Dove Restaurant, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1172 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coopco, Incorporated, d/b/a Dove Restaurant, Inc.
and Julius Vizzi. Case 27-CA-5210
October 13, 1977
DECISION AND ORDER
BY CHAIRMAN lFANNING AND MEMBERS
PENELLO AND MURPHY
On July 5, 1977, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Coopco, Incor-
porated, d/b/a Dove Restaurant, Inc., Aurora,
Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substitut-
ed for that of the Administrative Law Judge.
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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See. generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees or
otherwise discriminate against them because they
engage in protected concerted activities.
WE WILL NOT threaten our employees with
reprisals to discourage them from engaging in
protected concerted activities, or interrogate them
about their intentions to engage in protected
concerted activities, or condition their employ-
ment upon their promise to refrain from engaging
in protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed under Section 7
of the Act.
WE WILL offer to reinstate Julius Vizzi to his
former job without prejudice to his seniority or
other rights and privileges previously enjoyed,
and WE WILL make him whole for any loss of
earnings he may have suffered as a result of his
discharge, plus interest.
WE WILL make whole Timothy Milse for any
loss of earnings he may have suffered as a result
of his discharge, plus interest.
COOPCO, INCORPORATED,
D/B/A DOVE
RESTAURANT, INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on May 12, 1977, was based upon
unfair labor practice charges filed by Julius Vizzi on
January 14, 1977, and a complaint issued on February 22,
1977, on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director of the Board, Region 27, alleging that
Coopco, Incorporated, d/b/a Dove Restaurant, Inc.,
herein called Respondent, has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed an answer denying the commis-
sion of the alleged unfair labor practices.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
The record is not correct insofar as it indicates Respondent was denied
access to Vizzi's pretrial affidavit for purposes of cross-examination.
232 NLRB No. 174
1172
posthearing briefs submitted by Respondent and General
Counsel, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent, Coopco, Incorporated, is a Colorado
corporation with its principal place of business located in
Aurora, Colorado, where it operates a restaurant under the
name of Dove Restaurant. Respondent annually receives
gross revenues in excess of $500,000, makes annual
purchases directly from outside the State of Colorado in
excess of $5,000 and admittedly is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE QUESTIONS PRESENTED
The major questions for decision are whether Respon-
dent on January 2, 1977, terminated two of its waiters,
Julius Vizzi and Timothy Milse, because they engaged in
activities protected by Section 7 of the Act and, if Vizzi's
termination was unlawful, whether he would have been
terminated on January 28, 1977, for a legitimate reason.
Also to be decided is whether Respondent made oral
statements to employees which tended to restrain or coerce
them from engaging in the kind of activity protected by
Section 7 of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Vizzi and Milse, the alleged discriminatees, were em-
ployed by Respondent as waiters at the Dove Restaurant.
During the time material herein the restaurant employed
approximately 19 waiters. Al DeCaprio manages the
restaurant. Robert Rifkin is Respondent's president and
part owner. Gerald Kernis is its vice president and part
owner.
Respondent's waiters meet monthly or bimonthly with
Restaurant Manager DeCaprio. Rifkin and Kernis, who
ordinarily do not attend these meetings, attended the one
held December 18, 1976.2 Rifkin opened the meeting,
which was attended by all the waiters, with the statement
that Respondent realized that business had recently
decreased but Respondent intended to increase business
and explained how it intended to do this. Rifkin also asked
the waiters to express their grievances. This request did not
elicit a response. Vizzi and Milse told Rifkin that the
waiters had expressed their grievances to DeCaprio at
previous meetings, yet nothing had been done about them
so it seemed futile to the waiters to discuss them any
further. Rifkin again asked the waiters to voice their
grievances and assured them no reprisals would be meted
out if they complained. The majority of the waiters still
2 Various witnesses placed this meeting as taking place during the first
part of December 1976, however. DeCapno dated his talk with waiters
Calhoun and Milse, described infra, which occurred immediately following
the meeting as taking place December 18.
3 The employees at the time of this meeting did not receive medical
insurance coverage.
DOVE RESTAURANT, INC.
remained silent but a few, including Vizzi and Milse,
voiced their grievances. Vizzi complained about the lack of
medical insurance,3 and about the type of food being
served the waiters, and asked that the restaurant pay the
waiters a minimum hourly wage.4 Milse complained about
the lack of a minimum hourly wage, the requirement that
the waiters each pay $4 daily to the hostess and the
requirement that if a customer neglected to sign a credit
charge, the waiter must pay the charge. Of the employees
who spoke up, it appears that Vizzi, in addition to being
one of the most vocal, was regarded by Respondent as one
of the most eloquent.5
Vizzi, not satisfied with management's response to the
waiters' grievances, solicited the waiters to attend a
meeting to be held at his home after work that morning to
discuss their grievances. As a result, between 8 and 15
waiters met at Vizzi's home the morning of December 19.
1976. They discussed their grievances, tried to define them
more precisely and attempted to formulate a course of
action designed to remedy them, such as retaining an
attorney or seeking assistance from governmental agencies.
Milse was assigned the tasks of finding out if the waiters'
grievances were of a kind that a governmental agency
could remedy and to locate a lawyer with an expertise in
labor matters. Thereafter, during the 2-week period ending
December 31, 1976, Vizzi met on several occasions with
other waiters informally after work and they discussed
their employment grievances, decided upon a plan of
action and decided to retain a lawyer.
On December 18 at the end of the work shift, as he was
leaving the restaurant to attend the meeting scheduled for
Vizzi's house, Milse stopped to talk with DeCaprio. Milse
told DeCaprio the waiters were having a meeting to discuss
their grievances and expressed his opinion that the meeting
held earlier that evening between management and the
waiters had been completely unproductive. Milse indicat-
ed, because of the unresolved grievances, that several of the
waiters, whom he did not name, including himself, were
considering staging a walkout. DeCaprio lost his temper
and the conversation became heated, at which point
Calhoun, a waiter, entered the room and calmed things
down. On the subject of the walkout, DeCaprio warned
Milse and Calhoun he would see to it that none of the
waiters who walked out got a job with any other employer.
Calhoun indicated he did not think the waiters would walk
out. On the subject of the waiters' scheduled grievance
meeting at Vizzi's residence, DeCaprio told Calhoun and
Milse they should attend the meeting, but explained to
them in substance that it had been his experience that the
best way for employees to remedy their complaints was to
meet with someone from management and stated that
having an employee meeting without anyone from manage-
ment present was not the way to go about getting their
grievances resolved. He asked for an invitation to attend
the meeting and suggested that the waiters appoint one or
4 The waiters received a flat fee of $2.50 per shift and a meal credit of $4
daily.
5 Rifkin testified "when Vizzi ] spoke up at the meetings he was very
eloquent." The December 18 meeting, according to Vizzi's undenied and
credible testimony, was the only one that Rifkin ever attended
1173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two persons as their representatives to meet with DeCaprio
to discuss the waiters' grievances. 6 Milse and Calhoun
rejected DeCaprio's requests. They told him they would
just as soon not have him attend the waiters' meeting.7
During the aforesaid discussion about the waiters' meeting
at Vizzi's, a waiter, Gino Maglione, who was on his way to
the meeting, stepped momentarily into the room where
DeCaprio was talking with Milse and Calhoun and
DeCaprio stated to him "so, you're going to have a
meeting." Maglione answered "no" and immediately left.8
The vice president and part owner of Respondent,
Kernis, had heard rumors from persons employed at the
restaurant that the waiters might stage a walkout and was
also informed by DeCaprio that it was possible that the
waiters would stage a walkout. On December 31, 1976, just
before the start of the lunch shift, Kernis called Vizzi into
his office and told Vizzi that he had heard the waiters were
walking out and asked if that was true. Vizzi stated that he
could only speak for himself, as he did not represent the
other waiters, but, so far as he knew, the waiters did not
intend to stage a walkout. Vizzi expressed the waiters'
gratitude over the recent medical insurance program
placed into effect by Respondent, but stated that the
waiters were still not satisfied about the pay scale and that
as far as Vizzi was concerned he would like to see
Respondent pay the waiters a minimum hourly wage. Vizzi
concluded the conversation by stating he enjoyed working
at the restaurant and would like to continue working there
and felt that the waiters and management could "iron
things out." Kernis thanked him and Vizzi went to work.9
Vizzi and Milse were terminated by DeCaprio on
January 2, 1977. DeCaprio told Vizzi he was laid off
because business was slow and there would not be any
work for him for at least the next 3 weeks and that
thereafter Vizzi should contact DeCaprio about returning
to work. DeCaprio told Milse that he was laid off for the
month of January because business was slow. Vizzi and
Milse were the only waiters Respondent laid off. On the
same day that they were laid off for a lack of work
Respondent hired three new waiters.
On January 18, 1977, Milse, on his own initiative, visited
DeCaprio and asked about returning to work. DeCaprio
told him "nothing has changed" and explained to Milse "if
you have a problem of any sort, come to me rather than
bring it up at the meeting," that the waiters still paid the $4
daily to the hostess and paid the unsigned charges.'?
DeCaprio repeated "there is no change" and told Milse "if
you would like to come back on my terms" Respondent
6 Also shortly before this conversation Calhoun was informed by the
restaurant's head waiter, Garry Cosper, that DeCaprio had told Cosper he
would like to attend the waiters' meeting and would rather that the waiters
met at the restaurant.
I The description of what was stated during DeCaprio's talk with Milse
and Calhoun is based upon a synthesis of the three witnesses' testimony to
the extent it is not inconsistent. In those instances where DeCaprio's
testimony does not jibe with Calhoun's and Milse's, I have credited their
version for the reason that they impressed me as more credible and reliable
witnesses.
I The description of DeCaprio's remark to Maglione is based upon
Maglione's testimony, who impressed me as an honest witness. DeCapno
testified that in speaking to Maglione he used words to the effect "you are
going to the meeting," which is not inconsistent with Maglione's testimony.
9 Kernis 4enies that the subject of a walkout was brought up at this
meeting. He testified he called Vizzi into his office, told Vizzi he wanted to
would reinstate him. Then, DeCaprio mentioned Vizzi's
name and repeated the following statement three times: "If
I were Julius [Vizzi] I'd watch out for myself." Milse
accepted the offer of reinstatement and returned to work
January 22, 1977."
B. Ultimate Findings and Discussion
1. Vizzi's and Milse's discharge
Vizzi and Milse were terminated January 2, 1977, by
Restaurant Manager DeCaprio, who told them they were
temporarily laid off due to a lack of business. Respondent,
however, promptly hired new employees to replace them
and admitted at the hearing that Vizzi and Milse were not
temporarily laid off for economic reasons, but had been
permanently discharged because Vizzi was observed
stealing. Respondent presented three witnesses - the
restaurant's manager, DeCaprio, Respondent's president,
Rifkin, and its vice president, Kernis - who gave evidence
in support of this defense. Their testimony follows:
Kernis testified that Respondent's profit-and-loss state-
ment for October 1976 indicated food costs had increased
and the November statement, received December 15, 1976,
indicated an additional 3-percent increase. Kernis conclud-
ed the increase was caused by employees' stealing. After
satisfying himself that the receiving clerk was not the thief,
Kernis testified that commencing on or about December
21, 1976, he kept a close watch in the kitchen to determine
whether kitchen employees or waiters were stealing.
Between the time he began this surveillance and the end of
the month, the only person he observed stealing was Vizzi,
whom he observed stealing twice during the last week in
December 1976.12 This, Kernis testified, was the reason for
Vizzi's discharge. More specifically, he testified that he was
standing with Rifkin in the restaurant's kitchen, 10 feet
away from the pantry counter where waiters place and pick
up customers' orders for appetizers and observed Vizzi take
two or three appetizers from the pantry man without giving
him a food ticket. Kernis further testified he observed the
same occurrence 2 days later. The restaurant's policy,
known to all personnel, is that absent a food ticket waiters
are forbidden to take and the pantry man is forbidden to
give appetizers to the waiters. A check of Vizzi's customers'
billings, Kernis testified, failed to indicate that the
appetizers taken by Vizzi, without a food ticket, were
charged to any of his customers. Without confronting Vizzi
about the thefts, Kernis consulted with Rifkin and they
discuss Vizi's grievances and that the only matters discussed were Vizzi's
wage complaint and the medical insurance. Vizzi impressed me as the more
credible witness, thus I have credited his version, which is set forth in the
text.
i0 Milse had complained about the payment of "$4 to the door" and the
payment for unsigned charges at the meeting of December 18.
" DeCapno denies stating to Milse, "If I were Julius I'd watch out for
myself." He testified that he simply told Milse that in the 3 weeks since
Milse's layoff nothing had changed in the restaurant and that things were
basically the same and further testified Milse indicated he wanted to return
to work and asked DeCaprio about Vizzi's status. DeCaprio told him Vizzi
was not coming back. Milse impressed me as the more credible witness,
thus, I have credited his version, which has been set forth in the text.
12 Kernis was unable to specify on which days of the week the alleged
thefts were observed.
1174
DOVE RESTAURANT, INC.
decided to discharge him for stealing and decided to
discharge Milse because he was a friend of Vizzi's, hence,
there was an assumption he was also stealing. Kernis
testified he told DeCaprio that Vizzi was being discharged
for stealing but not to tell Vizzi this, rather to simply
indicate to Vizzi he was laid off for economic reasons. The
reason he instructed DeCaprio to lie to Vizzi, Kernis
testified, was "there was a lot of money involved, and I felt
that 2 appetizers were not going to satisfy the situation, I
was hoping to find out how I was really losing this vast
majority of money. I wanted to find out if it was just this
department, or throughout the entire cooking line .... "
Also, Kernis testified that the reason he did not speak to
the pantry man, let alone discipline him, for giving Vizzi
appetizers without a food ticket in violation of company
policy was "I was hoping there might be a lot more people
involved, if I did I felt maybe I'd never get to the bottom of
this situation." 13
Ri/kin testified he was present with Kernis on the first
occasion when Vizzi was seen taking two appetizers
without a ticket, that this took place late in December 1976
and that Kernis and Rifkin were standing about 7 feet from
where Vizzi was taking the appetizers and were looking in
his direction. Rifkin, when asked what instruction was
given to Manager DeCaprio about the discharges of Vizzi
and Milse, testified "I wanted the reason given that it was
an economic situation. I wanted, under no circumstances,
any information given out concerning theft until I had an
opportunity to break this ring up, which I was convinced
there was." Rifkin testified Milse was discharged because
Respondent thought "he would be involved too on account
of his friendship with Vizzi."
DeCaprio testified that Kernis told him Vizzi was
observed taking appetizers that were not charged out, but
that DeCaprio was to tell Vizzi he was being laid off for
economic reasons.
The foregoing is the extent of the evidence presented by
Respondent that at the time of their discharges Respondent
thought Vizzi and Milse were stealing and discharged them
for this reason. I reject this evidence for these reasons.
First, and most important, in testifying about the matters
involving the alleged stealing and, in particular, about
Vizzi's involvement, neither Kernis nor Rifkin nor DeCa-
prio impressed me as honest witnesses. I received the
impression, while observing them testify, they were not
being truthful. Vizzi, who specifically denied having
engaged in the misconduct attributed to him, impressed me
as a sincere witness making a conscientious effort to testify
accurately and honestly. In assessing Vizzi's credibility, I
have carefully considered Respondent's contention that
Vizzi lied in connection with his income tax returns.
Respondent adduced evidence that during his 9 months of
employment Vizzie for one particular 9-day pay period
declared $235 in tips, whereas Respondent's attorney on
cross-examination suggested to Vizzi that Respondent's
records for that 9-day period showed that Vizzi received
13 Kernis testified he could not remember the name of the pantry man
involved. I also note that even after Respondent. at the end of January 1977.
supposedly did "get to the bottom of this situation" and discovered the
identity of the employees responsible for stealing, it did not discipline the
pantry man, despite the fact that without the cooperation of the pantry man,
it was not possible for Vizzi to remove appetizers from the kitchen without a
food ticket.
$440.50 in tips, just from customers who paid their bills
using credit cards. Respondent did not establish this was a
fact. It did not produce these records or otherwise give the
General Counsel an opportunity to examine such records.
In any case, assuming arguendo, Respondent established
Vizzi during his 9 months of employment understated his
income for one 9-day period for the purpose of reducing his
income taxes, while I do not condone this misconduct, I
would still be constrained, based upon my observation of
Vizzi while on the witness stand, to conclude that he was
an honest witness making a sincere effort to tell the truth.
I recognize that my conclusion that Respondent's
witnesses have manufactured a story out of whole cloth is a
harsh judgment and that no fact finder is an infallible
observer when it comes to assessing the credibility of
witnesses. There are, however, additional reasons, besides
the unimpressive demeanor of Respondent's witnesses and
Vizzi's impressive demeanor, for viewing Respondent's
defense with incredulity. The circumstances tend to
support Vizzi's denial. It is highly unlikely that Vizzi would
steal from his employer in full view of owners Rifkin and
Kernis who, when he supposedly committed his first
observed theft, were allegedly looking directly at him from
a distance of only 7 feet. Nor for that matter does it seem
possible that the pantry man, who also must have been
aware of the owner's immediate presence, would have
allowed Vizzi to take the food without a food ticket. And,
in connection with the role played by the pantry man, as
noted supra, Respondent never disciplined or questioned
him, even though a reasonable person would have assumed
that the pantry man was a party to Vizzi's thefts, for,
absent the cooperation of the pantry man, it was not
possible for Vizzi, without a food ticket, to have removed
appetizers from the kitchen. In addition, Respondent's
defense smacks of an afterthought inasmuch as DeCaprio
did not tell the Board during its investigation of Vizzi's
unfair labor practice charge that Vizzi was discharged for
stealing. On January 17, 1977, Respondent received a copy
of the unfair labor practice charge filed in this case
charging it with violating the Act by terminating Vizzi. The
Board agent assigned to investigate the charge questioned
DeCaprio about Vizzi's termination. Admittedly, DeCa-
prio did not mention Vizzi's alleged stealing, rather he told
the Board's agent Vizzi had been terminated because of a
lack of work. When asked why he failed to tell the Board
agent about Vizzi's stealing, DeCaprio was unable to offer
an explanation, testifying "I don't know . . . I just didn't
mention it to [the Board agent]." I find it difficult to
believe that, if DeCaprio, as Respondent's witnesses claim,
had been told that the real reason for Vizzi's discharge was
for stealing, he would not have told this to an agency of the
Federal government which was investigating a charge
alleging that Respondent had violated the law by terminat-
ing Vizzi.14 Rather, the inference is that the defense of
stealing was an afterthought concocted by Respondent
when it became apparent that the reason given to Vizzi and
14 There is no evidence DeCaprio was instructed not to tell the Board
agent that Vizzi was discharged for stealing rather than temporarily laid off
for a lack of work. In fact, as descnbed supra, DeCaprio was not able to
explain why he lied to the Board agent.
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milse for their terminations would not withstand the
scrutiny of close examination inasmuch as Respondent had
hired three new waiters on the day of their terminations. A
further indication that the defense of stealing is an
afterthought having no basis in reality is Respondent's
treatment of Milse, who admittedly did not steal anything.
He was discharged because, as Kernis and Rifkin testified,
he was a friend of Vizzi's and Respondent tarred him with
guilt by association. This is a bizarre reason for discharging
an employee and it does not ring true. Moreover,
Respondent's subsequent treatment of Milse indicates that
stealing had absolutely nothing to do with the decision to
discharge him. As described supra, on January 18, 1977, as
the result of a conversation which Milse initiated, he was
reinstated by DeCaprio. He was offered his job back,
however, upon the condition that he no longer publicly
voiced his grievances and agreed to follow Respondent's
policy which required the waiters to pay the hostess $4
daily and to pay unsigned credit charges, policies which
Milse had grieved about on December 18 at the waiters'
meeting with management. Clearly any reservations Re-
spondent had about Milse as an employee had nothing to
do with a suspicion he was stealing, rather his reinstate-
ment interview indicates a concern about his conduct of
complaining about conditions of employment.
Based on the foregoing, I find Vizzi did not engage in the
misconduct of stealing attributed to him by Respondent's
owners, Kernis and Rifkin. I also find that Respondent did
not believe Vizzi had engaged in such misconduct nor did
it believe that Milse was engaged in similar misconduct,
rather the misconduct of stealing was attributed to Vizzi
and Milse only when it became obvious that the initial
reason advanced for their terminations was so palpably
false that it would not withstand scrutiny. The question
remains as to what was Respondent's real reason for
discharging Vizzi and Milse.
Where an employer, as is the case here, gives a false
reason to employees for their terminations and thereafter,
in an effort to justify the terminations, concocts yet another
false reason, there is a basis for an inference that there was
an unlawful motive for the discharges which the employer
desired to conceal, at least where the surrounding circum-
stances tend to reinforce that inference. Shattuck Denn
Mining Corporation (Iron King Branch) v. N. L R.B., 362
F.2d 466, 470 (C.A. 9, 1966). The surrounding circum-
stances in the present case provide substantial support for
the inference that Vizzi and Milse were discharged for
engaging in protected concerted activities.
On December 18, 1976, as described in detail supra, Vizzi
and Milse, in concert with other employees, at manage-
ment's request, voiced their complaints to management
about conditions of employment. The grievances expressed
by the employees were of common concern to all
employees. The grievances were not resolved to the
i5 There is no direct evidence that DeCapno knew the employees were
meetingat Vizzi's residence. It is a fair inference, however, that he knew this
to be the case. Thus, DeCapno knew that the waiters had scheduled a
gnevance meeting away from the restaurant and expressed a desire to at
least three waiters - Cosper, Milse and Calhoun - to personally attend the
meeting.
'6 It is a fair inference that DeCapno also told Kernis that Milse was the
waiter who gave him this information and told him that Milse also indicated
he. Milse, was among those contemplating walking out.
employees' satisfaction, so Vizzi and Milse and several
other employees met at Vizzi's residence to discuss the
grievances further and to devise a program to remedy
them.' 5 Also, Milse informed DeCaprio that the waiters
were not satisfied with management's response to their
complaints and were meeting after work to discuss them
and also told DeCaprio that, on account of the unresolved
complaints, several waiters, including himself, were consid-
ering staging a walkout. DeCaprio threatened Milse, and
any other waiter who walked out, with economic reprisals
and indicated he was opposed to the waiters holding a
grievance meeting outside of DeCaprio's presence. Milse
rejected DeCaprio's request that he be allowed to attend
the waiters' grievance meeting. DeCaprio informed owner
Kernis that some of the waiters might stage a walkout over
their grievances 16 and on December 31, 1976, Kernis
summoned Vizzi to his office and questioned him about
whether the waiters intended to stage a walkout. Vizzi
denied knowledge of this but told Kernis the waiters were
still concerned about their rate of pay and that he, Vizzi,
would like to see Respondent pay them a minimum hourly
wage. This was Vizzi's and Milse's last day of employment.
They were discharged January 2, 1977. Thereafter, DeCa-
prio on January 18, 1977, when he agreed to reinstate
Milse, told him he could return to work "on my terms"
which DeCaprio defined as Milse's promise not to speak
out in public about his grievances and to forget about his
grievances concerning the Company's practices of waiters
paying for unsigned charges and paying $4 daily to the
hostess.
In sum, the record establishes that Vizzi and Milse, in
concert with other waiters, complained to Respondent
about terms and conditions of employment which were of
interest to all of the waiters, and that Respondent had
knowledge that waiters, including Vizzi and Milse, were
dissatisfied about the way management had handled their
grievances and also knew that the waiters had held a
further meeting at Vizzi's residence to discuss their
grievances. The record also establishes that Respondent
believed that Milse and Vizzi, with several other waiters,
were contemplating staging a walkout from work because
of their grievances and, as shown by DeCaprio's reaction,
Respondent was strongly opposed to such a walkout.' 7
Milse and Vizzi were abruptly discharged shortly after
Vizzi's interrogation by Kernis about whether the waiters
intended to stage a walkout. Milse's reinstatement was in
effect conditioned upon his refraining from speaking up
about his grievances in public, in concert with his fellow
waiters, and upon his refraining from continuing to press
grievances which he had previously voiced. All of these
circumstances, viewed in the context of the false reason
given Vizzi and Milse for their discharges and the
additional false reason thereafter concocted at the hearing
in this matter to justify the discharges, establish that
17 Respondent's knowledge that the waiters met at Vizi's residence to
discuss their grievances, Kernis' interrogation of Vizzi about the possibility
of a walkout, and the fact that Respondent states it believed Vizzi and Milse
were fnends who acted together establish that Respondent thought Vizzi
was one of the waiters mentioned by Milse who were contemplating a
walkout in connection with their grievances.
1176
DOVE RESTAURANT, INC.
Respondent discharged Vizzi and Milse because they had
acted together, and in concert with other employees, to
present their grievances to Respondent about their terms
and conditions of employment,' s and because Respondent
thought that Milse and Vizzi together, and in concert with
other waiters, intended to stage a walkout in support of
their grievances.' 9 This conduct is protected by Section 7
of the Act. Accordingly, by discharging Vizzi and Milse,
Respondent violated Section 8(aX I) of the Act. 20
2. The other alleged unfair labor practices
(a) DeCaprio, the restaurant manager, as described in
detail supra, remarked to waiter Maglione, "so, you're
going to have a meeting." The complaint alleges that this
conduct constitutes an unlawful impression that employ-
ees' protected concerted activity was being kept under
surveillance. I disagree. The remark, expressed during
DeCaprio's conversation with waiters Milse and Calhoun,
was a casual one which was made only after Milse had told
DeCaprio that the waiters were holding a meeting to
discuss their grievances. It appears to have been nothing
but a spontaneous truthful reporting of information.
Moreover, as the meeting appears to have been a matter of
common knowledge throughout the restaurant, it cannot
be said that the remark was reasonably calculated to lead
Maglione to conclude that the employees' protected
concerted activities had been placed under surveillance.
For these reasons I shall recommend that this part of the
complaint be dismissed.
(b) There is insufficient evidence to support the allega-
tion that DeCaprio interrogated employees concerning a
protected concerted meeting, hence, I shall recommend the
dismissal of this portion of the complaint.
(c) The complaint alleges DeCaprio threatened employ-
ees "he would see that none of them got other jobs
elsewhere" if they engaged in protected concerted activity.
In connection with this allegation the record establishes, as
described in detail, supra, that DeCaprio warned waiters
Milse and Calhoun that if the waiters staged a walkout
from work over their unresolved grievances, he would see
to it that no other employer hired any of the waiters who
participated in such a walkout. I find that this threat
tended to restrain or coerce employees Milse and Calhoun
in the exercise of their right to strike over work-related
grievances as guaranteed by Section 7 of the Act, hence,
Respondent violated Section 8(a)( ) of the Act.
is Respondent, pointing to Vizzi's statement to Kemrnis on December 31
that he could speak only for himself as he did not represent the other
waiters, argues Vizzi was not engaged in concerted activity. I disagree. As
described in detail supra, the record at the bare minimum establishes Vizzi
and Milse acted together to correct conditions of employment which were of
concern to themselves as well as to other waiters and that Respondent
thought the two of them were acting together to remedy their gnevances. In
addition, the record reveals that other waiters, in concert with Vizzi and
Milse, expressed complaints to management and attempted to devise a
program to remedy their complaints and that management thought that
several of the waiters, Milse and Vizzi included, intended to stage a walkout
from work over their grievances Under these circumstances, the employees'
failure to designate either Vlzzi or Milse or any other person to speak on
their behalf does not make the activity of Vizzi and Milse unprotected. Hugh
H. Wilson Corporation, 171 NLRB 1040, 1046 (1968), enfd. 414 F.2d 1345
(C.A. 3, 1969); Carbet Corporarion, 191 NLRB 892 (1971).
g1 Respondent contends that the walkout was unprotected activity
because it was planned "to coincide with one of the restaurant's busiest and
(d) The complaint alleges that Kernis, Respondent's vice
president and part owner, "interrogated an employee as to
the employee's protected concerted activities." In support
of this allegation the record establishes, as described in
detail, supra, that on December 31, 1976, Kernis sum-
moned waiter Vizzi into his office and asked whether Vizzi,
with other waiters, intended to go out on strike.
In situations of this sort the Board measures the disputed
conduct against the following legal principles (Mosher Steel
Company, 220 NLRB 336 (1975)):
. . . [Questions about employee strike intentions are
not per se unlawful but must be judged in light of all the
relevant circumstances. Thus, where the record shows
that at the time the questions were asked the Employer
had a reasonable basis to fear an imminent strike and
merely sought to ascertain the chances for keeping his
business open, such inquiries are lawful.... On the
other hand, an employer cannot rely on unsubstantiat-
ed rumor or mere speculation as a justification for
questioning employees concerning their intentions in
the event a strike is called.
In the instant case the evidence does not establish that at
the time of the interrogation Respondent had a reasonable
basis to fear an imminent strike, nor is there evidence that
by questioning Vizzi, Respondent merely sought to
ascertain the chances for keeping its business open. On the
other hand, the interrogation took place in the context of
Respondent's unfair labor practices. Immediately after
Vizzi's interrogation he was unlawfully discharged because
Respondent thought that he intended to leave work with
other waiters and strike over the waiters' work-related
grievances and Manager DeCaprio had previously violated
the Act by threatening waiters Milse and Calhoun with
economic reprisals if they, and other waiters, engaged in a
strike against Respondent over their work-related griev-
ances. In view of these circumstances, I find that by
interrogating Vizzi about his and other employees' strike
intentions Respondent violated Section 8(aX)(I) of the Act.
(e) The complaint alleges and the record establishes, as
set out in detail, supra, that DeCaprio during his reinstate-
ment interview with Milse mentioned Vizzi's name and
told Milse "If I was [Vizzi] I'd watch out for myself." I
have considered this statement, in the context in which it
was uttered, and conclude it is too ambiguous to have led
Milse to believe Vizzi was not being reinstated or had been
most prestigious evenings of the year. New Year's Eve." I disagree. for.
without deciding whether such a strike would have been unprotected, there
is no evidence the waiters planned to strike on New Year's Eve. Quite the
contrary, Vizzi on December 31. when questioned about the matter, told
Kernis that the waiters did not intend to walk out and in fact no walkout
ever occurred.
20 Respondent argues "it should also be remembered that other waiters
took the opportunity to speak out at meetings," but only Vizzi and Milse
were terminated. However, the record establishes that Respondent thought
Vizz and Milse intended to participate in a walkout with other waiters over
their grievances. There is no evidence that Respondent knew the identity of
the other participants in the walkout. In any event, the fact that an employer
does not discharge all known employees who engage in protected concerted
activity is no defense because the discharge of less than all may well have an
in terrorem effect on others and "the Board need not wait until a party
commits a gross violation before it may find any violation at all." The Rust
Engineering Company et al. v. N.LR.B., 445 F.2d 172, 174 (C.A. 6, 1971);
Nachman Corporation v. N. LR B., 337 F.2d 421,424 (C.A. 7. 1964).
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged because of Vizzi's protected concerted activities
or that the statement otherwise constituted a threat
reasonably intended to restrain or coerce Milse in the
exercise of his Section 7 rights. Accordingly, I shall
recommend the dismissal of this allegation of the com-
plaint.
(f) The complaint alleges that DeCaprio told an employ-
ee that if the employee had problems to see DeCaprio
personally and not to bring them up at meetings. In
support of this allegation the record, as described in detail,
supra, establishes that when DeCaprio agreed to reinstate
Milse, he conditioned the reinstatement on "terms" which
DeCaprio defined as Milse's agreement not to speak out in
public about his grievances and to forget about his
grievances concerning the Company's practices of requir-
ing waiters to pay for unsigned charges and requiring that
they pay $4 daily to the hostess. In other words, DeCaprio
conditioned Milse's reinstatement upon his agreement to
stop engaging in protected concerted activities. By engag-
ing in this conduct Respondent violated Section 8(a)(1) of
the Act.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Coopco, Incorporated, d/b/a Dove Restaurant, Inc.,
the Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Julius Vizzi and Timothy Milse
because they engaged in protected concerted activities,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. By threatening employees if they engaged in protect-
ed concerted activities that Respondent would cause other
employers not to employ them, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)( I)
of the Act.
4. By interrogating an employee about his and other
employees' intentions to engage in protected concerted
activities, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)( ) of the Act.
5. By conditioning an employee's employment upon
the employee's promise not to engage in protected
concerted activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)( ) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
21 Respondent also adduced evidence from Michael Bloom that in
September 1976, while working as Vizzi's busboy, Vizzi instructed him to go
into the kitchen to get two appetizer orders, that Vizzi did not give him a
food ticket for the appetizers, and that Bloom got the appetizers from the
pantry man without a ticket. Bloom further testified that shortly thereafter
the assistant manager of the restaurant, Filliette, asked whether Vizzi had
take certain affirmative action in order to effectuate the
policies of the Act.
Having found that Respondent unlawfully discharged
employee Julius Vizzi, I shall recommend that Respondent
offer him immediate and full reinstatement to his former
job, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges and make him whole for any loss
of earnings he may have suffered by reason of such
discharge, by payment of a sum of money equal to that
which he normally would have earned working for
Respondent from the date of his discharge to the date of
said offer of reinstatement, less his net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co.,
136 NLRB 716 (1962).
Having found that Respondent unlawfully discharged
employee Timothy Milse, I shall recommend that Respon-
dent make him whole for any loss of earnings he may have
suffered by reason of such discharge, by payment of a sum
of money equal to that which he normally would have
earned working for Respondent from the date of his
discharge to January 22, 1977, the date he was reinstated to
his former position, less his net earnings during such
period, with backpay computed in the manner established
by the Board in F. W. Woolworth Company, supra, and with
interest thereon as prescribed by the Board in Isis Plumbing
& Heating Co., supra.
As the unfair labor practices committed were of a
character which go to the very heart of the Act, I shall
recommend an order requiring Respondent to cease and
desist therefrom and to cease and desist from infringing in
any other manner upon the rights of employees guaranteed
by Section 7 of the Act.
In recommending the above remedy I have considered,
but rejected, Respondent's contentions that even if Vizzi's
discharge were unlawful, "because of his documented
involvement in a major theft ring he is not entitled to
reinstatement or backpay" or, at the very least, reinstate-
ment should be denied and backpay awarded only until
January 28, 1977, when Vizzi would have been discharged
for stealing.
Regarding the contention that notwithstanding the
unlawful discharge the usual remedy of reinstatement and
backpay is inappropriate because Vizzi was involved in a
"major theft ring," the only evidence supporting such a
conclusion is the testimony of Rifkin and Kernis, supra,
that in late December 1976 they observed Vizzi stealing
appetizers on two occasions and their further testimony,
infra, that on January 28, 1977, another waiter, McCoy,
confessed that he, McCoy, had been stealing from
Respondent and indicated Vizzi was also involved.21 The
testimony given by Rifkin and Kernis that Vizzi stole
appetizers twice in late December 1976, as found supra, was
given Bloom a ticket to turn in for the appetizers and Bloom answered in the
negative, whereupon Filliette walked toward the pantry where he was
overheard by Bloom talking about appetizers with Manager DeCaprio.
Assuming arguendo Bloom was testifying truthfully, about which I have
serious doubts as he did not impress me as a trustworthy witness, it does not
establish any misconduct on Vizzi's part. Neither DeCaprio nor Filliette
1178
DOVE RESTAURANT, INC.
a fabrication. Likewise, as found infra, their testimony that
waiter McCoy told them that Vizzi was a thief was also a
fabrication. Vizzi, who impressed me as an honest witness,
denied the specific thefts attributed to him and generally
denied ever stealing from the restaurant. Based on the
foregoing, I find the record does not establish that Vizzi
was involved in a "theft ring" or otherwise was stealing
from Respondent during his employment.
The evidence relevant to Respondent's further conten-
tion that the usual remedy of backpay and reinstatement
would not be appropriate because Vizzi would have been
legitimately discharged January 28, 1977, for stealing, can
be briefly stated.
On or about December 15, 1976, based upon figures
contained in its profit and loss statements Respondent
concluded the restaurant's employees were stealing and, as
of that date, Respondent commenced an investigation
which led to its discovery late in December 1976 that Vizzi,
as described supra, was involved in the stealing. Thereafter,
during the latter part of January 1977, waiter Bloom and
expediter "Francis" revealed to Restaurant Manager
DeCaprio how the employees were stealing and indicated
to DeCaprio that waiters McCoy and Cordova were
responsible for the thefts. DeCaprio communicated this
information to Respondent's owners, Rifkin and Kernis,
who, on January 28, 1977, summoned McCoy to the
restaurant's office and, as Kernis testified, questioned him
in the presence of two other witnesses. McCoy immediately
confessed to having stolen over $500 from Respondent,
explained how this was accomplished by him and, when
asked why he did it, stated that Vizzi had suggested to him
that they steal from the restaurant because Respondent
had refused to pay them more money.2 2 In response to
Rifkin's inquiry about whether any of the other employees
were currently stealing, McCoy stated that waiters Cordo-
va and Duquette had been doing some minor stealing. 23
McCoy was discharged immediately. Cordova never came
to work after McCoy implicated him, and Duquette was
discharged the next day when, upon being questioned by
Rifkin, he refused to deny that he had been stealing. 24
All of the aforesaid evidence, pertinent to Respondent's
argument that Vizzi would have eventually been dis-
charged for stealing, is based upon the testimony of Rifkin
and Kernis. Not one iota of corroborative evidence was
presented. 25 This is an especially significant omission
were called by Respondent to testify about this alleged incident and neither
one ever spoke to Vizzi about the matter. Also it is admitted that. other than
the two alleged acts of stealing which occurred in late December 1976 and
the alleged confession by McCoy. infra. Respondent did not receive any
information, as Rifkin testified. that Vizzi "had ever done anything else that
was wrong." These circumstances, coupled with the fact that the pantry man
allowed Bloom to walk off with two appetizer orders without a food ticket, a
flagrant violation of company policy by both Bloom and the pantry man.
strongly suggests that Bloom manufactured this story or that Vizzi had
previously given the pantry man a ticket for the appetizers.
22 Vizzi credibly denied ever making such a statement to McCoy.
23 Rifkin's and Kernis' testimony about the McCoy conversation is
inconsistent in certain significant respects. On direct and cross-examination
Rifkin initially testified that McCoy mentioned Vizzi's name in the context.
described above, of explaining why McCoy had stolen from the restaurant.
Rifkin did not testify that Mccoy said Vizzi was actually involved in the
stealing. Later during cross-examination, however. Rifkin testified that
McCoy also said "Vizzi was ripping us off." On the other hand. Kernis.
consistent with Rifkin's initial testimony. specifically testified that the sole
mention of Vizzi's name by McCoy was when McCoy. as described above,
stated that Vizmi had suggested they steal from the restaurant.
because, as found supra, Rifkin and Kernis in order to
justify Vizzi's January 2, 1977, discharge falsely testified he
was a thief. Now, based solely on their self-serving
testimony, I am asked to conclude that Respondent on
January 28, 1977, was told by McCoy that Vizzi had
indicated an intention to steal from Respondent and that
based upon this Respondent would have discharged Vizzi.
I reject this contention for the reason that I do not believe
the testimony of Rifkin and Kernis. Rifkin's and Kernis'
testimony concerning McCoy's implication of Vizzi, as well
as their testimony about the pertinent events leading up to
McCoy's confession, is without corroboration. In my
opinion corroboration is essential in a situation such as this
where the sole witnesses - Rifkin and Kernis - relied
upon by Respondent to support its contention had
previously falsely testified that Vizzi was discharged
because he was a thief and who, when testifying about their
conversation with McCoy, impressed me as more intent in
giving evidence to support Respondent's case than in the
truth. It is for these reasons that I reject Respondent's
contention that on January 28, 1977, it discovered Vizzi
was involved in stealing from the restaurant.26
Based on the foregoing, I reject Respondent's contention
that the normal remedy of reinstatement and backpay is
not warranted in Vizzi's case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 27
The Respondent, Coopco, Incorporated, d/b/a Dove
Restaurant, Inc., Aurora, Colorado, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging protected concerted activities of its
employees by discharging or in any other manner discrimi-
nating against them in regard to hire and tenure of
employment or any condition of employment.
(b) Threatening employees with reprisals to discourage
them from engaging in protected concerted activities.
(c) Interrogating employees about their intentions to
engage in protected concerted activities.
(d) Conditioning employees' employment upon their
promise not to engage in protected concerted activities.
24 McCoy and Cordova worked at the Dove Restaurant. Duquette was
employed at another restaurant operated by Respondent but previously.
until September 1976, had worked at the Dove.
25 The pertinent profit-and-loss statements were not produced nor did
either Bloom or "Francis" or DeCapno or the two unidentified persons
who, with Rifkin and Kernis, witnessed McCoy's confession. corroborate
Rifkin's and Kernis' testimony.
26 In view of the conclusion that Vizz never stole from the restaurant
and the further conclusion that McCoy did not indicate to Respondent that
Vizzi was a thief, I have not decided whether, assuming McCoy did so
indicate, this would be sufficient in the circumstances of this case to
establish that Vizzi would have been discharged on January 28. 1977. for
nondiscnminatory reasons.
27 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 findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall he
deemed waived for all purposes.
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Julius Vizzi and Timothy Milse whole for any
loss of earnings suffered by reason of their discharges, in
the manner set forth in the section herein entitled "The
Remedy."
(b) Offer Julius Vizzi immediate and full reinstatement to
his former position, or, if this position no longer exists, to a
substantially equivalent one, without prejudice to his
seniority or other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
2R In the event that the Board's Order is enforced by a Judgment of a
United States Court o' Appeals. the words in the notice reading "Posted by
Order of the National l.abor Relations Board" shall read "Posted Pursuant
(d) Post at its place of business in Aurora, Colorado,
copies of the attached notice marked "Appendix." 28
Copies of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent 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.
(e) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1180