Ground Round

National Labor Relations Board - Board Decisions

Feb 26, 1986

278 N.L.R.B. 744 (N.L.R.B. 1986)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Company d/b/a Ground Round
and William J. Burnand . Case 1-CA-22807
26 Feburary 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 13 November 1985 Administrative Law
Judge Frank H. Itkin issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision and cross-exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings,' and conclusions and to adopt the
recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Howard
Johnson Company d/b/a Ground Round, Walpole,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Ronald S. Cohen, Esq., for the General Counsel.
Richard A. Gaucher, Esq., for the Respondent.
FINDINGS OF FACT
Respondent operates public restaurants and is admit-
tedly an employer engaged in commerce as alleged.
Charging Party Burnand was employed by the Company
as a server at its Walpole, Massachusetts facility. He
started about September 1, 1984, and worked at an
hourly wage rate of $2.01 plus tips. He was discharged
on February 8, 1985. Maria Carey-Sauerwein was then
general manager of that facility, and Michael Phillips
was and is assistant manager.
Employee Burnand testified that he attended a "pre-
meal" meeting at the Employer's Walpole facility during
December 1984, "where Ms. Sauerwein discussed vari-
ous changes at the Ground Round." Sauerwein an-
nounced to Burnand and his coworkers "changes in
hours and duties," which included a "cut back" in work-
ing hours "after the holidays" and "staying around [to]
wash dishes and do some maintenance work and extra
side work." Some weeks later, on January 15, 1985,
Sauerwein instructed Burnand that "she wanted to talk
to [him] after [he] was finished working." The two then
had the following discussion:
I [Burnand] told her I wasn't happy about the
things that were going on in the restaurant and that
me and [co-worker] Dianne [Cercone]had made
calls to the Labor Board, just to find out what our
rights were, and that we had pressed no charges,
and that we didn't really want to go outside the res-
taurant, we'd like to have an employee meeting to
discuss it with her.
And, she said she was very displeased with us for
going outside of the restaurant with these problems,
for creating sensationalism among the employees,
and that she wouldn't be dictated to by her help,
but she said she'd have a meeting.
I told her I thought, not only wasn't it fair, it was
illegal that we should wash dishes for $2 an hour,
less than minimum wage. That was my big gripe
DECISION
FRANK H. ITKIN, Administrative Law Judge. William
J. Burnand filed an unfair labor practice charge in this
case on March 27 and an amended charge on May 6,
1985. The General Counsel for the National Labor Rela-
tions Board issued a complaint on May 10, 1985. The
General Counsel alleges that Respondent Employer vio-
lated Section 8(a)(1) of the National Labor Relations Act
by issuing a written warning to and later discharging em-
ployee Burnand, and by subsequently barring Burnand
from its premises and refusing to pay him a "finder's
fee," because he had engaged in protected concerted ac-
tivities. Respondent denies violating the Act as alleged.
A hearing was held in Boston, Massachusetts, on July 10
and 11, 1985.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
In addition, as Burnand further explained, between the
December "pre-meal meeting" and his January 15 "dis-
cussion" with Sauerwein, he had "discussed the subjects
of the [proposed] changes with other employees" in their
homes, in the back parking lot and at a nearby restaurant
on more than a dozen occasions. "Nobody was really
very happy over the situation."
Respondent later posted a notice at the Walpole res-
taurant, that there was "going to be a meeting on Janu-
ary 26." Burnand, as he testified:
[T]old everybody during that week that we should
get together before the big meeting on the 26th
1 Burnand explained on cross-examination that "I didn't make the
actual telephone call, but Dianne [Cercone] did She did the talk-
ing" during their telephone call to the "Federal Labor Board" or "De-
partment of Labor "
278 NLRB No. 108
GROUND ROUND
with the managers, and get our act together and go
in as a team.
The employees met 2 days earlier, on January 24, at a
nearby restaurant. Burnand and about three other em-
ployees were present. Burnand acknowledged that "ev-
erybody was pretty disappointed with the turnout-we
expected a lot more people."
Thereafter, at the meeting of January 26, Sauerwein
announced to the assembled employees:
It has come to my attention that people aren't
happy with certain things. This is your chance to
speak up and get these problems in the open and re-
solve them.
Burnand then "complained about washing the
dishes"-"not only is not fair, ii is not legal, you just pay
us $2 per hour to wash dishes . . . minimum wage is
$3.25 .. .." Other employee complaints were related to
management.
Later that same day, January 26, as Burnand further
testified, Burnand was given his first "written warning."
(See G.C, Exh. 2.) This "warning" faults Burnand for
"loafing" and "performing poor work due to willful ne-
glect," and cites:
Extremely poor attitude toward Company, Manag-
ers, and fellow employees. Also service is below
standards.
This"warning", signed by Manager Sauerwein and As-
sistant Manager Phillips, concludes:
The issuance of further warnings may subject you
to disciplinary action such as suspension or dis-
charge.
Burnand protested to Sauerwein and Phillips that "they
were wrong and the charges were wrong." Sauerwein
and Phillips responded: "I [Burnand] had two weeks to
shape up or ship out." In addition, Sauerwein and Phil-
lips further faulted Burnand for "looking sloppy." Bur-
nand previously had not been warned about "loafing,"
"willful neglect," "poor attitude," or any related of-
fenses. On the contrary, some months earlier, former As-
sistant Manager Michael Macedonio had evaluated Bur-
nand as having "a good attitude and . . . coming along
as a waiter."2 Burnand nevertheless promptly got a hair-
cut and "made a point" of asking Phillips "if my haircut
was allright." Phillips "said"it was fine."
Burnand was discharged 2 weeks later on Friday, Feb-
ruary 8, by Assistant Manager Phillips and Dining Room
Manager Audrey Bower. Burnand recalled:
Mr. Phillips said he felt my attitude hadn't im-
proved enough and Audrey [Bower] said that last
Wednesday two truck drivers from Colorado said
my service was slow, and they felt they were going
to have to let me go.
Y Phillips replaced Macedomo about mid-December 1984.
745
Management previously had not mentioned any incident
with truckdrivers to Burnand.
Burnand admittedly returned to the Walpole facility
on three occasions after his discharge. He assertedly
wanted a $25 "finder's fee for referring an employee to
employment there"-"it's money we would get for refer-
ring someone there." He had "referred" one Alex Strath-
opoulus "for employment" about November 1, 1984.
During his first postdischarge visit, Bower said that Bur-
nand "would have to come back Monday and talk to
Maria Sauerwein." During his second visit, Sauerwein
apprised Burnand: "You're no longer an employee, no
longer entitled to the Company, and you can go file a
complaint with whoever you feel like." On the third
visit, March 1, 1985, Burnand again asked Sauerwein for
"the money," and attempted to have a drink with a
former fellow worker-it was his "20th birthday." How-
ever, Sauerwein said:
She still wasn't going to pay me and she had in-
formed all the help not to serve me.
Sauerwein then stated that Burnand was there "to start
trouble"; "she didn't want me talking to the other em-
ployees"; he was "barred from the premises for life"; and
Sauerwein threatened Burnand with arrest if he "didn't
leave peacefully."3
Maria Carey-Sauerwein was employed by Respondent
for about 3-1/2 years. She left the Employer in May
1985. During the pertinent period, she was the manager
at the Walpole restaurant. Initially, Michael Macedonio
was her assistant manager; later, Michael Phillips became
assistant manager. Sauerwein issued employee Burnand
(G.C. Exh. 2) the "written warning" dated January 26,
1985. She claimed that this was "a joint effort with Mi-
chael Phillips," although she "made the decision." She
assertedly "made the decision" to issue this warning on
January 26. She could not recall whether this decision
was "in the morning or the afternoon." Elsewhere, she
testified:
Q. [If] you decided to issue the written warning
to Mr. Burnand on the 26th, it would have to have
been sometime around 4 o'clock.
A. I would assume so, yes.
She was asked, "What was the specific incident that
made you decide it's time to issue Mr. Burnand this writ-
ten warning?" She responded: "There was no specific in-
cident. There were several incidents." She later added:
"approximately two days prior" there was a guest com-
plaint"-she could not remember the guest and admitted-
ly made no notation of this customer complaint. She then
asserted that she had "waited until the 26th" to issue
Burnand a written warning because Burnand "was not in
every day." Elsewhere, she conceded that Burnand had
8 On cross-examination, Burnand noted that at the January 26 meeting,
other employees, including Dianne Cercone, "raised other issues " Bur-
nand also noted that he has "filed a wage-hour complaint" against the
Employer
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not worked on January 24-he had "worked on the
25th."4
Sauerwein was asked whether or not the January em-
ployee meeting was held "before or after you gave Mr.
Burnand his written warning?" At first, she responded:
"I believe the meeting was after" the warning. Else-
where, she acknowledged that the meeting "was a morn-
ing meeting" and it "could have been held" on January
26. She then,recalled the January 26 employee meeting,
in part as follows:
Q. . . . And concerning the meeting itself, how
was that conducted?
A. . . . When I opened the meeting I said, "The
first thing I'm going to do is let you know that I
understand that there are some problems and I'd
like to resolve those problems, therefore I open the
floor, by raising of hands, to anyone that would like
to speak at this meeting and talk about something
they feel is going wrong so we can rectify it."
Q. And after you made this opening statement
who spoke next ; do you recall?
A. I believe Dianne Cercone spoke next.
Q. What did she say?
A. She said, "I'd like to start the meeting by
making a public apology to Maria [Sauerwein] for
having the need or seeing the need to go outside or
to have any other things going on that she was not
'knowledgeable about. Because, I think that, had we
gone to her we would have been able to resolve it
in the first place and I didn't want to hurt her feel-
ings."
Q. Did she make some statement about apologiz-
ing for calling the Labor Board?
A. She made mention of that word.
Q. Did she say which Labor Board she called?
A. No, she said, "I know that you people under-
stand that I called the Labor Board and I want you
to know that I apologize for that." She made a
statement about it.
Q. Was this news to you at this meeting that she
had called the Labor Board?
A. No, I had heard from several people that the
Labor Board was contacted.
Q. Did you know which Labor Board she had
contacted?
A. No, I had no idea which one.
Q. Who was it who told you that she had called
the Labor Board?
A. I believe-and again, I say I believe because I
don't know exactly who, but I would say three
people came to me and said, "You know, some of
us got together and the Labor Board was contacted
and we just wanted you to know."
Q. But did they indicate to you that Dianne had
been the one who,had"called?
4 Sauerwein later claimed that management was in fact "unsatisfied
with [Burnand's] performance" as early as the "end of September" 1984
She instituted "the process of three-step-watching-and-counseling" which
assertedly takes about 90 days Burnand would improve for brief periods
and "go down hill again " She repeatedly cited to him, inter alia, "apear-
ance," and he was "Constantly arriving late" at meetings
A. Yes.
Q. Do you recall the names of the people that
told you that they had gotten together and decided
to call the Labor Board and got Dianne to call?
A. I believe Eileen Meisner was one. Denise
McNamara was another one and Dianne herself, I
think, had mentioned it to me.
Q. And when Dianne told you that she had
called the Labor Board, what did you say to her?
A. I said, "Dianne, I'm disappointed that you
couldn't come to me before trying to settle it
through an outside source. It's somewhat like going
over my head. If you had been able to come to me
first I certainly would have been able to resolve it
and now that I know, I will."
Q. Now, Mr. Burnand spoke out at that meeting,
didn't he?
A. Yes.
Q. And do you recall what complaints he
brought?
A. One of the things that was brought up at the
meeting, not only by him but by other people, was
the subject of doing dishes. And various other
things.
Q. What was the subject of doing dishes? What
did that involve?
A. It involved putting dishes, once they had been
placed into racks, pushing them through a dish ma-
chine and pulling them out.
Q. Were the waiters and waitresses complaining
about the fact that they were required to do that
work instead of dishwashers?
A. Yes, after certain hours they were.
Q. That they were getting paid a $2.01 wage
rate, which is below minimum wage rate while
dishwashers-well, not getting the minimum wage
rate required by federal law?
A. Yes, that was one of the complaints that was
brought up.
In addition, Sauerwein testified:
Q. Now, prior to the date of the meeting, you
were aware that employees, including Mr. Burnand,
had been meeting and talking to each other about
various complaints that they had and which they
voiced at the meeting?
A. Yes, I was aware.
Q. How did you become aware that employees
had been discussing these complaints amongst them-
selves?
A. Various employees mentioned it to me.
Q. Including Dianne Cercone?
A. Uh-huh.
Q. How long before the meeting . . . did Dianne
Cercone inform you that employees had been dis-
cussing their complaints about working conditions
at their homes and at the 99 Restaurant?
A. I would say approximately a week.
Q. And she did tell you also, did she not, that
Mr. Burnand had been involved in these discussions
and meetings?
GROUND ROUND
A. Yes, she did.
Sauerwein was questioned about the Employer's "writ-
ten disciplinary policy." She claimed that she was not
aware of any such written policy. She asserted that there
was a "90-day three-step-coaching-and-counseling proce-
dure"-a "very loosely handled procedure." She added:
"At the last stage there may or may not be a written rep-
rimand issued." She assertedly "never gave a second
written warning." (Cf. G.C. Exh. 2, quoted supra.) She
later acknowledged that, "after the-first written warn-
ing" the employee would be given "normally one to two
weeks" to "improve his performance." Elsewhere, she
was asked if she had told the investigating agent of the
Labor Board "that [her] policy was that [she] could give
up to two warnings to an individual before discharging"
him? She replied: "I may have said that if it's in the affi-
davit?"5
Sauerwein went on vacation shortly after issuing the
January 26 written' reprimand to Burnand. She assertedly
had no discussions with her assistant manager, Phillips,
concerning Burnand before, she left, because "if termina-
tion followed this, I wanted it to be an unbiased termina-
tion ...."
Elsewhere, she acknowledged stating in her prehearing
affidavit that she "discussed the matter" with Phillips
"before leaving on my vacation." She added: "It may
have been mentioned; we did not discuss it." She "first
learned" of Burnand's termination when her vacation
ended-"Mr. Phillips made the final decision.""
Audrey Bower, now bookkeeper at Walpole, was
dining room manager when Burnand was terminated.
She testified that Burnand's performance was "very
slow"; "he was never around when you needed him"; he
avoided "side work";, his "Performance was not very
good at all." Bower added: "he was very messy looking"
and his "attitude" was "unsatisfactory." However, she
could not recall "ever disciplining Burnand" in any way.
She then recalled: "I have said things to him before."
Shea further recalled: "I did once" "sit down with him in
the dining room" after "a customer complaint," and the
two had a discussion. She placed the above incident
during the"beginning of February 1985"-"very close to
his termination." She observed: "I kept an eye on every-
body, but especially him."7' Bower assertedly discussed
on various occasions her criticism of Burnand's perform-
ance with both Sauerwein and Phillips. She could not,
however, recall "any particulars." Elsewhere, she re-
Sauerwein was later asked about the failure of Burnand's written rep-
rimand (G C. Exh. 2) to cite any "guest complaints ." She asserted:
"Sometimes its's mentioned; sometimes it's not." Cf. G.C. Exh. 6, another
employee's reprimand listing ^"guest complaints." She claimed that Phil-
lips prepared G.C. Exh 2.
6 Michael Phillips was subpoenaed by the General Counsel to testify in
this proceeding He did not appear Counsel for Respondent stated at the
hearing (Tr 62-74). "Although I would prefer to have him [Phillips]
here and available to me, . . . it was possible for us to proceed without
him"-"this man had not had a vacation in a couple of years." No appli-
cation was made by Respondent to continue the case until Phillips' return
from vacation. However, the General Counsel moved for "sanctions" be-
cause of Phillips' failure to comply with the subpoena. (Ibid )
I Bower further described the above incident in early February with
Burnand. She claimed that two "truckclrivers from Colorado" had com-
plaiq'ed about Burnand
747
called that the incident involving the two "truckdrivers
from Colorado ," noted ' supra, occurred when Sauerwein
was on vacation , and she discussed this complaint with
Phillips. Burnand was fired about 5 days later, on Febru-
ary 8. She was uncertain of the dates. She was present
when Burnand was terminated . Phillips "did most of the
talking."
Bower testified:
I did bring to the attention of Michael [Phillips],
after I got the complaint, that that's it . . . . We've
given him , a lot of - chances. He lasted longer than
anybody else did with such poor service and- poor
attitude, etc.... .
She assertedly had recommended to Phillips that Bur-
nand be terminated and- "he agreed ." Phillips, during
Burnand 's termination, "explained to Bill that his per-
formance had not changed" and "he had heard a lot of
complaints." Burnand "did not agree with what we were
saying." Burnand was fired because of "poor perform-
ance, appearance and attitude."a'
On cross-examination, Bower was further questioned
about the incident involving the "truckdrivers from Col-
orado." This customer complaint occurred, Bower be-
lieved, on a Sunday-the "Sunday before he was termi-
nated." The complaint was "about 6:30 p.m." Burnand,
however, had checked out at 3:20 p.m. that day. Bower
then asserted:
These people had been in earlier that Sunday .. .
they returned. I remember asking them, "Why did
you come back if your service was so bad ... they
said they liked the atmosphere ...."
Nina Eliasson, previously employed by Respondent as
a "hostess and bookkeeper ," testified that Burnand was
"not always on the floor at his table when he was sup-
posed to be"; he did not "properly" do his "side work"
such as sweeping ; and he lacked "teamwork ." Eliasson
acknowledged that there were worse servers than Bur-
nand. She agreed that no waiter likes to do side work
and Burnand was not the "only one who didn 't." She re-
lated some of her complaints to management.
Denise McNamara is employed by Respondent. She
was critical of Burnand's performance as a server. Bur-
nand did not "help anybody else"; "I thought he `was
very selfish"; "he'd leave a dirty station"; "he would
place [glasses] right on top" of the washer ; and, when
accused , he denied responsibility which was , in her view,
"an out-and-out lie ." She complained to Sauerwein about
Burnand's "failure to load the glass washer " and her
confrontation with Burnand over this incident. She then
added : "Bill had a problem with his language that I find
very offensive ... I had to ask him on more than one
occasion to kindly curb his mouth ." She discussed this
9 Bower also recalled Burnand 's postdischarge visits to the restaurant
He wanted his "finder's fee." Bower told Burnand that she would "dis-
cuss it with Maria."' He came back. He assertedly was "in the service
area" and was told to leave . He was not allowed in this nonpublic area.
He came back a third time . Bower could not remember whether he was
in nonpublic areas at the time.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too with management . She assertedly was assured by
Sauerwein that "he would eventually be terminated."
She could not recall when she related her complaints to
management . She testified:
Q. Do you personally dislike Bill Burnand?
A. The only time that I 've had to dislike him was
when he worked at the Ground Round . I do not
know Bill personally . So, I mean if you 're asking
me professionally , I though he was one of the
worse waiters I had ever worked with . I asked him
many-times to be considerate of the fact that I am a
christain and it never seemed to make any kind of a
change in his attitude at all. I have asked, you
know, other people to be a little bit wary of swear-
ing and most people are very considerate and will
abide, Bill could have cared less.
I credit the testimony of Burnand as detailed above.
His recollection of the pertinent sequence of events cul-
minating in his written reprimand and firing was com-
plete , candid, and forthright . His testimony is also sub-
stantiated in pertinent part by acknowledgments of both
Sauerwein and Bower . He, impressed me as a truthful
witness . On the other hand, I find the testimony of
Sauerwein and Bower to be incomplete , vague, contra-
dictory, and evasive . They did not impress me as candid
or credible witnesses . It is true , as counsel for Respond-
ent asserted , the record suggests that Burnand did not
report his full tips for tax purpose . (Cf. Tr. 108-112.) I
have taken this and related testimony into account for
credibility purpose . Nevertheless , on this entire record, I
find Burnand 's recitation of the pertinent sequence to be
reasonable, complete, and trustworthy . As the court ob-
served in NLRB v. Universal Textile Mills, 372 F.2d 752
(1st Cir. 1967), the "Board 's case is to be measured in the
light of respondent 's . , . marked by serious omissions
and, to the extent , given, fanciful to an extreme ...."
Here, too, Respondent 's testimony concerning this se-
quence contained "serious omissions " and, "to the extent
given, was fanciful to an extreme." In sum, as discussed
below, I fmd and conclude that Burnand was in fact
issued a written reprimand and then fired , not because of
his cited deficiencies as a food server , but because of his
participation with coworkers in complaining about terms
and conditions of employment . I find here that Burnand's
cited shortcomings were not a reason for his termination
but, instead , are simply pretexts now belatedly advanced
by management in an attempt to justify its illegally moti-
vated conduct.9
Discussion
Burnand started working for Ground Round as a food
server during September 1984. He was paid about $2 an
9 I fmd the testimony of Eltasson, as recited above, to be truthful She
principally faulted Burnand as a server because he was "not always on
the floor at his table", did not like to do side work; and lacked team-
work She agreed, however, that Ground Round had worse servers and
no waiter or server likes side work. As for the related testimony of
McNamara, I am persuaded here that her demonstrated, extreme sensitiv-
ity to Burnand's language-not cited as a reason for the Employer's disci-
plinary action-has caused her to exaggerate her recollection of Bur-
nand's deficiencies as a server
hour plus tips. Management asserts that it was unsatisfied
with his performance from the outset; however, no
formal or written warnings were issued to him. On the
contrary, former Assistant Manager Macedonio had
complimented Burnand as "coming along." During De-
cember Manager Sauerwein announced to the Ground
Round employees proposed changees in hours and
duties, including a cut back and the requirement that
servers "stay around [to] wash dishes and do some main-
tenance work and extra side work." Burnand, Cercone,
and other coworkers were upset over the proposed
changes. They held meetings to discuss their complaints;
they telephoned the Department of Labor to determine
whether there was a possible wage-hour violation; they
informed Sauerwein about their grievances and meetings;
and they wanted a meeting with management. Sauerwein
faulted the employees for going outside with these prob-
lems, and she then agreed to a meeting.
A meeting of employees was held at the Employer's
facility on January 26, 1985. There, employee Cercone
publicly apologized to Manager Sauerwein for "Seeing
the need to go outside" to the Department of Labor.
Burnand, however, did not apologize. He persisted in his
complaint with other employees, "about washing the
dishes . . . not only is it not fair . . . it-is not legal .. .
you just pay us $2 per hour to wash dishes . . . mini-
mum wage is $3.25." Other complaints were also voiced.
Later that same day, Burnand was issued his first written
reprimand, faulting him for, inter alia, loafing, perform-
ing poor work, extremely poor attitude, and service is
below standards. (See G.C. Exh. 2.) He was formally
warned: "The issuance of further warnings may subject
you to disciplinary action such as suspension or dis-
charge." He protested the ' Employer's charges and, at
the same time, attempted to comply with their criticisms.
Management, in an attempt to justify this January 26
written reprimand, faults Burnand's performance from
the beginning of his employment. Management, however,
as noted, never issued a written reprimand to Burnand
for these various shortcomings. Management also cites a
guest complaint "approximately two days prior." The
written reprimand makes no mention of this guest com-
plaint, although the Employer has specifically cited such
complaints to other employees in their written repri-
mands . (Cf. G.C. Exh. 6.) Indeed, it appears that Bur-
nand was not even working on the day of this undocu-
mented guest complaint. And, about 2 weeks later, on
February 8, Burnand was summarily fired. Again, an un-
documented complaint by "two truckdrivers from Colo-
rado" is cited by management as a reason for its action.
According to management, this complaint as made. some
5 days earlier after Burnand had completed his shift and
checked out. The two truckdrivers, we are told, -came
back because they liked the atmosphere and, at the same
time, to fault Burnand. No attempt was made to record
or substantiate this complaint. Burnand was then fired,
denied a "finder's fee" for referring a new employee to
the facility,,and "barred from the premises for life."
I find and conclude on the credited evidence of record
that Respondent issued employee Burnand a written rep-
rimand on January 26 and fired him on February 8 be-
GROUND ROUND
cause he, together with other employees, had complained
in- concert over their wages and hours and other terms
and conditions of employment. I reject as pretextual the
belated, shifting, and unsubstantiated reasons cited by the
Employer to justify its action. The Employer, for
months, had accepted Burnand's performance. It was not
until Burnand, and his coworkers, persisted in complain-
ing about their wages, hours, and other terms and condi-
tions of employment, that management wrote him up,
fired him, denied him a finder's fee, and "barred him
from the premises for life." The Employer's conduct was
in retaliation for Burnand's protected concerted activity,
in violation of Section 8(a)(1) or the Act. 10
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. Respondent violated Section 8(a)(1) of the Act by
issuing a written reprimand to employee Burnand on
January 26, 1985, by discharging Burnand on February
8, 1985, by denying Burnand a finder's fee, and by bar-
ring Burnand from its premises , because Burnand had en-
gaged in protected concerted activities.
3. The unfair labor practices found above affect com-
merce as alleged.
THE REMEDY
To remedy the unfair labor practices found above, the
Employer will be directed to cease and desist from en-
gaging in such unlawful conduct or like or related con-
duct and to post the attached notice. Further, the Em-
ployer will be directed to offer employee Burnand imme-
diate and full reinstatement to his old job or, in the event
such job no longer exists, to a substantially equivalent
job, and make him whole for any loss of pay he may
have suffered by reason of his discharge, including the
loss of his finder's fee, by payment to him of a sum of
money equal to that which he would have earned, but
for his discharge, from February 8, 1985, to the date of
an offer of reinstatement, less his net earnings during this
period, to be computed in the manner described in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed as set forth in Florida Steel Corp., 231 NLRB
651 (1977).11 In addition, the Employer will be directed
to remove from its files any reference to this disciplinary
action,and discharge, found unlawful herein, in accord-
ance with Sterling Sugars, 261 NLRB 472 (1982).
1° It may be contended that Burnand would have been fired anyway
for his performance as a server It is true, as Eliasson explained, Burnand
was a below-average food server. He was a young student with other in-
terests However, the Employer had accepted his performance for many
months And the Employer, on this record, has not sufficiently demon-
strated that Burnand would have been reprimanded and fired on Febru-
ary 8 for lawful reasons.
In view of the recommended disposition of this case, I do not reach
the question whether sanctions should be imposed on the Employer be-
cause of Assistant Manager Phillips' failure to comply with the General
Counsel's outstanding subpoena.
11 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962).
749
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'2
ORDER
The Respondent, Howard Johnson Company, d/b/a
Ground Round, Walpole, Massachusetts, its officers,
agents, successors, and assigns, -shall
1. Cease and desist from
(a) Reprimanding, discharging, denying a finder's fee
to, and barring from its premises employees, because of
their participation in concerted activity for the purpose
of mutual aid and protection.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer employee William J. Burnand immediate and
full reinstatement to his old job or, in the event such job
no longer exists, to a substantially equivalent job, and
make him whole for any loss of pay he may have suf-
fered by reason of Respondent's action in discharging
him, with interest, as provided in the remedy section of
this decision.
(b) Remove from its files any reference to the repri-
mand or discharge of Burnand and notify him in writing
that this has been done and that evidence of this unlaw-
ful reprimand or discharge will not be used as a basis for
future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, as well as other records
necessary or useful in analyzing and computing the
amount of backpay due under the terms of this Order.
(d) Post at its Walpole, Massachusetts facility copies of
the attached notice marked "Appendix."13 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by 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 have been
taken to comply.
12 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
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 pur-
poses °@
13 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 Nation.
al 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 "
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT reprimand, discharge, deny a finder's
fee to, or bar from our premises any employee because
of his or her protected activity.
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 William J. Burnand immediate and full
reinstatement to his former job or, if his former job no
longer exists, to a substantially equivalent position of em-
ployment, without prejudice to his seniority or, other
rights and privileges previously enjoyed, and WE WILL
make him whole for any loss of pay that he may have
suffered by reason of his unlawful discharge, including
his finder's fee, with interest.
WE WILL remove from our files any references to the
reprimand or discharge of Burnand and WE WILL notify
him that this has been done and that evidence of this un-
lawful discharge will not be used as a basis for future
personnel actions against him.
HOWARD JOHNSON COMPANY D/B/A
GROUND ROUND