Hotel & Restaurant Employees Local 28

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1124 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel and Restaurant Employees and Bartenders
Union, Local 28, affiliated with Hotel and Res-
taurant Employees and Bartenders International
Union, AFL-CIO and Phyllis Johnson. Case
32-CA-1835
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MIMBERS
JENKINS AND PI:NELI.LO
On June 25, 1980, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in response to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Respondent has excepted to the Administrative
Law Judge's finding that Phyllis Johnson was en-
gaged in protected concerted activity when she
filed a sex discrimination complaint with the Cali-
fornia Fair Employment Practices Commission
(FEPC) and when she protested at Respondent's
May 22 meeting that she was not paid as much as
the male business agents.
We agree with the Administrative Law Judge
that Johnson was engaged in protected concerted
activity even though she acted alone in filing the
FEPC complaint. In doing so, we adhere to our
position as set forth in Alleluia Cushion Co., Inc.,
221 NLRB 999 (1975), and we respectfully decline
to adopt the Ninth Circuit's rejection of that prin-
ciple' until such time as the Supreme Court may
determine the issue.
We also agree with the Administrative Law
Judge's conclusion that Johnson was engaged in
protected concerted activity at Respondent's May
22 employee meeting, but we do so for the reasons
set forth below.
Contrary to the Administrative Law Judge, we
find that Johnson did not act alone at the May 22
meeting. The record discloses that, when Johnson
asserted that she should be paid as much as the
male business agents, other union members joined
with her and protested that it was unlawful for Re-
spondent to pay her less than the men. We find
NV. LR.B. v Bighorn Beverag, 614 F.2d 1238 (1980)
that this situation is analogous to that in KPRS
Broadcasting Corporation, 181 NLRB 535 (1970). In
that case, a resolution was introduced at a stock-
holders' meeting calling for the reinstatement of a
discharged employee who had sought to improve
working conditions. The employer's president ob-
jected to the resolution, but another employee
spoke up in defense of the discharged employee.
Subsequently, the employer discharged the employ-
ee who spoke up at the meeting. The Board major-
ity observed that, by her expressions of support at
the stockholders' meeting, the employee had allied
herself with her fellow employee's effort to im-
prove working conditions. The Board majority
concluded that such conduct constituted protected
concerted activity, and that her discharge violated
Section 8(a)(l) of the Act. In the instant case,
Johnson's statement and the expressions of support
she received from other union members constituted
protected concerted activity.
In Milford Manor, Inc., 233 NLRB 1283, 1285
(1977), the employer conducted a meeting and an-
nounced certain changes in wages, benefits, and
work schedules. An employee raised an objection
to the changes and asked others at the meeting to
join her. Several employees then voiced support
for her, and she was subsequently discharged be-
cause of her comments. The Board adopted the
Administrative Law Judge's finding that the em-
ployee who raised the objections was engaged in
protected concerted activity, and that her dis-
charge violated Section 8(a)(1) of the Act. The
Board also adopted the Administrative Law
Judge's finding that the employee's activity was
protected even though she had not been formally
authorized to speak for the group, since she spoke
for the benefit of the entire group, and the issues
were of common concern to everyone. In the in-
stant case, the issue of sex discrimination in wages
is clearly a matter affecting all of Respondent's em-
ployees. 2
In light of the above, we find it unnecessary to
apply Alleluia Cushion to the circumstances of the
May 22 meeting. We find that Phyllis Johnson and
the employees who supported her protest were en-
gaged in protected concerted activity, and we con-
clude that Respondent violated Section 8(a)(l) of
It should he noted that the statement of Johnson and the other union
members would still constitute protected concerted activity even assum-
ing that only Johnson's interests were in issue. The Board has found that
employees w, ho act in support of another employee's individual grievance
are engaged in protected concerted activity. See Richard M. Brown, D.O
and Donald R. Junower, D O. a Co-Purtnermhip d/b/a Park General Clinic,
218 NLRB 540(, 546 547 (1975)
252 NLRB No. 158
1124
HOTEL & RESTAURANT EMPLOYEES, LOCAL 28
the Act when it discharged her because of that ac-
tivity.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hotel and Res-
taurant Employees and Bartenders Union, Local
28, affiliated with Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
Oakland, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
3 Member Penello agrees that Respondent violated Sec. 8(a)(l) of the
Act when it discharged Phyllis Johnson; however, in so finding, he relies
solely on the evidence relating to the May 22 meeting, wherein Johnson
openly protested her lower rate of pay and was thereupon joined by her
fellow employees in her request for an equitable determination of her
wage rate. In addition, Member Penello would find applicable herein the
principle stated by the Ninth Circuit in Salt River Valley Water Users' As-
sociation v .N.L.R.B., 206 F2d 325, 328 (9th Cir. 1953), enfg in pertinent
part 99 NLRB 849 (1952), that " . 'concerted activity for the purpose
of. mutual aid or protection' is often an effective weapon for obtain-
ing that to which the participants, as individuals, are already 'legally' en-
titled,"
(b) On or about May 23, 1979, Respondent dis-
charged its employee Johnson and since that date
has failed and refused and continues to fail and
refuse, to reinstate Johnson to her former position
of employment.
VI
Respondent engaged in the conduct described
above in paragraph V because Johnson filed a com-
plaint with the Fair Employment Practices Commis-
sion, a State agency, or engaged in other protected
concerted activities for the purposes of collective
bargaining or other mutual aid or protection.
The Respondent filed an Answer to the original com-
plaint and denied that it had committed the alleged
unfair labor practices. (See G.C. Exh. (e).) The Respon-
dent also filed an answer to the amendment to complaint.
(See G.C. Exh. 1(1).)
The hearing was held before me on December 3, 10
and 11, 1979, at Oakland, California. Both the counsel
for the General Counsel and the attorney for the Re-
spondent made closing arguments after the presentation
of the evidence at the hearing. The time for filing briefs
was extended to February 29, 1980. Persuasively argued
briefs have been received from both the counsel for the
General Counsel and the attorney for the Respondent.
DECI SION FINDINGS 0: FACTSI
ROGER B. HOLMES, Administrative Law Judge: The
unfair labor practice charge in this proceeding was filed
on June 4, 1979, by Phyllis Johnson. (See G.C. Exh.
l(a).)
The Acting Regional Director of Region 32 of the Na-
tional Labor Relations Board, herein called the Board,
who was acting on behalf of the General Counsel of the
Board, issued on July 31, 1979, a complaint and notice of
hearing against Hotel and Restaurant Employees and
Bartenders Union, Local 28, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, herein called the Respondent. (See
G.C. Exh. (c).) On November 21, 1979, the Acting Re-
gional Director for Region 32 of the Board issued an
amendment to the complaint in this case. (See G.C. Exh.
1(f).)
The General Counsel's complaint, as amended, alleges
that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the National
Labor Relations Act, herein called the Act. Specifically,
the General Counsel alleges the following in paragraphs
V and VI:
V
(a) On or about May 21, 1979, Respondent placed
more onerous working conditions on its employee
Johnson by requiring her to report to its Oakland,
California office three separate times during the
workday and by taking away her keys to its El So-
brante, California office.
1. The employer
The Respondent is an unincorporated association with
an office and principal place of business located in Oak-
land, California, where Respondent is engaged in the
business of representing employees in bargaining with
other employers with respect to wages, hours, and other
terms and conditions of employment.
During the 12 months preceding the issuance of the
General Counsel's original complaint in this case, the Re-
spondent purchased and received goods or services
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. During that same
period of time, the Respondent derived gross revenues in
excess of $500,000.
Upon the foregoing facts, which were admitted to be
true in the pleadings, I find that the Respondent has
been, at all times material herein, an employer engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The witnesses
In alphabetical order by their last names, the following
nine persons appeared as witnesses at the hearing in this
proceeding:
Fred Arbabi was hired by Ray Lane as a business
agent of the Union on April 15, 16, or 17, 1979. Arbabi
began his career in the hotel and restaurant industry in
1960 when he was employed as a bartender at Lucky
Lanes He was later an assistant manager at that location
where he worked for approximately 4 years. He then
worked at the Bavarian Village for 8 years as a bartend-
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er and later as a working manager. From 1972 to 1975
Arbabi was employed by Hilton International at the
Tehran Hilton in Iran. From 1975 to 1977 he was the
general manager of the Bavarian Hotel and Casino locat-
ed in a suburb of Tehran. Thereafter, he returned to the
United States where he worked as a bartender at the
Seawolf located in Jack London Square in Oakland,
California. He then became the owner of his own restau-
rant in Point Richmond for about a year and 4 months
prior to his appointment as a business agent.
James E. Calvarese has held positions as senior busi-
ness agent, president-organizer, secretary-treasurer, and
business manager of Local 595 of the Hotel and Restau-
rant Employees and Bartenders International Union,
AFL-CIO. After the merger of Local 595 into Respon-
dent Local 28, Calvarese held the position of director of
organization from July 1, 1976, until his termination from
that position on September 6, 1978. In addition, Calvar-
ese has held the positions of vice president and president
of the Contra Costa County Central Labor Council. His
last name is spelled differently at various points in the
transcript. However, it is clear from the record that the
references are being made to the same person. I have
used the spelling set forth on the documentary evidence.
Roger Cardenas has held the position of business agent
of the Respondent since April 1978. Prior to that time
Cardenas had held positions in other local unions as a
business agent, a vice president, and a president-organiz-
er.
Walter Holler was a bartender at the Green Lantern
Lounge in Pinole, California, at the time of the hearing.
Holler is a member of the Respondent. He had been a
business agent and also the president-organizer of Local
595. Following the merger of Local 595 into the Respon-
dent Union, Holler became a business agent of the Re-
spondent. His geographical area covered the majority of
Contra Costa County where he serviced approximately
100 to 125 business establishments.
Phyllis Johnson is the Charging Party in this proceed-
ing, and she is also the alleged discriminatee. For many
years she has been a member of the Respondent Union,
and she has worked for many years as a waitress in the
food and beverage industry. Johnson has also held posi-
tions as a picket captain, sargeant-at-arms, and as a busi-
ness agent. She was a business agent for the Respondent
from September 1977 until she was fired on May 23,
1979.
Ray Lane was the secretary-treasurer and the business
manager of the Respondent at the time of the hearing. In
those positions, Lane was the chief executive officer of
the Union.
H. Georgia Rosen has been a member of the Respon-
dent for many years. In the past Rosen has held positions
in the Union as an executive board member, a vice presi-
dent, and a business agent. Rosen served as a union busi-
ness agent from 1971 until January 1977 when she was
terminated from that job by Lane.
Evelyn M. Saxton has been a member of the Respon-
dent Union since November 9, 1966. Saxton is an em-
ployee at the Oakland Coliseum.
Frank Van Kempen has been a business agent for the
Respondent for several years. In November 1978 an an-
nouncement was made in the Union's newsletter that
Van Kempen was being named the director of organiz-
ing for the Union. His name is spelled differently at times
in the transcript, but I am using the spelling as shown on
documentary evidence.
3. Credibility resolutions
In making the credibility resolutions herein, I have
based such determinations on the observations of the de-
meanor of the witnesses on the stand and upon the points
summarized by the Board in its decision in Northridge
Knitting Mills, Inc., 223 NLRB 230, 235 (1976). There
are so many direct conflicts between the testimony given
by Lane and the testimony given by Johnson that a deci-
sion must be made as to which one of the substantially
different versions is credible. Acceptance of the testimo-
ny given by one of those persons necessarily warrants
the rejection of the contrary testimony given by the
other person.
With the foregoing in mind, and particularly after ob-
serving Johnson testify during her several appearances
on the witness stand, I conclude that Johnson was testi-
fying truthfully. That is not to suggest that her recollec-
tion of all of these past events was perfect, but it seemed
to me that she was relating the facts of which she had
knowledge accurately and to the best of her ability to do
so. In addition, portions of Johnson's testimony found
support in testimony given by other witnesses. For exam-
ple, the testimony of Rosen, the testimony of Saxton, the
testimony of Holler, and the testimony of Van Kempen
lend support to certain portions of the recital of the facts
given by Johnson.
I have not overlooked the fact that there are two sig-
nificant omissions in the pretrial affidavit of Johnson,
which was taken either by a field attorney or a field ex-
aminer of Region 32 of the Board. One of those omis-
sions from the pretrial affidavit was a remark which
Johnson attributed to Lane that women did not need to
earn as much money as men. She acknowledged during
her cross-examination by the attorney for the Respon-
dent that she had related in her pretrial affidavit a similar
remark being made by business agent Van Alden during
a conversation between Johnson and him. Also omitted
from her pretrial affidavit taken by a Board agent was
her description of Lane's reaction to Johnson's comment
at a union meeting on May 22, 1979, to the effect that
she was not being paid as much money as the male busi-
ness agents. Notwithstanding those two omissions from
her pretrial affidavit, I found Johnson's testimony to be
credible for the reasons which are indicated above.
Having credited the account given by Johnson, it neces-
sarily follows that I cannot credit the conflicting account
related by Lane. Therefore, I have not credited nor
relied upon Lane's recital at the hearing, and, in particu-
lar, his assertion of the reasons for the termination of
Johnson and his assertion that he had made a decision to
terminate Johnson when he had hired Arbabi.
In evaluating the credibility of Rosen and Saxton, I
have given consideration to the fact that Rosen had pre-
viously been terminated from her position as a union
business agent by Lane, and that Saxton had previously
1126
HOTEL & RESTAURANT EMPLOYEES, LOCAL. 28
had a disagreement with Lane while she was serving on
a negotiating committee. Saxton stated,"He chewed me
out, but it was reciprocal. I exchanged." Nevertheless,
the parties stipulated that Saxton would testify consis-
tently with the testimony given by Rosen and Johnson
with respect to the comments made by Johnson at the
May 22, 1979, union meeting. While Saxton acknowl-
edged that she had been a business acquaintance of John-
son since 1967, and that Johnson had asked her to give a
statement to a Board agent, she was candid in explaining
the reason for her appearance at the hearing to testify.
Saxton gave her reason as being, "Because I'm inclined
to be a women's liberator. I feel that a woman when
she's doing a man's job should be paid the same as a
man."
Although I have weighed and considered the forego-
ing matters, I found the testimony given by both Rosen
and Saxton to be credible.
In assessing the credibility of the testimony given by
Van Kempen, I have considered the fact that he re-
sponded with candor and without hesitation when he
was questioned as to whether he had given to Lane the
daily reports left with him by Johnson in April 1979.
Van Kempen's reply was, "I should have, but I didn't; it
was my error." In an earlier case before me in 1976, Van
Kempen gave credible testimony at the hearing in that
proceeding. See Larry Blake's Restaurant and Rathskeller
d/b/a Blakes Restaurant, 230 NLRB 27 (1977). In the in-
stant proceeding, I also found his testimony to be credi-
ble.
With the criteria in mind, mentioned previously herein,
I also found credible the testimony given by Holler and
the brief testimony given by Cardenas. However, the tes-
timony by Cardenas related primarily to matters involv-
ing the Buttercup Restaurant, the Mexicali Rose, and the
Alameda Store, which I have concluded are matters
which do not pertain to the reasons for Johnson's termi-
nation.
It is clear from the record that there has been a long-
standing animosity between Calvarese and Lane. This is
made evident by the testimony given by Calvarese, the
testimony given by Lane, documentary evidence in the
form of the Union's newsletters, and a stipulation by the
parties. In addition to the foregoing, I have noted that
Calvarese's testimony was not found to be credible when
he testified in another proceeding before a different ad-
ministrative law judge. To avoid any misunderstanding.
it should be pointed out here that I do not feel bound by
the credibility determinations made in another proceed-
ing by another administrative law judge, but I believe it
is a factor which may be noted.
Administrative Law Judge Richard D. Taplitz stated,
"However, compared to Calvarese and Wise, Khadjen-
ouri was a veritable fount of veracity. The demeanor of
both Calvarese and Wise as they testified was such as to
cast doubt on everything they said. Calvarese was often
evasive and misleading." Bahram Khadjenouri d/b/a Me-
tropol Restaurant a/k/a Cafe Bistro, 247 NLRB No. 21
(1980), ALJD. With the foregoing in mind, and particu-
larly Calvarese's testimony in this proceeding, I have de-
cided not to credit nor to rely on the testimony of Cal-
varese.
In making a determination regarding the credibility of
the testimony offered by Arbabi at the hearing, I have
not overlooked the fact that he was employed as a busi-
ness agent of the Respondent at the time that he gave his
testimony. In addition, as will be shown later, Arbabi is
the one who eventually replaced Johnson in covering the
locations which she had been responsible for when she
was a business agent of the Respondent. As to the con-
flicts between the testimony of Johnson and Arbabi, I
found Johnson's account to be more reliable, and I have
credited her version. Nevertheless, I have based some of
the findings of fact to be set forth herein on Arbabi's tes-
timony regarding his own employment. However, other
portions of Arbabi's testimony concerned matters which
were discovered by him after the termination of Johnson.
Those matters were not known to the Respondent at the
time that Lane fired Johnson. However, those matters
were admitted into evidence over the objection of the
counsel for the General Counsel, and they have been
considered, along with other factors, in weighing the
credibility of the witnesses. At the time those matters
were presented, there had been testimony by Calvarese
and Johnson on that subject. As pointed out herein, I
have subsequently decided not to rely on the testimony
of Calvarese and, as indicated, I have found the testimo-
ny of Johnson to be believable.
In a similar manner to those matters related by Arbabi,
which were discovered after the termination of Johnson,
I have given less weight to other events which occurred
after Johnson's termination. (See, for example, G.C. Exh.
8 and G.C. Exh. 9.)
4. The employment of Johnson as a business agent
for the Respondent
In September 1977 Secretary-Treasurer and Business
Manager Ray Lane hired Johnson as a business agent of
the Respondent. At the time of her employment, she had
no prior experience as a business agent. However, as
noted previously in section 2 herein, Johnson had
worked as a waitress for many years in the food and
beverage industry, and at one time she had served as a
picket captain. Her lack of experience as a business agent
and her need for training in that position was discussed
between Lane and Johnson at the time of her employ-
ment. Lane informed her that her starting salary would
be $170 a week plus the payment of $55 a week for her
expenses. Lane told Johnson that within a year she
would receive $400 a week in salary and expenses. Re-
spondent's Exhibit 1 is a copy of a portion of the minutes
of the Respondent's executive board meeting held on
September 20, 1977. Among other things, the minutes re-
flect the following: "Secretary reports he hired a new
trainee Business Agent by the name of Phyllis Johnson at
a salary of $170.00 a week plus $55.00 expenses plus a
gas card and everything that goes with being a Business
Agent. She will be a member of Central Labor Council
by virtue of our office."
The first 3 or 4 weeks of her employment as a business
agent were spent in learning the office procedures. John-
son went out on business with the other business agents
of the Union, and in December 1977 Lane assigned her
I 11 27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to check banquets at various establishments to ascertain
whether the banquet employees were members of the
Union.
In January 1978 Walter Holler was given a leave of
absence by Lane from Holler's duties as a business agent.
Lane informed Holler that Lane was not happy with
Holler's work. Holler advised Lane that Holler felt that
he was not accomplishing what Holler should be doing,
and Holler felt that he was not being fully utilized. Lane
and Holler agreed upon a 6 months' leave of absence for
Holler "and at the end of the six months, we would take
a look at it."
Around April or May 1978 Lane and Holler discussed
Holler's returning to work to assist Lane in contract ne-
gotiations with employers who had been within the juris-
diction of Local 595 prior to the merger. Holler would
have been paid on a per diem basis plus expenses just for
contract negotiations. Holler declined the offer.
In July 1978 Lane and Holler had still another conver-
sation. That conversation took place at the Jack London
Square in Oakland. At that time Lane made it clear that
he would not reemploy Holler.
Johnson was assigned in January 1978 the area which
Holler had previously serviced as a business agent. In ad-
dition, at Johnson's request, Lane also assigned her the
Oakland Coliseum.
The business establishments, such as restaurants and
bars, which were visited by the business agents of the
Union, were usually referred to at the hearing as
"houses." Johnson estimated that she serviced "well over
100 houses. The Union's office was located at 548 20th
Street, Oakland, California. The Oakland Coliseum is, of
course, also located within Oakland. Other cities which
were located within the geographical area in which
Johnson worked were El Cerrito, Richmond, San Pablo,
El Sobrante, Rodeo, Crockett, and Martinez, California.
Saxton has worked at the Oakland Coliseum for 15
years. In her opinion, Johnson was the best union busi-
ness agent to service the employees at the coliseum.
Saxton based her opinion on the fact that Johnson
seemed to take the most interest in the employees, and
that Johnson listened to the employees' problems and as-
sured them that she would settle them. Saxton acknowl-
edged that Johnson had previously worked as an em-
ployee at the Oakland Coliseum, and that Johnson knew
a number of the employees there. Saxton said that about
200 employees worked at the Oakland Coliseum during
the football season. She estimated that Johnson was pre-
sent at the coliseum about every other football game.
During the baseball season, she estimated that Johnson
visited the Oakland Coliseum about once a month.
Among the business houses serviced by Johnson was
the Green Lantern Lounge in Pinole. Walter Holler was
one of the three bartenders employed at that establish-
ment. As an employee, he was of the opinion that John-
son's performance was "fine." Holler estimated that she
visited the Green Lantern about once or twice a month
He acknowledged that there were no problems at the
Green Lantern, and that some of the time Johnson came
in to ask questions of Holler about other places. As indi-
cated previously, Holler had been a business agent and a
president-organizer of Local 595. Subsequently, Holler
was a business agent for the Respondent Union following
the merger of Local 595 into the Respondent Union. The
geographical area which he serviced as a business agent
covered the majority of Contra Costa County, and,
therefore, was similar to the area serviced by Johnson.
Holler stated at the hearing that he tried to help Johnson
when she asked him questions regarding other places in
her area.
Holler explained that sometimes Johnson had visited
the Green Lantern while she was collecting union dues
in the area. Holler acknowledged that picking up union
dues was not among the duties required of a business
agent, but Holler pointed out that he had done so when
he had been a business agent and had visited remote
areas.
5. The employment of Arbabi as a business agent
for the Respondent
As indicated previously in section 2 herein, Arbabi
was hired as a business agent of the Respondent on April
15, 16, or 17, 1979. His prior employment history in the
industry has already been noted in section 2.
At the time of his employment by the Respondent,
Arbabi was told that he had to learn the office proce-
dure. When Arbabi was hired by Lane, he was not told
what territory he would be handling. He went out with
other business agents while Arbabi was learning the
Union's office procedure.
Arbabi's first assignment as a business agent was to the
Brookside Hospital. His second assignment was to the V.
P.'s Restaurant. Next he was assigned the Broiler Steak
House, the Broiler Fish House, and Lucky Lanes.
Subsequently, Arbabi was given the territory which
Johnson had previously been responsible for, with the
exception of the Oakland Coliseum. In addition, Arbabi
requested that he also be assigned to Kerbies, the Ele-
gant Farmer, and the Seawolf. Arbabi was also assigned
Caesar's in Piedmont.
Arbabi resides in Albany, California, and he reports to
the union office in Oakland every morning between 8
and 8:30 a.m., between 12 noon and I p.m., and also be-
tween 4:30 p.m. and 5:30 p.m., unless there is a problem.
6. The salaries and the expenses paid by the
Respondent to its business agents
Joint Exhibit I is a compilation of information gleaned
from the Respondent's records. The exhibit reflects in
summary form the amounts of the salaries and the
amounts of the expenses which were paid during 1978
and through May 1979 to the Respondent's business
agents who were employed during any portion of that
period of time.
The exhibit lists the name of the business agent and the
amount of the salary and expenses for each individual
agent. The numbers in parenthesis beside certain figures
represent the date on which those amounts became
effective.The exhibit reveals the following:
1128
HOTEL & RESTAURANI EMP.(OYEES, OCAL 28
Soular
$350.(X)
256.85
296.50
294.50
24000()
(7/78) 260.00
170.00
(7/78) 190.00
(10/78) 220.00
150.00
272.00
(7/78) 297.00
285.00
285.00
Ex -
pe l x x
(10/78)
(7/78)
(10/78)
(10/78)
(10/78)
285.00
(10/78)
285.00
120.00 (10/1/78)
I(x).(X)
115.00
75.00)
95.0)
50.(X)00
100.00
115.00
55.00
70.00
55.00
70.00
55.00
70.00
55.00
9.00
The name "P. Johnson" refers to the Charging Party
in this case. The name "N. Rodriguez" apparently refers
to Nellie Rodriguez. (See, for example, G.C. Exh. 8.)
It should be explained here that the Union paid the
amount of the expenses shown on Joint Exhibit I wheth-
er or not the expenses were actually incurred. No report
or claim for expenses was required.
Johnson pointed out that there were three male busi-
ness agents who were hired as business agents after John-
son had become one, and that those three business agents
were hired at a higher starting salary than the amount of
Johnson's salary. She said that the three persons were
Roger Cardenas, Lloyd Jewell, and John Van Alden. At
the time that those three male business agents were hired
by the Respondent, they received a salary of $285 a
week plus $55 a week for expenses. As indicated previ-
ously in section 4 herein, the starting salary of Johnson
had been $170 a week plus $55 a week for expenses.
In October or November 1978 Lane proposed that all
business agents receive a $15-a-week increase, and that
Johnson receive a $45-a-week increase. The Union's ex-
ecutive board approved of those increases recommended
by Lane, but the union membership voted against the
raises for the business agents. Nevertheless, as shown on
Joint Exhibit I, certain of the Respondent's business
agents did receive increases effective in October 1978.
Shortly after the union meeting, Johnson became aware
of the increases given to certain male business agents
when she observed the checks which were being written
by Union President Jody Kerrigan. In November or De-
cember 1978 she confronted Lane with the amounts of
the increases given to the male business agents, but she
took no action regarding the matter at that point in time.
Of those business agents who received increases effec-
tive in October 1978, Joint Exhibit I reveals the follow-
ing amounts of total compensation (salary and expenses)
for those business agents:
Van Kempen $412
Lam 375
Van Alden
Cardenas
Mitchell
Johnson
Rodriguez
355
355
355
315
129
Jewell received no increase in his total compensation
at that time. Thus his salary and expenses totaled $340.
The parties stipulated that Business Agent Lam gave
notice in February 1979 that he was resigning his posi-
tion effective on April 30, 1979. Lam subsequently was
no longer an employee of the Union after March 1979.
7. The charge filed on April 25, 1979, by Johnson
with the Fair Employment Practices Commission
On April 25, 1979, Johnson filed a charge against the
Respondent with the California Fair Employment Prac-
tices Commission. Her charge alleged that the Respon-
dent had discriminated against her on the basis of her
sex. A copy of the charge was introduced into evidence
in this proceeding as General Counsel's Exhibit 5. In per-
tinent part, the charge filed by Johnson alleged:
I began working for the Hotel and Restaurant Em-
ployees Union Local 28 as a Business Agent in Sep-
tember of 1977.
I believe that I have been discriminated against and
denied equal pay because of my sex because of the
following reasons:
1. I was hired at a starting salary of $170.00 per
week plus $55.00 per week expenses. John Van
Alden, Walter Mitchell and Fred
…- --, all males and hired subsequent
to me, received starting salaries of $285.00 per
week plus $55.00 per week expenses.
2. On or about November 1, 1978, all Business
Agents received a $15.00 per week pay increase
with the exception of myself.
3. I am the only full-time female Business Agent.
After the filing of her charge with the FEPC, Johnson
said that several things occurred. One such thing was
that Lane ceased speaking to Johnson, which was a
change from what he had usually done previously. An-
other thing was that Johnson began to receive more
memos about her work from Lane than she had hereto-
fore received from him. Still another occurrence was
that Lane sent her a warning letter dated May 9, 1979,
and he removed certain business establishments from her
jurisdiction. The warning letter will be discussed in sec-
tion 8 herein. Prior to the filing of her FEPC charge,
Johnson said that no disciplinary action had been taken
against her, but she acknowledged that there had been
criticism of her loyalty by Lane. She testified, "Well, he
said that nobody could be working for our union if they
did not, if they were not loyal to Ray Lane."
During her cross-examination by the attorney for the
Respondent, Johnson conceded that she "could" have
told Lane prior to April 25, 1979, "If you're so unhappy
with my work you can fire me." Nevertheless, Johnson
1978
J. Calvarese
W. Holler
R. Wise
J. Mandish
R. Lam
P. Johnson
D. Morrison
F. Van Kempen
J. Van Alden
R. Cardenas
W. Mitchell
L. Jewell
N. Rodriguez
1129
I)I:CISI()NS ()OF NA'II()NAI I Al()R RI A'II()NS ()ARDI)
said that she did not recall that it ever came up. The fol-
lowing testimony took place:
Q. In fact prior to April 25. 1979, you learned
that Mr. Lane was unhappy with your work, isn't
that true?
A. That's not true.
Q. Didn't you have a discussion with Mr. Lane at
the union office prior to April 25, 1979, in which
you said to Mr. Lane, "If you're so unhappy with
my work you can fire me," do you recall that at
all?
A. I could have said it. I'm pretty outspoken, but
I don't recall it ever coming up.
Q. Is it still your testimony up until April 25,
1979, you thought you were doing a fine job?
A. Yes.
Q. That's the way you thought Mr. Lane per-
ceived your work performance?
A. My work performance I'm sure of it.
Q. You had no hint that Mr. Lane thought there
was anything wrong with your work?
A. No, sir.
8. The warning letter dated May 9, 1979, from Lane
to Johnson
On May 9, 1979, Lane addressed a written warning to
Johnson. A copy of that warning letter was introduced
into evidence as General Counsel's Exhibit 6. In perti-
nent part, it states:
I'm still patiently waiting for your daily reports re-
lating to the houses you are supposed to be han-
dling.
I'm unhappy with the way you handled V.P.'s. It's
no question you lost Brookside Hospital by mishan-
dling it.
In addition to taking those two places away from
you for mishandling, I also had to take away the
Broiler Fish House and the Broiler Steak House. As
you know, today I also had to take the Bowling
Alley away from you.
I certainly hope your work habits improve in your
area.
As indicated in the foregoing letter, the warning per-
tained to matters involving: (I) the daily reports; (2)
V.P.'s; (3) Brookside Hospital; (4) Broiler Fish House;
(5) Broiler Steak House; and (6) the bowling alley.
With regard to the first item mentioned in Lane's
warning letter, the Respondent's business agents had
been instructed in April 1979 to commence preparing
daily reports regarding their work. Those daily reports
were supposed to be submitted to the Union on a weekly
basis. General Counsel's Exhibits 10(a) through 10(oo)
are copies of Johnson's daily work reports which she
prepared after Lane had instructed the Respondent's
business agents to do so. She acknowledged at the hear-
ing that she had not submitted her reports on a weekly
basis, but instead that she had submitted daily reports for
a 2- or 3-week period of time to Van Kempen, and later
on another group of daily reports for 2- or 3-week
period of time which she placed on Lane's desk.
In April 1979 Van Kempen was the most senior of the
Union's business agents at that point in time. In addition,
an announcement had been made in November 1978 in
the Union's newsletter that Van Kempen had been
named the director of organizing for the Union. Howev-
er, in that position, Van Kempen had no supervision
over the Respondent's business agents.
While Van Kempen was sitting in the office of the di-
rector of organizing, Johnson came into that office on
April 23, 1979, and spoke with Van Kempen. She told
him that she did not have any communication with Lane,
and that she did not get along with Lane. According to
Van Kempen, Johnson then said, "so since you're second
in command, I will give you the forms." Van Kempen
told her that he could not take responsibility, but she left
her daily reports for the period through April 20, 1979,
on his desk.
Johnson's daily reports remained on Van Kempen's
desk until the date of her termination on May 23, 1979.
As indicated previously in section 3 herein, Van Kempen
replied with candor when he was questioned as to
whether he had given Johnson's reports to Lane. Van
Kempen testified, "I should have, but I didn't; it was my
error." In addition, Van Kempen testified that he did not
tell Lane that he had the daily reports of Johnson.
On the day of her termination, Johnson picked up her
daily reports from Van Kempen's desk. Van Kempen
said that he had not touched or examined the reports
during the interval of time that they were on his desk.
The foregoing is based on the account given by Van
Kempen and Johnson.
On May 18, 1979, Lane addressed a memo regarding
the daily work sheets to all of the Respondent's business
agents. A copy of that memorandum was introduced into
evidence as General Counsel's Exhibit I 11. In pertinent
part, it states:
TO: ALL BUSINESS AGENTS
I want all current work sheets on my desk.
In the future, I want your daily work sheets sub-
mitted to me once a week.
Johnson said that she put on Lane's desk in his office
her daily reports for a 2- or 3-week period of time.
Those reports were in addition to the ones which she
had submitted to Van Kempen.
With regard to the second item mentioned in Lane's
warning letter, there were three problems at the V. P.'s
Restaurant which is located in San Pablo, California.
One problem pertained to the dues-checkoff system. As a
result of the employer's check being lost, and therefore
not received by the Union, the union members were sus-
pended. One union member, Norma Davis in particular,
was upset by the suspension. Johnson spoke with the Re-
spondent's assistant secretary, Dee Weaver, and the
matter was resolved by a letter dated May 10, 1979, to
Davis.
In addition, Johnson spoke with the owner of V. P.'s
Restaurant and suggested to him that the union dues-
I 130(
HOT()tI. & RESTAURANI IMI'L()Y'ES. LOCAL 28
checkoff system be eliminated at his establishment. The
owner agreed to do so after April 1979, because he had
already deducted the union dues from the employees for
that month. Johnson discussed the matter with Lane
prior to talking with the owner, and after the agreement
had been reached with the owner, Johnson informed
Lane about it.
Other problems pertaining to V. P.'s Restaurant were
the employer's failure to make payments on behalf of
some employees to the health and welfare fund and to
the pension fund. There were also some employees at the
restaurant who did not join the Union. Johnson ex-
plained at the hearing regarding those nonunion employ-
ees "when I went there I could never find the people."
V. P.'s Restaurant was not the first business establish-
ment which had been taken away from her jurisdiction
by Lane. However, she explained that the other business
establishments had been removed from her under differ-
ent circumstances. For example, in June 1978, Lane re-
moved four or five establishments in Lafayette from her
and gave those establishments to Business Agent Jewell.
Lane told Johnson that Jewell lived in Danville, Califor-
nia, and, therefore, Jewell went through Lafayette each
night on his way to his residence in Danville. Lane also
had removed certain business establishments in Rich-
mond from Johnson's jurisdiction. She testified, "Well,
when he first did this, he said that I really had too many
houses, and he was going to split up the Richmond area.
At that time he was taking these away from me because
of the overload."
With regard to the Brookside Hospital matter men-
tioned in Lane's May 9, 1979, warning letter, Johnson at-
tributed the Brookside employees unhappiness with the
Union to three actions by Lane. The first such action by
Lane, according to Johnson, was his guilty plea to the
embezzlement of certain union funds. A second action
was his responsibility for not sending out a letter reopen-
ing the Union's contract with the hospital in a timely
manner. A third action by Lane was his firing of the
shop steward at the Brookside Hospital. Gloria Peters
was the shop steward in question. Johnson testified,
"When Ray told me he was going to do it, I told him I
thought it was a mistake because she was well liked by
her fellow workers, and she carried a heavy stick, and to
my way of thinking, she did a good job as a shop ste-
ward.
Introduced into evidence as General Counsel's Exhibit
2 was a copy of the termination letter dated March 14,
1979, and addressed to Peters. The letter was sent over
the signature of Lane and Jody Kerrigan, president of
the Union. Included with the typed letter was a photo-
stat of an article which had appeared previously in the
Union's newsletter. The title of the article was, "If You
Want Your Job-You Don't Knock Your Own Union
and Keep Job." In pertinent part, the letter to Peters and
photostat of the article stated:
Effective immediately, Local 28 is removing you as
shop steward at Brookside Hospital. In the August
issue of the Voice of 28, we printed the enclosed ar-
ticle which is self explanatory.
Politics are fine and a wvay of life, but it is expected
that anyone in our administration be loyal to this
administration.
If You Want Your Job -
YOU DON'T KNOCK YOUR OWN UNION
AND KEEP JOB
If you're a union official of any kind you just
can't knock your own union and the leadership and
keep your job.
The U.S. Circuit Court of Appeals for the
Second Circuit has so ruled. A case came to court
when the executive committee of CWA Local 1011,
New York City, voted to "decertify" a steward
who had been elected by the membership. The ste-
ward had taken time during a lunch hour to talk
against the Local's leadership.
Judge Mansfield said, "We do not believe that
Congress intended Title I of LMRDA to insulate
union officials . . . from removal, or to permit a
union representative who disagrees with its leader-
ship to freeze himself in office on First Amendment
grounds.
The court added that to tolerate open defiance
by its stewards would invite disaster. It found that
the steward, as a representative of the union, must
cooperate with its leaders and implement their dir-
ectives. Such representatives may not, while acting
as the union's agent, sabotage or subvert its policies
in the name of free speech.
Introduced into evidence as General Counsel's Exhibit
4 was a copy of a letter from the Respondent to mem-
bers of the Union who were employed at the Brookside
Hospital. The letter is dated May 1, 1979, and is written
over the signatures of Johnson and Lane. Among several
other things, the Union's letter announced that, "Effec-
tive immediately your new business representative will
be Fred Arbabi."
With regard to the Broiler Fish House and the Broiler
Steak House mentioned in the warning letter to Johnson
from Lane, Johnson testified that some of the union
members who worked at those establishments were un-
happy because Lane had filed a law suit against both
owners of the establishments. She explained that one of
those owners was well liked among the employees, and
that some of those employees had worked for the owners
for over 20 years. On May 14, 1979, after Lane had
taken away those establishments from Johnson, there was
a conversation among Joe, the senior bartender, and
Arbabi and Johnson. The conversation took place at the
Broiler Steak House. Johnson testified, "at that time he
told Mr. Arbabi that he would have a tough time filling
my shoes."
With regard to the bowling alley mentioned in the
warning letter Johnson said that there had been no prob-
lem regarding that business establishment. She said that
Lane had never given her any specific reason concerning
his criticism of her job performance there. However, she
said that Lane had discussed with her various "houses"
where union members worked and where those members
1 l
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
had signed a petition to remove Lane from office. She
said that Lane did tell her that employees at the bowling
alley had been among those who signed such a petition.
Introduced into evidence as General Counsel's Exhibit
3 were copies of a petition which requested that a special
meeting of the Union be held on February 26, 1979, to
consider the suspension of Lane from his office without
pay pending the final resolution of certain criminal
charges brought against him and to consider the election
of his interim successor.
9. The change in office reporting requirements of
Johnson on May 21, 1979
In the beginning of her employment as one of the Re-
spondent's business agents, Johnson worked out of the
Union's office located in Oakland and also out of an
office located in Martinez. On 2 days of the workweek
she reported to the Martinez office between noon and I
p.m. She was the only one of the Respondent's employ-
ees who worked out of the Martinez office. During the
other 3 days of the workweek she reported to the Oak-
land office of the Union between noon and I p.m. In ad-
dition, she was required to report to the Oakland office
once a day between 8 and 8:30 a.m. If a business agent
was able to do so, the business agent was also expected
to report to the Oakland office at 4:30 p.m. The remain-
der of the workday was spent by Johnson in her assigned
area where she visited various business establishments.
At Lane's direction, Johnson located an additional
office for the Union which was opened in July 1978. The
new office was located in El Sobrante. Johnson then
began working at that office on 3 days a week between
noon and I p.m. and all day on Fridays. She continued
to work 2 days a week between noon and I p.m. at the
Martinez office. In addition, she reported to the Oakland
office in the mornings and at 4:30 p.m. if she was able to
do so.
Johnson described a change in her office reporting re-
quirements which took place on May 21, 1979. At the
hearing she related the following conversation with Lane
on that date:
On May 21st, Monday morning, he called me into
the office and said that they were going to make a
change in the way of the operation of the union,
and that from there on out I was to come into the
Oakland office three times a day everyday. It was
on a Monday morning. I remember very well. He
also said he would like to have his keys back be-
cause I wouldn't have any use of them.
The keys referred to by Lane were the keys which
Johnson had to the Union's office in El Sobrante.
10. The union meeting on May 22, 1979
The union meeting held on May 22, 1979, began at 3
p.m. at the union hall. There were approximately 75 per-
sons present at the meeting. Those persons included the
Respondent's business agents and two dispatchers.
The minutes of the executive board were read. The ex-
ecutive board recommended to the membership that a 7-
percent raise be given to Lane and to all of the Respon-
dent's business agents. During the discussion which
ensued, Johnson testified, "Then I got up and to the best
of my recollection I said, well, I felt like I should cer-
tainly get as much money as the men before they consid-
er a 7 percent." Rosen asked if Johnson meant that she
did not make as much money as the men did. Johnson
replied, "that's right."
Several union members at the meeting expressed their
view that it was discrimination, and that it was against
the law for a woman not to be paid as much money as a
man. Rosen asked why should Johnson only receive a 7-
percent increase in pay if Johnson was not being paid as
much as the men.
Johnson testified that she was watching Lane, and,
based on her observation, she was of the opinion that,
"He didn't do anything immediately, but if looks could
have killed I would have been dead. He had a real storm
cloud look on his face .... It was directed at me."
11. The termination of Johnson on May 23, 1979
Johnson was terminated at 9 a.m. on May 23, 1979.
During her direct examination by the counsel for the
General Counsel, Johnson testified:
Q. How long after that did you work as a busi-
ness agent in the local?
A. On May 23rd I went out to the social security
building at 6 o'clock in the morning and I returned
at 9 o'clock to the Oakland office and he called me
in.
Q. Who called you in?
A. Mr. Lane called me in and terminated me.
Q. Where did this conversation take place?
A. In his office.
Q. Was there anyone else present?
A. Roger Cardenas.
Q. The beginning of that conversation, would
you state what Mr. Lane said and what you said if
anything?
A. He said that my employ was no longer needed
and rambled on a little. I said, "Well, I certainly
hope you're not going to try to say I wasn't a hard
worker." He said, "Just let's say I didn't like your
work habits."
Q. Did he give you any specific examples of
work habits that he didn't like?
A. Nope.
Q. Did you say anything further?
A. Very little if anything.
Q. What happened after you had this meeting?
A. I left. I went out in the hallway and I came
back and asked him for the termination in writing.
Q. What did he say?
A. He said he was too busy and I said I'd wait.
So then I got the letter.
Q. You received it that day?
A. Yes, sir.
A copy of the termination notice given to Johnson on
May 23, 1979, was introduced into evidence as General
Counsel's Exhibit 7(a). In pertinent part, it states:
1132
HOTEL. & RESTAURANT EMPLOYEES, LOCAL 28
TO: PHYLIS JOHNSON
This is to inform you that effective 9:00 AM May
23, 1979 you are hereby terminated as an employee
of Local 28.
Johnson received two checks that day. One was for
her salary and was introduced into evidence as General
Counsel's Exhibit 12(a). The other check was for her ex-
penses and was introduced into evidence as General
Counsel's Exhibit 12(b). The notation "2 days vacation
included" was marked on both of her checks and on her
check stub. According to Johnson, she had more vaca-
tion pay accrued to her at that point in time, but she did
not receive it. She said that Lane told her that he would
take care of it, and that he would send the vacation
check to her.
At the time of her termination the Respondent em-
ployed six business agents, two of whom were women.
They were Johnson and Rodriguez. The Respondent
also employed five clerical employees, four of whom
were women. The Respondent had three dispatchers, all
three of whom were women.
12. Conclusions
A threshold issue presented in this case is whether the
activities engaged in by Johnson prior to her termination
by the Respondent are the type of activities protected by
the Act.
It cannot be fairly said that Johnson acted in concert
with other employees of the Respondent in filing her
complaint on April 25, 1979, with the Fair Employment
Practices Commission, nor when she said at the May 22,
1979, union meeting that she was not being paid as much
money as the male business agents. I conclude that the
facts show that Johnson acted alone, rather than together
with other employees of the Respondent, in taking those
actions.
Since Johnson acted individually, as distinguished from
concertedly, the question arises as to whether her actions
constitute protected, concerted activity.
I conclude that the Board's rationale in its decision in
Alleluia Cushion, Inc., 221 NLRB 999, 1000 (1975), is ap-
plicable here. The Board stated:
We find merit in the Acting General Counsel's
exceptions. While it is undisputed that Henley acted
alone in protesting Respondent's lack of safety pre-
cautions, the absence of any outward manifestation
of support for his efforts is not, in our judgment,
sufficient to establish that Respondent's employees
did not share Henley's interest in safety or that they
did not support his complaints regarding the safety
violations. Safe working conditions are matters of
great and continuing concern for all within the
work force. Indeed, occupational safety is one of
the most important conditions of employment.
Recent years have witnessed the recognition of this
vital interest by Congress through enactment of the
Occupational Safety and Health Act, and by state
and local governments through the passage of simi-
lar legislation. The National Labor Relations Act
cannot be administered in a vacuum. The Board
must recognize the purposes and policies of other
employment legislation, and construe the Act in a
manner supportive of the overall statutory scheme.
While Johnson's activities pertained to alleged sex dis-
crimination in wages, rather than occupational safety
matters, can it be said that alleged discrimination in
paying wages on the basis of a person's sex is not: (I) a
condition affecting a person's employment; (2) a matter
of concern shared by other persons in the work force; or
(3) a matter about which Congress has expressly enacted
legislation, as well as a matter about which certain state
and local governments have passed similar legislation'?
(Note the Board's rationale quoted above from its deci-
sion in Alleluia Cushion.) I conclude that the Board's
holding in Alleluia Cushion is equally applicable to the
facts presented in this case.
In an earlier case heard by me, I also applied the
Board's Alleluia Cushion rationale to a situation involving
the termination of an employee: (I) After he had com-
plained about carbon monoxide fumes in the employer's
facility to the Department of Health and Environmental
Sciences of the State of Montana, and (2) after the same
employee had engaged in union organizational activities.
See Bighorn Beverage, 236 NLRB 736 (1978).
I note that in Bighorn Beverage the United States Court
of Appeals for the Ninth Circuit did not agree with the
Board's holding in Alleluia Cushion. See the court's opin-
ion in N.L.R.B. v. Bighorn Beverage, 614 F.2d 1238 (9th
Cir. 1980). The court held at 1242:
,NLRB v. C & I Air Conditioning, Inc., 486 F.2d
977 (9th Cir. 1973), governs the disposition of this
issue. It involved, as this case does, the filing of a
safety complaint. Although it predated Alleluia
Cushion, without deciding the validity of Interboro,
we refused to extend it to situations where there
was no collective bargaining agreement involved.
Such an agreement is essential because it is the
source of the employee's claimed rights. NLRB v.
C & I Air Conditioning, Inc., 486 F.2d at 979. There-
fore, we must reject the Board's finding that Mor-
tensen engaged in protected concerted activity.
This result is consistent with that reached by
other circuits which have held that the implied con-
certed action theory is a legal fiction presenting an t
unwarranted expansion of the definition of concert-
ed action unsupported by a statutory basis. See
ARO, Inc. v. NLRB, 596 F.2d 713 (6th Cir. 1979);
NLRB v. Dawson Cabinet Co., Inc., 566 F.2d 1079
(8th Cir. 1977); NLRB v. Buddies Supermarkets,
Inc., 481 F.2d 714 (5th Cir. 1973); NLRB v. North-
ern Metal Co., 440 F.2d 881 (3d Cir. 1971). But see
NLRB v. Ben Pekin Corp., 452 F.2d 205 (7th Cir.
1971).
The instant case, like Bighorn Beverage, arises within
the geographical area of the Ninth Circuit. However, the
Board has made it clear that an administrative law judge
has a duty to apply established Board precedent, unless
that precedent has been reversed by the Board itself, or
by the Supreme Court. See the Board's decision in Ford
1133
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
Motor Company (Chicago Stamping Plant), 230 NLRB
716 (1977), enfd. 571 F.2d 993 (7th Cir. 1978), affd. 441
U.S. 488 (1979). See especially 230 NLRB at 717 718.
See also footnote 12 of that decision where the Board
stated:
By relying on U.S. court of appeals' decisions
which are contrary to applicable Board precedent,
the Administrative Law Judge in this case has com-
mitted an error. It is not for an Administrative Law
Judge to speculate as to what course the Board
should or would follow where a circuit court has
expressed disagreement with the Board's views.
That is the province of the Board alone. It remains
the Administrative Law Judge's duty to apply es-
tablished Board precedent which the Supreme
Court or the Board has not reversed. Iowa Beef
Packers, Inc., 144 NLRB 615, 616 (1963); Novak
Logging Company, 119 NLRB 1573, 1575-76 (1958);
Insurance Agents' International Union, AFL-CIO
(The Prudential Insurance Company of America), 119
NLRB 768, 773 (1957).
With the foregoing in mind, it is clear that I have a
duty to follow and to apply the Board precedent in Alle-
luia Cushion. Accordingly, I conclude that Johnson's ac-
tivities in filing a complaint alleging sex discrimination
with the FEPC and in expressing her view at the union
meeting that she was not paid as much in wages as male
employees were protected, concerted activities entitled
to the protection of the Act.
Having concluded that Johnson had engaged in pro-
tected, concerted activities prior to her termination by
the Respondent, and further having concluded that the
Respondent had knowledge of those protected, concert-
ed activities on her part, the question then arises as to
whether the Respondent discharged Johnson on May 23,
1979, because she had engaged in those activities. In ad-
dition, there is also an issue as to whether the Respon-
dent made Johnson's job more onerous prior to her ter-
mination because of her complaint to the FEPC.
In summary, the General Counsel's view is that the
Respondent was motivated by Johnson's protected, con-
certed activities in taking the adverse actions against her.
The General Counsel urges that the alleged work perfor-
mance deficiencies of Johnson are being utilized as pre-
textual reasons for the Respondent's actions.
On the other hand, the Respondent's view is that the
activities engaged in by Johnson were not protected,
concerted activities. In summary, the Respondent urges
that Johnson was terminated because of her poor work
performance, and that the Respondent's decision to do so
was made prior to any of Johnson's activities when the
Respondent hired Arbabi on or about April 16, 1979.
The Respondent argues that the filing of the FEPC
charge by Johnson was done only after "Johnson knew
that she was about to be terminated by Lane." (See p. 19
of the Resp. br.) The Respondent also argues that there
is an absence of evidence of any discriminatory motiva-
tion on the part of the Respondent.
Without repeating here all of the findings of fact
which have already been set forth in section 8 herein, it
will be remembered that the warning letter dated May 9,
1979, from Lane to Johnson specifically mentioned six
topics concerning Johnson's performance. The specific
nature of that warning letter stands in contrast to the
letter dated May 23, 1979, which Johnson received after
she was informed of her termination by the Respondent.
It is significant that no reasons for her termination were
given in that final letter, nor were any specific reasons
given to her by Lane during their conversation on May
23, 1979, when Lane first informed her of her termina-
tion. At the hearing the Respondent substantially expand-
ed on the scope and number of the alleged work defi-
ciencies in Johnson's job performance from those few
which had been specifically mentioned by Lane in his
warning letter of May 9, 1979. Lane admitted at the
hearing that he had prepared the warning letter "to more
or less set a record." The following took place during his
direct examination:
Q. There's that letter-the May 9th letter. Why
did you give that to Phyllis?
A. Well, here again, I don't run an exactly
straight ship where everybody gets letters, I give a
lot of notes. I was trying to more or less set a
record. I knew Phyllis knew that she was being ter-
minated. She went down to the fair employment
practice, she knows all the tricks, to hold her job. I
just started making a record for myself. I normally
don't write letters.
I conclude that the other alleged shortcomings of
Johnson, which were not mentioned in the May 9, 1979,
warning letter to her, nor which were mentioned to her
at the time of her termination on May 23, 1979, are after-
thoughts which did not genuinely enter into the decision
to terminate Johnson on May 23, 1979.
With regard to the specific matters mentioned in the
May 9, 1979, warning letter, the evidence undermines re-
liance on those specific reasons as the true basis for the
termination of Johnson.
Note, for example, the credited testimony with regard
to the submission of the daily work reports. Van
Kempen was candid in his response when he was ques-
tioned as to whether he had given Johnson's daily work
reports to Lane. He testified, "I should have, but I
didn't; it was my error." Note also that Lane's subse-
quent memorandum dated May 18, 1979, regarding the
submission of the daily work reports to him was not ad-
dressed just to Johnson, but instead that memorandum
went to all of the Respondent's business agents. Finally,
it will be remembered that Johnson did submit 2 or 3
weeks of her reports to Lane by leaving them on his
desk.
With regard to the V. P.'s Restaurant, the evidence re-
vealed that Johnson was attempting to resolve the prob-
lems which concerned the employees there. At the
Brookside Hospital the dissatisfaction of the employees
at that facility resulted from Lane's actions, particularly
his firing of their shop steward, Gloria Peters. Johnson
further explained the unhappiness among certain long-
time employees at the Broiler Fish House and the Broiler
Steak House by stating that Lane had filed a lawsuit
1134
HOTEL & RESTAURANT EMPI.O()YIEFS. I()CAL 2
against one of the owners to whom the employees were
loyal. At the bowling alley Johnson stated that there had
not been any problems, but she did point out that Lane
had mentioned those employees as being among those
who sought to have him removed from office.
After considering the credited testimony, I conclude
that the specific reasons advanced by the Respondent are
not the true reasons for the Respondent's decision to ter-
minate Johnson, but instead those reasons are pretexts to
hide some other motivation. The question then arises as
to what the evidence reveals with regard to some other
motivation.
Although Lane had proposed in October or November
1978 a $45-increase for Johnson and a $15-increase for
the other business agents, he later remarked to Johnson
during the first part of 1979 concerning equal pay for
men and women, "Well, women don't need as much as
men." Lane's comment to Johnson on that occasion
cannot be considered in isolation, but instead, it should
be considered along with the facts set forth in section 6
herein regarding the salaries and expenses paid to the
Respondent's business agents. The total compensation
package has to be considered since the Respondent pays
the amount of the weekly expenses to its business agents,
whether or not any such expenses are incurred. A
review of the facts set forth in section 6 reveals that
Johnson's total compensation did not match that of the
male business agents, even those who had been hired
subsequent to her employment as a business agent by the
Respondent. Finally, a factor not to be ignored is Lane's
visible reaction to Johnson's statement at the May 22,
1979, union meeting that she was not paid as much
money as the male business agents.
The sequence of the events and the timing of the ad-
verse actions against Johnson are still other factors to be
considered in trying to ascertain the Respondent's true
motivation. In this connection, it will be remembered
that Johnson filed her complaint alleging sex discrimina-
tion by the Respondent on April 25, 1979, with the
FEPC. It was thereafter on May 9, 1979, that Johnson
received the written warning from Lane which has been
discussed above. Also subsequent to her filing of the
FEPC charge was the change in her reporting require-
ments. Without repeating here all of the facts which
have previously been set forth in section 9 herein, it was
on May 21, 1979, that Lane changed the reporting re-
quirements of Johnson and required her to report to the
Union's office in Oakland three times every workday. He
also took away from her the keys to the Union's El So-
brante office at that time.
Next in the sequence of the events came Johnson's
comment at the union meeting on May 22, 1979, regard-
ing the fact that she was not paid equally with male em-
ployees. Her termination followed at 9 a.m. the very
next day.
Lane's explanation as to the timing of his termination
of Johnson on the day after the union meeting rests upon
the earlier events concerning Lane's termination of Cal-
varese. According to Lane, he first terminated Calvarese
in March 1978, but 4 or 5 days later at a union meeting,
the union membership voted to return Calvarese to
work. Lane said that Calvarese was then rehired in June
1978, but that Lane fired him the second time in Septem-
her 1978. However, Lane acknowledged at the hearing
that the Union's bylaws had been amended prior to the
time that he terminated Johnson.
The parties stipulated at the hearing that the Union's
bylaws were changed to give the secretary-treasurer the
authority to hire and fire employees with the approval of
the executive board, but without ratification by the
Union's general membership. The Union's bylaws change
occurred as a result of an order from the president of the
International Union some time at the end of August or
the beginning of September 1978, but prior to September
6, 1978. Prior to that change in the Union's bylaws, the
membership of the Union had the authority to overrule
the firing of Calvarese in March 1978, but the Union's
bylaws had been changed by the time of the second ter-
mination of Calvarese in September 1978.
Thus, the Union's bylaws had been changed months
before the termination of Johnson on May 23, 1979. Con-
sidering the foregoing, I am not persuaded by Lane's ex-
planation of the timing of Johnson's termination. Instead,
I conclude that the evidence shows that the timing of
her termination is explained by Johnson's statement at
the union meeting on May 22, 1979, on the day before
her discharge, and Lane's reaction to that statement. The
subject of her statement was, of course, directly related
to the same subject matter which Johnson alleged in her
sex discrimination charge which she had earlier filed
with the FEPC.
As indicated previously in section 3 herein, I have not
credited Lane's assertion that he had made the decision
to terminate Johnson when Lane hired Arbabi as a busi-
ness agent. Although Arbabi was the one who eventually
replaced Johnson, I conclude that the explanation for the
hiring of Arbabi is found in the departure of Business
Agent Lam.
After considering all of the foregoing matters, I con-
clude that the evidence is persuasive that the Respon-
dent's true motivation in imposing more onerous require-
ments on Johnson and in terminating Johnson was to dis-
criminate against her because of her protected, concerted
activities. Accordingly, I conclude that the General
Counsel has established by a preponderance of the evi-
dence that the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act as al-
leged in the General Counsel's complaint.
CONCLUSIONS OF LAW
1. The Respondent Union is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
the following acts and conduct:
(a) Imposing more onerous working conditions on
May 21, 1979, on its employee, Phyllis Johnson, because
of her protected, concerted activities.
(b) Terminating on May 23, 1979, and failing to rein-
state its employee, Phyllis Johnson, because of her pro-
tected, concerted activities.
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend to the Board that
the Respondent be ordered to cease and desist from en-
gaging in those unfair labor practices.
I shall also recommend to the Board that the Respon-
dent take certain affirmative action in order to effectuate
the policies of the Act. Such affirmative action will in-
clude an offer of immediate reinstatement to Johnson,
and an order to make her whole for her losses which
have resulted from the Respondent's discrimination
against her. Backpay for Johnson, together with interest
on such backpay amounts, will be computed in accor-
dance with the Board's decision in F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Healing
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
In the August and September 1979 edition of the Re-
spondent's newsletter there appeared an article entitled,
"Why Are BA's Fired." That article in the Union's
newsletter specifically discussed in detail the termination
of Johnson. (See G.C. Exh. 8.) In view of the foregoing,
and in order to effectively communicate the provisions
of the Board's remedial order, I shall also recommend to
the Board that the Respondent be required to publish the
Board's notice, which is attached hereto as an Appendix,
in one edition of the Union's newsletter. Although I shall
also recommend to the Board that the Board's notice be
posted at the Respondent's offices, publication of the
Board's notice in the same manner, which the Respon-
dent had earlier chosen to utilize with regard to John-
son's termination, would appear to be the more effective
communication of the Board's notice provisions.
In accordance with the Board's decision in Hickmott
Foods, Inc., 242 NLRB 1357 (1979), 1 shall recommend
to the Board a narrow cease-and-desist order.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Hotel and Restaurant Employees and
Bartenders Union Local 28, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Imposing more onerous working conditions on an
employee because that employee has engaged in protect-
ed, concerted activities.
In the event that no exceptions are filed, as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order herein shall, as provided in Sec. 102.48 of the Board's
Rules and Regulations, be adopted by the Board and become its findings.
conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(b) Terminating the employment and failing to rein-
state an employee because that employee has engaged in
protected, concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by the Act.
2. Take the following affirmative action which is
deemed necessary in order to effectuate the policies of
the Act:
(a) Offer Phyllis Johnson immediate and full reinstate-
ment to her former job as a business agent, or, if that job
no longer exists, to a substantially equivalent position of
employment without the loss of her seniority or other
rights and privileges.
(b) Make whole Phyllis Johnson for her loss of earn-
ings, with appropriate interest thereon, which has result-
ed from her termination by the Respondent with such
backpay and interest to be computed as set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
agents of the Board for examination and copying, the
payroll records, social security records, timecards, per-
sonnel records, and all of the other records necessary to
analyze the amount of money due under the terms of this
Order.
(d) Post at its Oakland, California, main office and at
all of its other offices, copies of the attached notice
marked "Appendix." 2 The Regional Director of Region
32 of the Board will provide copies of the notice to the
Respondent. After the Respondent's representative has
signed those copies, the Respondent shall post those no-
tices immediately after receiving them. The Respondent
shall maintain such notices for of 60 consecutive days
after they have been posted, in conspicuous places, in-
cluding all of the places where the Respondent custom-
arily posts notices to its employees. The Respondent
shall also take reasonable steps to insure that the notices
are not altered, defaced, or covered by any other materi-
al.
(e) Publish a copy of the notice provisions in one edi-
tion of the Respondent's newsletter distributed to its em-
ployees and members.
(f) Within 20 days from the date of this Order, the Re-
spondent shall write a letter to the Regional Director of
Region 32 of the Board and tell him what the Respon-
dent has done to comply with this Order.
z In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading. "Posted
by Order of the National Labor Relations Board," shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
1136
HOTEL & RESTAURANT EMPLOYEES, LOCAL 28
APPENDIX
Noric Tro EMPLOYiEES
PosFEID BY ORI)ER OF IHE
NA TIONAI. LABOR REI A' IONS BOARD
An Agency of the United States Government
WE WI.l. NOT impose more onerous working
conditions on an employee because that employee
has engaged in protected, concerted activities.
WE WILl. NOT terminate the employnient and fail
to reinstate an employee because that employee has
engaged in protected, concerted activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by the
National Labor Relations Act.
WI: Wn. offer Phyllis Johnson immediate and
full reinstatement to her former job as a business
agent, or, if that job no longer exists, to a substan-
tially equivalent position of employment without
the loss of her seniority or other rights and privi-
leges.
WE WILL pay to Phyllis Johnson the amount of
her loss of earning, with appropriate interest there-
on, which has resulted from her termination.
HOTEI. AND RESTAURANT EMPLOYEES
AND BARTENDERS UNION LOCAi. 28, AF-
FII.IATED WITH HOTEl. AND RESTAURANT
EMPI.OY EIES AND BARTENDERS INTERNA-
TIONAl. UNION, AFL-CIO
1137