Club Monte Carlo Corp.

National Labor Relations Board - Board Decisions

Jun 6, 1986

280 N.L.R.B. 257 (N.L.R.B. 1986)

CLUB MONTE CARLO CORP.
Club Monte Carlo Corporation and Marie Gjeldum
and Beverly Rose Fry and Martha Elizabeth
Wolf. Cases 7-CA-22461, 7-CA-22485, and 7-
CA-22526.
6 June 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 18 April 1984 Administrative Law Judge
Norman Zankel issued the attached decision. The
Respondent 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 as modified and to adopt the recom-
mended Order.
We affirm the judge's findings that the Respond-
ent violated Section 8(a)(1) of the Act when its
vice president, Tony Cenovski (hereafter Tony),
suspended five employees and subsequently dis-
charged one of them for engaging in protected
concerted activities, and interrogated employees
about who was responsible for such activities. We
also agree , for the reasons set forth below, with the
judge's conclusion that the Respondent violated
Section 8(a)(1) when Tony and his wife, Linda, the
Respondent's assistant manager, interrogated em-
ployees about what happened and why they en-
gaged in concerted activities.
At a wedding party held 24 July 1983,1 the wait-
resses learned that a bartender had received a tip
from Tony. The waitresses, with head waitress
Beverly Fry acting as spokesperson, approached
Tony about a tip after their work was complete.2
Tony denied any knowledge of a tip and the wait-
resses left the premises.
A few days later Linda, in individual telephone
conversations, informed the waitresses of Tony's
instructions that they would not be scheduled to
work again until they spoke with Tony about the
incident. Linda also asked each waitress what hap-
pened and why the waitresses "ganged up" on
Tony. Tony admitted asking questions of each
waitress who called or spoke with him personally
about the incident, including asking who had con-
ceived of the idea of requesting the tip. The record
shows specifically that Tony asked discriminatee
1 A11 dates refer to 1983.
2 Apparently the group of waitresses who approached Tony included
all the waitresses who worked the party , not just the alleged discrimina-
tees
257
Marsh on 4 August, when she sought reinstate-
ment, what happened on 24 July and why the wait-
resses had confronted him. Marsh was reinstated
after revealing that Fry had not wanted to make
the request alone . Tony discharged Fry on 9
August after telling her that the other waitresses
had identified her as the leader of those making the
tip request.
We find that Tony's and Linda's questions about
what had happened and why constitute unlawful
interrogations when viewed in the context in
which they were made. These interrogations were
part of Tony's investigation into the waitresses'
concerted activity and therefore cannot be separat-
ed from Tony's unlawful questions about the lead-
er's specific identity, which were also part of the
investigation . Tony and Linda were similarly seek-
ing specific information about the leader's identity
through their questions. Tony knew what hap-
pened on 24 July because the waitresses ap-
proached him about the tip. However, Tony did
not know the leader's name and his interest in this
information was demonstrated by his other ques-
tions concerning the leader's identity, his conversa-
tion with Marsh on 4 August, and Fry's subsequent
unlawful discharge for her leadership role in the
waitresses' protected concerted activity. We also
note that the employees were interrogated by high
management officials when their employee status
was uncertain because of their having acted in con-
cert. Thus, employees could reasonably expect that
their job status hinged on their responses to the in-
terrogations. Accordingly, we conclude that, under
all the circumstances, Tony's and Linda's interro-
gations reasonably tended to restrain, coerce, and
interfere with employees in the exercise of their
rights guaranteed by the Act in violation of Sec-
tion 8(a)(1). Sunnyvale Medical Clinic, 277 NLRB
1217 (1985).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Club Monte
Carlo Corporation, Utica , Michigan , its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Richard Whiteman, Esq., for the General Counsel.
David A. McKinnon, Esq., and Richard J. Sable, Esq.
(Bieber, Brennan, Matrnaga, McKinnon, Sable & Cross),
of Utica, Michigan, for the Employer.
280 NLRB No. 30
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. The
above cases , consolidated for trial , were heard by me on
February 23 and 24, 1984, at Detroit, Michigan.
On an original charge in Case 7-CA-22461 filed on
August 8 , 1983,1 which was amended on September 28
and a charge in Case 7-CA-22485 filed on August 24, a
consolidated complaint issued on September 26.
The consolidated complaint alleges the Employer vio-
lated Section 8(a)(1) of the National Labor Relations Act
(the Act) by suspending Marie Gjeldum, Jennie Gjel-
dum, and Martha Elizabeth Wolf about July 28; dis-
charging Beverly Rose Fry about August 9; and unlaw-
fully interrogating its employees on July 28 and on vari-
ous dates thereafter because they had engaged in protect-
ed concerted activities. A timely answer was filed, in
which the Employer admitted certain allegations, but
denies it had committed any unfair labor practice. At the
hearing 's opening, the Employer filed a written motion
to dismiss complaints . Ruling on this motion was de-
ferred for this decision.
On the entire record, including my observation of the
demeanor of the witnesses, 2 and after consideration of
the briefs filed by the General Counsel and the Employ-
er, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Employer, a Michigan corporation, has, at all ma-
terial times , maintained its principal office and place of
business at 50265 Van Dyke, in Utica, Michigan, where
it has been engaged in the retail sale of food and banquet
services and related products. During the calendar year
immediately preceding complaint issuance , a representa-
tive period, the Employer had gross revenues exceeding
$500,000, and purchased and caused to be transported
and delivered to its Utica, Michigan facility meats, food
supplies, and other materials exceeding $200,000 in value,
of which goods and materials valued in excess of $9500
were transported and delivered to the Utica facility by
other enterprises which received the goods and materials
directly from outside the State of Michigan.
Based on the foregoing , and the record as a whole, I
fmd the Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. See City Line Open Hearth, 141 NLRB 799 (1963);
Carolina Supplies & Cement Co., 122 NLRB 88 ( 1958).
All dates hereafter are in 1983 , unless otherwise stated
' All witnesses were sequestered.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts3
The operative facts are not materially disputed.' As al-
ready indicated, the Employer is engaged in providing
banquet services to the public. On July 24 a wedding
party, including approximately 425 guests was held at
the Employer's premises . Approximately 16 waitresses
worked at that event. Alleged discriminatee Beverly
Rose Fry was head waitress.5 Each of the discriminatees
performed waitress duties at that wedding.
Beginning approximately 10 p.m., bartender Tom
Djurc (who did not testify) bragged , in the waitresses'
hearing, that he had received a tip from Tony and said
the waitresses should ask Tony about a tip for them
when the party was ended. Additionally, alleged discri-
minatee Jennie Gjeldum (Jennie) told Fry she had seen a
guest at the wedding who had given the waitresses a tip
for their services at a function a month earlier.
The record indicates that waitresses received tips only
on rare occasions ; without regularity; and, when given,
generally are tendered and delivered to the waitresses di-
rectly by the Employer's patrons.
Acting on Djurc's rumor and Jenny' s observation,
some of the waitresses asked Fry to approach Tony to
inquire about a tip for the waitresses. Fry, Jennie, and al-
leged discriminatees Martha Elizabeth Wolf, Sandra
Marsh , and Marie Gjeldum, Jennie's daughter- Marie, in
credible and mutually corroborative testimony , asserted
that Fry said she did not want to approach Tony alone
and suggested they all go together, and they agreed to
do so.
About 2:45 a.m ., July 25, it appears all waitresses who
worked6 met with Tony in one of the rooms in which
the wedding party had been held. Tony was seated at a
table with one to three others, who were chefs/cooks or
bartenders. Those seated were discussing certain com-
plaints received regarding temperature of food served at
the party and quality of waitress service.'
s Not every bit of evidence , or argument of counsel , is discussed, but
each has been considered . Omitted matter is deemed irrelevant , of ques-
tionable probative value to the critical issues , or superfluous.
* My factual description is a composite of testimony of all witnesses
presented by both the General Counsel and the Employer . Wherever
findings relate to the conduct of the Employer 's vice president, Tony
Cenovski (Tony), they are wholly based on his oral testimony before me.
I have not at all relied on any matter contained within Cenovski's pre-
hearing affidavit (G.C. Exh. 2) That some factual findings parallel state-
ments in that affidavit is attributable to the fact Cenovski orally acknowl-
edged the accuracy of such facts at the hearing.
5 Fry testified as a witness on behalf of the General Counsel. During
her cross-examination by the Employer's counsel , the Employer (for the
first time) asserted Fry was a supervisor within the meaning of the Act.
Fry was interrogated on the supervisory issue by the Employer 's attor-
ney, counsel for the General Counsel, and me, respectively. I have exam-
ined all evidence relative to supervisory status and can find not even a
scintilla of evidence which reflects any supervisory mdicia in Fry's au-
thonty or functions . Inasmuch as Fry's title , alone , is not dispositive of
her status (see Magnolia Manor Nursing Home , 260 NLRB 377, 385 (1982)
(Banks), I find Fry, at all material times, was an employee within the
meaning of the Act.
6 The testimony contains varying estimates of how many waitresses
confronted Tony. There is no evidence any of the waitresses who
worked that event was absent from the group confrontation.
There is no evidence any of the waitresses either heard , or were ap-
prised of, the substance of that discussion
CLUB MONTE CARLO CORP.
The group of waitresses stood in front of the table at
which Tony was seated. At that time the party was over.
All guests had vacated the premises. All the waitresses'
work was completed and they were ready to punch out.
Fry acted as spokesperson. She told Tony the wait-
resses wanted to know whether there was a tip for
them.8 Tony denied there was any tip and that he had
any knowledge of a tip for the waitresses.
Marsh said she thought the waitresses deserved a tip
because they worked hard. Tony retorted that the wait-
resses might not have worked fast enough to deserve a
tip. Marsh complained if she knew there would be no
tip, she might not have worked as fast as she did. With
that, Fry told the waitresses they should all go home.
This ended the incident. The waitresses punched out and
left the premises. None of the waitresses was scheduled
to work again at least until the following weekend, 5 or
6 days after July 24.
On July 26 or 27 Tony decided he (in his words)
"wanted to find out why I was asked for the tips."9
Tony admitted he instructed the Employer 's assistant
manager , Linda Cenovski (Tony's wife), to telephone all
waitresses who worked on July 24 and tell them they
would not be scheduled to work again until they spoke
with him personally about that evening's confrontation.
Linda Cenovski did call each of the waitresses, except
Marie, for whom Tony' s message was left with Jennie.10
Tony testified that when waitresses called him he
asked why they questioned him while sitting at the table
with other employees, and that he asked them wny they
did not request him to meet with them elsewhere. Fur-
ther, Tony explicitly admitted he asked the waitresses
which waitress had the idea to come to speak with him
about the tip (Tr. 56). Tony acknowledged the waitresses
told him it was Fry's idea.
Fry was on vacation during the week Linda Cenovski
telephoned the other waitresses. On Fry's return, she
called Linda Cenovski to learn when Fry next was
scheduled to work. Linda Cenovski told Fry she would
have to talk to Tony before being scheduled again for
work.
On August 9 Fry visited the Employer's facility.
There, she spoke with Tony. Fry credibly testified Tony
told her that her services no longer were needed because
of the confrontation." She said he told her he spoke
8 Derived from Fry's testimony Tony's version was somewhat differ-
ent He testified Fry asked him whether he had a tip for the waitresses or
"where the tip was." Fry was candid, precise, forthright , direct, and
comprehensive Tony's testimony of this conversation was more vague
and generalized I attribute that condition to the fact Tony is foreign-
born and not particularly fluent in the American language Thus, for pre-
cision and accuracy, I adopt Fry 's accounts wherever conflicts exist be-
tween her and Tony when testifying on the same subject matter.
9 Tony also testified he made this decision because he believed the
waitresses were accusing him of receiving , and withholding , tips His sub-
jective state of mind is irrelevant.
10 The substance of Linda Cenovski 's telephone conversations with the
alleged discriminatees appears mfrs.
i I Neither Fry nor Tony claimed any other reason for the termination
was given her on August 9. However , at the hearing , the Employer's
counsel first claimed the July 24 confrontation was only part of the basis
for termination Thus, Tony, during testimony as an Employer witness,
claimed he had problems with Fry following orders and had told her in
the past he was dissatisfied with her work . During his cross-examination,
Tony first was unable to provide precise examples of such incidents. Fi-
259
with each waitress who told him it was she who instigat-
ed the July 24 confrontation. Tony admitted he dis-
charged Fry because he believed she caused the confron-
tation.
Fry further testified she denied doing so by explaining
to Tony that Djurc told her to check with Tony because
he had received a tip. She further explained to Tony that
the waitresses had asked her if she would go with them
to ask for the tip. According to Fry, Tony responded
that he fired all the old waitresses but not the new ones
because they did not know better. Fry claimed that she
apologized, said she needed her job, and asked if there
was anything she could do. Tony replied in the negative.
Their August 9 conference then ended. Fry picked up
her last paycheck and left.
Linda Cenovski telephoned each of the alleged discri-
minatees about July 28. The substance of their conversa-
tions and results follows:
(a) With Martha E. Wolf
Wolf was scheduled to work on July 29. Ms.
Cenovski asked why Wolf asked Tony for a tip.
Wolf responded because Djurc had made statements
about a tip. Ms. Cenovski asked Wolf to describe
the statements. Wolf told her that Djurc asked if
the waitresses had received a tip and they "better"
ask Tony about it.
Ms. Cenovski told Wolf that Tony believed the
waitresses wanted a personal tip from him; and that
Tony was really "p-d" about it. Ms. Cenovski said
that Tony told her to take Wolf off the schedule
and if she wanted to work again , Wolf would have
to talk to Tony to get her job back. Wolf testified
she did not speak with Tony after her telephone
conversation with Ms. Cenovski.
(b) With Sandra Marsh
Ms. Cenovski asked Marsh what happened the
evening of the wedding. Marsh said the waitresses
heard they received a tip and decided to ask Tony
about it. Ms. Cenovski asked "Why did you all
gang up on Tony?" Marsh said it was because Fry
said she did not want to go alone and suggested the
waitresses approach Tony in a group. Then, Ms.
Cenovski told Marsh that Tony instructed her to
call the waitresses and tell them not to come to
work unless they talked with Tony first.
Marsh did not work the weekend of July 20-31.
The following Thursday, Marsh called Tony. She
asked whether she would be scheduled to work the
following week. Tony said, "If I feel like it." Marsh
said she needed an answer because if she would not
work she would have to look for another job. Tony
suggested Marsh do so . Marsh insisted she liked the
nally, Tony only guessed one incident occurred in June 1983 . Even as-
suming Fry was derelict as claimed, Fry credibly denied Tony ever
warned her that her job was in jeopardy because of the alleged June inci-
dent Though asked to do so, Tony could describe no other specific ex-
ample of Fry's asserted poor performance . The Employer presented chef
John Zipay who claimed he told Tony that Zipay had problems with Fry
organizing banquet rooms for functions . Zipay's testimony has little pro-
bative value because (1) it is generalized , and (2) Tony was not asked to
corroborate Zipay, nor did he do so voluntarily.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work with the Employer. She protested she be-
lieved she did nothing wrong. Tony asked why the
waitresses ganged up on him . Marsh responded they
heard a tip was left for them; that Fry did not want
to go alone ; and repeated she believed she had not
done anything wrong. Tony relented, and said she
could return to work . In toto, Marsh missed two
weekends of work.
(c) With Jennie Gjeldum
Jennie had been scheduled to work on July 29.
Ms. Cenovski telephoned her on July 28, and asked
what happened on July 24. Jennie responded that
she heard Djurc say he had a tip; that the waitresses
then asked Tony about it and he became upset with
the older waitresses . Ms. Cenovski told Jennie that
she was not to come to work unless she wanted to
speak with Tony first. Ms. Cenovski told Jennie to
relay that message to Marie . Jennie said she did not
want to speak with Tony because she did not want
to upset him. She said she did nothing wrong, and
acquiesced in the directive not to come to work.
Jennie conveyed Ms. Cenovski 's message to Marie.
(d) Marie Gjeldum
As indicated above, Ms. Cenovski did not speak
with Marie . Instead , she left a message with Jennie.
Marie had been scheduled to work on July 29.
After receiving Ms. Cenovski's telephone message,
Marie did not work on July 29. However, Marie re-
turned to the Employer's facility for her check on
August 1. She intended to speak to Tony. Marie
was informed Tony was then on vacation.
As indicated, Marsh was returned to work after miss-
ing two weekends of work. Thus, she became employed
again by the Employer about August 12, 1983. Jennie
was returned to work on February 15 and Marie on Feb-
ruary 13, 1984.12
B. Analysis
1. The suspensions and discharge
The General Counsel contends the suspensions of all
the waitresses , and the discharge of Fry were in retalia-
tion for their having engaged in concerted protected ac-
tivity.
The Employer does not seriously contest the concert-
ed nature of the July 24 confrontation. However, the
Employer asserts the confrontation was unprotected be-
cause tips do not comprise "terms and conditions of em-
ployment" ; and that no prima facie case has been estab-
lished because (1) there is no evidence the Employer had
knowledge of protected activities, and (2) there is no evi-
dence of animus against such activities.
Resolution of the issues is governed by the Board's
recent decision in Meyers Industries, 268 NLRB 493
(1984). 13 There, the Board declared the inquiry in cases
12 During off-the-record discussions, it was learned that Wolf received
an offer of reinstatement some time in mid-January 1984
18 The Employer's brief treats the instant case as if it were one involv-
ing docriminatory activity. Elaboration on this pout is contained in the
decision's text below
such as presented herein is "first, whether the activity is
concerted, and only then, whether it is protected" 268
NLRB at 496. The elements of a violation, under Meyers,
are (1) employer knowledge of the concerted character
of the employees' activity, (2) that such activity was pro-
tected, and (3) that the employer was motivated by the
protected concerted activity in taking adverse personnel
action against employees. On the entire record, I con-
clude all elements of a prima facie case are present and
that the record reflects a violation of Section 8(a)(1), as
alleged.
(a) The waitresses ' actions were concerted
In Meyers, the Board announced "to find an employ-
ee's activity to be "`concerted,' we shall require that it be
engaged in, with, or on the authority of other employees,
and not solely by and on behalf of the employee him-
self." 268 NLRB at 497.
Herein, it is undisputed that the waitresses became agi-
tated over the possibility that a tip had been left for
them, discussed the situation among themselves , decided
to make a group inquiry over that subject, and imple-
mented that plan. I conclude these facts, which are un-
contested, wholly fulfill the Board's evidentiary require-
ment for concluding that the July 24 confrontation was a
"concerted" activity.
(b) The confrontation was protected
The thrust of the Employer's claim the tip inquiry was
unprotected is predicated on the infrequent tender of
tips. This fact, the Employer argues, removes the subject
matter of the confrontation from the definition of "terms
and conditions of employment."
I conclude the Employer's formulation of the issue is
misconceived . It derives from considerations inapposite
herein. The two cases cited by the Employer are materi-
ally distinguishable. The issue in O'Donnell's Sea Grill, 55
NLRB 828 (1944), was whether tips, on the facts of that
case, were properly an element of a backpay award. It
was held that evidence showing tips were not regularly
provided rendered it speculative to calculate them in a
backpay computation. NLRB v. Wonder State Mfg. Co.,
344 F.2d 210 (8th Cir. 1965), involved an issue vastly dif-
ferent from the case at bar. Wonder State involved a re-
fusal-to-bargain allegation . In relevant part, the issue was
whether Christmas bonuses were such emoluments of
employment to make them subject to collective bargain-
ing. In that context , it is necessary to determine whether
a benefit is a "term or condition of employment."
Herein , the critical question is whether the matter
raised is of common interest and concern to the employ-
ees and whether it was raised with the Employer for the
mutual aid and protection of all the waitresses . Fairmont
Hotel Co., 230 NLRB 874, 878 (1977). It simply is not
necessary, for the inquiry over the tips to be protected,
that tips are "wages ." See NLRB v. Peter Cailler Kohler
Swiss Chocolate Co., 130 F.2d 503, 505-506 (2d Cir.
1942), in which employee support of a work stoppage at
another company was found protected; General Electric
Co., 169 NLRB 1101, 1103-1104 (1968), enfd. per curiam
411 F.2d 750 (9th Cir. 1969), in which a collection of
CLUB MONTE CARLO CORP.
contributions for another company's agricultural workers
(not even within the statutory definition of employees)
was held protected; and Service Employees Local 6, 188
NLRB 957, 959 (1971), in which employee demonstra-
tions in protest of discriminatory hiring practices of an-
other employer were found protected.
I conclude the waitresses' July 24 discussions clearly
evince their mutual concern over a matter patently relat-
ed to their employment conditions. Their decision to
make inquiry of their employer over their concerns
shows the purpose of the confrontation was to promote
their mutual aid and protection. The record as a whole
makes it reasonable to find, as I do, that the waitresses
were mutually seeking to secure for themselves what
they perceived as full compensation for their services
connected with their employment with the instant Em-
ployer. Their inquiry of Tony was a direct consequence
of their employment situation. On the foregoing, I find
the waitresses were engaged in a protected activity
within the meaning of the Act when they confronted
Tony about a tip.
The Employer suggests, in its brief, that however pro-
tected the waitresses' conduct may have been, that pro-
tection was lost because their conduct constituted "un-
warranted" and "hostile" intrusions on the Employer.
This claim apparently rests on the fact that the waitresses
had interrupted Tony's discussion with the chefs and bar-
tenders with whom he was seated. This claim must be
rejected. The reasonableness of the method of engaging
in otherwise protected activity does not detract from its
protected character. NLRB v. Washington Aluminum Co.,
370 U.S. 9, 16-17 (1962); NLRB v. Solo Cup Co., 237
F.2d 521, 526 (8th Cir. 1956); Plastilite Corp., 153 NLRB
180, 183-185 (1965), affd. in pertinent part 375 F.2d 343,
349-350 (8th Cir. 1967). In any event, the evidence
before me shows (1) all waitresses' work had been com-
pleted before they questioned Tony about the tip; (2) all
waitresses were ready to go home; (3) they had no
knowledge of the contents or substance of the conversa-
tion among Tony and those seated with him; and (4) no
abusive, hostile, obscene, or profane remarks were made
by any waitress to Tony. Thus, there is no probative evi-
dence that the confrontation interfered with the Employ-
er's work or productivity or that any waitress engaged in
conduct which would tend to remove the Act's protec-
tion. See Fall River Savings Bank, 247 NLRB 631, 633 fn.
3 (1980); Hamlet Steak House, 197 NLRB 632 (1972).
The Employer's brief also asserts the waitresses "burst
in on a private meeting and before other employees."
This is urged to be such a "sharp, public [and] disparag-
ing attack" on the Employer as warrants removal of the
Act's protection from the waitresses' conduct. I disagree.
Even if the record were to demonstrate (which it does
not) that the interruption of Tony's conversation oc-
curred at an inconvenient time, when he was busy, or
during working time, the obvious brevity of the confron-
tation and the contents of the waitresses' conversation
with Tony are not enough to negate the protected nature
of the confrontation. ABC Concrete Co., 233 NLRB 1298,
1304 fn. 6 (1977), enfd. 619 F.2d 620 (4th Cir. 1980).
261
(c) Employer knowledge
The Employer correctly contends that a finding of
violation herein requires a showing that the Employer
was aware of the employees' concerted activity. The
Employer citing Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), argues "no proof has been offered showing
that the (instant) employer . . . had any prior knowledge
of the employees' concerted activity."
Once again, the Employer has misapplied the deci-
sional authority. Wright Line involved alleged discrimina-
tion under Section 8(a)(3) of the Act. The requirement of
employer knowledge in that context is the predicate for
application of evidence of discriminatory motivation. In
8(a)(3) cases there is customarily a background of em-
ployee union activity. Such activity normally is not as
spontaneous as that which attends the concerted activity
involved in 8(a)(1) discipline cases . Thus, in 8(a)(3)-
Wright Line-situations, the quantum of proof of employ-
er knowledge of the protected employee activity is
greater than necessary in 8(a)(1) discipline cases . A viola-
tion of Section 8(a)(1) does not depend on discriminatory
motivation. See Textile Workers v. Darlington Mfg. Co.,
380 U.S. 263, 268-269 (1965).
In this case, the waitresses' confrontation was made di-
rectly with Tony who ultimately ordered, or personally
imposed, the suspensions and discharge. No intermediary
was involved. I conclude these factors, coupled with
Tony's instructions to Linda Cenovski to call each and
every waitress who confronted him on July 24, clearly
demonstrate his complete awareness of the concerted
character of the waitresses' activity. Accordingly, I find
the record contains the requisite employer knowledge to
sustain the allegations that the suspensions and discharge
were in violation of Section 8(a)(1). (See Spartan Plastics,
269 NLRB 546 fn. 3 (1984), in which the Board took
note of circumstances which demonstrated an employer's
perception of employee activity as concerted.)
(d) The Employer's motivation
As noted, the final element of a prima facie case,
under Meyers, is a finding that the adverse personnel ac-
tions were motivated by the concerted and protected
employee activity.
(1) The suspensions
Once again relying on Wright Line, the Employer
argues "no admissible evidence has been tendered indi-
cating that the employer had the requisite animus toward
protected activities of any kind." I conclude the Employ-
er utilizes a standard not applicable to alleged 8(a)(1) sus-
pensions and discharges. As previously observed, disposi-
tion of the instant case is governed by Meyers. Although
it is true, that the Board in Meyers cited Wright Line, that
reference was not addressed to the amount or nature of
proof of unlawful motivation. Rather, the Wright Line
reference was merely set forth by the Board, in Meyers,
to emphasize it is the General Counsel who bears the
burden of proving that the adverse action was motivated
by the employees' protected concerted activity. Specifi-
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally, the General Counsel must make a showing suffi-
cient to support a conclusion that the protected conduct
was a motivating factor in the employer's decision to
suspend or discharge . Neither Meyers nor Wright Line
specifies ' intent to interfere with Section 7 rights is a nec-
essary element of such motivation.
-1 conclude the General Counsel has satisfied her
burden under Meyers and Wright Line. The evidence
clearly shows Fry's discharge and the failure to schedule
Wolf, Marsh, Jennie, and Marie were directly connected
to the July 24 confrontation . The evidence clearly shows
that Tony decided none of the waitresses who worked
on July 24 would be permitted to work again unless they
spoke to him concerning the incident . Tony expressly ad,
mitted he decided to uncover why and how the confron-
tation occurred and instructed his wife to advise the
waitresses they could not work again until they complied
with his instructions . Linda Cenovski admitted she im-
plemented Tony's directive by phoning the waitresses on
July 28. I conclude that action was tantamount to a sus-
pension from work opportunities . The content of the
conversations between both Tony and Linda Cenovski
and each waitress further supports the conclusion, which
I make, that the July 24 confrontation was a, if not the,
motivating factor in the suspensions . In each such con-
versation, each waitress was told the failure to schedule
future work was contingent on each speaking with Tony
about the July 24 incident. No more pointed evidence is
necessary to demonstrate the suspensions were attributa-
ble to the protected concerted activity.
In its brief, the Employer contends (as far as I can as-
certain, for the first time) that the employees were disci-
plined "for their failure to meet with . . . [Tony] . . . as
he requested." This is totally unconvincing. First, the
quoted statement represents a shifting of the Employer's
reasons for the adverse personnel actions . Such shifting
of reasons tend to diminish the validity of the asserted
basis for discipline . State County Employees AFSCME,
250 NLRB 880, 886 fn . 38 (1980); Georgia Rug Mill, 131
NLRB 1304, 1305-1307 (1961).
Moreover, the record reflects the decision to suspend,
and the suspensions , preceded the time when either Tony
or Linda Cenovski possibly could have known whether
any waitress would comply with the request to speak
with Tony about the July 24 incident . In this scenario, it
is illogical that the Employer could have been at all mo-
tivated by the waitresses' failure to comply with Tony's
request.
On all the foregoing , I fmd the General Counsel has
sustained her burden of proving that the suspensions
were motivated by the concerted protected activity of
July 24.
(2) The discharge
The illegality of Fry's discharge is literally admitted.
Tony explicitly testified he told Fry her services were no
longer needed because of the confrontation . He further
admitted he learned Fry instigated the incident . No other
reason was given her on that date. In this posture, the
Employer 's assertion which , as previously noted, was ad-
vanced at the hearing for the first time , that the Employ-
er had experienced problems with Fry's work perform-
ance, is another example of the fluidity of its defense.
This condition sorely diminishes the probity of the Em-
ployer's cause . Accordingly, I find that the General
Counsel has sustained her burden of proving Fry's dis-
charge was motivated by her concerted protected activi-
ties of July 24.
I have found the Employer's asserted defenses unper-
suasive . Moreover, the record contains no probative or
credible evidence to support any of the reasons assigned
to the suspensions and discharge . Thus, I conclude that
no evidentiary basis exists to fmd the discipline would
have been imposed absent the waitresses' concerted pro-
tected activity.14
On the foregoing , I fmd that each waitress was effec-
tively suspended about July 26 when Tony issued his in-
structions to his wife not to schedule them until they met
with him and discharged Fry on August 9, all in viola-
tion of Section 8(a)(l) of the Act.
2. The interrogation
In addition to alleging that the suspensions and dis-
charge violated Section 8(a)(1), the complaint (in par. 11)
also alleges that Tony and Linda Cenovski coercively in-
terrogated employees regarding their concerted protect-
ed activities.15
No extensive discussion or analysis is necessary to con-
clude that the Employer engaged in the interrogation, as
alleged . The relevant uncontested evidence shows that:
(a) On and after July 28, Tony spoke with wait-
resses who called , or saw , him pursuant to Ms. Cen-
ovski's instructions. Tony admitted he asked each
why the waitresses questioned him about the tip.
Specifically , he admitted he asked the waitresses
which of them conceived the idea of speaking with
him about the tip.
(b) On July 28 , Ms. Cenovski questioned each
waitress she called about the reason the waitresses
confronted Tony about a tip.
(c) On the following Thursday, August 4, Tony
asked Marsh why the waitresses had confronted
him.
(d) On August 9, Tony questioned Fry regarding
her participation in the July 24 incident and told
her other waitresses had identified her as the insti-
gator of that event.
I have already found that the July 24 confrontation
constituted the waitresses ' exercise of concerted protect-
ed activity . Tony admitted that the purpose of the ques-
tioning by him and Linda Cenovski was to determine
who and what caused the confrontation.
In Medical & Surgical Clinic, 241 NLRB 1160, 1162-
1164 (1979), the Board left undisputed the findings of its
administrative law judge that interrogation designed to
"find out what's going on" regarding concerted protect-
ed activity comprised an 8(a)(1) violation . In Donald E
14 The Supreme Court approved this burden (which is on the employ-
er) in NLRB Y. Transportation Management Corp., 462 U.S 393 (1983).
15 The General Counsel 's brief contains argument relative to these alle-
gations, but the Employer's brief does not address this subject matter.
CLUB MONTE CARLO CORP.
Hernly, Inc., 240 NLRB 840, 841 (1979), the Board found
that questioning employees, by phone, about what they
knew of unfair labor practice charges which had been
filed against the employer and whether a particular em-
ployee was personally responsible for filing them violat-
ed Section 8(a)(1). In Hernly, the Board observed, re-
garding the interrogation:
... interference , restraint and coercion under Sec-
tion 8(aXl) . . . does not turn on the employer's
motive or on whether the coercion succeeded or
failed. The test is whether the employer engaged in
conduct which, it may reasonably be said, tends to
interfere with the free exercise of employee rights
under the Act.
In the instant circumstances, I conclude the interroga-
tion by Tony and Linda Cenovski meets these standards.
The admitted purpose of the interrogation was to uncov-
er what was "going on" regarding the waitresses' pro-
tected conduct . Implicit in the substance of the question-
ing was a request for the waitresses to betray the identity
of the leaders of the protected activity. Such a request
clearly tends to interfere with and restrain the exercise of
Section 7 rights. Moreover, the overall tenor of the ques-
tions which elicited an explanation of the underpinnings
of the protected activity reasonably tends to generally in-
hibit the free exercise of the employees' statutory rights.
It is virtually inescapable that when employees know, or
believe, their protected activities will be subjected to
scrutiny of the type present in the instant case, their free-
dom to pursue their Section 7 rights is seriously imped-
ed.
On the foregoing, I find that the Employer unlawfully
interrogated employees , as alleged in paragraph 11 of the
complaint.
CONCLUSIONS OF LAW 16
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By suspending Beverly Rose Fry, Martha Elizabeth
Wolf, Marie Gjeldum, Jennie Gjeldum, and Sandra
Marsh about July 26, 1983, for engaging in protected
concerted activities, the Employer violated Section
8(a)(l) of the Act.
3. By discharging Beverly Rose Fry on August 9,
1983, for engaging in protected concerted activities, the
Employer violated Section 8(a)(1) of the Act.
4. By interrogating employees, on and after July 28,
1983, about their protected concerted activities, the Em-
ployer violated Section 8(aXl) of the Act.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Employer has engaged in cer-
tain unfair labor practices, it shall be ordered to cease
16 In view of my Conclusions of Law, the Employer' s motion to dis-
miss complaints is denied
263
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
To remedy the suspensions and discharge found un-
lawful herein , I find it necessary to order the Employer
to offer Beverly Rose Fry , Jennie Gjeldum, Marie Gjel-
dum, Sandra Marsh , and Martha Elizabeth Wolf immedi-
ate and full reinstatement to their former positions of em-
ployment or, if those positions no longer exist, to sub-
stantially equivalent positions without prejudice to their
seniority or other rights and privileges;" and make each
of them whole for any loss of earnings she suffered as a
result of the Employer's unlawful actions . Loss of earn-
ings shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest computed in the
manner and amount prescribed in Isis Plumbing Co., 138
NLRB 716 (1962), and Florida Steel Corp., 231 NLRB
651 (1977).
Also, the Employer shall be ordered to expunge from
its records any reference to the suspensions of any of the
waitresses involved herein and to Fry's discharge, and
shall inform each of those waitresses, in writing, that
such references have been expunged and that the con-
duct found unlawful herein will not be used as a basis for
further personnel actions concerning any of them. Ster-
ling Sugars , 261 NLRB 472 (1982).
Inasmuch as the record contains no evidence of a pro-
clivity to violate the Act, I conclude it is not necessary
that the Order contain broad proscriptive language. See
Hickmott Foods, 242 NLRB 1357 (1979). However, the
Employer shall be ordered to refrain from , in any like or
related manner, interfering with, restraining, or coercing
its employees in the exercise of their Section 7 rights.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edts
ORDER
The Respondent, Club Monte Carlo Corporation,
Utica, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees about their protected con-
certed activities.
(b) Suspending or discharging any of its employees for
engaging in protected concerted activities.
(c) 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 afffirmative action necessary to
effectuate the policies of the Act.
17 As previously reported, it appears each of the waitresses involved
herein has already been offered reinstatement. Nonetheless, the require-
ment that the Employer offer them reinstatement is deemed a necessary
part of my Order to preserve the possibility that the bona fides of the
offers already made might have to be litigated in supplemental backpay
proceedings. See Baker Mfg. Co., 269 NLRB 794 fn . 2 (1984).
18 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.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Beverly Rose Fry, Jennie Gjeldum, Marie
Gjeldum , Sandra Marsh , and Martha Elizabeth Wolf im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges; and make each of them whole,
with interest computed in accordance with the formula
set forth above in the remedy section of the decision, for
any loss of earnings she may have suffered as a result of
her suspension or discharge (as the case may be) in July
and August 1983.
(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) Remove from its files any reference to the suspen-
sions and discharge found unlawful herein , and notify
each of the individuals so suspended and discharged, in
writing, that this has been done and that evidence of the
unlawful conduct will not be used as a basis for future
personnel actions against any of those individuals.
(d) Post at its facility located at 50265 Van Dyke,
Utica, Michigan, copies of the attached notice marked
"Appendix."19 Copies of the notice, on forms provided
by the Regional Director for Region 7, 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 conspic-
uous places including all places where notices to employ-
ees are customarily posted . Reasonable 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.
19 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT question employees about their exercise
of any protected concerted activities.
WE WILL NOT suspend or discharge any of our em-
ployees because they engage in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
any of the rights set forth at the top of this notice.
WE WILL offer Beverly Rose Fry, Jennie Gjeldum,
Marie Gjeldum, Sandra Marsh and Martha Elizabeth
Wolf immediate and full reinstatement to their former
jobs or, if those jobs no longer exists, to substantially
equivalent jobs, without prejudice to their seniority or
other rights or privileges previously enjoyed; and WE
WILL make each of them whole, with interest, for any
loss of earnings they may have suffered as a result of
their suspensions in July 1983 or discharge in August
1983.
WE WILL physically remove from our files any refer-
ence to the suspensions and discharge of the individuals
named above, and WE WILL notify each of them in writ-
ing that this has been done and that evidence of that un-
lawful conduct will not be used as a basis for future per-
sonnel actions against any of them.
CLUB MONTE CARLO CORPORATION