for Region
12, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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BAHAMA JOE'S, INC.
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
1385