Goemon America, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1994

314 N.L.R.B. 504 (N.L.R.B. 1994)

504
314 NLRB No. 87
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings, and contends that they are a result of bias. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). After a careful examination of the record, we find no merit
in the allegation of bias, and we further find no basis for reversing
the credibility findings. However, in affirming the judge’s credibility
findings, we do not rely on his characterization of the court’s hold-
ing in Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th
Cir. 1985), cert. denied 476 U.S. 1159 (1986).
2 The judge found, inter alia, that the Respondent violated Sec.
8(a)(1) of the Act by maintaining an overly broad no-solicitation rule
in its Policies and Procedures Handbook. The General Counsel ex-
cepted to the judge’s omission of this violation from his conclusions
of law, and to his failure to order the Respondent to rescind the rule
because maintaining it serves to inhibit employees from engaging in
otherwise protected organizational activity. J. C. Penney Co., 266
NLRB 1223, 1224–1225 (1983); Kinder-Care Learning Centers, 299
NLRB 1171, 1176 (1990). We find merit in these exceptions and
shall modify the Order and notice accordingly.
3 Indeed, Hernandez testified that she had authority to discharge
restaurant employees and had done so on previous occasions.
4 Farrell removed her apron at this point, according to the testi-
mony of Hernandez.
Goemon America, Inc. and Lee-Ann Farrell. Case
1–CA–30076
July 22, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On January 26, 1994, Administrative Law Judge
Lowell M. Goerlich issued the attached decision. The
Respondent and the General Counsel filed exceptions
and supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, except as clarified below, and to adopt the
recommended Order as modified.2
In adopting the judge’s decision, we find that the
credited evidence set forth below clearly establishes
that the Respondent, through Restaurant Manager
Jenny Hernandez, discharged Lee-Ann Farrell on De-
cember 22, 1992.3 Therefore we find no merit to the
Respondent’s argument in its exceptions that Farrell
quit.
The credited evidence shows that, following a con-
frontation between Farrell and Vice President Eleanor
Arpino around noon on December 22, Hernandez,
Farrell’s immediate supervisor, met with Farrell several
times on that same afternoon. At their first meeting,
which occurred in a back room only a few minutes
after the Arpino-Farrell confrontation, Hernandez coun-
seled Farrell to stay out of Arpino’s way, and also an-
nounced that General Manager Scott Hosker wanted to
have a meeting with her at 4 o’clock, when her shift
ended. Hernandez next spoke with Farrell in the ladies
room, and again cautioned Farrell to stay away from
Arpino. Farrell replied, ‘‘Well, if I’m going to be fired,
then they should fire me now instead of making me
work out the rest of the day because I’m going right
to the Labor Board.’’
The third meeting occurred about 5 minutes later,
when Hernandez took Farrell into her office and said,
according to the credited testimony:
I’m so sorry Lee-Ann, I know we’re friends, but
I don’t even know if I should say that, but I had
to tell Eleanor what you told me, because if she
knew that I knew what you said to me in the
bathroom, then, about going to the Labor Board,
then I would have been fired too. [Emphasis
added.]
Farrell then asked,
Well, am I fired? Am I fired? And she [Her-
nandez] kept telling me how sorry she was, and
I said, ‘‘Well, if I’m fired, I want my checks, I
want my checks. I want a copy of the warning I
was given yesterday and to cancel my tables or
something.’’4
Hernandez replied, ‘‘Well, let’s go talk to Eleanor.’’
Farrell declined to talk to Arpino because ‘‘I was very
upset. I was crying and I didn’t want to let her [Elea-
nor] see me that way.’’ Farrell then went into the bath-
room to wipe her face, and ‘‘Jenny came into the bath-
room and she was telling me how sorry she was, how
sorry she was, and she said, Why don’t we go talk to
Eleanor?, and I said, I can’t talk to Eleanor. I can’t
even talk to you right now, I’m too hurt.’’
Farrell then went near the cashier’s desk to wait for
her checks and a copy of the warning. Hernandez
came by soon thereafter and pulled Farrell into the em-
ployee coat room, handed her the warning and one of
her paychecks, and said, ‘‘You’re not being fired for
this warning, you’re being fired for the way you spoke
to Eleanor.’’
We find that Hernandez’ statements, quoted above,
plainly conveyed to Farrell that she was being dis-
charged, and that Farrell’s demand for her paychecks
was predicated on her understanding that she was
fired. Accordingly, we find no merit in the Respond-
ent’s contentions that Farrell was not discharged, but
merely quit her employment.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
505GOEMON AMERICA, INC.
1 At the hearing an amendment to the complaint was allowed in
which it was alleged that the Respondent maintained an illegal no-
solicitation rule.
2 The facts found are based on the record as a whole and on the
observation of the witnesses. The credibility resolutions have been
derived from a review of the entire record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408
(1962). As to those witnesses testifying in contradiction of the find-
ings, their testimonies have been discredited either as having been
in conflict with the testimonies of credible witnesses or because the
testimony was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire
record. No testimony has been pretermitted.
orders that the Respondent, Goemon America, Inc.,
Cambridge, Massachusetts, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
‘‘(b) Rescind the invalid no-solicitation rule con-
tained in its Policies and Procedures Handbook.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage lawful concerted activities
of our employees in violation of Section 8(a)(1) of the
National Labor Relations Act by discharging them for
engaging in concerted activities for their mutual aid
and protection.
WE WILL NOT unlawfully discharge employees who
represent that they will go to the National Labor Rela-
tions Board in violation of Section 8(a)(4) of the Na-
tional Labor Relations Act.
WE WILL NOT maintain in the Policies and Proce-
dures Handbook a rule prohibiting solicitation in the
restaurants by employees and requiring that such activ-
ity be reported to managers.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Lee-Ann Farrell immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent job, discharging, if
necessary, any employees hired to replace her; WE
WILL pay her the backpay she lost with interest be-
cause we discriminatorily discharged her.
WE WILL notify Lee-Ann Farrell that we removed
from our files any reference to her discharge and that
the discharge will not be used against her in any way.
WE WILL rescind the following rule in our Policies
and Procedures Handbook:
No solicitation will be allowed in the Res-
taurants by either Goemon teammates or out-
siders. This includes posting literature, signs,
handouts or merchandising. If you see someone
soliciting, please notify a manager immediately.
Loitering is not permitted.
GOEMON AMERICA, INC.
Gerald Wolper, Esq., for the General Counsel.
Joel Shames, Esq., of Boston, Massachusetts, for the Re-
spondent.
Lee-Ann Farrell, of Littleton, Massachusetts, in propria per-
sona.
DECISION
STATEMENT OF THE CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
charge in this case, filed on December 30, 1992, by Lee-Ann
Farrell, an individual, was served by certified mail on
Goeman America, Inc. (the Respondent), on December 30,
1992. An amended charge filed by Farrell on February 11,
1993, was served on the Respondent on February 11, 1993.
A complaint and notice of hearing was issued on February
12, 1993. Among other things it was alleged in the complaint
that the Respondent had unlawfully discharged Farrell for en-
gaging in protected concerted activities and because the Re-
spondent believed Farrell intended to file an unfair labor
practice charge with the Labor Board, all in violation of Sec-
tion 8(a)(1) and (4) of the National Labor Relations Act (the
Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The matter came on for hearing in Boston, Massachusetts,
on July 14, 1993.
All parties were afforded full opportunity to be heard, to
call, to examine and cross-examine witnesses, to argue orally
on the record, to submit proposed findings of fact and con-
clusions, and to file briefs. All briefs have been been care-
fully considered.
On the entire record1 in this case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT,2 CONCLUSIONS OF LAW, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all material times, the Respondent, a corporation, with
an office and place of business in Cambridge, Massachusetts
(the Respondent’s Cambridge facility), has been engaged in
the operation of a restaurant.
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The meeting was mandatory; employees were paid for this at-
tendance.
4 Perrone remembers that Arpino attributed a ‘‘bad attitude’’ to
Farrell.
5 Perrone corroborated this testimony.
Annually, the Respondent, in conducting its business oper-
ations described above, derives gross revenues in excess of
$500,000.
Annually, the Respondent, in conducting its business oper-
ations described above, purchases and receives at its Cam-
bridge facility goods and materials valued in excess of $5000
directly from points outside the Commonwealth of Massa-
chusetts.
At all material times, the Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Facts
Lee-Ann Farrell was employed by Respondent as a
waitperson or a waitress on September 19, 1992. She ceased
employment with the Respondent on December 22, 1992.
She was termed a ‘‘good waitress’’ by Eleanor Arpino, a Re-
spondent vice president.
On Saturday, December 19, 1992, the Respondent con-
ducted an ‘‘advanced training class to show our staff what
our customers were seeing and perceiving from them and
also, to show what the expectations of the customers were.’’
Farrell, among other employees, was required to attend the
meeting.3
According to Scott Hosker, general manager:
We started off with the staff by giving them a book-
let on articles we had found on improved service and
customer expectations and we had done surveys with
our customers and our frequent diners and friends of
the restaurant as to what they had saw that was wrong
or good in the restaurants and what they needed.
And we had written three skits, which four of us
acted in these skits. The first being very poor customer
service, the second being an order taker, just doing
enough to get through the party, and the third being
high quality customer service. Assisting the customer
and sales in such, and educating the customer as well.
And we did the three skits and we asked the employees
to take notes on questions—our biggest thing was for
them to pick up the cues on what we were doing,
which turned out to be very successful.
The employees were also given a ‘‘menu test.’’
Three employees, including Farrell, failed to attend the
meeting. All were given warning notices.
On December 21, 1992, at the end of Farrell’s shift at 4
p.m., Hosker met with Farrell. Among other things Hosker
told Farrell ‘‘it was her responsibility to obtain information
from the staff because she was responsible for knowing the
information that [was given] at the meeting.’’ Farrell told
Hosker that she failed to attend the meeting because she had
been ‘‘out very late with a friend of hers the previous night
and just could not make it in.’’ Hosker cautioned Farrell that
if she persisted in missing these mandatory meetings, ‘‘it
could lead to termination.’’
The next morning December 22, 1992, around 12 o’clock,
several employees, including Farrell, Dirk, the cashier,
waitperson Lynn Perrone, and waitperson Lucio were en-
gaged in a discussion at the pickup station. ‘‘Gripes’’ about
working conditions were discussed. The training meeting was
discussed. It was said that the meeting was ‘‘boring and a
waste of time’’; ‘‘they had better things to do that day and
didn’t learn much from the meeting because they had been
with the company for a while thought they knew what they
were doing.’’
While the discussion ensued, Arpino approached and asked
Dirk what he thought about the meeting. He replied that he
thought it was great. Arpino asked Perrone the same ques-
tion. Perrone answered, ‘‘Well, I could see the point of view
of the patrons, that the patrons’ point of view.’’ Arpino then
pointed at Farrell, ‘‘You have a bad attitude.4 You’re trying
to cause trouble.’’ Farrell denied the assertion and said ‘‘be-
cause they’re saying something different to you than they
said to me doesn’t mean that I’m lying.’’ Farrell further testi-
fied credibly that Arpino said that Farrell was ‘‘saying bad
things about the company and making up stories about the
meeting’’ and that employees had told her (Farrell) that
‘‘they had better things to do before Christmas, that, the
meeting was too boring and that it was putting them to
sleep.’’
By this time, Farrell and Arpino were talking very loudly
and Farrell ‘‘was up against the wall.’’ Arpino turned to
Perrone and said, ‘‘Well, thanks for lying to me’’5 and
‘‘stormed back off to the office.’’
Arpino described the incident:
I approached Lynn and I think Dirk was there, but I’m
not absolutely sure. But there was a couple of people,
but I know Lynn Perrone was definitely there at the
counter and so was Lee-Ann Farrell. At the pick up
counter.
And I asked—I directed my question to Lynn about
what she thought of Saturday’s training meeting on De-
cember—19th. And she told me that she thought it was
good to see the point of view of the customer and the
way things should be done. And then I asked Dirk, and
I, I don’t recall him giving me an answer because he
was, indeed, in the middle of doing something. . . . I
asked Lyn if she thought it was beneficial and she said,
‘‘Yes.’’ And I said that I was glad because I had heard
rumors that Lee-Ann said that everyone found it to be
a waste of time. . . . And Lee-Ann immediately turned
and said, ‘‘That’s right. Everyone does think it was a
waste of time. They said it was boring that they were
falling asleep. And that it was inconsiderate of you to
schedule a meeting so close to Christmas.’’ [Emphasis
added.] And that it was unprofessional of me. And
when I asked her that—I was a bit taken aback consid-
ering she did not even attend the meeting, so I asked
her that that’s unbelievable for her speak in terms of
professionalism when she did not even attend a manda-
tory meeting.
And she said because she had better things to do and
I told her that I felt that she was being unprofessional
since she did not attend a mandatory meeting. She then
507GOEMON AMERICA, INC.
6 Farrell was asked by Respondent’s counsel ‘‘why did you say
Labor Board’’ Farrell answered, ‘‘Because it was my understanding
that the Labor Board stuck up for employee’s rights and I thought
that Eleanor was going against my right to talk amongst my peers.’’ 7 Hosker participated in furnishing information for this check.
also told me that—everyone she spoke to said that if
was a waste of time and I said, ‘‘Everyone? How many
people have you spoken to?’’ And she said, ‘‘Three or
four.’’ And I said, ‘‘Well, considering there was almost
30 people there, I hardly think three or four constitute.’’
She said, ‘‘It’s not my problem that they won’t
speak up to you and tell you the truth.’’ And I, at that
point, I said to her—she said, ‘‘In fact, people right
here are the ones that have told me that it was boring
and a waste of time.’’ And I turned to, I’m not sure,
I know Lynn was there, but I’m not sure if Lucio, but
I’m pretty sure that Lucio was also close by.
And I turned to them and I said, ‘‘Well thanks a lot
for not telling me the truth,’’ because I had, you know,
asked them what they thought of it and, at that point,
I walked away.
Arpino testified that she had heard from other individuals
that Farrell was talking about the meeting.
According to Hosker, Arpino had informed him that
Farrell had been ‘‘speaking negatively about the training
class.’’ According to Floor Manager Hernandez, Farrell’s im-
mediate supervisor, Arpino said that employees had heard
Farrell saying that the ‘‘meeting was a waste of time and ev-
erybody was falling asleep.’’
About 10 or 20 minutes later Hernandez met with Farrell
in the ‘‘back room.’’ Hernandez asked Farrell what occurred.
Farrell responded that she and Arpino had ‘‘like, argument
. . . and . . . it wasn’t right what Eleanor was doing to
me.’’ Hernandez told Farrell ‘‘to just be quiet, not to say
anything to Eleanor . . . to stay out of Eleanor’s way.’’ Her-
nandez also informed Farrell that Hosker was coming at 4
o’clock to have a meeting with Farrell. Hernandez and
Farrell again met in the ladies’ room at which time Her-
nandez again told Farrell to stay away from Arpino. Farrell
said, ‘‘Well, if I’m going to be fired, then they should fire
me now instead of making me work out the rest of the day
because I’m going right to the Labor Board6 . . . because
it was wrong what she was doing to me.
About 5 minutes later Hernandez approached Farrell and
said that she needed to talk to her. She took Farrell to the
manager’s office. Farrell testified:
When we were in the manager’s office, first she said
to me, ‘‘I’m so sorry, Lee-Ann, I know we’re friends,
but I don’t even know if I should say that, but I had
to tell Eleanor what you told me, because if she knew
that I knew what you said to me in the bathroom, then,
about going to the Labor Board, then I would have
been fired, too.’’
And I said, ‘‘well, am I fired? Am I fired?’’ And she
kept telling me how sorry she was, how sorry she was
and I said, ‘‘well, if I’m fired, I want my checks, I
want my checks. I want a copy of the warning I was
given yesterday and to cancel my tables’’ or something.
At that time she said, ‘‘well, let’s go to talk to Elea-
nor.’’ And I was crying and I just went to the—I said,
I can’t. I went to the bathroom to wipe my face.
I asked her if I’m fired. . . . She didn’t say any-
thing. She, she said, ‘‘Well, let’s go talk to Eleanor.’’
Farrell did not talk to Arpino because she was ‘‘very
upset.’’ She ‘‘was crying’’ and she ‘‘didn’t want to let her
see [her] that way.’’
Farrell addressing Hernandez said, ‘‘If I’m fired, then I
want my checks.’’ Hernandez went for the checks.
Farrell further testified:
She pulled me into the employee coat room and she
handed me the copy of the warning and one of my pay-
checks and said, ‘‘You’re not being fired for this warn-
ing, you’re being fired for the way you spoke to Elea-
nor.’’ And at that time I told her, ‘‘Well, I want my
other check.’’ [B]ecause when you’re fired, you have to
have—you have to get all your pay right there, and she
went to go get the other check for me. [Emphasis
added.]7
Farrell waited 10 or 15 minutes for her checks.
Perrone testified that Farrell told her before she left that
‘‘she was fired for speaking incorrectly to Eleanor.’’
Hernandez’ testimony differed from Farrell’s testimony in
some respects. After observing the discussion between
Arpino and Farrell, Hernandez inquired of Arpino what had
occurred. Arpino informed her of ‘‘what she heard about the
negative comments about the meeting.’’ Arpino also told
Hernandez that she had heard that Farrell had told employees
‘‘That the meeting was a waste of time and everybody was
falling asleep.’’ Hernandez then spoke with Farrell. During
a second conversation, according to Hernandez, she told
Farrell that Scott Hosker wanted to have a meeting with her
at 4 o’clock. Farrell said, ‘‘if it was to get fired that it wasn’t
fair. They, they should tell her right then instead of waiting
until 4:00 o’clock.’’ At a third conversation Hernandez told
Farrell that she had no choice but to tell Hosker ‘‘about what
she said to me about suing the company.’’
We were in the, our office then I told her that I had
no choice to tell them what she said to me and she got
really upset and she took off her apron and she asked
me for her paycheck and everything that she was going
to leave right then.
And I told her that, you know, we were supposed to
go into the corporate office and talk to Eleanor. But she
didn’t want to go into the corporate office and she
wanted to leave right then because she was really upset.
Hernandez denied that she had told Farrell that she was
terminated. Hernandez testified that Farrell was ‘‘upset and
she was crying’’ and that Farrell took off her apron, ‘‘that
she thought she was being fired.’’ (Emphasis added.) Her-
nandez did not ask Farrell ‘‘to put her apron back on
[again]’’ or return to work.
Hosker testified that Arpino phoned him and informed him
that Farrell was ‘‘speaking negatively about the training
class.’’ Thereafter Hosker phoned Hernandez and requested
a meeting with Farrell to find out what happened. Hernandez
called Hosker back and informed him that when she in-
formed Farrell that Hosker requested a 4 o’clock meeting
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The reliability of the uncorroborated testimony of an interested
witness is generally open to question only where it is contradicted
by the testimony of a disinterested witness, and not where the em-
ployer’s contrary testimony is equally self-serving. Turnbull Cone
Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir. 1985), cert. denied
476 U.S. 1159 (1986).
9 ‘‘The test for determining ‘whether [an employer’s] statements
constitute an unlawful discharge depends on whether they would rea-
sonably lead the employers to believe that they had been dis-
charged.’’’ Ridgeway Trucking Co., 243 NLRB 1048 (1979). Here
the circumstances were such as to lead Farrell to believe that she
was discharged.
10 Farrell testified that she said ‘‘Labor Board’’ because ‘‘it was
my understanding that the Labor Board stuck up for employee’s
rights.’’
11 I do not think that Farrell possessed the sophistication to have
invented the story, whereas the Respondent’s witnesses may have
been well advised.
12 I have found that the words ‘‘sue the company’’ were fab-
ricated.
Farrell said, ‘‘Well, if he’s coming back over to fire me, I’m
going to sue the company.’’ Immediately, Hosker called
Arpino and told her of the ‘‘threat of suit’’ and that he
would come to the restaurant. Before Hosker could leave he
was informed that after Hernandez had told Farrell that she
had conveyed her remarks about suing to her supervisors,
Farrell ‘‘took off her apron and demanded her paychecks.’’
According to Hosker, he was told by either Arpino or Her-
nandez that ‘‘she had taken her apron off because she
thought she was fired.’’ (Emphasis added.)
Arpino rated Farrell as a ‘‘very good waitress.’’
Although Arpino, Hosker, and Hernandez each were aware
that Farrell thought she had been fired when she took her
apron off, Farrell was not asked to don her apron and go
back to work.
B. Conclusions and Reasons Therefor
First: The Respondent insists that Farrell quit and that it
did not discharge her. Whether this assertion is well taken
depends in part on whether I believe Farrell or Hernandez.
In this respect I have evaluated the demeanor of the wit-
nesses and weighed the logic of probability and I have con-
cluded that Farrell is a truthful witness.8 Moreover, Farrell
believed that she was fired and Hernandez and Hosker be-
lieved that Farrell believed that she was fired.9 Nevertheless,
neither Hernandez nor any respondent representative asked
Farrell to redon her apron and return to work. She was al-
lowed, weeping, to collect her checks and leave. The attitude
of the Respondent toward Farrell and Farrell’s own actions
are inconsistent with a finding that Farrell quit. Farrell re-
moved her apron and left because Hernandez told her
‘‘you’re being fired.’’
Second: The General Counsel claims that at the time of
her discharge Farrell was engaged in protected concerted ac-
tivity. Whether an employee engages in protected concerted
activity depends upon whether the activity is wholly personal
or whether the activity is wholly personal or whether it em-
braces potential group or group action. See Meyers Indus-
tries, 268 NLRB 493 (1984) (Meyers I); Herbert F. Darling,
Inc., 287 NLRB 1356 (1988).
It seems obvious that Farrell was discussing matters of
group concern. The training meeting was a mandatory condi-
tion of employment. Failure to attend the meeting was sub-
ject to disciplinary action. It is apparent that certain employ-
ees were not pleased in being required to attend a training
session on the Saturday before Christmas; that to require
their presence was deemed inconsiderate. Some, including
Farrell, thought it was a waste of time. These matters were
discussed by Farrell with other employees as well as other
matters concerning other working conditions. Indeed Arpino
had heard of these discussions and intervened in an employee
discussion charging Farrell with bad-mouthing the training
session and adversely influencing employees. Indeed, Arpino
castigated Farrell for her riling other employees who, like
Farrell, looked unfavorably on the training sessions. I find
that the training sessions were of group concern. Employees
were voicing unfavorable reactions in the nature of a protest
in which an inducement to action was apparent. Because the
training session was a condition of employment, employees’
group discussions of the event in which Farrell participated,
as well as Arpino, were protected, concerted activities. Cf.
NLRB v. Henry Colder Co., 907 F.2d 765 (7th Cir. 1990).
Thus an employee was insulated against discharge for partici-
pating in such activity. See also Whittaker Corp., 289 NLRB
933 (1988).
Third: The General Counsel also asserts that at the time
of Farrell’s discharge Farrell threatened to contact the Labor
Board. In this respect Farrell insisted that she had used the
words ‘‘Labor Board’’ whereas Hernandez was equally in-
sistent that Farrell had said ‘‘suing the company.’’ Obviously
if the words ‘‘Labor Board’’ were not used, the General
Counsel’s 8(a)(4) claim would fail.
As stated by the Board in Roadway Express, 108 NLRB
874, 875 (1954): ‘‘[C]redibility findings may rest entirely
upon evidence through observation which words do not, and
could not, either preserve or describe.’’
In respect to demeanor, the Supreme Court has said in
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962): ‘‘For
the demeanor of a witness ‘. . . may satisfy the tribunal, not
only that the witness’ testimony is not true, but that the truth
is the opposite of his story; for the denial of one, who has
a motive to deny, may be uttered with such hesitation, dis-
comfort, arrogance or defiance, as to give assurance that he
is fabricating, and that, if he is, there is no alternative but
to assume the truth of what he denies.’’’
As noted above, I have carefully observed both Farrell and
Hernandez and based on their demeanor I found that Farrell
is the credible witness. Indeed, it would seem more likely
that Farrell would have said ‘‘Labor Board’’ since she actu-
ally went to the Labor Board and it is generally known that
the Labor Board is the agency to which workers take their
complaints.10 Whereas on the other hand Hernandez’ testi-
mony, ‘‘suing the company,’’ appears to have been a pat de-
fense in this case which I find to be contrived.11
Fourth: The General Counsel contends that Farrell was
discharged because she engaged in protected concerted activ-
ity and because the Respondent believed that she intended to
file an unfair labor practice with the Board. According to
Hosker, he was first activated to confront Farrell after Arpino
reported that Farrell ‘‘was speaking negatively about the
training class.’’ Thereafter Hernandez phoned Hosker and re-
ported that Farrell said, ‘‘Well, if he’s coming over to fire
me, I’m going to sue the company.’’12 Hosker phoned
Arpino and stated the ‘‘problem’’ was ‘‘getting out of con-
509GOEMON AMERICA, INC.
13 J. C. Penney Co., 266 NLRB 1223, 1224 (1983), it was said:
‘‘It is well settled that restrictions on union solicitation in non-
working areas during nonworking time are presumptively invalid.’’
See also Ichikoh Mfg., 312 NLRB 1022 (1992).
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
trol’’ and he would be right over to meet with Farrell imme-
diately. Shortly after this conversation, Controller Juan Baez
called Hosker ‘‘to get the payroll statistics on Lee-Ann from
the previous week because she had taken off her apron and
demanded her paychecks immediately.’’ Hosker gave Baez
the ‘‘payroll figures.’’
Hosker was told that Farrell was taking off her apron
‘‘[b]ecause she thought I was going to fire her and she was
going to leave.’’ However, Hosker did nothing to dispel
Farrell’s belief. Indeed, he furnished information for her final
check. He let her go with her thinking that she was fired.
Additionally, it is uncontroverted that Hosker intended to
confront Farrell immediately because she had threatened to
go to the Labor Board. Except for Farrell’s threat to go to
the Labor Board and her engaging in protected concerted ac-
tivity, the record is barren of any credible reason for her dis-
charge.
A prima facie case, thus having been established by the
General Counsel the burden shifted to the Respondent to
prove that Farrell would have been fired even though she had
engaged in protected concerted activities and threatened to
go to the Labor Board. See Wright Line, 251 NLRB 1083
(1981).
The Respondent’s defense is that Farrell voluntarily quit.
I find no credible evidence to support this view. Farrell’s
participation in protected concerted activity and her threat to
go to the Labor Board appear to have been treated by the
Respondent as inextricable.
By discharging Farrell for engaging in protected activity,
the Respondent violated Section 8(a)(1) of the Act, and by
discharging Farrell for threatening to go to the Labor Board,
the Respondent violated Section 8(a)(4) of the Act. Cf. Over-
seas Motors, 260 NLRB 810 (1982). The chilling effect of
Farrell’s discharge on the Respondent’s employees was ap-
parent.
Fifth: The Respondent’s Policies and Procedures Hand-
book, which is in effect at the Respondent’s facilities, con-
tains the following rule:
No solicitation will be allowed in the Restaurants by
either Goemon teammates or outsiders. This includes
posting literature, signs, handouts or merchandising. If
you see someone soliciting, please notify a manager im-
mediately.
Loitering is not permitted.
This rule is overly broad in violation of Section 8(a)(1) of
the Act in that employees may reasonably construe the rule
to prohibit them from engaging in permissible union solicita-
tion during nonworking time.13
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act to assert jurisdiction.
2. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
3. By unlawfully discharging Lee-Ann Farrell on Decem-
ber 22, 1992, for engaging in protected concerted activities
for mutual aid and protection and for indicating that she
would go to the Labor Board, the Respondent engaged in un-
fair labor practices within the meaning of Section 8(a)(1) and
(4) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having unlawfully dis-
charged Lee-Ann Farrell on December 22, 1992, and failing
to reinstate her in violation of the Act, it is recommended
that the Respondent remedy such unlawful conduct. In ac-
cordance with Board policy, it is also recommended that the
Respondent offer Lee-Ann Farrell immediate and full rein-
statement to her former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights and privileges
previously enjoyed, dismissing, if necessary, any employee
hired on or since the date of her discharge to fill the posi-
tion, and make her whole for any loss of earnings she may
have suffered by reason of the Respondent’s unlawful acts
detailed, by payment to her, a sum of money equal to the
amount she would have earned from the date of her unlawful
discharge to the date of a valid offer of reinstatement, less
her net interim earnings during such period, with interest
thereon, to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Goemon America, Inc., Cambridge, Mas-
sachusetts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging lawful concerted activities of its employ-
ees in violation of Section 8(a)(1) of the Act by discharging
its employees for engaging in concerted activities for their
mutual aid and protection.
(b) Unlawfully discharging employees in violation of Sec-
tion 8(a)(4) of the Act for representing that they would go
to the National Labor Relations Board.
(c) Maintaining in effect an invalid no-solicitation rule.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Lee-Ann Farrell 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 senior-
ity or any other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against her
in any way.
(c) Preserve and, on 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 under the terms of this Order.
(d) Post at its facility in Cambridge, Massachusetts, copies
of the attached notice marked ‘‘Appendix.’’15 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.