Elias Brothers Restaurants, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 686 (N.L.R.B. 1973)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elias Brothers Restaurants, Inc. and Patricia Clark. remedy in full.'
Case 7-CA-9811
June 29, 1973
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On January 31, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, counsel for Respon-
dent filed exceptions and a supporting brief, and
counsel for General Counsel filed certain limited ex-
ceptions and a supporting brief.
Pursuant to the provision 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, findings, and
conclusions of the Administrative Law Judge with the
modifications noted here.
Counsel for General Counsel urges as error the Ad-
ministrative Law Judge's failure to find that by verbal
and written directives Respondent notified each of its
restaurant store managers that Patricia Clark was in-
eligible for employment at any of the stores of Re-
spondent. He urges as a remedy that Respondent (a)
expunge from Clark's record all reference to her being
ineligible for employment and (b) in writing notify
each restaurant manager that it has not objection to
Clark's employment. We conclude that the record
supports a finding that Respondent did prepare an
ineligibility report in respect to its discharge of Clark
and placed that report in its personnel files. Since we
have adopted the Administrative Law Judge's conclu-
sion that this discharge was in violation of Section
8(a)(1) of the Act, we shall order Respondent to ex-
punge such report from its files. We are not con-
vinced, however, that the record supports a finding
that Respondent communicated the contents of that
report to all its store managers.
Thus, while it may appear that Respondent admit-
ted it had so notified its store managers by its affirma-
tive answer to this portion of the complaint in this
case, we note uncontradicted testimony of Ronald
Johnston that ineligibity reports are in no way dissem-
inated to Respondent's store managers. Rather, as
Gerald Collis testified, if Clark were to apply at a store
of Respondent and if that store's manager called
Respondent's personnel office for a reference, then
that report would be available to him. Thus, we will
not grant counsel for General Counsel's requested
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Elias
Brothers Restaurants, Inc., Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Administrative Law Judge's
recommended Order as so modified.
1. Insert the following as paragraphs 2(b) and 2(c)
and reletter the subsequent paragraphs accordingly.
"(b) Expunge from Patricia Clark's record any and
all references to her being ineligible for employement.
"(c) Notify the store manager of Respondent's
store number 16 that it has no objection to Patricia
Clark's employment."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 Since it is clear, however , that Respondent told Stacey , its manager at
store 16, that Clark was not to be hired for reasons we have found proscribed,
we shall order it to notify the manager of that store that it has no objection
to Clark's hire
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by discharg-
ing Patricia Clark for attempting to cause a strike at
store number 108, we hereby notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you for engaging in
protected, concerted activities.
WE WILL NOT in any manner interfere with you,
or attempt to restrain or coerce you in the exer-
cise of the above rights.
WE WILL offer Patricia Clark immediate and
204 NLRB No. 113
ELIAS BROTHERS RESTAURANTS
full reinstatement to her former job, or, if that job oral argument, I make the following:
no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or other
rights and privileges, and make her whole for any
earnings she lost as a result of her discharge on
September 4, 1972, plus 6 percent interest per
annum.
WE WILL expunge from Patricia Clark's record
any and all reference to her being ineligible for
employment.
WE WILL notify the store manager of our store
number 16 that we have no objection to Patricia
Clark's employment.
ELIAS BROTHERS RESTAU-
RANTS, INC
(Employer)
Dated By
(Representative) . (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3244.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
charge in this case was filed on September 11, 1972.1 The
complaint was issued on November 6. The hearing was held
on December 18 in Detroit, Michigan.
The complaint alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended, by
discharging Patricia Clark after hiring her but before she
actually began work because she had been discharged by
another employer for engaging in protected, concerted ac-
tivities. The issues litigated were whether Miss Clark had
been discharged by the other employer for engaging in pro-
tected, concerted activities and, if so, whether Respondent
had knowledge of that fact when it discharged her. For the
reasons set forth below, I find Respondent discharged Miss
Clark on September 4 in violation of Section 8(a)(I) of the
Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
1 Dates are 1972 unless otherwise specified
FINDINGS OF FACT
I JURISDICTION
687
Respondent, a Michigan corporation, owns and operates
Big Boy restaurants. It also franchises other employers to
operate Big Boy restaurants. During calendar year 1971, a
representative period, Respondent grossed more than $1
million from its restaurants and received more than
$500,000 worth of food products which were shipped direct-
ly to them from outside the State of Michigan.
II THE UNFAIR LABOR PRACTICE
A. Facts
Two of Respondent's restaurants in Detroit are store No.
8, located on .Woodward, and store 16, located on Eight
Mile Road. One of Respondent's franchises is a corporation
known as Delta Big Boy and owned by Frederick Sorensen.
It is located in Oak Park, Michigan, and bears the numer
108 in Respondent's system.
Miss Clark went to work for Respondent in store 8 as a
waitress in October 1971. At the end of November 1971 she
left Respondent's employ and went to work for Sorensen in
store 108. One of her supervisors while she was at store 8
was Diana Stacey. Jennie Lange managed store 108.
During the summer of 1972 the air-conditioning units in
store 108 broke down. As a result, Miss Clark became un-
happy with her working conditions. The situation came to
a head on the morning of Thursday, August 17, Miss Clark
complained to Mrs. Lange about the heat, about dampness
on the floor, and about a shortage of spoons. She attempted
to persuade the other waitresses to join her in a walkout to
protest. At one point in midmorning when the employees
were presenting their grievances to Mrs. Lange in a group,
Mrs. Lange telephoned Sorensen at his home and then put
Miss Clark on the line. Miss Clark asked Sorensen if he
planned to attend a meeting of employees which Mrs. Lange
had scheduled for that afternoon. Sorensen said he was not
because employee relations were Mrs. Lange's responsibili-
ty. Miss Clark insisted that he come to the meeting to dis-
cuss the employees' grievances. Harsh words were
exchanged. After the employees left her office, Mrs. Lange
called Sorensen back and told him that Miss Clark was
trying to get the girls to walk out. Sorensen told her to
handle the situation. Mrs. Lange told the girls to walk out
if they wanted to but, if they were not going to walk out, to
get to work. They got to work, Miss Clark included. No
walkout occurred at store 108 on August 17 or subsequently.
Around 3 p.m. on August 17, near the end of Miss Clark's
shift, Mrs. Lange discharged her.
Miss Clark filed an unfair labor practice charge against
Delta Big Boy on August 22. (It was docketed as Elias
Brothers, Case 7-CA-9771, but the address given was that
of store 108. The charge was dismissed on September 28
because Delta Big Boy did not meet the Board's jurisdici-
tional standards.) She also filed with the Michigan Employ-
ment Security Commission for unemployment
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compensation. Under date of August 28, Sorensen filed a
statement with the commission protesting any award of
benefits to Miss Clark. It read, in pertinent part:
Claimant was not "transferred" [i.e., from store 8]. Pre-
vious employer stated she wanted to work closer to
home and we agreed to hire claimant.
Claimant was not discharged for "lack of work." We
need personnel and are trying to employ people. We
have a request to Employment Security office in Royal
Oak for assistance.
Claimant arrived to work 8/17/72 and due to circum-
stances beyond our control (hot, humid weather and
the malfunctioning of our air conditioner) she immedi-
ately caused such a disturbance that assigned work
could not be performed. In her hysteria, she made
shouting demands for two hours that it was too hot to
work and made a concerted effort to have fellow em-
ployees walk off from work. She demanded the manag-
er summon the owner to a meeting and the Manager
refused, whereupon the claimant called my office de-
manding that I be present or she would see that ev-
eryone walked out. I entered the business
approximately two hours later to find meeting can-
celled and that she had implored other employees not
to come to work the following day. Other employees
were caused to be upset by her demands and so stated
to the Manager. None of them walked out as she de-
manded. They all came to work the following day and
were relieved to learn she had been taken off the sched-
ule.
By her hysterical behavior and by her efforts to have
fellow employees walk off their jobs and Not Once
discussing with me her grievance, I deemed her unfit as
an employee.
Miss Clark was denied unemployment compensation on the
ground that she had been guilty of "misconduct" within the
definition adopted by the Michigan Supreme Court in Car-
ter v. Employment Security Commission, 364 Mich. 538, 111
N.W. 2d 817. Referee William R. Parnis ruled on November
7 that Miss Clark's "actions were in willful and wanton
disregard of the standards of behavior which the employer
has a right to expect of his employee."
Meanwhile, on Thursday, August 24, Miss Clark applied
for work at Respondent's store 16, managed by Diana Sta-
cey. When Mrs. Stacey asked her why she had left Delta,
Miss Clark said she had walked out, implying that she had
quit. Mrs. Stacey hired her without checking with
Respondent's personnel department or with Delta. Because
Miss Clark had a babysitting comm?tment for the week of
August 28, it was arranged that she would begin work on
Monday, September 4. On August 31 Miss Clark called
Mrs. Stacey and was told to report at 10 a.m.
On August 31 Ronald Johnston, Respondent's director of
franchise operations, learned from Sorensen that Miss
Clark had been discharged at Delta. On September 1 John-
ston learned from Sorensen that Miss Clark had been hired
at store 16. He telephoned Mrs. Stacey and learned that
Miss Clark was scheduled to go to work on September 4.
Mrs. Stacey told him the manner in which she had hired
Miss Clark. Johnston reported the situation to Gerald Col-
lis, Respondent's director of restaurants. Johnston ultimate-
ly memorialized these events in the following notes on an
"Ineligible Report" placed in Respondent's personnel files:
8/31, This person has been fired by Delta, because
of a walkout for air conditioning failure beyond
Sorenson's control. R.J.
9/1, Sorenson advises us that this person is now work-
ing for us at unit 16.
I called the manager , she says this employee is sup-
posed to go to work Monday , 4th. No check made with
previous employer . Notify Jerry. R.J.
(This document is actually a "termination Report" form
which is used by Respondent . In this case , "Termination
Report" has been X-ed out and "Ineligible Report" typed
in. It shows "Name Patricia Clark, Branch 108 , Date Termi-
nated Recent" and bears a check mark in the "poor atti-
tude" box under "Reason for Termination : Discharged" as
well as the "Explanation" quoted herein . I assume it was
prepared , somewhat ineptly , after the event in order to but-
tress Respondent's original contention that Patricia Clark
was not entitled to protection because she was not an em-
ployee within the meaning of the Act. See section entitled
"Analysis and Conclusions " below.)
Ten minutes after Johnston called her , Mrs. Stacey re-
ceived a call from Collis . Collis reprimanded her for hiring
Miss Clark without first checking with Delta about why she
had left there. He ordered her not to put Miss Clark to work
when she reported on September 4.
Collis memorialized his actions in the following note on
the "Ineligible Report:"
9/1, Called Manager , confirmed above . Advised
manager that this person had been fired by Sorenson
though she represented to Manager that she had quit.
Advised manager not to hire this person, without check
of previous employer , Ineligible. J.C.
Miss Clark showed up to go to work at store 16 on the
morning of September 4. Mrs. Stacey discharged her.
B. Analysis and Conclusions
In its answer and at the outset of the hearing, Respondent
took the position that Patricia Clark had not been dis-
charged on September 4 but, rather, that Respondent had
refused to permit her employment to begin at that time.
However, after a brief discussion about the Supreme Court's
holding in Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177,
that applicants are employees within the meaning of the
Act, counsel for Respondent apparently abandoned that
line of defense since he did not mention it thereafter. How-
ever, officials of Respondent such as Johnston and Collis
testified in those terms , thereby introducing an unnecessary
note of conflict into what was otherwise a most frank and
forthright hearing . In any event , as indicated by my findings
of fact , I conclude that Respondent hired Patricia Clark on
August 24 and discharged her on September 4. In doing so,
I rely on the testimony of Miss Clark and Mrs. Stacey.
There is no dispute between them that the only question left
ELIAS BROTHERS RESTAURANTS
open at the end of their interview on August 24 was the hour
Miss Clark would begin work on September 4.
The General Counsel's theory can be simply stated. Patri-
cia Clark was discharged at store 108 for engaging in the
protected, concerted activity of attempting to persuade
other employees to join her in a strike . She was discharged
by Respondent at store 16 because of what she had done at
store 108. When it discharged her, Respondent knew what
she had done at store 108. Respondent attacks this theory
from two sides.
1. Respondent's unprotected activities defense
Respondent contends that Miss Clark was not discharged
at store 108 for trying to organize a strike but for other
reasons . Its position is summarized in counsel's oral argu-
ment, thus:
Now in this instance there wasn ' t even a walk out.
There was discussion about a walk out. There was dis-
cussion about a walk out . It was not the fact a walk out
was being discussed that was the occasion for her dis-
charge but the manner in which it was carried on to the
deteriment of the other employees and the customers
on the premises.
I find that Jennie Lange 's motive for discharging Miss
Clark on August 17 was based on her efforts to persuade the
other waitresses to walk out with her in protest of the condi-
tions under which they were working that day. I rely on
Sorensen 's response of August 28 to the Michigan Employ-
ment Security Commission . I also rely on the following
portions of the testimony of Mrs . Lange , who was called as
a witness by Respondent:
Q. She [ Miss Clark ] complained about the same
number of times as other employees except she was
more emotional , is that right?
A. Very emotional.
Q. How did her complaints of August 17th differ
from any of her prior complaints?
A. She wanted the girls to walk out with her.
Q. This is the first time she mentioned it, walking
out on August 17th?
A. Yes.
Q. On August 17th was Miss Clark the only person
that had a complaint about the water on the floor and
the air conditioner not working?
A. No, the other employees said it was hot. I was hot
myself. I know it was.
Q. But she complained the most?
A. Yes.
Q. She was more or less the leader.
A. Everybody else was doing a lot of listening.
Q. On August 17th was Pat Clark's talk or discus-
sions about walking out , was that at least part of the
689
reason why you decided to let her go that day?
A. It wasn't so much her discussing walking out. It
was just that it continued on and on and on. I told Pat
myself, I said, Pat, before you get all involved in this,
find out what you are going to do. If you are going to
walk out, fine, but I have a luncheon to take care of,
but the other girls, nobody wanted to leave but Pat. Pat
was just keeping it up, like I say, for two and a half
hours, which was just constant going on, where nobody
could get their work done and customers couldn't get
waited on. It wasjust from a complaint that just started
and it got to be a big rumpus.
Q. Would it be accurate to say it wasn't just talking
about walking out. It didn't stop but continued to talk
about walking out?
A. Just on and on.
Q. She just didn't stop but kept on talking about
walking out?
A. Yes.
Q. It was her continual talking about walking out?
A. It was the continuation after everybody was not
going to go with her, that she kept this distrubance up.
I also find that, in attempting to persuade the other wait-
resses to strike, Miss Clark was engaged in a protected,
concerted activity.
2. Respondent's company knowledge defense
Respondent also contends that it was unaware, when Col-
lis ordered Mrs. Stacey on September 1 to discharge Miss
Clark, of why Miss Clark had been discharged at store 108
on August 17. Its position is summarized in the paragraph
of counsel's oral argument which follows the one quoted
above, thus:
More than that, my client was not even aware of the
circumstances. At the time it simply said until further
investigation and until you, manager [i.e., of store 16],
have gone through proper channels and made your
own investigation, this person is for the time being
ineligible for employment, until you have gotten refer-
ences and clarified the circumstances surrounding her
recent discharge from employment.
I find that Respondent, in the person of Collis, knew, on
September 1 when he ordered Mrs. Stacey to discharge Miss
Clark, that Miss Clark had been discharged at store 108
because she attempted to persuade the other waitresses to
join her in a strike. I rely on the testimony of Johnston, who
was called as a witness by the General Counsel. When he
was questioned about his conversation with Sorensen on
September 1, he testified:
Q. He [Sorensen] said he released her [Miss Clark]
because she was having problems?
A. Well, apparently with the store itself.
Q. Do you recall what problems he said she was
having?
A. He didn't go into any great detail with me on it.
Q. Did he go into any minor detail with you?
A. He said she was unhappy and causing unrest in
the store.
Q. Did he say what was causing her unhappiness
when he spoke to you?
690 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
A. Yes, the air conditioning and the ice maker being
down, and things like that.
0
Q. Did he say anything about the possibilities of a
walk out?
A. He said there could have been the possibility of
a walk out.
When he was questioned about his conversation with Collis
on September 1, Johnston testified:
Q. When you talked to Mr. Collis did you say any-
thing about the problems, or what problems Miss Clark
was having at Delta Big Boy.
A. I indicated there were problems and they should
be checked out.
Q. Did you tell him what those problems were?
A. I don't recall. I could have.
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondent be ordered to cease and desist from
the unfair labor practice found and remedy it. I will recom-
mend the usual remedy of reinstatement and backpay com-
puted on a quarterly basis, plus interest at 6 percent per
annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. I will also recommend that Respondent be required to
post appropriate notices.
Upon the basis of the foregoing findings of fact, conclu-
sions of law , and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER2
Q. Okay. Fine. Now after reading that paragraph
and having your memory refreshed, do you now recall
whether you said anything about Clark being involved
in a walk out?
JUDGE BLACKBURN In your conversation with Mr. Col-
lis.
THE WITNESS It seems that I have, yes.
JUDGE BLACKBURN I take that answer to mean you are
now testifying you did say that to Mr. Collis, is that
right?
THE WITNESS I believe-I can't say definitely. I can't
remember-the conversation was really short.
JUDGE BLACKBURN Don't fence with me. Tell me what
you remember. Do you remember saying that to Mr.
Collis or not?
THE WITNESS I think I said it yes.
JUDGE BLACKBURN I take that answer to be an affirma-
tion of that fact, and I will use that answer as a basis
for making that finding of fact, Mr. Ciaramitaro, you
can't get it any better than that.
Respondent discharged Miss Clark because of the activi-
ties which led to her discharge by Delta. The activities which
led to her discharge by Delta were protected under the Act.
Therefore, I find that Respondent discharged Patricia Clark
on September 4 for engaging in protected, concerted activi-
ties, thereby violating Section 8(a)(1) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Elias Brothers Restaurants , Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. By discharging Patricia Clark on September 4, 1972,
for engaging in protected, concerted activities, Respondent
has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice is an unfair labor
Respondent, Elias Brothers Restaurants, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for engaging in protected,
concerted activities.
(b) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Patricia Clark immediate and full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her sen-
iority or other rights and privileges, and make her whole for
any earnings she lost, plus interest, as a result of her dis-
charge on September 4, 1972.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its office and restaurants copies of the at-
tached notice marked "Appendix."3 Copies of said notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
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 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 be deemed
waived for all purposes
3 In the event that the Board 's 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
ELIAS BROTHERS RESTAURANTS 691
notices to employees are customarily posted. Reasonable rial.
steps shall be taken by Respondent to insure that said no- (d) Notify the Regional Director for Region 7, in writing,
tices are not altered , defaced, or covered by any other mate- within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.