Gas Light Restaurants

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 240 (N.L.R.B. 1971)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Hosts of California , Inc., d/b/a Gas Light . TRIAL EXAMINER'S DECISION
Restaurants and Thomas C. Kiriazis . Case 28-CA-
2164
June 16, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 30, 1971, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion with supporting brief, and the General Counsel
filed an answering brief.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Associated Hosts of California, Inc., d/b/a
Gas Light Restaurants, Phoenix, Arizona, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
' These findings and conclusions are based, in part, upon the Trial Ex-
aminer's credibility findings, as to which the Respondent excepts. It is the
Board's established policy, however , not to overrule a Trial Examiner's
resolutions with respect to credibility unless , as is not the case here, the
preponderance of all the relevant evidence convinces us that the resolutions
are incorrect Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188
F.2d 362 (C.A 3)
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: I heard this case on
February 2 and 3, 1971,1 in Phoenix, Arizona, upon a charge
filed August 21, by Thomas C. Kiriazis against Associated
Hosts of California, Inc., d/b/a Gas Light Restaurants,
Phoenix, Arizona, which resulted in the Regional Director
for Region 28 issuing a complaint dated October 9, against
the Respondent. Briefly stated, the complaint alleged that the
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Kiriazis on August 7 and independently violated
Section 8(a)(1) by two threats of discharge on August 6 and
7. In its duly filed answer Respondent admitted certain alle-
gations but denied that it had committed any unfair labor
practices. Following the hearing counsel for the General
Counsel and counsel for the Respondent filed briefs on March
15, which have been carefully considered.
Upon the entire record' in the case and from my observa-
tion of the demeanor of the witnesses as they testified, I make
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent maintains its principal office and place of
business in Beverly Hills, California, as well as other places
of business in the several States, including Phoenix, Arizona.
The latter is the only establishment of the Respondent in-
volved in the present proceeding. The Respondent operates
and manages restaurants providing food and related services.
The Respondent concedes and I find that it is engaged in
commerce within the meaning of the Act, and that it annually
purchases and delivers directly in interstate commerce goods
and materials valued in excess of $50,000, and that the gross
value of its sales and services annually exceeds $500,000.
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Labor-Congress of Industrial
Organizations and its affiliates , herein called the Union, are
labor organizations within the meaning of Section 2(5) of the
Act.
III THE UNFAIR LABOR PRACTICES
A. The Evidence
At all times material herein Harold Liles was general
manager of the Respondent and Joan Marie DuMont was the
manager, a position she assumed on May 15.
According to Thomas Kiriazis , the alleged discriminatee,
he met Ted Caldes, an organizer for the AFL-CIO, several
months before his discharge . They engaged in general conver-
sation regarding possible organization of the restaurant em-
ployees. After Mrs. DuMont became the manager , so Kiria-
zis further testified, he told Caldes that the employees were
unhappy with the new management , some were being ter-
minated without notice, and he suggested that this would be
an appropriate time to commence organization efforts. Caldes
agreed .' On August 6, Kariazis left word at Caldes' office that
Unless otherwise indicated all dates refer to the year 1970.
General Counsel's motion to amend the record in one minor respect is
hereby granted.
3 Lawrence Harriger, who had worked at the Respondent's nearby estab-
lishment, the Smugglers Inn, and at the direction of Regional Manager Liles,
visited the Respondent's place of business here involved in an effort to calm
down the employees, testified that the employees were dissatisfied with Mrs.
DuMont.
191 NLRB No. 58
GAS LIGHT RESTAURANTS 241
the latter should contact him . About 7:50 that evening Kiria-
zis saw Caldes sitting at the counter eating. The kitchen,
where Kiriazis worked, had an open window facing the din-
ing area . Caldes inquired of Kiriazis when he would be
finished working . Kiriazis answered that he would see Caldes
at 8 o'clock at the adjacent Pepper Tree Restaurant , but then
remembered that he had a previous appointment and told
Caldes that he wished to speak with him further and mo-
tioned that Caldes come to the end of the counter area where
there was a door to the kitchen and the service area. During
this brief conversation Caldes told Kiriazis that it would be
necessary to have the employees sign authorization cards.
Mrs. DuMont then approached the two and told Caldes, "If
you want to talk to anybody , you talk to me, I'm the manager
here. He's only a cook ." Kiriazis returned to the kitchen and,
a few moments later , Mrs. DuMont came in and appeared
very angry , telling Kiriazis that he had no business talking to
union people and that Caldes had no reason to initiate a
conversation with Kiriazis . Kiriazis explained that he had
called Caldes and the following then transpired:
She said, "Do you know that Mr. Liles is against the
union? The company is dead set against the unions, and
if they knew you were talking to the union representa-
tive, you could lose your job." I replied to her that I
thought it was a heck of an organization to work for if
you couldn 't talk to anybody you pleased . I told her
something about not being able to use your civil rights
or something on the job, and she carried on about not
talking to the union , and I had two tickets up to the
window there and Ray was cooking and had a steak and
hamburger and had just started to cook and she talked
about definitely that the company was dead set against
the union and that I should not have talked to the man.
Kiriazis left the premises at 8 o'clock, the end of his shift.
Raymond Smith , who was employed as a cook on August
6, testified that he overheard some of the conversation be-
tween Mrs . DuMont and Kiriazis . According to him, he
heard Mrs . DuMont say that the home office would not like
to hear that Kiriazis had spoken to Caldes, the union official.
Mrs. DuMont 's account of the incident is that it occurred
around 6:30, while the dining room was well occupied with
customers . Her version is that she approached Kiriazis and
Caldes and told Kiriazis that he was supposed to be in the
kitchen working, not conversing with someone,while so many
customers were in the restaurant. She further testified that
Kiriazis responded by stating that he would speak to whom
he please, and that she thereupon ordered him to return to
the kitchen . Caldes, so she related , followed her to the cash
register, threatened to get even with her, and stated, "I am
going to picket you ." The conversation between the two
became somewhat heated and eventually Caldes left. Mrs.
DuMont averred that when Caldes threatened to 'picket the
establishment she recalled that she had seen him previously
at the Smugglers Inn where she had worked as a waitress. She
also related that after this threat to picket she attempted to
reach General Manager Liles by telephone but was unable to
reach him until the following morning when she informed
him of Caldes' threat.
The following day, August 7, Kiriazis reported for work
shortly before 6 p.m., his scheduled starting time . One of the
waitresses told him that Mrs. DuMont wished to see him in
the office . Kiriazis went to the office and he testified that the
following then transpired:
She said-she looked at me and she said , "You know,
Tom, I have to let you go. Mr. Liles told me to fire you,"
and she says, "You know the reason why." She said, "I
have to pay you off," and she handed me $210 and, I
believe, 43 cents in odd change and I signed an advance
payroll slip for her, and while I signed the slip she said,
"He shouldn 't have called you," and I said, "Mrs. Du-
Mont, he didn 't call me, I called him," and then as I
completed the transaction , she said to me, she says, "I
want to thank you for the help you have been to me while
I've been here." She said , "It wasn't my idea, I had to
fire you."
As Kiriazis was leaving Mrs. DuMont 's office he encountered
Smith whom he told that, according to Mrs. DuMont, he had
been terminated at General Manager Liles ' direction because
he had been speaking to Caldes the previous evening. Mrs.
DuMont , on the other hand , testified that when Kiriazis
reported for work on August 7 she called him to her office,
gave him his pay, and told him that she was sure he under-
stood why she had to let him go.
Kiriazis , a man of 50 years of age , had worked as a cook
since high school days . He was employed at the Respondent's
establishment on November 23, 1968. He was away -between
October 15 and November 15, 1969 , having left voluntarily.
Between July 3 and 10, 1970, Kiriazis was absent, having
"walked out" because he was dissatisifed with the inept assis-
tant that had been supplied him . It is his testimony that Mrs.
DuMont never criticized his work performance.
It is the Respondent 's contention that Kiriazis was ter-
minated because he abused and cursed waitresses , and that
complaints had been lodged against him by numerous em-
ployees and customers with such frequency that, so Mrs.
DuMont testified , "they were innumerable ." In addition it is
contended that Kiriazis was "publicly insubordinate " to Mrs.
DuMont in the presence of customers , that he refused to
correct orders , violated company rules relating to the use of
the telephone and the visitation by friends and relatives while
he was at work. Moreover , so the Respondent contends,
Kiriazis was merely a temporary employee following his re-
turn on July 10 and that Mrs. DuMont had contacted an
employment agency to find a replacement for Kiriazis. Mrs.
DuMont and a number of waitresses testified in substantia-
tion of these allegations respecting Kiriazis. On the other
hand, rebuttal witnesses called by counsel for the General
Counsel testified to the opposite effect. In short, the issue to
be determined turns on credibility resolutions , as is so fre-
quently the case in situations of this kind.
When he returned to work on July 10, according to Re-
spondent , Kiriazis was employed on a "temporary" basis.
Kiriazis testified that on July 10, while in the Pepper Tree
Restaurant , an employee named James Sanchez came to him
and stated that Mrs. DuMont wanted him to come back to
work right away. This he did, and he further testified that
nothing was said to him by Mrs. DuMont or anyone else in
management concerning the status of his employment. The
Respondent adduced evidence that it had contacted an em-
ployment agency to supply cooks and averred that it was
seeking a replacement for Kiriazis . In fact, however, the
record shows that there was considerable turnover among the
employees in the kitchen following the assumption by Mrs.
DuMont of the duties of manager. It seems more plausible to
conclude that Mrs. DuMont contacted the employment
agency for cooks because of this turnover rather than any
specific problem she may have had with Kiriazis . Supporting
this conclusion is the testimony of Respondent's witness,
Harriger, who testified that Regional Manager Liles sent him
to see if he could calm down the kitchen help who were
leaving the Respondent 's employment, and further stated
that their dissatisfaction related to Mrs. DuMont. I conclude,
therefore, that following July 10 Kiriazis ' employment was of
a permanent and not a temporary nature.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. DuMont, supported by several witnesses who had
worked as waitresses while Kiriazis was employed, testified
that on occasion he cursed other employees. Kiriazis denied
that he cursed but did admit that on occasion he used
"rough" language when dealing with some of the employees.
Waitress Kathrina Burns, who had worked for the Respond-
ent a considerable period, and whom Mrs. DuMont testified
had registered occasional complaints with her concerning
Kiriazis, testified she had never had any problems with Kiria-
zis and she had never heard him swear at a waitress. Char-
lotte Richards, a waitress presented as a witness by the Re-
spondent, who had worked at the restaurant for 3 years,
testified that she never heard Kiriazis swear at a waitress
although she "heard him talking rough." Sharon Olson, also
a waitress , testified that she had not had any problem with
Kiriazis.
Another complaint leveled at Kiriazis was that he allegedly
refused to redo an order when a customer was dissatisfied
with the way the order had been prepared. Kiriazis denied
this charge and Mabel Kunin, a witness produced by the
Respondent who worked as a waitress, testified that Kiriazis
always corrected her orders. Martha Meyers, also a waitress,
testified that she never had any problems with Kariazis. Wait-
resses Burns and Olson testified to the same effect.
The Respondent further contended that Kiriazis violated
various company rules, including using the telephone without
permission and entering and using the manager's office with-
out permission. In this regard, hostess This Inguanzo testified
that she rarely denied an employee the right to use the tele-
phone. She further testified that it was common practice for
employees to enter the office during the normal course of their
duties in order to obtain linen supplies which were kept there.
Also kitchen supplies are kept in the office.
Mrs. DuMont testified that when Kiriazis spoke to Union
Organizer Caldes he violated a company rule which prohib-
ited friends or relatives from visiting employees while at
work. It is plain that Caldes was a regular customer of the
restaurant. There is ample testimony that it was a common
practice for friends or relatives to wait in the restaurant for
an employee in order to give the employee transportation on
his way home. Waitress Burns testified that while Mrs. Du-
Mont was manager, Burns' husband picked her up 6 days a
week and that Mrs. DuMont often engaged in conversation
while he was waiting for Mrs. Burns to complete her work.
From the entire record, I am persuaded that the witnesses
presented by counsel for the General Counsel in support of
the complaint gave more credible testimony than witnesses
presented by the Respondent who testified to rthe-contrary. .
Kiriazis impressed me favorably as a witness and it appeared,,,
evident to me that Mrs. DuMont, whihe,testifying,,was exags,
gerating and anxious to present evidence supportive,of the
decision she had made to, terminate Kiriazis: If,, strains
credulity-,to believe that overan extended period Kiriazis was
so deficient as an employee as Mrs.. DuMont.would have us-
believe but nonetheless was retained. Indeed, when he'walked
off the job in July, Mrs. DuMont sent for him to return to
work. Yet, if he had been so deficient :during the period she
had been employed as, manager beginning in May, it would
seem that his walking off the job in July would have presented
her with an opportunity to dispense with his services.
I conclude and find that by terminating Thomas Kiriazis
on August 7, 1970, the Respondent violated Section 8(a)(3)
and (1) of the Act. Additionally, I find- that by,, Mts. Du-
Mont's threat to Kiriazis on August `6 that union activity
would lead to discharge and a similar statement Orr-August
7, the Respondent independently violated Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW
1. The Respondent , Associated Hosts of California, Inc.,
d/b/a Gas Light Restaurant , is an employer within the mean-
ing of Section 2(6) and (7) of the Act.
2. American Federation of Labor-Congress of Industrial
Organizations is a labor organization within the meaning of
Section 2(5) of the Act.
3. Thomas Kiriazis was discrminatorily discharged on Au-
gust 7 , 1970, and by such action the Respondent violated
Section 8 (a)(3) and (1) of the Act.
4. By threatening an employee that it would discharge
employees who engaged in union activity , the Respondent
violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
IV THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and to take certain
affirmative action, including offering reinstatement to
Thomas Kiriazis together with backpay, computed on a quar-
terly basis, plus interest at 6 percent per annum, as prescribed
in F W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716, and to post appropriate
notices.
Upon the foregoing findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:4
ORDER
Respondent, Associated Hosts of California, Inc., d/b/a
Gas Light Restaurants, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging union membership or concerted activities
of its employees by discriminatorily discharging any em-
ployees, or by discriminating in any other manner in regard
to their hire or tenure of employment, or any term or condi-
tion of employment.
(b) Threatening employees with discharge or other repris-
als because of their union or concerted activities.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to,effec-
tuate the policies of the Act:
(a) Offer to Thomas Kiriazis immediate and full reinstate-
ment to his former job„ or if the job no.longer exists, to a
substantially equivalent, position, and;make him whole, for
any loss of earnings he may-.have suffered by reason of the
discrimination against him, inE.the manner set forth above in
the section-entitled,"The-,Remedy,"--
(b} Notify-immediately the above-named employees if pres-
ently servingin the Armed Forces of the United States; ofthe
right to -full reinstatement, upon application after {discharge
from the Armed Forces, in accordance with theeSelective
Service Act and the Universal Military Training and Service
Act.i
4 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as, provided in
Section 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.
GAS LIGHT RESTAURANTS 243
(c) Preserve and, upon request, make available to the
Board and 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.
(d) Post at its place of business in Phoenix, Arizona, copies
of the attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 28, after being duly signed by an authorized representa-
tive of the Respondent, shall be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 28, in writing,
within 20 days from the date of receipt of this Decision, what
steps Respondent has taken to comply herewith.'
after a trial , that we violated federal law by threatening
to discharge employees who engaged in union activity,
holding out the promise of benefits if employees abandon
union activity , and by later discharging an employee
because of his union activity:
WE WILL offer Thomas Kiriazis full reinstatement
and pay him for the earnings he lost as a result of his
discharge , plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for supporting the American Federation of
Labor-Congress of Industrial Organizations, or any
other union.
WE WILL NOT threaten to discharge employees be-
cause of their union or concerted activities.
WE WILL NOT unlawfully interfere with our em-
ployees' union activities.
5 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
6 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read. "Notify
the Regional Director for Region 28, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith."
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,
Dated By
ASSOCIATED HOSTS
OF CALIFORNIA,
INC., D/B/A GAS LIGHT
RESTAURANTS
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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 compliance with
its provisions, may be directed to the Board's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Avenue,
Southwest Albuquerque, New Mexico 87101, Telephone
843-2507.