Highland House Restaurant

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1419 (N.L.R.B. 1984)

HIGHLAND HOUSE RESTAURANT
Dan Carrier, Sole Proprietor, d/b/a Highland House
Restaurant and Carol Lafferty. Case 9-CA-
20233
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 March 1984 Administrative Law Judge
Marion C. Ladwig issued the attached decision.
The Respondent filed 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 and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and to adopt the recom-
mended Order as modified.
We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) by discharging em-
ployee Carol Lafferty and violated Section 8(a)(1)
by coercively interrogating another employee. We
disagree, however, with the judge's conclusion that
the Respondent further violated Section 8(a)(1) by
impliedly threatening to close its business if em-
ployees selected a union.
The Respondent operates a restaurant in Paints-
ville, Kentucky. In support of the complaint allega-
tion that the Respondent unlawfully threatened to
close its business the General Counsel presented
the testimony of waitress Diana Lackey. Lackey
testified that on 26 September 1983 Owner Dan
Carrier made certain statements pertaining to the
alleged closing. Lackey's testimony on this matter
is as follows:
Q. Do you remember him saying that he
worked someplace else where they tried to get
a union?
A. Once-well, it was that he mentioned
about a place before where they had tried to
start a union and it didn't work and that it
wouldn't work in a restaurant.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
lasw 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.
At the second paragraph of sec. I1,A,l of his decision the judge inad-
vertently referred to claims made by "Caudill" in a pretrial affidavit As
noted correctly elsewhere in his decision the affidavit in question was
that of Dan Carrier and not Caudill.
271 NLRB No. 225
Q. Okay, now, you said he mentioned an-
other place where they tried to get a union.
Did he tell you what happened there?
A. That it didn't work out and that they
closed the place down or something to that
remark, I don't really remember all of it, but
that was the remark, to the best of my knowl-
edge, you know.
Q. Anything else that you remember that he
said about a union?
A. No.
Q.... he talked about a place where he
had worked where they tried to get a union.
Would you tell us again what he said about
that?
A. He just said-I don't really remember ex-
actly where it was or the place that he was-
one other time before it had happened, he said
that somewhere they had tried to form a union
and that they had to shut down the place.
Q. Did he say what happened then?
A. That there was a lot of people that had
worked there for years that were without jobs,
because they had shut down the place.
The foregoing is the full extent of Lackey's testi-
mony regarding this matter.
Based on Lackey's testimony the judge found
that Owner Carrier had made an implied threat to
close the restaurant if it became unionized. Accord-
ing to the judge, Carrier's remarks were coercive
because Carrier referred to his experience in the
closing of a union business that caused the loss of
jobs of many senior employees and because Carrier
stated that a union would not work in a restaurant.
At the outset it is readily apparent from a fair
reading of Lackey's testimony that Carrier did not
state directly or indirectly that the other "place"
was closed in retaliation for employees' union ac-
tivities or that unionization necessarily was the
causative factor in its closing. On the contrary Car-
rier's statement that the other business "had to"
shut down reasonably implies that it was closed for
circumstances beyond its control. Indeed Lackey's
testimony regarding Carrier's statements is so pa-
tently disjointed and ambiguous as to render
wholly speculative any implication that employees
would reasonably tend to fear reprisals for engag-
ing in union activities. See Ohio New & Rebuilt
Parts, 267 NLRB 420, 421 (1983). Thus, for exam-
ple, although the judge characterized Carrier's
remark as referring to Carrier's "experience in the
closing of a union business," Lackey's testimony is
altogether unclear as to whether Carrier was in-
forming Lackey of his experience as an owner, su-
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervisor, employee, or in another capacity entirely.
It is also evident from Lackey's testimony that Car-
rier made no specific reference to the future viabili-
ty of the Respondent's business and made no pre-
diction that adverse consequences likely would
befall its operation. Contrary to the judge we do
not view Carrier's statement of personal opinion
that "a union wouldn't work in a restaurant" as in-
dicative of a coercive implied threat to close the
restaurant. Such a statement is squarely protected
by Section 8(c) of the Act.
In short, we find there is nothing in Carrier's re-
marks as set forth by Lackey to indicate that if the
Respondent's employees selected a union the Re-
spondent would close the restaurant in reprisal. We
shall therefore dismiss that portion of the complaint
alleging that the Respondent violated Section
8(a)(1) in this respect. Daniel Construction Co., 264
NLRB 569 (1982).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Dan Carrier, Sole Proprietor, d/b/a
Highland House Restaurant, Paintsville, Kentucky,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as so modi-
fied.
1. Delete paragraph l(c) and reletter the subse-
quent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER ZIMMERMAN, dissenting in part.
Contrary to my colleagues, I would adopt the
administrative law judge's finding that the Re-
spondent violated Section 8(a)(1) by impliedly
threatening to close the restaurant if the employees
selected the Union. The Respondent's owner, Car-
rier, told employee Lackey that he had worked in
a place where employees had tried to start a union,
that it did not work out, and that place had to shut
down. He also stated that a union would not work
in a restaurant. Carrier made these statements only
hours after he had unlawfully discharged the insti-
gator of the union campaign. Further, Carrier had
unlawfully interrogated Lackey about union activi-
ties in the same conversation that he had men-
tioned the business closing because of a union.
Under these circumstances, I agree with the judge
that Carrier's statements constituted an implied
threat to close the restaurant if it became union-
ized.
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the United
Steelworkers of America, AFL-CIO or any other
union.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Carol Lafferty immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL notify Carol Lafferty that we have re-
moved from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
DAN CARRIER, SOLE PROPRIETOR,
D/B/A HIGHLAND HOUSE RESTAU-
RANT
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This
case was tried at Salyersville, Kentucky, January 12 and
13, 1984. The charge was filed October 13, 1983,1 and
I All dates are in 1983 unless otherwise indirct-- .
1420
HIGHLAND HOUSE RESTAURANT
the complaint was issued November 21. Restaurant
Owner Dan Carrier discharged waitress Carol Lafferty
during a union organizing drive. Claiming he was not
aware of her union activity, Carrier falsified his pretrial
affidavit concerning a purported reason for her dis-
charge.
The primary issues are whether the Respondent, acting
through Owner Carrier, (a) coercively interrogated em-
ployees about union activity, (b) indicated to an employ-
ee that it had to discharge an employee for union activi-
ty, (c) threatened to close the restaurant, and (d) discri-
minatorily discharged waitress Lafferty, in violation of
Section 8(a)(l) and (3) of the National Labor Relations
Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent,2
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an individual proprietorship, operates
a restaurant at Paintsville, Kentucky, where it annually
derives over $500,000 in gross revenues and purchases
goods valued over $5000 directly from outside the State.
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the United Steel-
workers of America, AFL-CIO (Steelworkers) is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discriminatory Discharge
I. Falsified affidavit
Owner Dan Carrier, who summarily discharged wait-
ress Carol Lafferty September 26 without prior warning,
gave an admittedly false reason ("the Caudill incident")
in his October 26 pretrial affidavit (G.C. Exh. 4) for dis-
charging her. (According to the affidavit, Caudill was a
pastor who in the summer temporarily stopped coming
to the restaurant with members of his church after being
told that a waitress had said "Caudill was the poorest
excuse for a pastor she'd ever seen.")
Caudill claimed in the affidavit that
Sometime the week before Lafferty was dis-
charged I learned it was Lafferty who had made
the comment about Caudill.
My reason for deciding to discharge Lafferty was
her general bad attitude as displayed in the Caudill
incident, her remarks about tension and stirring in
problems and wanting to quit. The incident that led
to my decision was her comment about stirring in
problems. [Emphasis added.]
2 I grant the General Counsel's March 2, 1984 motion to strike the Re-
spondent's reply brief.
To the contrary, Carrier admitted at the trial that the
Caudill incident was not a reason for his discharging
Lafferty.
When called as an adverse witness early in the trial, he
made the following admissions (Tr. 19).
Q. Mr. Carrier, did you learn prior to Carol's dis-
charge of any particular incident between Carol
Lafferty and a customer of the restaurant?
A. Yes. Well, no, I didn't learn before that there
was a problem with a preacher by the name of
James Kelly Caudill.
Q. And you didn't learn that before she was
fired?
A. Afterward.
Q. So, you didn'tfire her because of it?
A. No.
Q. You've stated before that you fired her be-
cause of it, haven't you?
A. No, I don't think I've stated that I fired her
for that reason, no. [Emphasis added.]
Later, when called as a defense witness, Carrier again
changed his position. He claimed, "That was one of the
reasons for discharging her" (Tr. 211). As acknowledged
in the Respondent's brief, this was one of the "contradic-
tions" in Carrier's testimony. (From his demeanor on the
stand, Carrier impressed me most unfavorably as a wit-
ness-appearing willing to fabricate whatever evidence
might help the Respondent's cause. I discredit the testi-
mony about an earlier report of Lafferty's involvement
in the Caudill incident.)
2. Lafferty's union activity
Carol Lafferty worked at the restaurant as a waitress
several months in 1982 before leaving town. On her
return to Paintsville in October 1982, Carrier sought her
out and rehired her. She was a good waitress, her cus-
tomers liked her, and customers would ask where she
was when she was absent (Tr. 86). Assistant Manager
Edward Hurt admitted that she was a good waitress (Tr.
254-255). Before the day of her discharge (as she credi-
bly testified), Carrier had never told her that he did not
like her attitude or that she was not serving the custom-
ers properly, and had not given her any reason to believe
that she was not doing her job or that he was not satis-
fied with her (Tr. 45). (She appeared on the stand to be
an honest, forthright witness.)
Lafferty began the union organizing at the restaurant
in early September. She talked to waitress Diana Lackey
and Tonuia Murray about a union (the Steelworkers), in
the presence of waitress Susan Chandler (Tr. 42, 52).
(Murray, who met with Owner Carrier and other wit-
nesses the night before being called by the General
Counsel to testify (Tr. 64), denied ever hearing Lafferty
make a comment about a union at the restaurant (Tr. 69-
70). I discredit her and Lackey's denials.) Lafferty also
requested cook Della Daniels to ask other employees if
they would attend a union meeting (Tr. 62). Daniels
agreed to do so. Although Murray appeared to be most
reluctant to give testimony against the Respondent, she
acknowledged that Daniels asked "if I was going to the
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meeting that Carol [Lafferty] was trying to put to-
gether" (Tr. 73). I discredit Daniels' denial that she ever
mentioned Lafferty's name when she asked employees if
they would attend a union meeting (Tr. 283-284).
On one occasion, Lafferty spoke about a union in the
presence of Supervisor Janice Carrier (Owner Carrier's
wife). Several of the employees were doing their clean-
ing at the beginning of the 2 p.m. shift when Janice Car-
rier commented that they needed to be more organized
with their work. She was "just a few feet away" when
Lafferty said, "Well, the only way that we could be
more organized would be to form a union." (Tr. 35-36,
90-91.) Janice Carrier did not testify.
Owner Carrier was aware of the union organizing. He
admitted that on the day he discharged Lafferty, when
interrogating waitress Lackey about which employees
were involved in the union organizing (as discussed
below), he told Lackey that all he was hearing anymore
was union talk (Tr. 216, 223).
There is no direct evidence that any of the employees
informed Carrier that Lafferty instigated the union orga-
nizing. The evidence suggests, however, that cook Dan-
iels revealed this to him after other employees cautioned
Daniels about being fired because of her organizing ef-
forts.
When cook Juanita Rowe reported to Carrier that
Daniels had asked her if she was going to attend a union
meeting, she informed Carrier that she told Daniels,
"Dell, you're asking for trouble. You'll be a going out
the door before it's over." (Tr. 279-280.) Also, when
Daniels asked waitress Murray about going to the meet-
ing Lafferty was seeking, waitress Lackey cautioned
Daniels, "Shoosh, you'll get us all fired" (Tr. 63, 73).
(Lackey, who was not on speaking terms with Lafferty
at the time of the trial, denied even being present. I dis-
credit this and the denials of her other personal involve-
ment in the organizing (Tr. 109-111)).
After these employee warnings, Daniels decided to
notify Carrier what she had been doing, apparently in an
effort to protect her own job. As admitted by Carrier,
Daniels, told him "I asked everybody if they wanted to
go to a union meeting." For some reason, though, when
called by the General Counsel after meeting the night
before with Carrier and other witnesses, Daniels falsely
denied ever saying anything to Carrier about the union
talk (Tr. 64). Then when called the next day as a defense
witness, Daniels gave the discredited denial that she ever
mentioned Lafferty's name when asking employees to
attend a union meeting.
Under these circumstances I infer that because Daniels
was concerned enough about protecting her own job to
report directly to Carrier that she had been asking em-
ployees if they wanted to go to a union meeting, she also
informed him that it was Lafferty who had requested her
to do this union organizing. I also infer that the reason
Daniels gave the false and discredited testimony at the
trial was her effort to support the owner's defense that
he was not aware of Lafferty's union activity.
3. The summary discharge
On September 26, at the beginning of the 2 to 10 p.m.
night shift, Owner Carrier called a meeting of the three
waitresses to discuss problems on that shift and an-
nounced that the meeting was being tape-recorded. Con-
trary to his denials (Tr. 240), it is obvious that he record-
ed the meeting because of his decision to discharge Carol
Lafferty.
A transcript of the tape recording shows that he began
the meeting by stating (G.C. Exh. 3, page 1)
And there was something the other night, Carol,
that you said that sort of upset me that I, not upset
me, but it's still sticking in my mind. When we were
back there talking, you said that when somebody
starts something, you just can't help from stirring it.
And you all, I'm going to let you know that I don't
like that attitude and I would like to know why you
feel that way.
Lafferty did not know at first what he was talking about,
Carrier stated it was the previous Thursday (September
22), when waitress Tonuia Murray was there at the wait-
ress station, that Lafferty "said that when someone start-
ed something you just couldn't help from stirring it, that
that was your nature."
Neither Murray nor Lafferty recalled it that way.
Murray recalled (page 2) that Lafferty said "when some-
thing got started, people like to stir it" or "whenever
something got started, the more you stirred in it . . . the
worse it smelled." Lafferty remembered saying "the
more you stirred it, the worse it smelled or something
like that." Carrier continued to insist (contrary to what
the two waitresses recalled) that Lafferty said "she
couldn't help to just keep stirring it," and "by your
nature . . . you couldn't help from just stirring it," or
that "you couldn't help for stirring it." Lafferty said, "I
don't know why I would have said it that way." She
positively answered "No" when he asked, "Have you
got that attitude?"
(At the trial, Lafferty credibly testified that she does
use the expression, "The more you stir it the worse it
stinks"; that she has used that expression at the restuar-
ant; but that she has never stated she could not help stir-
ring in problems (Tr. 50-51). Murray, one of the wit-
nesses who met with Carrier the night before being
called by the General Counsel to testify, changed her
version of what Lafferty had said September 22. She
claimed at the trial that Lafferty "said that she had a
nature of stirring in it." (Tr. 74.) I discredit this claim as
a fabrication to support Carrier's defense.)
Carrier then asked questions at the meeting (page 3)
about employees becoming upset every 2 or 3 weeks,
stating his belief that "It's not the front, it's the back. It's
in the kitchen." After some discussion, Carrier asked
about a problem that had caused Lafferty to be upset and
to cry about 2 or 3 weeks earlier when the cook did not
want to prepare certain items on the menu (Tr. 446-48).
He asked waitresses Lackey and Lafferty (page 5) "are
they still telling you that we're out of this, we're out of
that, giving you a rough way to go about it?" Later
when Carrier asked if one of the cooks was causing a
problem, waitresses Murray (page 10) named two of the
cooks who would bring up an incident the following
day. Carrier responded (page 11), "That's exactly what
1422
HIGHLAND HOUSE RESTAURANT
I'm talking about. Just stirring it and it's got to stop."
(Nothing was said about any incident of Lafferty's stir-
ring a problem.)
After the meeting, with the tape recorder still running,
Carrier summarily discharged Lafferty, insisting (page
14) that she "said by nature or not exactly those words
that when someone starts something that you just
couldn't help from stirring it." She still questioned
making such a statement, but Carrier repeated: "You said
stirring it. We were talking about stirring it. You used
that phrase and, Carol, I don't like that attitude." She
agreed that that would be no attitude to have, but he
proceeded to discharge her when she refused to quit.
She said, "I believe you're wrong, but if that's the way
you feel, I won't argue." He then added: "Carol, you get
too upset. Just like the other day when you said you felt
like the tension was so strong that you just couldn't
work. You get tore up; you get upset and I surely don't
like that kind of attitude."
4. Shifting defenses
As shown by the transcript of the September 26 meet-
ing, Owner Carrier gave only two reasons for discharg-
ing waitress Lafferty. First he claimed, contrary to both
her and waitress Murray's memory, that she said 4 days
earlier that when somebody starts something, she could
not help stirring it. Although she questioned making the
statement, stated that she did not have that attitude, and
agreed that such an attitude would be wrong, he contin-
ued to accuse her of making the statement, stated, "I
don't like that attitude," and gave her the choice of quit-
ting or being fired. Second, he added that he did not like
"that kind of attitude," her getting too upset at work-
referring to an incident 2 or 3 weeks earlier, caused by
misconduct of kitchen personnel. (Assistant Manager
Hurt admitted that cooks not wanting to prepare certain
foods and falsely saying they were out of things was a
major problem (Tr. 267). As Lafferty credibly testified
(Tr. 49), however, the resulting tension on the job never
prevented her from serving her customers.)
Apparently recognizing the weakness of these purport-
ed reasons for the summary discharge, Carrier claimed
two other reasons in his pretrial affidavit for discharging
Lafferty. The first, "her general bad attitude as displayed
in the Caudill incident," was clearly fabricated. As dis-
cussed above, he admitted at the trial that this was not a
reason for firing her-although he later again shifted his
position when recalled as a defense witness, claiming it
was a reason. The other purported reason was the after-
thought, "her wanting to quit." He admitted in his pre-
trial affidavit that she last told him "she loved her job
and wasn't going to quit."
At the trial Carrier made other discredited claims,
which also were clearly mere afterthoughts. (As found
above, he appeared willing to fabricate whatever evi-
dence might help the Respondent's cause.) He continued
to deny any knowledge of Lafferty's union activity.
5. Concluding findings
I agree with the General Counsel that "it is apparent
that Carrier taped the meeting and discharge interview
on September 26 in order to build a record to substanti-
ate his proffered reasons for the discharge."
It is true that the word "union" was nowhere men-
tioned in the transrcipt of the meeting, but it is obvious
that Carrier would not have summarily discharged this
good, conscientious waitress in that manner if he was not
discriminatorily motivated. (He admitted being opposed
to a union in his restaurant.)
Without any prior warning, Carrier began the meeting
by falsely accusing waitress Lafferty of having a bad atti-
tude for saying 4 days earlier that when somebody starts
something, she could not help from stirring it. Despite
the recollection of Lafferty and waitress Murray (who
had overheard the earlier conversation) that this was not
what Lafferty had said, and despite Lafferty's assurances
to him that she did not have such an attitude, Carrier
held her after the meeting and discharged her for making
the statement. Then, while the tape recorder was still
running, he mentioned "the other day" that she got too
upset (when kitchen personnel were falsely stating they
were out of food on the menu), "and I surely don't like
that kind of attitude."
I find these purported reasons for summarily discharg-
ing Lafferty were clearly pretexts.
Although Carrier denied having any knowledge of
Lafferty's union activity, Lafferty had referred to a
union in the presence of Carrier's wife; she spoke on the
job to waitress Lackey and Murrary about a union, in
the presence of waitress Chandler; at Lafferty's request,
cook Daniels asked other employees if they would attend
a union meeting; and at least on one occasion, Daniels
mentioned Lafferty's name when soliciting attendance at
a union meeting. Furthermore, after being warned by
two employees that Daniels could be fired for organizing
at the restaurant, Daniels admitted her union organizing
to Carrier in an apparent effort to protect Daniels' job.
Under these circumstances, as discussed above, I have in-
ferred that Daniels did inform Carrier that it was Laf-
ferty who had requested Daniels to do the union orga-
nizing.
Having considered the clearly pretextual nature of the
reasons stated at the time for the discharge, the circum-
stances of the summary discharge, the false and shifting
reasons asserted in the pretrial affidavit and at the trial,
and the evidence supporting the inference that Owner
Carrier was informed that waitress Lafferty had instigat-
ed the union organizing at the restaurant, I find that the
Respondent discriminatorily discharged her to undercut
the organizing effort, in violation of Section 8(a)(3) and
(1) of the Act.
B. Other Alleged Coercion
About 7:30 p.m. on September 26, about 5 hours after
he discharged waitress Lafferty, Owner Carrier spoke to
waitress Lackey alone in a separate dining room. He
asked her if she had heard anything about anyone want-
ing to form a union and asked about the union activity of
the night-shift employees. Although Lackey had partici-
pated in or witnessed various conversations about a
union, she admitted overhearing only one conversation,
between cooks Daniels and Rowe (Tr. 94). When Carrier
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically asked if she thought that Lafferty had any-
thing to do with the union, Lackey falsely answered no.
(To the contrary, as found above, Lafferty had discussed
a union with Lackey and waitress Murray, in the pres!
ence of waitress Chandler, and Lackey had warned Dan-
iels about getting fired when Daniels asked Murray if
Murray was going to the union meeting that Lafferty
was trying to put together.)
In the same conversation, Carrier mentioned a place
where the employees had tried to start a union and
stated that it did not work out, that the place was shut
down, that a lot of people that had worked there for
years were without jobs, and that a union would not
work in a restaurant (Tr. 95-96, 105).
Carrier admitted talking to Lackey alone after Laffer-
ty's discharge and asking her about the union activity of
employees on the night shift (Tr. 215-217, 222-223). (Ac-
cording to him, he knew she was upset and he told her
she was doing a very good job and had nothing to
worry about. He also claimed that he was "just sort of
trying to make small talk, just to sort of settle her," and
that he did not know why he brought up the subject of
"rumors floating around the restaurant about the union.")
Concerning the mention of his experience of a union
business closing, he claimed he remembered telling that
story only to Assistant Manager Hurt, but "it wasn't
hidden . . . and other people could have overheard me
in that conversation" (169-170).
Particularly under the circumstances, I find that Carri-
er's interrogation of waitress Lackey was coercive.
Carrier was the sole owner and manager of the restau-
rant. He had summarily discharged the instigator of the
union organizing a few hours before. He was talking to
Lackey alone in a separate dining room, asking about the
union activity of the night-shift employees. This was in-
formation that could be used against individual employ-
ees, or against all of them as a group. Lackey and cook
Rowe had warned employee organizer Daniels about
getting fired for asking employees to attend a union
meeting; Rowe had reported to Carrier her warning to
Daniels; and Daniels had attempted to protect her own
job by going directly to Carrier and admitting her orga-
nizing activity. Lackey did not answer Carrier's ques-
tions truthfully.
I also find that Carrier's reference to his experience in
the closing of a union business, causing the loss of jobs
of many senior employeees, and his statement that a
union would not work in a restaurant were a coercive
implied threat to close the restaurant if it became a
union.
Accordingly I find that interrogation of waitress
Lackey and the implied threat of closure violated Sec-
tion 8(a)(l) of the Act.
The complaint further alleges that the Respondent in-
dicated to an employee that same day that it had to dis-
charge an employee because of union activity. I find,
however, that the testimony of cook Timothy Greer, on
which the General Counsel relies to prove this allegation
and further interrogation, is so confused and contradicto-
ry that I do not deem the testimony trustworthy enough
to support any findings of a violation. I therefore find
that this allegation must be dismissed.
CONCLUSIONS OF LAW
1. By discriminatorily discharging Carol Lafferty Sep-
tember 26, 1983, for supporting a union, the Respondent
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. By coercively interrogating an employee, the Re-
spondent violated Section 8(a)(1).
3. By making an implied threat to close the restaurant
if it became union, the Respondent violated Section
8(a)(l) of the Act.
4. The General Counsel has failed to prove that the
Respondent indicated to an employee that it had to dis-
charge an employee because of union activity.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged an
employee, it must offer her reinstatement and make her
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
'on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Dan Carrier, Sole Proprietor, d/b/a
Highland House Restaurant, Paintsville, Kentucky, its of-
ficers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Discharging or othewiser discriminating against
any employee for supporting the United Steelworkers of
America, AFL-CIO or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to close the restaurant if it becomes
union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Carol Lafferty immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority 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 discrimina-
3 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
1424
HIGHLAND HOUSE RESTAURANT
tion 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 pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Paintsville, Kentucky copies
of the attached notice marked "Appendix." 4 Copies of
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employee are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1425