Coram Pond Diner

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1158 (N.L.R.B. 1980)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kreten Char-Broil, Inc., d/b/a Coram Pond Diner
and Rosemarie Ferrara and Arlene Wells. Cases
29-CA-6956-1 and 29-CA-6956-2
April 16, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 14, 1980, Administrative Law Judge
Abraham Frank issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Kreten Char-Broil, Inc., d/b/a Coram Pond Diner,
Coram, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Rosemarie Ferrara, Arlene Wells, and
Diane Condzella immediate and full reinstatement
to their former positions or, if those positions no
longer exist, to substantially equivalent positions
with the wage rate they enjoyed at the time they
were terminated, plus any increases, and without
prejudice to their seniority and other rights and
privileges previously enjoyed, and make them
whole for all losses suffered by them as a result of
the discrimination against them in the manner set
forth by the Board in F. W. Woolworth Company,
90 NLRB 289 1950); Florida Steel Corporation, 231
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We shall modify the Administrative Law Judge's recommended rein-
statement order by deleting the phrase "if available" and we shall substi-
tute a new notice to reflect that change.
248 NLRB No. 152
NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees' job
security by suggesting that they obtain em-
ployment elsewhere because they have en-
gaged in protected concerted activities.
WE WILL NOT threaten our employees' job
security by designating them troublemakers be-
cause of their protected concerted activities.
WE WILL NOT direct our employees to keep
their mouths shut and not start trouble for the
purpose of restraining and coercing them in
the exercise of their right to engage in protect-
ed concerted activities.
WE WILL NOT institute more restrictive and
onerous work rules because of our employees'
protected concerted activities.
WE WILL NOT interrogate our employees
with respect to their concerted and union ac-
tivities.
WE WILL NOT direct our employees to keep
their mouths shut and leave other employees
alone or not to talk to other employees for the
purpose of restraining and coercing our em-
ployees in the exercise of their right to engage
in protected concerted activities.
WE WILL NOT discharge or otherwise dis-
criminate against our employees because of
their protected concerted and union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL NOT offer Rosemarie Ferrara,
Arlene Wells, and Diana Condzella immediate
and full reinstatement to their former positions
or, if those positions no longer exist, to sub-
stantially equivalent positions with the wage
rate they enjoyed at the time they were termi-
nated, plus any increases, and without preju-
dice to their seniority and other rights and
privileges previously enjoyed, and make them
whole, with interest, for all losses suffered by
------
CORAM POND DINER 1159
them as a result of our discrimination against
them.
KRETEN CHAR-BROIL, INC. D/B/A
CORAM POND DINER
DECISION
A. FRANK, Administrative Law Judge: The charges in
these consolidated cases were filed on January 22, 1979,
and the consolidated complaint, alleging violation of Sec-
tion 8(a)(3) and (1) of the Act, issued on March 23, 1979.
The hearing was held from July 30 to August 1, 1979, at
Brooklyn, New York. All briefs filed have been consid-
ered.
At issue in this case are questions whether Respondent
discharged three employees because of their union and
protected concerted activities, whether it engaged in
other unlawful acts of interference, restraint, and coer-
cion, and whether Respondent is engaged in commerce
within the meaning of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Preliminary Findings and Conclusions
1. The Respondent contests jurisdiction. Kreten Char-
Broil, Inc. d/b/a Coram Pond Diner, hereinafter called
Coram, and Louis Charcole House, Inc. d/b/a Hi Lite
Diner, hereinafter called Hi Lite, are New York corpora-
tions located, respectively, in Coram, New York, and
Port Jefferson, New York. Both diners are owned and
operated by Louis Kalodimos. Kalodimos is president of
both corporations and in charge of their industrial rela-
tions. He purchases meat and dairy products for both
corporations. Nick Thomas and Louis DeCraine are
managers at Coram. Jerry Dreyfuss is a manager at Hi
Lite. Konstantine Nezer alternates between both diners,
working at Coram on Thursdays and Fridays and at Hi
Lite during the remainder of the week. Nick Serlis
works at both diners as alternate manager. There is some
interchange of waitresses between the two diners. The
two corporations maintain separate books, but employ
the same accountant. On the basis of the foregoing, in-
cluding the close proximity of the two diners, about 10
or 12 miles distance from each other, the fact that they
are owned and operated by the same individual, who is
in charge of their industrial relations, the interchange of
managers and waitresses, and the fact that the corpora-
tions are engaged in the same business activity, I con-
clude that Coram and Hi Lite constitute a single employ-
er.
During the 12-month period from July 1, 1978, to June
30, 1979, Coram purchased approximately $25,000 in
goods, supplies, and commodities directly from firms
outside the State of New York and purchased approxi-
mately $12,500 in goods, supplies, and commodities from
firms located inside the State of New York, but which
originated outside the State of New York. During the
same period Coram derived income in the amount of
$435,000.
During the above 12-month period Hi Lite purchased
approximately $2,000 in goods, supplies, and commod-
ities directly from firms outside the State of New York
and purchased approximately $1,000 in goods, supplies,
and commodities from firms inside the State of New
York, but which originated outside the State of New
York. During the same period Hi Lite derived income in
the amount of S267,863.72.'
On the basis of the foregoing, I conclude that Coram
and Hi Lite are engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction in
this case. Carolina Supplies and Cement Co., 122 NLRB
88 (1958).
B. The Facts
1. The meeting of October 30, 1978
Coram, the only diner involved in this proceeding, is
open 24 hours a day and employs about 25 waitresses in
four or five shifts. About two or three times a year Re-
spondent holds a meeting for the staff, particularly the
waitresses. A short time prior to October 30, 1978, Kalo-
dimos posted a notice on the bulletin board in the kitch-
en that there would be a meeting at or about 8:30 or 9
p.m. on October 30 and everyone was to be there. The
purpose of the meeting was to overcome the friction that
had developed between the day and night shifts during
the busy summer months and in preparation for the
coming holiday season. The meeting began at 9 p.m. in
the restaurant's large dining room and lasted until 1 a.m.
Virtually all of the waitresses were present and, in addi-
tion to Kalodimos himself, three of his managers,
Thomas, DeCraine, and Serlis.
The day before the meeting four of the waitresses,
Rosemarie Ferrara, Arlene Wells, Cheryl Skivanek, and
Diana Condzella, decided to get together and ask Kalo-
dimos for a raise. Ferrara told him that she had talked to
her boyfriend, a union delegate, and had investigated
through the New York State Labor Department the
minimum wage for waitresses. Acting on Ferrara's infor-
mation that their lawful wage was $1.85 per hour, the
group decided to ask Kalodimos for that amount. They
agreed that they would ask for the raise simultaneously,
at the count of three.
Kalodimos opened the meeting. He told the waitresses
that the day and night shifts were acting as separate
groups and not cooperating with each other. He asked
the waitresses to work together. The waitresses respond-
ed that they would all try to work together.
At some point during the meeting some of the wait-
resses stood up and all of them unanimously asked for a
raise. Ferrara took the floor. She said that the waitresses
were supposed to be getting $1.85 per hour. Taxes
should be deducted for their tips at the rate of 80 cents
per hour. Respondent should be paying for the waitress-
es' uniforms and the waitresses should not be required to
pay for mistakes on checks or breakage of dishes. Most
of all, Respondent was supposed to indicate taxes with-
' At the hearing the parties stipulated to commerce facts relating to
the interrelationship of Coram and Hi Lite. Subsequent to the hearing,
the parties submitted a stipulation to me with respect to the Respondent's
gross volume of business and out-of-state purchases. The parties' post-
hearing stipulation is accepted and made a part of this record.
CORAM POND DINER
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held on the waitresses' pay envelopes and to give them
W-2 forms at the end of the year. Kalodimos said that
Ferrara did not know what she was talking about. Ferra-
ra said, "I do know what I'm talking about. My boy-
friend is a union delegate and I'm sure he knows what
the facts are." Thomas turned to Kalodimos and said,
"She knows what she's talking about. She's talking labor
laws." Thomas also said that Ferrara, Wells, and Ski-
vanek were troublemakers. Kalodimos said, "I can see it
now. I'm in for a lot of trouble. She's going to the Labor
Board." Kalodimos told Ferrara that she was a trouble-
maker. At that point or earlier Kalodimos said, "If you
don't like your job, Rosie, why don't you get out and get
another job; if you don't like the way I'm running my
diner." Ferrara replied that she had no intention of get-
ting another job. She just wanted to be paid properly
and have her taxes indicated on her pay envelope.
Kalodimos told the waitresses that if he did give them
a raise he would make them declare every bit of their
tips. They would make less than the $1.25 per hour he
was paying them. Wells replied that she would take her
chances as long as taxes were taken out of her pay. Ka-
lodimos told Wells that she should just keep her mouth
shut and not start trouble.
The above findings are based on the credited, compos-
ite testimony of Ferrara, Wells, and Skivanek, all of
whom testified in a forthright, clear, and convincing
manner. I do not regard the failure of Thomas or Serlis
or Kalodimos to remember or recall that minimum
wages and labor laws were mentioned at the October 30
meeting, that Ferrara said that her boyfriend was a union
delegate, that Kalodimos said that Ferrara was going to
the Labor Board or that anything was said after the
waitresses asked for raise as a contradiction of the above
testimony by witnesses for the General Counsel.
2. The discharge of Rosemarie Ferrara.
On November 2, 1978, a few days after the meeting of
October 30, Kalodimos called Ferrara and waitress Rita
Bryan to his office. Kalodimos told them that his ac-
countant had informed Kalodimos that Ferrara had
stated the correct facts at the meeting and that the wait-
resses would receive a raise. The following week, Ferra-
ra received a raise from $1.50 per hour to $1.85 per
hour. The wages of other waitresses were raised from
S1.25 per hour to $1.50 per hour.
About a week after the October 30 meeting, Ferrara
spoke to Barbara Moran, a member of Local 1115, AFL-
CIO, Employees' Division, whom Ferrara had previous-
ly contacted. Moran informed Ferrara of union benefits
available to waitresses, such as life insurance, prescrip-
tions for feet, minimum wages, allowances, and overtime.
Thereafter, Ferrara, Wells, Skivanek, and other waitress-
es had several meetings during which they discussed the
desirability of having a union represent them. They at-
tempted to induce other waitresses to form a majority
for the Union. Their attempts were unsuccessful. A
number of waitresses said that they needed their jobs and
were afraid to support a union.
Prior to the meeting of October 30, Ferrara, Wells,
and Skivanek were permitted to talk to customers and,
while on their breaks, to talk to other waitresses on duty.
Before and after their work shifts they might have a cup
of coffee and chat with their co-employees. On occasion
a manager would join them and participate in the con-
versation. They were even permitted, while on duty, to
run in and out of the kitchen for a cigarette. About a
week or two after the October 30 meeting, these lenient
work rules changed. Thomas, Nezer, and Serlis told Fer-
rara or Wells to get busy or get back to work when they
talked to customers. Waitresses who were on duty were
not permitted by Thomas, Nezer, or Serlis to talk to Fer-
rara, Wells, and Skivanek when the latter were on their
breaks.
On one occasion several weeks after the October
meeting, Ferrara, Skivanek, Jodie Rodgers, and another
waitress were having a cigarette in the kitchen when
Thomas walked in and said, "What's this a union meet-
ing, break it up." On November 10 or 11, 1978, at 3 p.m.,
Ferrara, Mary Hodges, Rita Bryan, and Diana Condzella
were sitting at the counter and talking. They spoke of
the October 30 meeting. Condzella said it would be nice
if they got at least $1.50 per hour and she thought they
deserved it. Ferrara agreed. Condzella and Hodges were
on their lunch breaks. Ferrara and Bryan had finished
their tours of duty and had joined the group. Condzella
said that, from what she had heard, the Union had good
benefits. The employees would be paid properly. They
would be guaranteed their union allowances and every-
thing that was due them. Thomas was walking near by.
He came up behind the group and asked, "Well, what
are you girls talking about?" The employees did not
answer. Hodges was finishing a comment that the Union
did have better benefits for the waitresses. Thomas
turned around and said, "What are you girls coffee
klatching or a union meeting here?" On January 3, 1979,
at 3 p.m., Skivanek was sitting with Ferrara, Rodgers,
and Hodges. Nezer came over and said, "What is this a
union meeting?" Hodges replied jokingly, "Yes, it is. It's
in our contract and we're allowed." Ferrara and Ski-
vanek, who were off duty, were told to leave the diner.
On December 7, 1978, Ferrara sprained her ankle
while at work. She continued working, but asked
Thomas if he could get coverage for her the next day if
her ankle did not feel better. Thomas told her to consid-
er herself fired if she did not come in the next day. Fer-
rara reported for work the next day, but on the same day
called Kalodimos from the hospital to tell him that she
had sprained her ankle. On December 10, 1978, Thomas
ordered Ferrara to take an order from customers who
had told Ferrara they were not ready to order. Thomas
himself went to the table and was told by the customers
they were not ready to order. When he returned Ferrara
said, "Why don't you believe me? Why are you harass-
ing me this way?" Thomas told Ferrara to shut her
mouth and that she had better call the diner the next
morning before reporting for work. At 3 p.m. at the con-
clusion of her shift Ferrara went to see Kalodimos in his
office. Ferrara asked Kalodimos why Thomas was giving
her a hard time and harassing her since the October 30
meeting. Kalodimos said he did not know. Ferrara asked
Kalodimos if she was fired. Kalodimos said that Ferrara
had a big mouth, to keep it shut, and leave the girls
alone.
CORAM POND DINER 1161
On January 10, 1979, at 10:30 p.m., Ferrara received a
call from Thomas at her home. Thomas said, "I think
you're fired because Louis told me to call you." Ferrara
said she wanted to speak to the boss because Thomas
would not tell her why she was fired. The next day, Fer-
rara reported to the diner at 6:45 p.m., her usual time.
She was accompanied by her boyfriend, Carl Oliveri.
Ferrara proceeded to start working. Nezer, who was at
the register, approached Ferrara and asked why she had
reported for work. Ferrara said that she considered her-
self employed until Kalodimos told her why she was
fired. Nezer said that his orders were that she was fired
and that he could not give her a reason; he just wanted
her to leave. Ferrara insisted that she would wait for Ka-
lodimos and she wanted her pay. Nezer called the police.
The police arrived and persuaded Ferrara to leave, sug-
gesting that she return later for her pay. About 12 noon,
Ferrara called Kalodimos and asked him why she was
fired. Kalodimos said, "I'm too busy to give you a
reason. Your pay will be ready in half an hour." About
1:30 or 2 p.m., Ferrara returned to the diner with Wells.
Kalodimos was sitting at the counter. Ferrara asked him
why she had been fired. Kalodimos replied that Ferrara
was fighting his management and did not take care of
her customers and was a troublemaker. Kalodimos also
said that he was getting a lot of complaints from his cus-
tomers.
Over the 6-year period of Ferrara's employment by
Respondent, she had refused to serve several regular cus-
tomers. One customer made suggestive remarks to the
waitresses and on one occasion had slapped Ferrara in an
indecent manner as she walked by him. Several years
prior to the hearing, Ferrara had refused to serve an-
other regular customer who had embarrassed Ferrara by
suggesting that he would get her in a motel. The custom-
er complained that Ferrara refused to serve him. Subse-
quently, Ferrara did serve him.
One particular incident, which according to Respon-
dent's witnesses was the precipitating reason for Fer-
rara's discharge, elicited considerable testimony. The
witnesses were agreed that the incident related to two
regular customers, Paul and Charles Zaffarese, primarily
Charles. Witnesses for the Respondent testified that the
incident occurred immediately prior to Ferrara's dis-
charge on January 10, 1979. Ferrara testified that the in-
cident occurred in July or August 1978. Her testimony
was corroborated by that of Skivanek and Condzella,
who testified that the incident occurred in August 1978.
The Zaffarese brothers were well known to Ferrara
and were frequent customers at the diner. On the occa-
sion in question Ferrara served them and brought a roll
that was not buttered or insufficiently buttered. Ferrara
became insulted when Charles said, "What no butter in
this f- ing place?" He made her run back and forth and
embarrassed her in front of other customers. She told
him that it would be best for both of them if he did not
sit in her section in the future. Paul complained to Kalo-
dimos and Ferrara went to the brothers' place of business
the next day and apologized. Thereafter, however, she
would ask another waitress to serve Charles if he sat in
her section.
Paul Zaffarese testified that Ferrara refused to serve
his brother Charles on two successive days in the begin-
ning of January 1979.
Kalodimos testified that, on January 10, 1979, he
walked into the diner and was told by Thomas and an
individual named Bonnie that Ferrara had had an argu-
ment with the Zaffarese brothers. Kalodimos called a
meeting for himself, Thomas, and Nezer for that evening
at 6 p.m. Kalodimos and his managers decided that Fer-
rara had to be discharged because of customer com-
plaints, particularly relating to the above incident.
Thomas initially testified that he told Kalodimos at the
January 10 meeting that Thomas had had a lot of com-
plaints about Ferrara and that he had received the big-
gest complaint the day before, January 9, relating to the
Zaffarese brothers. The Zaffarese brothers and three or
four members of their group had walked out and did not
want to come back to the diner because of Ferrara's con-
duct. Thomas worked on Tuesday, January 9, but did
not work on Wednesday, January 10. Ferrara did not
work on Tuesday, January 9. Thomas then testified that
he was not actually present when the incident occurred,
that he was told about the incident by Bonnie, his girl-
friend, when he stopped at the diner on January 10 to
pick her up and whom he identified as "the other man-
ager."
Nezer testified that he was told about the incident by
Thomas on the morning of January 10.
Neither Bonnie nor Charles Zaffarese testified.
The stipulation of the parties makes no mention of a
manager named Bonnie and the record contains no evi-
dence other than the casual remark of Thomas that Re-
spondent employed a manager so named. The testimony
of Ferrara, Skivanek, and Condzella is clear and con-
vincing as to the Zaffarese incident, including the time
when it occurred, August 1978. Condzella, who gave a
full account of the incident in specific detail, was not em-
ployed by Respondent in January 1979. Skivanek testi-
fied that in August 1978, the day after the incident,
Charles called her at home and said he was upset be-
cause his brother had complained to Kalodimos about
Ferrara, that Charles had told Kalodimos that Charles
was as much to blame as Ferrara, that he had made her
run and had helped provoke her conduct and that he did
not want her to lose her job.
I do not credit Paul Zaffarese. Although he testified
initially that the two incidents occurred on January 7 or
8 and 9, his memory then failed him and he testified eva-
sively that the incidents occurred in the beginning of
January 1979. Nor do I credit Kalodimos, Thomas, or
Nezer. Their testimony is hearsay as to the fact that the
incident occurred. No agent of Respondent with direct
knowledge of an incident relating to the Zaffarese broth-
ers in January 1979 testified. Moreover, Thomas' testimo-
ny is inconsistent on its face and is inconsistent with the
testimony of Nezer. Thomas testified that he went to the
diner and learned of the incident late in the afternoon of
January 10, 1979, whereas, as indicated above, Nezer tes-
tified that Thomas told Nezer of the incident on the
morning of January 10.
I credit the testimony of Ferrara, Skivanek, and Cond-
zella that the incident involving the Zaffarese brothers
CORAM POND INER
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred factually as they testified and in August 1978,
rather than January, 1979.
Thomas denied that working conditions for waitresses
changed after the October 30 meeting. He denied telling
Ferrara to break it up or stop talking to other people. He
would allow a single waitress to smoke in the kitchen,
but not six at the same time. He denied that Ferrara, Ski-
vanek, Condzella, or Wells or any waitress had ever
mentioned the word union to him or that he had men-
tioned the word union to them. I have above discredited
Thomas with respect to the Zaffarese incident and I do
not credit his denial that working conditions changed
after the October 30 meeting. Nor do I credit his denial
that Ferrara, Skivanek, Condzella, or Wells or any of the
waitresses had ever mentioned the word union to him or
that he had mentioned the word union to them.
3. The discharge of Arlene Wells
Wells was first employed by Respondent in July 1976.
As indicated above, Wells spoke out at the October 30
meeting, stating that she would not object if she made
less than her current wages if the proper taxes were
taken out of her pay. At that time, Kalodimos told her to
shut up and not start trouble. About 2 weeks after the
October 30 meeting, Wells was called to Kalodimos'
office. Kalodimos told Wells to keep her mouth shut.
Wells asked if she was talking too much to customers.
Kalodimos replied, no, that she talked too much to the
girls.
On December 13 at about 6:30 p.m., Wells became ill.
However, there was no replacement for her. She finished
her shift and reported to the hospital. She was examined
and told by a doctor that she had to stay off her feet.
She reported to Kalodimos' office the next day and told
him that the doctor had ordered her to stay off her feet
because she had a bad infection. Kalodimos told her to
go home, rest, and, when she wanted to come back, to
give him a call. Wells went home and stayed off her feet
until about December 28. In the interval she called the
diner once a week and told the head waitress that she
would return to work on January 1, 1979, as scheduled
on the holiday schedule. She also visited the diner twice
during this period and spoke to Kalodimos. She told Ka-
lodimos that she would most likely return to work on
January I and would let him know exactly when she
would return. Kalodimos said, fine, "whenever you're
ready, give us a call." About 4 or 5 days prior to Janu-
ary 1, Wells called the diner and spoke to the head wait-
ress. Wells said that she would return to work on Janu-
ary 1 and asked the head waitress to inform Kalodimos.
The head waitress said she would inform Kalodimos.
Wells reported for work at 8:45 p.m. on January 1,
1979. She checked the schedule and noted that she was
not scheduled for work. She asked DeCraine, "Louis,
what's going on?" DeCraine said he was happy to have
her back and would send one of the new girls home so
that Wells could work. A customer told Wells he was
surprised to see her because he had heard she was not
working there any more. A waitress also told Wells that
the waitress had been told by the head waitress that
Wells had been fired. Wells asked DeCraine if she had
been fired. DeCraine replied that, as far as he knew, no.
DeCraine suggested that Wells wait until the next day
and talk to Kalodimos. Wells returned to the diner about
9 a.m. on January 2 and spoke to Kalodimos. She asked
Kalodimos if she was fired. Kalodimos said he had hired
somebody for her shift. Wells said, "Well, am I allowed
to come back to work?" Kalodimos said that Wells had
"stuck" him because she did not tell him what was going
on. Kalodimos said he would call Wells if he ever
needed her. Wells asked Kalodimos for the name of his
insurance company. Kalodimos said that he had no insur-
ance company; that she was not an employee of his any
more so he did not care. Wells has not worked at the
diner since January 2, 1979.
Kalodimos testified that he told Wells on January 2,
1979, that he wanted her to come back to the diner, but
needed a week or two to find an opening. He said he
would call her. I have above discredited Kalodimos with
respect to the Zaffarese incident, a critical issue affecting
the timing of Ferrara's discharge. Accordingly, I credit
Wells over Kalodimos as to the conversations between
them prior to her termination on January 2, 1979.
4. The discharge of Diana Condzella
Condzella was employed by Respondent on November
22, 1977, and was the head waitress in August 1978. As
indicated above, Condzella was in a group of waitresses
who were discussing the Union on November 10 or 11,
1978, when Thomas walked by. Condzella spoke favor-
ably about the Union. Thomas asked what the girls were
talking about and whether it was a union meeting.
On November 10 or 11, 1978, Condzella was called to
Kalodimos' office. Kalodimos asked Condzella if she
would be willing to take a night shift so that a new wait-
ress, who could not work nights, could take Condzella's
day shift. Condzella agreed.
Early in November 1978, Condzella told Kalodimos
that she might be leaving for Florida the following Janu-
ary, but would give him notice a month in advance if she
did.
On December 22, 1978, Condzella sprained her ankle
at home. She called Kalodimos and told him that she had
sprained her ankle and would not be able to report for
work. Kalodimos said, "Okay, fine, go have it checked
and let me know what happens." At 2 a.m. the next
morning, Condzella went to the hospital and was told by
a doctor that she should stay off her feet for 2 weeks and
to contact her own doctor the next day. About 11 a.m.
on December 23, 1978, Condzella called the diner and
spoke to Thomas. Condzella told Thomas that the doctor
had told her to stay off her feet for 2 weeks and that she
would call and let him know when she was able to
return to work. Thomas said, fine, that he would let the
boss know. On December 27, Condzella called the diner
and spoke to the head waitress. Condzella asked the head
waitress to let Kalodimos know that Condzella would be
able to let him know in a few days when she could start
work again. On January 2 or 3, 1979, Condzella called
the diner and spoke to Kalodimos. She told Kalodimos
that she would be able to return to work the following
day. Kalodimos said, "Fine, okay."
About half an hour after the above conversation,
Condzella received a call from Nezer. Nezer told her not
CORAM POND DINER 1163
to report for work because while she was out Nezer had
hired a girl to take over Condzella's shift and he would
call her when he needed her. The next day, Condzella
went to the diner and spoke to Kalodimos. Condzella
asked Kalodimos when she could start working. Kalodi-
mos said he had all the girls he needed and that he
would give her a call when he needed her. Condzella
asked for her pay and Kalodimos brought it to her.
Condzella asked again if she could have her job by the
end of the week. Kalodimos said, "No." Condzella said
that if Kalodimos did not have a job for her by the end
of the week, she would have to look for another job.
Thereafter, Condzella secured other employment.
Kalodimos testified that in November 1978 Condzella
told him that she would be leaving for Florida and
would not be available for Christmas and New Year's.
Condzella told Kalodimos that when she found out more
about her situation she would tell him the exact day.
Shortly thereafter, Kalodimos asked Condzella to switch
to the night shift until he could find someone to replace
her. The following week, Kalodimos told Condzella that
he had found a night girl and Condzella could leave or
stay, whatever she wanted to do. Condzella said she
wanted to leave, to go to Florida. Kalodimos told Cond-
zella to go to Florida, if she wanted to, and if she re-
turned to give Kalodimos a call. Subsequently, Kalodi-
mos discovered that Condzella had not gone to Florida
and had hurt her ankle. In March, Condzella called for
her W-2 form. In response to a question from Kalodi-
mos, Condzella said that she was working. Kalodimos
then said that if she wanted to change jobs to give him a
call.
Condzella testified that she called Kalodimos for her
W-2 form in February 1979, but denied that he asked
her if she wanted her job.
I have above discredited Kalodimos. Condzella ap-
peared to me to be a forthright and truthful witness. I
credit her over Kalodimos as to the events and conversa-
tions that occurred between them from November 1978
to January 3 or 4, 1979, and as to their conversation in
February or March 1979.
ANALYSIS AND FINAL CONCLUSIONS OF LAW
A. I conclude that Respondent violated Section 8(a)(1)
of the Act by the following conduct:
(1) Kalodimos' statement to Ferrara, during the Octo-
ber 30, 1978 meeting, that she should get another job if
she did not like the way he was running his diner, there-
by threatening Ferrara's job security and thus restraining
and coercing her in the exercise of her right to engage in
protected concerted activity by demanding minimum pay
for the waitresses and other improvements in terms and
conditions of employment.
(2) Thomas' statement during the meeting of October
30, 1978, that Ferrara, Wells, and Skivanek were trouble-
makers, thereby threatening their job security as undesir-
able employees and thus restraining and coercing them in
their right to engage in protected concerted activity.
(3) Kalodimos' statement to Wells during the October
30, 1978, meeting, that she should keep her mouth shut
and not start trouble in response to her demand that
proper taxes be taken out of her pay, thereby restraining
and coercing Wells in the exercise of her right to engage
in protected concerted activity.
(4) Respondent's change in its lenient work rules to
forbid Ferrara, Wells, or Skivanek to talk to customers
or other waitresses, contrary to previous rules, because
of their concerted activity at the October 30, 1978, meet-
ing.
(5) Thomas' interrogation of employees on or about
November 10, or 11, 1978, as to what they were talking
about and whether they were engaged in a union meet-
ing.
(6) Nezer's interrogation of employees on January 3,
1979, as to whether they were engaged in a union meet-
ing.
(7) Kalodimos' statement to Ferrara on December 10,
1978, in response to her question whether she was fired,
that she had a big mouth, to keep it shut, and leave the
girls alone, thereby restraining and coercing Ferrara in
the exercise of her right to engage in protected concert-
ed activity.
(8) Kalodimos' statement to Wells in his office about 2
weeks after the October 30, 1978, meeting, to keep her
mouth shut and that she talked too much to the girls,
thereby restraining and coercing Wells in the exercise of
her right to engage in protected concerted activity.
B. I conclude that Respondent violated Section 8(a)(3)
and (1) of the Act by the following conduct:
1. The discharge of Rosemarie Ferrara
It is undisputed that Ferrara was a competent, skilled
waitress. She had been employed by Respondent for 6
years. She was summarily discharged by Thomas on Jan-
uary 10, 1979, in a brief telephone conversation at 10:30
p.m. Thomas gave no reason for her termination, a cour-
tesy normally extended even to employees discharged
for disciplinary reasons. While Kalodimos and DeCraine
testified that the latter had fired Ferrara and Kalodimos
had rescinded the firing in 1976, I do not credit their tes-
timony. DeCraine was a confused witness with a poor
memory and I have, above, discredited Kalodimos. I
credit Ferrara's testimony that she was the head waitress
at the time and another waitress, Annette Carsons, rather
than Ferrara was discharged by Respondent.
Ferrara, an outspoken, assertive person, confronted
Kalodimos at the October 30, 1978, meeting with de-
mands that he pay his waitresses their minimum legal
pay and improve other terms and conditions of employ-
ment. Moreover, Ferrara raised the possibility of a union
organizing campaign at the Coram diner by announcing
that her boyfriend was a union delegate. Kalodimos was
concerned about the demands of the waitresses that he
raise their rate of pay. He also recognized that Ferrara
could initiate legal proceedings at the Labor Board or
the Labor Department.
Shortly after the October 30 meeting, as set forth
above, Respondent's managers began to watch and re-
strict Ferrara's conversations with customers and other
waitresses. On December 10, 1978, in response to Fer-
rara's question as to why Thomas was harassing her,
Thomas told her she had better call the diner the next
day before reporting for work. On that occasion, she
went to Kalodimos to ask if she were fired and was told
CORAM POND INER
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Kalodimos that she had a big mouth, to keep it shut,
and leave the girls alone.
Respondent's defense is that Ferrara was discharged
because she antagonized customers by refusing to serve
them. Ferrara admitted that she had refused to serve sev-
eral customers because of their vulgar and indecent com-
ments and behavior.
According to Respondent's witnesses, the most impor-
tant customer complaint against Ferrara involved the
Zaffarese brothers and occurred on January 9 or 10,
1979. If such a complaint had been received by Respon-
dent at that time, it might provide a lawful, economic
reason for the abrupt discharge of an otherwise compe-
tent employee of 6 years' standing. However, as set forth
above, I have discredited Respondent's witnesses with
respect to this incident. Thomas, who initially testified
that he told Kalodimos that Thomas had received the
Zaffarese complaint on January 9, then testified that he
was not even present when the incident occurred and
was told about it on January 10 by his girlfriend, Bonnie.
Bonnie did not testify. On the other hand, Condzella,
who was not employed at the Coram diner in January
1979, gave a full and complete account of the incident,
dating it August 1978. Skivanek, without contradiction,
testified that Charles Zaffarese called her in August 1978,
the day after the incident, to express his regrets. As
found above, the testimony of Ferrara, Condzella, and
Skivanek is credited as to the facts and timing of the
Zaffarese incident. Moreover, no such incident was men-
tioned to Ferrara either in her conversation with Thomas
on the evening of January 10 or in her conversation with
Kalodimos the next day at the Coram diner when she de-
manded a reason for her discharge.
I conclude that the only valid explanation for the dis-
charge of Ferrara on January 10, 1979, was Respondent's
determination to rid itself of the employee most active in
seeking higher wages and better terms and conditions of
employment for Respondent's waitresses and to minimize
the possibility of union activity among these employees,
arising from Ferrara's comment that her boyfriend was a
union delegate. Such conduct violates Section 8(a)(3) and
(1) of the Act.
2. The discharge of Arlene Wells and Diana
Condzella
Wells had been employed by Respondent for a year
and a half and Condzella for over a year. No issue was
raised at the hearing with respect to their competence.
Indeed, DeCraine told Wells he was glad to have her
back when she reported for work on January 1, 1979,
and indicated that he would send one of the new girls
home.
Respondent was aware that both of these waitresses
were involved with Ferrara in seeking higher pay and
better conditions of employment. Wells had spoken out
at the October 30, 1978, meeting, and was told by Kalo-
dimos to shut up and not start trouble. Wells was also
called to Kalodimos' office following the October 30
meeting and told to keep her mouth shut, that she talked
too much to the girls. Condzella was among the group
of employees who were interrogated by Thomas as to
whether they were conducting a union meeting on No-
vember 10 or 11, 1978, at a time when Condzella was
speaking favorably about a union at Respondent's diner.
Wells became ill on December 13, 1978, and Condzella
sprained her ankle on December 22, 1978. Both employ-
ees were assured by Kalodimos on those occasions that
their jobs would be available to them upon their physical
recovery. Both employees were led to believe until the
very last minute that they remained employees of Re-
spondent. Wells learned from a customer and a waitress
on January 1, 1979, when she returned to work and had
just been told by DeCraine that he was happy to have
her, that she had been fired. Not until the next day did
Kalodimos inform Wells that somebody else had been
hired for her shift, that she had "stuck" him by not tell-
ing him what was going on. On January 2 or 3, 1979,
Kalodimos told Condzella, "Fine, okay," when she
phoned the diner to say that she could return to work
the next day. A half hour later Nezer called Condzella
and, in effect, fired her by telling her that another wait-
ress had been hired in Condzella's place. The next day,
Kalodimos confirmed to Condzella that she had been dis-
charged.
Under this Act an employer has a right to discharge
an employee for any reason or no reason provided it is
not related to his union or protected concerted activity.
Wells and Condzella were regular, experienced waitress-
es who had been employed for more than a year. Their
illness during the critical holiday period, of course, re-
quired Respondent to hire replacements. But Respondent
has introduced no evidence that its normal business prac-
tice is to discharge waitresses who are on sick leave and
hire permanent replacements. Indeed, Kalodimos assured
both of these employees that their jobs would be avail-
able to them when they were able to return to work.
I conclude that it was not business necessity which
motivated Kalodimos to discharge Wells and Condzella
upon their return to work following their short, ap-
proved sick leave. I find, rather, that Kalodimos, know-
ing that Wells and Condzella were, like Ferrara, engaged
in concerted activity to improve their wages and work-
ing conditions and suspecting further that they, like Fer-
rara, might be interested in having a union represent
them, discharged Wells and Condzella because of their
protected concerted activities and to discourage union
membership. Such conduct violates Section 8(a)(3) and
(i) of the Act.
C. I conclude that Respondent did not violate Section
8(a)(l) of the Act by the following conduct:
(1) Threatening its employees with discharge and
other reprisals and warning and directing employees
with respect to becoming or remaining members of a
labor organization or giving assistance and support to it.
I have found above that Respondent violated Section
8(a)(l) by statements restraining and coercing its employ-
ees in response to their protected concerted activity. I
have also found that the discharges of Ferrara, Wells,
and Condzella violated Section 8(a)(3) because Kalodi-
mos suspected that these employees were involved in
union activity as a result of Ferrara's comment that her
boyfriend was a union delegate. However, the statements
found violative of Section 8(a)(l) make no reference to
any union or union activity. While suspicion of union ac-
CORAM POND DINER 1165
tivity may be the motivating reason for conduct violative
of Section 8(a)(3), an employer's subjective state of mind
is not a substitute for evidence of overt conduct restrain-
ing and coercing employees within the meaning of Sec-
tion 8(a)(1). Accordingly, I find that the evidence is in-
sufficient to support the above allegations of the com-
plaint.
(2) Interrogation by Kalodimos as to the concerted or
union activities of any employees and interrogation of
employees with respect to the concerted and union ac-
tivities of other employees. There is no evidence of inter-
rogation of employees by Kalodimos. While, as found
above, Thomas and Nezer did interrogate employees,
such interrogation did not extend to employees not pre-
sent.
(3) Harassing employees. While, as found above, Re-
spondent changed its lenient work rules following the
October 30, 1978, meeting, the evidence is insufficient to
warrant the conclusion that employees were otherwise
unlawfully harassed.
D. I conclude that Respondent did not violate Section
8(a)(3) of the Act by transferring Condzella from the day
shift to the night shift. The evidence is that Kalodimos
asked Condzella to change shifts and Condzella agreed.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER 2
The Respondent, Kreten Char-Broil, Inc. d/b/a
Coram Pond Diner, Coram, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees' job security by suggesting
that they obtain employment elsewhere because the em-
ployees have engaged in protected concerted activity.
(b) Threatening employees' job security by designating
them troublemakers because of their protected concerted
activity.
(c) Directing employees to keep their mouths shut and
not start trouble for the purpose of restraining and coerc-
ing employees in the exercise of their right to engage in
protected concerted activity.
(d) Instituting more restrictive and onerous work rules
because of its employees' protected concerted activities.
(e) Interrogating employees with respect to their pro-
tected concerted and union activities.
(f) Directing employees to keep their mouths shut and
leave other employees alone or not to talk to other em-
ployees for the purpose of restraining and coercing em-
ployees in the exercise of their right to engage in pro-
tected concerted activity.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions. and recommended Order herein shall, as provided in
Sec. 10248 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
(g) Discharging or otherwise discriminating against
employees because of their protected concerted and
union activities.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Rosemarie Ferrara, Arlene Wells, and Diana
Condzella immediate and full reinstatement to their
former positions, if available, or, if those positions no
longer exist, to substantially equivalent positions with the
wage rate they enjoyed at the time they were terminat-
ed, plus any increases, and without prejudice to their se-
niority and other rights and privileges, and make them
whole for all losses suffered by them as a result of the
discrimination against them in the manner set forth by
the Board in F: W. Woolworth Co., 90 NLRB 289 (1950),
with interest in accordance with Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its diner in Coram, New York, copies of
the attached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that Respondent warned
and directed employees to refrain from becoming mem-
bers of, or to give support or assistance to, a labor orga-
nization; threatened employees with discharge and other
reprisals if they became or remained members of a labor
organization or gave assistance or support to it; interro-
gated employees through Louis Kalodimos as to their
union or concerted activities or interrogated employees
as to the union and concerted activities of other employ-
ees; harassed employees unlawfully; or unlawfully trans-
ferred Diana Condzella from the day shift to the night
shift; and insofar as the complaint alleges violations of
the Act other than those specifically found herein.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
CORAM POND INER 65