Jack August Enterprises

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 881 (N.L.R.B. 1977)

JACK AUGUST ENTERPRISES
Jack August Enterprises, Inc. and Jane Goulet and
Charlotte Manegre. Cases 1-CA-1 1421 and I-
CA-I 1484
September 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 29, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions of the Administrative Law
Judge, to modify his remedy,2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Jack August
Enterprises, Inc., Springfield, Massachusetts, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
The Respondent asserts that the Administrative Law Judge's resolu-
tions of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses. As
the Supreme Court stated in N.LR.B. v. Pittsburgh Steamrnship Company. 337
U.S. 656, 659 (1949), "IT]otal rejection of an opposed view cannot of itself
impugn the integrity or competence of a trier of fact." Furthermore, it is the
Board's established policy not to overrule an Administrative Law Judge's
resolutions with respect to credibility unless the clear preponderance of all
of the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362
(C.A. 3, 1951). We have carefully examined the record and find no basis for
reversing his findings.
2 In accordance with our decision in Florida Steel Corporation. 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
DECISION
Preliminary Statement; Issues
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
tions Act, as amended, 29 U.S.C. Sec. 151, et seq., was
heard before me in Northampton, Massachusetts, from
July 7 through 14, 1976, with all parties participating
throughout by counsel' and afforded full opportunity to
present evidence and arguments, as well as to file briefs
subsequent to the hearing. The voluminous transcript and
exhibits, received in mid-January 1977, and the lengthy
briefs, altogether totaling around 1,500 pages plus a tape
recording, have been carefully reviewed and considered.
The principal issues presented are whether Respondent
violated Section 8(aX3) and (1) of the Act by changing the
work schedule and reducing the work hours of and
thereafter discharging its employee Jane Goulet, as well as
by discharging its employee Charlotte Manegre, in relation
to and to discourage union membership, assistance,
support, or concerted activities protected under the Act, or
to interfere with, restrain, and coerce employees in the
exercise of rights guaranteed in Section 7 of the Act; and
whether Respondent additionally violated Section 8(a)(I)
of the Act in various other respects in order to discourage
and restrain employees from exercising their Section 7
rights. The other aspects include coercive interrogation of
employees concerning union activities; coercive interroga-
tion of employees concerning Board investigative actions;
promulgation and enforcement of an invalid proscription
against conversation among employees concerning the
Union or union solicitation; reprimands of employees for
discussing the Union and an officially scheduled Board
representation election; coercive and restraining remarks
to employees that the Company has placed employees on a
company "sh-t list" because of their union activity and
that employees who engaged in union activity or "instigat-
ed or called the Union in on this ordeal" are not up to
Respondent's standards; and threats of restaurant closure
in the event of unionization.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
The Charging Parties were represented by counsel for the General
Counsel of the Board, who, through the Board's Regional Director for
Region I (Boston. Massachusetts), issued the consolidated complaint herein
dated April 7. 1976. based on a charge filed by Jane Goulet on February 9
as amended on March 22 (Case I-CA-11421) and a charge filed by
Charlotte Manegre on February 26. 1976 (Case I-CA-11484). The
consolidated complaint was amended in vanous respects at the hearing, as
will be shown.
232 NLRB No. 138
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION; PARTIES
At all material times, Respondent Jack August Enter-
prises, Inc., has been and is a Massachusetts corporation
with principal office and place of business at 2155
Columbus Drive, Springfield, Massachusetts, with annual
gross sales volume exceeding $500,000 from its restaurant
business, in which it purveys food and alcoholic and other
beverages at retail at various locations in Massachusetts
and Connecticut, including its restaurant (herein chiefly
involved) at 1396 Boston Road, Springfield, Massachusetts.
In the course of conduct of that business during the
representative year immediately preceding issuance of the
complaint, Respondent purchased and shipped merchan-
dise valued in excess of $50,000 directly in interstate
commerce from outside of Massachusetts to Respondent's
restaurants in Massachusetts.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; that at all of those
times Local 116, Hotel and Restaurant Employees Union,
AFL-CIO, has been and is a labor organization within the
meaning of Section 2(5) of the Act; and that at all of those
times until the dates of their discharge in January 1976,
under circumstances to be shown, Jane Goulet and
Charlotte Manegre were employees of Respondent at its
1396 Boston Road, Springfield, Massachusetts, restaurant.
II. ALLEGED UNFAIR LABOR PRACTICES
In order to facilitate visualization of events as they
occurred and to assist in resolution of the issues, particular-
ly considering the complex nature of the record presented,
those events will be sorted out and presented chronologi-
cally.
A. Background, Respondent's Business and
Operational Hierarchy
Formed in 1968, Respondent at the time of hearing
operated a chain of 11 or more seafood and meat
restaurants 2 purveying eat and drink (including alcoholic)
in Massachusetts and Connecticut. Of its 10 such restau-
rants in 1975, the one in which the activities to be described
centered is its Boston Road (Springfield, Massachusetts),
location, consisting of a chowder house, a steak house, a
bar, and a kitchen, usually employing around a total of 60
day- and night-shift employees. As described by Respon-
dent President Rubin, the Boston Road Chowder House or
room and the Steak House or room are each about 2,000
square feet in size, with about 136 seats in each (mostly 4 to
a table) and I waitress to 5 or 6 tables (or more in the early
part of the week, when it is less busy).
2 Between 1973 and 1977 the number of restaurants in Respondent's
chain rose from 6 to 11. In its posttrail brief, Respondent states it had 13
such restaurants at the time of hearing.
: I find Engstrom. who testified her duties included the hiring, training.
and discharging of employees, a supervisor within the meaning of the Act, as
the others also above mentioned clearly are likewise so found. (NI RA, Sec.
2(1 I).) Another company supervisor. Director of Operations Oliver Bardis,
has not been with it since May 1976. IHe was apparently succeeded by
Fidler.
Respondent's administrative/managerial/supervisory hi-
erarchy involved in activities to be described at its Boston
Road restaurant included Respondent's president, princi-
pal and operating head, Merwin Rubin; its director of
operations, Howard Fidler; Area Supervisor Sheldon
Rappaport, who is Rubin's brother-in-law; Roger Provost,
former manager of Boston Road; Burt Moquin (Moquim;
Mowkland; etc.), assistant manager of Boston Road; and
Karen Engstrom, Respondent's Massachusetts area train-
ing supervisor.3
B. July - August 1975: Union Organizational
Activity Erupts at Respondent's Boston Road
Restaurant; Respondent's Immediate Reactions and
Their Results
The attempt to unionize Respondent's Boston Road
restaurant started in June or July 1975. It is clear that this
attempt was at all times led and spearheaded by Jane
Goulet, one of the waitresses in the Chowder House, who
was later discharged under circumstances to be described.
The unionizational attempt, designed to obtain improved
economic and working conditions, commenced with
employee discussions, followed by a visit to the union
office at Chicopee, Massachusetts, on July 22 by Boston
Road waitresses Goulet and Symington, succeeded by
union membership card solicitation by these two as well as
waitress Dalton, climaxed by a Sunday Summer party of
employees at Goulet's home on or about July 27.
Immediately after this organizing party, when Goulet
and Dalton solicited two fellow employees to join the
Union. This occurred in the kitchen refrigerator room late
at night, after Goulet and Dalton were checked out for the
day (G.C. Exhs. 28 and 29) but while the other two
employees were completing their last chores for the night,
close to closing time, storing merchandise in the refrigera-
tor overnight-the entire episode took about a minute and
was shown not to have delayed or interfered with any
work. The employees merely asked (G.C. Exh. 27), "Would
you sign union cards if we brought them in" (they had no
cards with them). For this Goulet and Dalton received
formal certified mail, personal-delivery-return-receipt-re-
quested letters of reprimand (G.C. Exhs. 8 and 9, dated
August 5). At that time to their knowledge there was no
rule against solicitation, and they and other employees had
previously spoken freely to each other in comparable
circumstances, including solicitation of cookie purchases,
without objection of any kind from management.4 While I
credit Dalton's testimony to the foregoing effect, no finding
of violation may be predicated upon this incident inas-
much as it is time-barred under Section 10(b) of the Act.
On July 29, the 26 signed union membership cards netted
by the waitresses' organizational drive led by Goulet were
turned over to the union representative in Chicopee, who
4 Boston Road fobrmer Manager Provost testified as Respondent's
witness that, although at the time there was no published or posted rule
against solicitation, he nevertheless suggested to Respondent President
Rubin that formal letters of reprimand be prepared and sent to Dalton and
Goulet Provost conceded that at no time did he discuss the matter with
Dalton or Goulet; he merely dispatched the certified letters to them. On the
same date as these letters are dated (August 5), however, Provost also posted
on the bulletin board a "Notice of Warning" to employees (Resp. Exh. 7).
quoting the contents of the letters he had sent to Goulet and Dalton.
882
JACK AUGUST ENTERPRISES
took the precaution of having the waitress solicitors initial
the signed cards to "protect" them from reprisal in their
jobs. Also on the same date (July 29) he wrote a letter (G.C.
Exh. 25) to Respondent requesting recognition as bargain-
ing representative and filed a representation election
petition with the Board's Regional Office. According to the
testimony of Respondent's witness and former Boston
Road manager, Provost, on July 29-30 the total number of
unit employees there was 46. Twenty-six would therefore
have constituted a clear majority of union cards in the
bargaining unit.
Respondent's immediate reactions to the Boston Road
employees' unionizational attempts, and, in turn, the effect
of Respondent's reactions upon the employees, will now be
described.
When, at the end of July, Boston Road Manager Provost
received a letter from the Board's Boston Regional Office
apprising him of the Union's petition for a statutory
representation election under Board auspices, his reac-
tions-as well as that of President Merwin Rubin-were
swift. Rubin, according to his own testimony, immediately
summoned a meeting of his managerial staff and discussed
with them "the cause of the precipitating this union
petition and, my first reaction was that the facts didn't all
add up" about any "unrest" 5 to have "caused certain
individuals to go down to the union hall and request the
union petition." According to Provost, he (Provost)
attempted to account for the start of the union activity by
linking it to his decision to cross-train waitresses for both
the steak house and the chowder house (i.e., so that they
could serve interchangeably in either or both), as well as his
failure to appoint or reappoint Goulet as lead waitress. The
management group thereupon, according to Provost,
discussed "what we were going to do with the union
problem." After consulting with counsel, Rubin-accord-
ing to his testimony-instructed his staff to keep in close
contact with him, that "there would be no suspension or
termination whatsoever, without first clearing that with
me" and, for some unexplained reason, he instructed
Provost to maintain Goulet-the leader of the unionization
attempt, who was singled out for such mention-on her
regular 20-hour weekly schedule, without specification as
to whether or not she was to be scheduled to work or not to
work on specific days or at closing time. At or around the
same time, according to testimony of Rubin's brother-in-
law, Area Supervisor Sheldon Rappaport, the latter was
instructed by Rubin and Respondent Counsel Hayes to
write down and have witnessed "anything [that] should
take place."6 Between the date of his receipt of notification
from the Board concerning the filing of the Union's
representation petition and the election (October 11),
according to Rubin there was no change in management of
Boston Road other than that Rubin instructed Respon-
dent's then director of operations, Bardis, that Rubin
personally-who (Rubin) pointed out in his testimony that
he had never before been confronted with an assertion by
any employees that they had a right to belong to a union-
' Arising, for example, from the transfer of waitresses from the steak
house to the chowder house.
6 Rappaport conceded that, although he did so concerning Goulel, he
did not do so with regard to waitress Manegre. (See below concerning
Respondent's discharge of these two waitresses.)
would act as director of operations and that Bardis was,
until further notice, superseded or downgraded to acting in
a purchasing capacity.7
According to the former Boston Road manager, Provost,
coincident with his learning of the filing of the Union's
petition for certification as the employees' bargaining
representative through a statutory Board-conducted elec-
tion under the Act, observed a "change" in Goulet's
"attitude," resulting in or associated with a "lack of
teamwork" and "cooperation" among the employees,
evidenced in his mind by two "different camps of
employees"-i.e., those for and those against the Union,
which "definitely" resulted from the advent of the Union.
And, according to Assistant Manager Moquin, from then
on it was "not the same old Jane [Goulet]" any longer.
It was in this context that Provost, with Rubin's
approval, issued the two formal disciplinary certified mail
no-solicitation "warnings" to Goulet and Dalton which
have been described.
Respondent's reaction to its Boston Road employees'
unionization aspirations was accompanied by effects
among those employees, including even some of Goulet's
lieutenants in that effort. Thus, according to Manager
Provost (testifying as Respondent's witness), shortly after
Respondent's receipt of notification of the filing of the
Union's certification petition, he was visited in his office by
waitress Dalton-Goulet's henchperson in the organiza-
tional drive-seeking a personal meeting with President
Rubin to get out of the Union because she allegedly now
felt Goulet was using her "as a pawn" in a "personal
vendetta" of which she wanted no part. Accordingly,
Provost arranged a conference with Rubin for the follow-
ing day, at which waitress Symington-another Goulet
lieutenant-also showed up to confess that she too had
been "involved in the Union activity" and to "disavow
herself from . . . the union" and to "get out of it." This
personal meeting with Rubin followed an earlier assemblage of
all of the employees, attended by Rubin, where Provost-
according to his own testimony-had told them that they could
get their union cards back by writing to the Union, whose
address would be made available to them in his office. At the
personal conference with Rubin, Dalton and Symington
requested further explanation, in addition to that furnished
by Provost to Respondent's earlier convocation of all
employees, as to precisely how they could "withdraw" from
the Union, expressly indicating (according to Provost's
testimony) that they were afraid of losing their jobs
because of their union involvement. Provost thereupon
explained how they could "withdraw" from the Union.
According to waitress Symington, testifying as Respon-
dent's witness, she confessed at the August conference with
Provost and Rubin, that she and Dalton had been "the
ones" with Goulet to obtain signatures on the union cards
and that they now "didn't want to be involved with it any
more." Rubin-still according to Respondent's witness
Symington-stated he was glad she and Dalton "came
forward and explained what had happened. . . everything
? As already indicated, Bardis' employment relationship with Respon-
dent ended in May 1976.
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that [you] had done" and that they could obtain slips at the
office in the Boston Road restaurant with the union
address for the purpose of writing to and withdrawing from
the Union; and that she subsequently picked up such a
mimeographed slip at the Boston Road restaurant.
According to waitress Dalton, about a week after she
received her aforedescribed August 5 certified mail repri-
mand, apparently stung by or apprehensive over what she
regarded as unfair accusations against her that she had
gone to the Union "initially" and about "originally
originat[ingJ the Union" and causing "harassment in the
store," as well as accusations by Provost to Dalton that
Dalton's husband was "after" Pro-ost, Dalton told Provost
that the whole matter was "getting out of hand," affecting
her family life, and that she therefore now wanted to "get
out of it." Dalton informed Provost that, although Goulet
and Symington had started the unionization attempt, she
had participated in it. When Provost asked her if she would
be willing to tell this to Rubin, Dalton agreed to do so if
Symington would also do so. Thereupon, Provost called
Symington, who agreed. The following day, Provost took
them both to see Rubin, to whom Dalton explained that it
was not she but Goulet and Symington who had "initially
gone down and got the cards and the papers," although
Dalton later participated with them; and Dalton expressed
concern about her job because of her involvement with the
Union. However, Rubin reassured her that she need not
worry since she had "come down," and he indicated she
could withdraw from union membership. She added that,
although before this she had never considered withdrawing
her union membership, after this conference she requested
the Union to withdraw her card.
Notwithstanding the above facts, the evidence adduced
on the subject of those employees' withdrawals from the
Union in my opinion falls short of establishing by the
required preponderant weight and substance, unaided by
suspicion and conjecture, that it was Rubin who persuaded
them to withdraw from the Union, as indicated in the
complaint, and I accordingly find that allegation not
sufficiently established by clear, substantial evidence.
Boston Road Chowder House evening waitress Ann
Ellen Balakier, whose husband is Respondent's Framing-
ham Branch manager, testifying as Respondent's witness,
testified on direct examination that following the advent of
union activity there "tension [started] to build" between
"one side against the union, one side for the union," and
conceded on cross-examination that openly "management
was giving Mrs. Goulet a bad time." This appears to be an
accurate statement in view of events to be described.
I.e.. Bavelas ("I have decided that it would not be wise for me to join a
union at the present time"), Dalton, Dorsett ("For personal reasons and my
own welfare I would like to request you to return my Union Card."), Filiault
("I now feel that the Union does not belong in Jack August"). McDonald,
Ragsdale, Smith, Symington, and Thrasher.
I.e., Aloisio, Bacon, Baselas. Byrne, Daigneault, Dalton. Dawes,
C. August - October 11, 1975: Events Preceding
Board-Conducted Election
1. Withdrawals of union memberships
Following the indications and explanations by Provost
and Rubin to the Boston Road employees regarding the
"withdrawal" of their union cards, on the heels of
Respondent's receipt of notification from the Board's
Regional Office of the filing of a union petition for a
statutory election, by August 21 the union received no less
than 9 such requests for withdrawal8 from the 26 union
card signers.9
Union organizational activity nevertheless continued,
with a union meeting on August 13.
2. Respondent's changes in Goulet's work
schedule, including reduction of her working hours
and income
It will be recalled that Boston Road waitress Jane Goulet
was the leader and kingpin of the union organizational
drive there. She had been in Respondent's employ since the
opening of its Boston Road restaurant in October 1972 and
had progressed to the position of head waitress in the
Chowder House, a title she held for a year and a half until
it was abolished when Rappaport temporarily assumed the
managership there in later 1974. Goulet thereafter contin-
ued on her regularly scheduled 4 nights, approximately 6
hours per night, for a workweek, on Tuesdays, Thursdays,
Fridays, and Saturdays, usually from 4 p.m. to closing at 10
or I I p.m.--said to be the most desirable days and times in
the restaurant business in terms of customer traffic and
therefore waitress income from tips (especially Fridays and
Saturdays). Precipitately and without warning, and without
apparent reason, however, in late August-on the heels of
her union leadership activity-Respondent changed her
work schedule to 3 nights (Monday, Wednesday, and
Thursday; or Sunday, Wednesday, and Thursday), elimi-
nated all weekend work (i.e., Fridays and Saturdays) 0 for
her, placed her on a different hourly shift (4 - 8 or 5-9
p.m.), and also reduced her working hours to 4 hours per
night-the minimum evening shift. Goulet was continued
on this reduced, changed, and less desirable shift from
August until she was discharged, under circumstances to be
described, in January 1976. During this interval (August
1975-January 1976) although about II other waitresses
worked nights, Goulet was the only one whose days were
restricted to early in the week with no weekend work and
whose hours were restricted to the minimum 4-hour shift in
late afternoon to early evening. Figure I shows the average
number of hours worked by Goulet per week from July
1975 through January 1976 (G.C. Exhs. 17 and 21):
Devine, Dooley, Dorsett, Filiault, Goulet, McDonald. McMahon, Nehmer,
Oakes, B. Quirk, J. F. Quirk, Ragsdale. Rancore, Rauschmier, Smith,
Symington, Thrasher, Veratti, and Viens.
'° With a single exception of I week, when she was called for Saturday
work.
884
JACK AUGUST ENTERPRISES
Month and Year
July 1975
August 1975
September 1975
October 1975
November 1975
December 1975
January 1976
Fig. I
Hours
25.2
19.0
14.9
13.8
12.5
11.1
11.9
Figure 2 (derived from G.C. Exh. 21) shows the
comparative number of hours and comparative weekly
average hours worked by Boston Road Chowder House
waitresses in January 1976 as against January 1975 and a
comparison of the deviation of Goulet's work hour changes
from the mean of the average of all (including Goulet)
Chowder House waitresses:
& Total Hrs.,
Jan. 1976 vs.
Jan. 1975
- 18.2
- 13.4
- 7.8
- 8.0
- 6.9
- 25.5
& 24.2
(new waitress)
- 41.3
Mean weekly avg. hrs. change,
Jan. 1976 vs. Jan. 1975, all waitresses:
& Weekly Avg. Hrs.,
Jan. 1976 vs. Jan.
1975
- 8.5
- 3.4
- 1.9
- 2.0
- 1.7
- 6.4
& 3.0
-10.3
- 2.7 hrs.
Weekly avg. hrs. change, Jan. 1976
vs. Jan. 1975, GOULET
Mean deviation from mean weekly avg.
hrs. change, Jan. 1976 vs.
Jan. 1975, all waitresses whose hours
were reduced 1_/
Deviation from mean weekly avg. hrs.
change, Jan. 1976 vs. Jan. 1975,
GOULET
The gross discrepancy in reduction of Goulet's total as
well as average weekly hours is evident. It is further noted
that even the average weekly hours of new waitress C.
Smith (first listed in August 1975) exceeded those of Goulet
from November on, as well as in August (G.C. Exh. 21).
Work records of the period intervening between the time of
the Union's recognitional demand and petition for certifi-
cation (approximately August 1, 1975), and the date of
i From GC.(. Ixh. 12 (except Goulet and C. and D. Smith. not shown
there).
-10.3 hrs.
- 1.0 hr.
- 7.6 hrs.
Goulet's discharge (January 22, 1976), amply establish the
sharp comparative diminution in her workweek and
working hours and income (G.C. Exhs. 14, 15, 17, 20, 21,
and 22; Resp. Exh. 13), notwithstanding her seniority, as
alleged in the complaint, and I so find.
That Goulet was thus singled out economically by
Respondent is further established by the testimony of
Respondent's Boston Road Chowder House lead waitress
Carol Urban, an extremely prepossessing and credible
12 Excludes Balakier. whose hours were increased
Waitress
McDonald
Deveau
Quirk
Dalton
McMahon
D. Smith
Balakier
C. Smith
GOULET
Seniority
Date 1_j
10/11/72
5/28/73
11/7/72
5/14/73
10/10/72
1/6/75
10/72
885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness who was called by both sides. Urban testified that
it is she who posts the waitresses' work assignments and
schedules and that she placed Goulet on the reduced and
earlier 4-hour shift on only 3 days, at the beginning of each
week on direct personal orders she received from Manager
Provost in August; and, further, that he also instructed her
(as conceded by Provost during his testimony) that Goulet
was not to "close" (i.e., be scheduled to work on the
presumably more crowded and profitable closing shift),
although Urban otherwise had discretion as to which other
waitresses she could assign to the "closing" shift or hours.
Urban also testified that Friday and Saturday nights-
from which Goulet was, as described, suddenly summarily
and uniquely excluded-are indeed regarded as the more
desirable days for tipping income purposes.t3 Testifying on
this subject, Respondent's witness and former Boston
Road manager, Provost, an unprepossessing witness
conveying an adverse impression through his testimonial
demeanor, as well as through parts of his testimony clearly
inconsistent with facts objectively established to the
contrary, swore that he gave this instruction to Urban only
"after the Union election" when the restaurant went into
its "slow season" of "October, November and December"
and that he merely told Urban to assign the most hours to
the "best employees.... Those who could work togeth-
er." Although I certainly would and do credit Urban in
preference to Provost on testimonial demeanor grounds
alone, Provost's testimony is also demonstrably contrary to
Respondent's own records establishing that the changes in
Goulet's schedules commenced in August. Provost further
swore that it was a week or two after the Board-conducted
election of October II (which the Union lost overwhelm-
ingly) when he instructed Urban that Goulet was not to be
assigned to the closing hours but limited to earlier hours
and that she was to be switched from Friday and Saturday
nights (described by him as "our busy nights") to nights
early in the week. But this is also demonstrably false
according to Respondent's own records as well as Urban's
credited testimony, which establish that this change, too,
was made in August. Although Provost's testimony is
inaccurate as to dates, it is nonetheless to be noted that it
corroborates that instructions were indeed given-by
him-to reduce and otherwise change Goulet's work
schedule. And it is further to be noted that Provost
conceded that his decision restricting Goulet from working
the "closing" shift and on Friday and Saturday nights was
prompted by his then current ideas of "those who could
work together ... with a degree of teamwork," because of
"the union problem." As he expanded on this in his
testimony, Provost explained that beginning with the
restaurant's receipt of "the notice of the union activities
from the Labor Board" (August) he observed a "tension"
in the restaurant, which was "definitely split into two
camps ... those for the union and those against the union,
and that "needless to say, those for the union greatly
outnumbered those against the union" and that "they
seemed to be in control of the ball game [and ... had the
13 I do not credit Provost's contrary testimony suggesting that waitresses
earn more on Monday and Tuesday than on Friday and Saturday nights
since there are fewer waitresses on Mondays and Tuesdays and they can
provide better service. He did not explain why, then, the Friday and
Saturday night assignments were the most highly sought by the waitresses
and why they were reserved for his "best" waitresses.
hold on us," a situation which was reversed as some
employees sought the return of their union cards. While
decrying what he regarded as Goulet's "insubordinate"
and "snotty" attitude in or because of her union organiza-
tional activities, Provost nevertheless conceded that Goulet
is an "excellent waitress."
In this state of the record and lacking any persuasive or
credible explanation for sudden major adverse alterations
in the work assignments and working hours of a very
senior, concededly "excellent waitress," following on the
heels of her assumption of the mantle of leadership in the
employees' federally protected organizational effort, I find
that Respondent's drastic changes and reductions in
Goulet's work assignments were in reprisal for that
leadership and as a warning to her and other employees of
the economic hazards to be suffered at Respondent's hands
for pursuing that course; and that these changes in her
work schedule and reduction in working hours would not
have been made but for her union organizational leader-
ship activities. It is accordingly found that the complaint
allegation to that effect has been established by a fair
preponderance of substantial credible evidence upon the
record as a whole.i4
3. Further coercion and restraint of employees
In September, President Rubin-according to his own
testimony-addressed a company-convoked assemblage of
all Boston Road employees in the steak house there,
commenting on the "tension" in the restaurant which he
"very definitely" linked to the unionization attempt.
According to Assistant Manager Moquin, Rubin also told
the assembled employees that if the Union came in there
would or could be a "decrease [inJ . . . the job poten-
tial.... Potential of jobs available. .... there just
wouldn't be as many jobs available as there was."
Also in September, waitress Deveau became involved in
a discussion with Manager Provost, in his office, concern-
ing talk in the restaurant that she (Deveau) was being
"blamed" for the union activities, to which Provost
responded that this was because he had ascertained that
she had signed a union card while she was with a previous
employer.
a. Prediction of Goulet's discharge
Likewise in September, while awaiting the October
Board-conducted election, union spearheader Goulet-to
whom, according to Respondent's witness Balakier (its
Chowder House evening waitress and wife of its Framing-
ham branch manager), "management was giving... a bad
time"-collected her first (and only) reprimand and began
becoming the butt of dire predictions of discharge. Thus,
on September 11-notwithstanding Manager Provost's
characterization of her here as an "excellent waitress"-
Provost suddenly began faulting her for "not smiling" and
not attending to the salad bar and gave her a formal
14 Cf.. e.g., N.LR.B. v. Jack LLaLnne Management Corp., 539 F.2d 292
(C.A. 2, 1976); General Iron Corp., 224 NLRB 1180 (1976); T & M
Corporation d/b/a Food King Market, 224 NLRB 1158 (1976); Tri-State
Stores, Inc., 185 NLRB 829 (1970).
886
JACK AUGUST ENTERPRISES
reprimand-the first and only one she ever received-for
not "doing [your] side work . . . not fill[ing] salts and
peppers one night," despite Goulet's denials. Provost also
told Goulet around the same time that she was "on the top
of Mr. Rubin's list to be let go." Waitress Dalton (who
dropped out of the Union under circumstances which have
been described) credibly testified that Provost on a number
of occasions prior to the October election told her that
Goulet would be fired after a "waiting period" of 90 days
following the Board election.15
b. Rubin's September 17 meeting with Goulet
On September 17, Goulet (whose work hours and income
had, without explanation or apparent justifiable reason,
been severely curtailed and to whom indication had been
given that she would be discharged after the union election,
as described above) met at her request, with Respondent
President Rubin in his office. Rubin tape-recorded the
meeting. Also present were Boston Road Manager Provost,
as well as Rubin's secretary (Lynn Bellville) and Goulet's
sister-in-law (Arlene Ryan). A transcript of this meeting
has been stipulated into the record (G.C. Exh. 18). The
transcript is 41 pages long. Excerpts from that transcript
are attached as "Appendix A" to this Decision. They
should be read since, in somewhat the same fashion as
direct arterial visualization is afforded by ophthalmoscopic
examination of the eye, they afford an unusually direct
insight into the basic "physio-anatomy" of the views of
Respondent's president and principal, Rubin, concerning
what he regarded as the Union's invasive intrusion into his
business and private prerogatives, and his simmering
resentment at Goulet's key role therein as the supposed
"instigator" of that cabal. They show that Goulet, whose
immediate purpose in visiting Rubin was to seek relief from
the unaccountably sudden and severely adverse change in
her work schedule and reduction in her work hours (as
found above), received no satisfactory or decent response,
but was instead palmed aside with plastic and untrue
denials, equivocating semanticisms, and evasive double-
talk, much indirect as well as direct criticism of her alleged
role in creating "tension" among the employees of his
previously smoothly operating business through her intro-
duction to them of the alien heresy of collective action;
invitations that she quit her job; and veiled threats of
reprisals to come if her "attitude" did not change like that
of the other union adherents who had withdrawn their
memberships following Rubin's personal explanation to
them of the true "facts" which their misguided ignorance of
had caused them to depart from the formerly happy family
fold of his erstwhile cooperative "family"-type "team"; and
dire consequences to ensue if her own former admirable
"personality," "attitude," and "spirit of cooperation" as a
member of that satisfied and happy family team were not
restored. Repeatedly throwing up to Goulet pointedly that
she had herself to blame for her suddenly precarious work
status because it was she who had brought unionism into
an establishment which had previously been free of that
i5 While Provost first testified he was unable to "recall" any conversation
with Goulet at the location she described, he then said he never spoke to her
there and denied such a conversation. On comparative testimonial
demeanor observations, I have no hesitation in preferring and crediting
blight, Rubin openly reproached her with such broadsides
as: "You should have given due consideration ... before
[making] the initial decision to call the Union in"; "we had
a very warm relationship before this whole Union bit
started," [including] "a meeting ... to find out what all
the grumbling was about," [but] "Now, the only thing that
bothers me is that we have a very tense atmosphere ...
and that is a very bad relationship"; "The Union has been
called in, the damage is done"; "the real core of the
problem is to try to get back on I'd say the kind of
appealing [Query: to whom?] and family atmosphere that
we had previously .... If the Union did get in . . . we
could never have that family atmosphere again"; "I would
have to question realistically if you could measure up to
that same ability . . . because of all of these problems that
have been ongoing. The attitudes ... ."; "It's difficult for
me to sit here and believe that you have been an innocent
bystander"; "if there are half a dozen girls who don't want
to work under the tension that is there now, they are free to
leave. We have no strings attached"; "But again we come
back to the fact as you openly admit that you were part of
. . . the group that instigated or called the Union in on this
ordeal and at this point ... it sounds like you are the only
one who is still pushing for the Union"; "What has caused
this thing? The whole row over the Union has caused it.
You don't seem to want to recognize that"; "somebody
had to get them [i.e., the employees] excited." Questioned
at the hearing on the subject of this taped meeting with
Goulet, Rubin reiterated his belief that the "tension" in the
plant was at least "in part" the product of the unionization
effort (Rubin: "Obviously, you cannot separate the tension
from the word 'Union.' They're interrelated.") which after
the union recognitional request caused a "very vivid
change" from the previous "very warm relationship before
this whole Union bit started."
Careful analysis of the transcript of Rubin's September
17 meeting with Goulet, within the frame of reference of
the record as a whole, leaves little doubt in my mind that
Rubin's remarks to Goulet were restraining and coercive,
intended to scare her as well as other employees into
dropping their protected concerted activities and to bring
economic pressure upon them to abandon their support of
the Union or further assertion of their right to deal with
Respondent collectively as guaranteed by Section 7 of the
Act, and I so find.
On October 3, President Rubin addressed a written
communication (Resp. Exh. 15) to Respondent's Boston
Road employees, in which he informed them that "You
have probably heard the news that W. T. Grant Company,
one of the largest retail chains in the country, filed
bankruptcy yesterday. Unfortunately thousands of their
employees will be out of jobs, including their restaurant
employees, as they announced many stores will be closed."
It is to be noted that there is no indication or intimation in
the foregoing that union or organizational activities under
the Act were in any way, shape, or form connected with
Grant's financial difficulties, or that Grant was even
Goulet's testimony over that of Provost. who was a generally unsatisfactory
witness who exhibited while testifying a cocky and at times truculent
arrogance masking an allegedly or conveniently defective memory.
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unionized. Nevertheless, Rubin's letter to employees goes
on to state: "What does that have to do with JACK AUGUST?
The message is clear .... if the Union got in, they would
cost us and you money thru job classifications, adding
additional employees that we don't need, etc.... like
Grant's we'd lose a lot of customers. .... Think about it!!
There must be a reason why none of the family restaurants
in this area are Union. Don't let the Union confuse you. I
don't believe the Union really cares if we went bankrupt 6
months later."
c. Interdict against and reprimand for employee
conversation about the Union
According to credited testimony of Brian Quirk, who
continues to be in Respondent's employ' 6 as a busboy
after over 2-1/2 years and who impressed me as a candid
and credible witness, he was chatting with the bartender on
or about October 3 (1975), around 4 p.m., about an hour
before he was due on the job, with no customers around.
The bartender asked him what he thought about the
Union, and he replied. Around 5:15, about 15 minutes
after he checked in, Quirk was summoned to Manager
Provost's office, where Provost informed him he would be
receiving a reprimand since he was not allowed to talk
"union activities in the restaurant, regardless of whether it
was in or off the clock." 17 A few days later he received the
formal, written reprimand (G.C. Exh. 24) which Provost
had promised. No rule of the type announced by Provost
had been made known in writing or orally to Quirk.
Without explanation, the bartender was not produced by
Respondent to controvert Quirk's testimony. Provost
conceded that at the time of the described episode
Respondent had no announced rule proscribing such talk
or even solicitation. Since the purported proscription
against conversation, as credibly recounted by Quirk, was
unduly broad, unwarranted, unreasonable, and unjustified
in the described situation and, as in the case of the
proscription against solicitation announced to Dalton and
Goulet as aforedescribed, also disparately applied,"' I find
that in purpose and effect it was restraining and coercive,
as alleged in the complaint.l9
d. Noncoercive predicted reduced friendliness
The complaint further alleges that, prior to the October
11 election, Boston Road Manager Provost told an
employee, as he placed his arm around her, "We can't go
16 See fn. 24. infra. Quirk's mother also works at the Boston Road
restaurant.
17 By contrast, it is noted that Respondent itself, as shown below (as well
as above). conducted such discussions with employees, on a mandatory.
company-paid basis. (See. e.g.. Resp Exh. 16).
18 Cf., e.g., Revere Camera Co. v. N.L.R.B. 304 F.2d 162. 165. (C.A. 7,
1962); N.L.R.B. v. Hill & Hill Truck Line, Inc., 266 F.2d 883, 886 (C.A. 5.
1959); Wigwam Mills, Inc., 149NL.RB 1601, 1608 10(1964), enfd. 351 F.2d
591 (C.A. 7, 1965): E.D.S. Service Corporation, 187 NLRB 698, 702 703
(1971). enfd. 466 F.2d 157 (C.A. 9, 1972); Bannon Mills, Inc., 146 NL.RB
611, 629 (1964); Pe),oon Packing Coripran, Inc.. 49 NLRB 828. 843 847
(1943), enfd. 142 F.2d 1009 (C.A. 5, 1944). cert. denied 323 U.S. 730.
is Cf., e.g., Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793
(1945); Jas. H. Matthews & Co. v. N. L. R.B., 3541 F.2d 432, 440-41, and cases
cited (C.A. 8, 1965), cert. denied 384 U.S. 1002 (1966); Waukegan-North
Chicago Transit Companv, 225 NL.RB 833 (1976). King Radio Corporation,
Inc., 172 NLRB 1051, 1052 56 (1968), enfd. 416 F.2d 569, 571 (C.A. 10,
1969), cert. denied 397 U.S. 1007 (1970). and cases cited 'n. 18. vupra.
around like this anymore if the Union comes in." This was
the credible testimony of Respondent's former waitress
Manegre, although she indicated that Provost's remark was
in response to a seemingly unrelated question on her part.
While it is possible that Provost intended a message by the
remark (which he concedes he made), on the bare record
presented it is altogether unclear what that message might
have been. There is no reason to assume from those mere
words, even in the context in which they were uttered, that
they in any way interfered with employees' rights under the
Act, and I so find.
e. Threats of business shutdown
On October 10 (1975), 1 day prior to the Board-
conducted statutory representation election of October I I,
President Rubin addressed a company-convoked, manda-
tory, paid assemblage20 of all Boston Road employees, in
the steak house room there.2 The assembled employees
were addressed not only by Rubin but also by Boston
Road Manager Provost, Assistant Manager Moquin, and a
bartender from elsewhere. According to Respondent's own
Chowder House lead waitress, Carol Urban (whom I have
already had occasion to comment upon as an extraordinar-
ily credible witness, based upon testimonial demeanor
observations, and who also testified as Respondent's
witness), Rubin informed the assembled employees that if
the Boston Road restaurant became unionized he would
probably have to "close the doors," since he "could never
afford to pay higher wages."2 2 In her persuasively candid
and direct way of testifying, Urban swore that these
remarks "stuck in my mind because I was worried about
my job." Chowder House waitress Deveau, another
singularly creditable witness, essentially corroborated this
in her testimony that Rubin told the assembled employees
that although he "could increase [your] benefits if [I do]
not have to pay higher wages," if he had to pay higher
wages he could put up a "no tipping" sign or "close the
store." Still another credible witness, waitress Dalton,
further corroborates these accounts. She recalls Rubin as
stating that he would "see what [I] could work out . . .
vacation or whatnot if the Union did not get in," but that
he could not afford union wages and that if the Union
came in he could post a "no tipping sign" or "close the
doors."
Against these highly credible accounts of what Rubin
told the assembled employees, there is to be weighed the
"2 See Rubin's announcement of what he calls this "very important
meeting," Resp. Exh. 16.
2I If Respondent Manager Provost's testimony is to be believed, this
speech in part or whole may have occurred less than 24 hours prior to the
election, which would have been in violation of the Board's Peerless Plywood
requirement. See Peerless Plywood Compan),' 107 NLRB 427 (1953). This,
however, is not alleged in the complaint. There also seems to be some
confusion among some of the witnesses as to the date of what appears to
have been this meeting, the recollection of some dating it in September.
22 Of course no demand for higher wages or indeed any economic
demand had been made by the Union, nor had any negotiation or talk taken
place with the Union, nor had the Union been recognized, nor did Rubin in
any way establish or attempt to or offer to establish the truth of his
contention that Respondent would be unable to "afford" any higher wages
whatsoever to any of its employees in the event the Union were to request it.
888
JACK AUGUST ENTERPRISES
potentially-but not totally-countervailing testimony of
Respondent's witnesses Symington, Moquin, Provost,
Rappaport, and Rubin. Actually, the testimony of these
witnesses does not counterbalance that of Urban, Deveau,
and Dalton-although if it did I would have no hesitation,
based upon testimonial demeanor comparisons, to credit
Urban, Deveau, and Dalton-since Symington and Mo-
quin testified merely that they could not "recall" remarks
by Rubin about plant closure, Provost conceded he was "in
and out" and not present throughout the entire meeting;
Rappaport testified closing of Boston Road was not
"talk[ed] about . . . to my knowledge"; and Rubin, who
produced pencilled outline notes from which he allegedly
spoke, himself conceded that he did not adhere to but
supplemented his scratch notes in his oral remarks. 23 In the
latter aspect, therefore, the case is reminiscent of George-
town Dress Corporation, 201 NLRB 102, 113 14 (1973), in
which the plant principal made a similar concession
concerning notes which he used but supplemented in his
speech. Clearly preferring and crediting the described
testimony of highly credible witnesses Urban (Respon-
dent's own lead waitress, who also testified as Respon-
dent's witness) and Deveau and Dalton,24 concerning what
Rubin also told the assembled employees about "clos[ing]
the doors" in the event of unionization, it is found that, as
alleged in the complaint, Respondent told, warned, and
threatened its Boston Road employees of that restaurant's
closure in the event of unionization. 25
In the foregoing factual context, the Union lost the
election which took place on the next day, October I 1, by a
lopsided margin (56 to 5. out of 73 eligible voters). No
objections to the election were filed.
D. Events Subsequent to Board Election,
Culminating in Respondent's Discharge of its
Waitresses Jane Goulet and Charlotte Manegre
1. Continued reduction of Goulet's work
schedules
Following the Union's defeat in the Board-conducted
election, there was no amelioration in Goulet's work
schedule or hours: indeed, as shown above, her hours were
further reduced, dropping from 14.9 in September (as
compared to 25.2 in July) to 12.5 by November and to 11.1
per week in December (1975). As also shown above,
Goulet's January 1976 hours showed a diminution not far
from double that of the waitress (D. Smith) sustaining the
next highest diminution in hours, and as much as two to six
times as much as that of the diminution in hours of any
other waitress; likewise her weekly average hours were
diminished substantially more than those of an)y other
waitress and over five times as much as those of several.
2:' It is noted that Rubin's own scratch notes (Resp Exh 17) do contain
the expressions "Not possible to meet Ulnion's pay increase promises." "All
other Familt resaurantsr in area are non-union"' "We have shut down or
converted 2 unprofitable units one this week," and "Anyone who wants to
work where there is a union can always apply at TreadwaN or Highpoint
we'll even give a good reference!"
Fz lestimony ot witnesses such as L rha;n, Deveau. and Dalton currently
employed b) Respondent and. additionally in the case oiI' Lrban, a highly
2. Continued predictions of Goulet's discharge
Respondent's lead waitress, Carol Urban, whom I have
had occasion to characterize as a most prepossessing
witness whose testimonial demeanor rang with utter
sincerity and honesty, testified that about a week after the
election, when she asked Manager Provost when Goulet
would be let go, Provost replied that, "They knew what
they were doing, when the time was right." The testimony
of Urban is further buttressed by similar testimony of
waitress Deveau, who also impressed me as a witness of a
high order of credibility, that shortly after the election.
because of rumors in the restaurant that Goulet would he
fired, she asked Manager Provost about this and Provost
replied that it was "in the works and that [we have] to wait
a certain amount of time before we do anything to her . . .
three months." The testimony of Urban and Deveau is still
further strengthened by the testimony of another highly
credible witness, waitress Dalton, who in like fashion
testified that after the election Manager Provost also
indicated to her that Goulet was "going to be let go" after
Rubin received "an okay from his Attorney on some kind
of a waiting period once the Union vote was done. .... I
think he said ninety days" and that then "things would get
back to normal."
The testimony of Respondent's manager and witness
Provost concerning the foregoing is quite astonishing.
Conceding such conversations with "just about everyone in
the store" following the election, Provost testified that he
told the employees that "I'm sure that the company would
take appropriate steps because I was under the impression
they would be involved in union activities, no matter where
they' worked. And the company did take appropriate steps.
I made that statement."
Also following the election and Respondent's progressive
reduction of Goulet's hours, in November or December,
according to the testimony of Goulet, as she was passing by
the bar on her way to the kitchen, Boston Road Assistant
Manager Moquin told her that she and three other
employees, who (with one possible exception) had not only
signed union cards but had indicated they intended to vote
for the Union in the election, were "on the Company's sh-t
list." Provost had also told her that she was on Rubin's "list
to be let go." Questioned as Respondent's witness concern-
ing this, Moquin at first swore he could not "recall" saying
this "in September," and then altogether denied saying it.
Considering the way Moquin at times appeared to shift
ground and comparing his testimonial demeanor with that
of Goulet (who impressed me most favorably while on the
stand under able, prolonged, pounding cross-examination),
I have no hesitation in preferring and crediting Goulet's
testimony that this coercive and restraining statement was
in fact made to her by Moquin, as alleged in the complaint.
impressive lady who holds a position of responsible authority in Respon-
dent's organizational hierarchy--testifying as they do at risk of employer
displeasure and retaliation because of their candid and fearless testimony
against his interests. as we have been instructed. ments an added measure of
weight. See Georgia Rug Mill. 131 NLRB 1304. 1305 at fn 2(1961), enfd as
modified 308 F.2d 89 (C.A. 5. 1962): Wirrz v B A C. Steel Products. Inc.. 312
F.2d 14. 16(C.A. 4. 1962).
.s See cases cited in'ra
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's discharge of Jane Goulet
Not long after this, and after the progressive reduction of
Goulet's working hours to less than 12 per week, as shown
above, following her advent into unionism in exercise of
rights guaranteed to employees by Congress under the Act,
Goulet was summarily discharged on January 22, 1976,
thus fulfilling the predictions of Provost to Dalton and to
Deveau, as described above, that Goulet would be gone
within 90 days after the election, and also Provost's similar
statement to Urban-Respondent's own lead waitress-as
also described above. As recounted by Goulet, on that day
(January 22), at or around 10:30 p.m., after work, she was
called to the office by Sheldon Rappaport (Respondent's
area supervisor and Rubin's brother-in-law), who told her
that "business had been slow and the company would have
to cut back" and that she was one "of several" to be let go,
and that it was also due to her "performance and attitude."
She disputed this and asked if this meant she was
"terminated." Rappaport responded that he "guessed so"
and offered to give her a "recommendation." Rappaport
then drove Goulet home, on the way advising her to "call
and make an appointment with Mr. Rubin and to explain
to him that the reasons that [you were] fired weren't
justified." Subsequent to this advice, Goulet visited Rubin,
indicating that these reasons did not add up, but Rubin
reiterated that "business had been slow" and that "[your]
work wasn't like it used to be." Goulet again denied this,
and asked if she would be recalled if business picked up,
but Rubin said no. Goulet thereupon gave Rubin a letter
(which she had previously prepared and intended to mail)
applying for a position as a training supervisor, but Rubin
responded that that job would not be filled "for another
couple of years" and that nobody could be considered who
was not on the "best of terms with management.
" 26
Testifying concerning Goulet's termination, Respondent
Area supervisor Rappaport (and also Respondent Presi-
dent Rubin's brother-in-law) swore that on the previous
day he received direct personal instructions from President
Rubin to do so (instructions which Rubin confirms he
personally gave to Rappaport) at the end of her shift, and
that another waitress-Manegre (discussed below)-was to
be terminated the next day, Rubin stating to Rappaport
that it was on account of"the tension" and the dischargees'
"lack of enthusiasm."
2 7 According to Rappaport, when he
terminated Goulet he gave her six reasons for that action,
from a paper on which he had allegedly jotted them down
and which paper (Resp. Exh. 10) he on the following day
had "witnessed" by his subordinate Karen Engstrom, who
was also present-a most formalistic and unusual proce-
dure which Rappaport conceded was unparalleled in all of
:6 In Rubin's version of this meeting, he testified that Goulet also stated
"it's unfortunate that some people make mistakes and that the, ought to he
forgiven," to which- still according to his testimony -he replied that this
was "ancient history" and that he had already granted her "a hearing"
which had "covered the subject" and he had "nothing further to say."
Goulet also recalled that Rubin added that her "mistake" had been "a very
costly one" for her to be "takeln I back." According to Rubin, this "was a
friendly conversation."
-? As is evident from Rubin's remarks to Goulet at their September 17
meeting, quoted above, and is otherwise clearly evident, the only "tension"
and "lack of enthusiasm" Rubin could have been referring to was the
"tension" and "lack 0of enthusiasm" which he considered resulted tiom
his experience. Rappaport's "six points" (Resp. Exh. 10)
allegedly read by him to Goulet for her discharge were:
1. Business has been very slow.
2. We are cutting back on pay roll.
3. Management staff has decided to let several girls
go.
4. You have been selected as one of several
employees to be let go.
5. We in staff management took in consideration
the overall out look & co operation of each employee to
make our decision.
6. (a) This includes getting along with all person-
nel.
(b) Lack of spirit
(c) lot of tension
(d) relations with customer (lack of spirit-smile-
enthusiasm)
(e) relations with other employees (lack of coopera-
tion-spirit-enthusasm)
Although Karen Engstrom wrote on the bottom of these "6
points" the next day, over her signature, that "This is word
for word what Sheldon [Rappaport] said to Jan Goulet,"
Engstrom nevertheless conceded on cross-examination at
the hearing that it was not "word for word" what
Rappaport said but that he said more. Engstrom further
conceded that the restaurant "tension" underlying Goulet's
discharge was caused by her unionization effort which had
been "fiercely opposed" by Rubin from the start.
Since Rappaport testified he was unable to "recall" what
else he said at his discharge episode with Goulet,
2 8 and
since Engstrom now concedes that Rappaport said more
than appears on his written "6 points" list, and GoUlet
impressed me extremely well as a credible witness even
under rigorous cross-examination, I credit Goulet's version
of the discharge episode as recounted above.
Boston Road Manager Provost testified, as Respondent's
witness, that not only did he not terminate Goulet, but also
that-although he was the restaurant manager-he did not
recommend it, nor was he consulted about it, nor was he
even aware of Respondent's decision to do so. This
decision made him "a little angry," and 4 days afterwards
he resigned his job. As will be recalled, he testified that he
regarded Goulet as an "excellent waitress."
4. Respondent's explanations for its discharge of
Goulet
Respondent offers two explanations for its discharge of
Goulet under the circumstances which have been described
and established, as above found: (I) its own economic
Goulet's exercise of her protected rights in fostering collective action to
bargain with him collectively, which he regarded as disruptive and
unacceptable.
:~ Notwithstanding Rappaport's direct testimony to this effect, when he
reached redirect examination he testified that except for an opening greeting
the only words he spoke to Goulet were those on his "6 points" paper. In
view of the fact that I found Rappaport to be an untruthful and highly
evasive witness in many respects, as well as his own subordinate Engstrom's
testimony that he did not restrict his remarks to what was on that paper.
and, finally. Goulet's credited testimony that he did not do so. I discredit
Rappaport's assertion on redirect examination.
890
JACK AUGUST ENTERPRISES
necessity and (2) her unsuitability for further employment.
I reject both, for the following reasons.
a. Respondent's alleged economic necessity
Respondent insists that its business was so bad that it
was compelled to terminate Goulet for that reason. After
careful review of all of the facts and circumstances,
including the claim of economic necessity, I reject this
contention as a canard and pretext and, in any event, not
the determinative reason for her discharge.
In a March 19, 1976, letter written on Respondent's
behalf by its counsel to the Board's Regional Director
(Resp. Exh. 2) in an effort to persuade him to drop the
instant proceeding, Respondent took the position that
Goulet and Manegre (discussed below) were terminated
because of a "lengthy sales decline ... not attributable to
any external factors" and that "management determined
after long analysis that inferior customer service was a
significant problem." Respondent further stated therein
that "In an effort to cope with declining sales during the
last half of 1975, the hours of work for the service staff were
reduced incrementally, and in a non-discriminatory fash-
ion." 29 The letter goes on to state in extremely carefully
couched and ambiguously coded language, that in January
1976, "faced with the prospect" of "further reduction in
hours" (Queries: by whom, affecting whom, upon what
basis, and why?) and "having concluded that the inferior
quality of customer service was a substantial factor in the
poor sales picture" (Query: because of the employer-
perceived "tension" supposedly resulting from the unioni-
zation effort?), "management determined" to terminate the
two "weakest" employees "in terms of their contribution to
effective and friendly customer service" and also "to
provide a satisfactory level of work opportunity" for its
"experienced and effective customer service staff." I
cannot but perceive these as unusually high-flown and
unnecessarily abstruse expressions for muddying facts
describable in simple words; and it is noted that nowhere
are the two employees described as inefficient or unsatis-
factory, nor is it stated flat out that business did in fact
decline in January 1976 or atypically. The letter goes on to
state, however, that Goulet and Manegre were selected for
29 Findings herein, as above set forth. are to the contrary.
:"' This in effect takes the position that an employer whose business
allegedly "suffers" in consequence of unionizational effort by his employees
is privileged to discharge the employees "responsible" therefor a patent
and mischievous absurdity, equivalent to stating that employees exercising
rights guaranteed to them by Congress may lawfully he discharged therefor.
The same letter also later refers to the "difficulties she [Cioulet ] caused with
her coworkers." Even if such "difficulties," as perceived through the eyes of
Respondent's blatant union hostility, actuallN existed, this is no answer to
the exercise of Goulet's rights under the Act for whatever reason, even
including the possibility that she exercised those rights as the result of pique
through being spurned or mistreated by Manager Provost a red hernng
"issue" ill advisedly injected into the case by Respondent in an effort to
draw attention away from the real issue. (Respondent later conceded that
such a factor does not limit the exercise of rights under or condition the
protections of the Act.) The exercise of Sec 7 rights under the Act is in no
way dependent upon the absence of such extraneous considerations, nor
upon proof of an employee's "good faith" in asserting them: nor is violation
of Sec. 8(al(3) or (I) answered by raising such extraneous contentions
bordering on the scandalous "Such lorganizational I activities may be highly
prejudicial to [the ] employer: his customers mays refuse to deal with him. he
may incur the enmity of many in the community whose disfavor will bear
termination following "objective analysis" (this is highly
misleading and inaccurate, as shown below, since the so-
called alleged analysis was purely subjective) disclosing that
Goulet's "employment effectiveness" was "affected by
traits of character and other [unnamed] influences wholly
unrelated to the union"--but nevertheless tellingly de-
scribed as "an atmosphere of ill will and tension . . . the
direct result of Jane Goulet's strident effort to use the
union as a weapon...." The letter repetitively continues
to assert that the unionization-drive-accompanied "rife
hostility and tension among employees was an obvious
problem contributing substantially to the sales decline."3 0
The letter also states-in direct contradiction to the
testimony of Respondent President Rubin and Boston Road
Manager Provost-that Goulet and Manegre were dis-
charged at "the onset of the slowest season of the year." To
the contrary, both Rubin and Provost swore at the hearing
that January is the time when business begins and
thereafter continues to pick up after the slow months
preceding January, Rubin characterizing December as the
poorest month in the restaurant business.
Goulet testified credibly and without contradiction that
in the period of over 3 years in which she had worked in the
Boston Road restaurant, since its opening, not a single
waitress had been terminated for lack of work. Her
testimony is supported by that of Area Supervisor Rappa-
port to the effect that, despite substantial declines in
business prior to Goulet's termination, nothing was done to
reduce the number of waitresses. 3 t Rappaport further
testified on cross-examination that instead of terminating
Goulet and Manegre, any diminution in business at Boston
Road could readily have been adjusted by simply resched-
uling and redistributing the waitresses' hours, just as had
been done seasonally previously-a position confirmed by
the testimony of President Rubin that as business declines
it is normal for the restaurant to reduce waitresses' hours.:12
Notwithstanding the foregoing, Area Supervisor Rappa-
port testified that Goulet and Manegre were indeed
terminated because of a "downslide" in Boston Road
business, which on cross-examination he explained oc-
curred in November and December (1975). However,
Respondent's own accountant's report (G.C. Exh. 30) does
not bear this out, but shows the direct contrary. Further-
hard upon him: hut the statute forbids him by a discharge to rid himself of
those who lay such burdens upon him. Congress has weighed the conflict of
his interest with theirs, and has pro tanto shorn him of his powers." .V L. R.B.
v. Peter (Cailler Aohler Swiss Chocolates Companr. Inc. 130 F.2d 503, 506
(C.A. 2. 1942). Not even "turmoil" is a license for unfair labor practices
N.L..RB. v. Ford Motor Compani. 114 F.2d 905. 910-912 (C.A. 6, 1940):
N.L.R.B. v. The Dow Chemical Companv. 117 F.2d 455. 466 467 (C A 6.
1941): N I. R.B s. N'ational M.toor Bearing Co.. 105 F.2d 652. 657 658 (C. A
9, 1939), nor does "unrest" and "inefficiency" among employees, attendant
upon their "distraction" by or preoccupation with the possibility of
unionization. N5.L.RB v. Automotive Maintenance Machinerv Cao. 315 U.S.
282 (1942); N.L.R B v. Hudson Motor Car Companr, 128 F.2d 528 (C.A 6,
1942).
It This seenms readily accountable for through the fact that the waitresses
were in effect on call, with their schedules adjustable compressible and
expansible at will by Respondent.
12 In one of its earliest decisions the Board pointed out, with Supreme
Court approbation, that the Act is violated through discriminatory layoff of
an employee in a slack period when previously work had been shared.
Matter of Friedman - Harr MarAs Clothing (ompani. Inc.. I NilRB 411
(1936), enfd. 301 US. 58 (1937).
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more, Boston Road Manager Provost-as well as President
Rubin-testified that business picks up beginning in
January and continues thereafter on the upbeat.
Figure 3 shows the comparative monthly total working
hours of all waitresses at the Boston Road Chowder House,
considered as a group, from January 1975 through January
1976.
Fit. 3
Comparative Boston Chowder House Total
working fours of All Waitresses,
Jarmary 1975 - Jarnuary 1976 13/
Yr.
M4o.
Mad LAn
6 Hrs.
Jan.
Mad in '76
Median Wkly. vs.
Total No. AvR. Jan.
Hrs. lira. ltra. '75
Med lan
&5
Hrs.
Jan.
'76
vs.
Jan.
'75
'75 Jan. 527.9 & 68.8 17.0
Feb. 540.1 & 64.7 16.2
Mar. 643.4 6 78.1 15.6
Apr. 537.5 & 65.5 16.6
May 481.4 & 60.7 16.5
June 613.5 & 81.1 16.3
July 649.4 67.4 19.5
Aug. 653.9 68.8 22.0 - -
Sept. 732.5 74.5 14.9
Oct. 629.9 60.1 15.0
Nov. 560.1 57.6 14.4
Dec. 620.6 58.9 11.8
'76 Jan. 526.1 55.4 13.9 13.4 1 19%24/
:11 Based on GC, Exh. 21. denved lrom Respondent's records. Prior to
July 1975 excludes waitress Devine, for whom Respondent furnished no
records prior to the week ended June 29, 1975 (Resp. Exh. 13). figures on
Devine are therefore included in Fig. 3 only from July 1975 and only
through January 24. 1976. and it is for this reason that the "+" appears in
the "Total Hours" column of Fig. 3 (For the same reason, median
computations likewise exclude Devine.) For reasons of its own. Respondent
has limited the information supplied on Resp. Exh. 13 to the period from
about July 1975 to January 1976, thereby precluding comparison thereon to
other periods.
(l Note. With I waitress ((C Smith: see (.C. Exh. 13 and Resp. Exh. 13)
added, increasing the (Choiwder House aii resr work jorce l ron 8 to 9 or 13
percent. and, with Devine included (see in. 32, supra), to 10, or 20 percent.
:'i Respondent's comptroller and in-house accountant Nossal explained
that he arbitrarily selected August 1975 as "100('" because it was the
"highest" month, while conceding that his chart is a niere monthly
"seasonality" comparison bfr the limited period it covers Thus (as Rubin
agreed), if instead of selecting "highest" month August as "I00'(7," the chart
had used December which Rubin characterized as the "poorest" month in
the restaurant business as "100%." then August (etc.) could have been
regardable as, say, 130 percent instead of December as, say, 74 percent.
Thus, the arbitrary selection of August as 100 percent could skew and
derange the true statistical picture. Furthermore, in the absence of actual
base figures for comparison purposes. even what appears to be a large
From Figure 3 (including its accompanying explanatory
footnotes) it thus appears that the total number of waitress
hours worked by all waitresses in the Chowder House in
January 1976 did not differ significantly from that in
January 1975; and, further, that if Goulet had been
retained, on the basis of the January 1976 figures (-13.4
hours median less than January 1975), distributed among
the 10 Chowder House waitresses alone, it would have
entailed a median reduction in hours of only 1.34 hours per
waitress per month.
There has also been submitted a chart, prepared by
Respondent's comptroller and in-house accountant, show-
ing net sales "changes" at Boston Road, but only from July
1975 through January 1976 (Resp. Exh. 12 and G.C. Exh.
30). The data here supplied, however, are insufficiently
informative to establish Respondent's contention of eco-
nomic necessity for the discharges in question, for the
following reasons: (1) No base figures or dollar figures
have been furnished. It is thus, for example, not possible
from the data supplied to determine what any alleged
"increase" or "decrease"-even aside from the presumably
significant modifier "net" which appears in the caption of
the chart-represents, since the figures and percentages
shown are not interfaced with any other figures or with any
defined base point.3 5 (2) Even a dollar or percentage
"decline" in a business in part or all of a fiscal year may be
regarded as a real gain if it is a "decline" from an unusual
"advance" in the preceding year over the antecedent year,
and thus a mere "adjustment." (3) A sales decline in a
business does not necessarily mean a diminution in income
if, as here testified by Assistant Manager Moquin, prices to
customers are increased. (4) Even a sales decline in a
business does not per se result in dismissal of employees. 3 6
(5) It has not been established that the percentage
variations shown on the chart (Resp. Exh. 12) reflect other
than the usual seasonal ups and downs of Respondent's
Boston Road restaurant, nor that fiscal year 1975-76 was
in any way atypical. (6) There is no showing that any
alleged "decrease" in "net sales" shown on the chart (Resp.
Exh. 12) for Boston Road is a decrease in Chowder House
"decrease" may constitute a minuscule dollar "decline." No income tax
returns were produced. In terms of dollar income. "net" ("reductions" in
which could, for example, merely reflect increased compensation to officers.
increased dividends to shareholders, accelerated debt amortizations, or
miscellaneous writeoffs) or otherwise. Boston Road Assistant Manager
Moquin testified, fbr example. that the prices at the Boston Road restaurant
have been increased a number of times since July 1975. There is no evidence
or claim that wages have. Querr: What is "economic necessity" and how
may its existence be rationally determined by the trier of fact if only selected
"financial" bits and pieces- and those not consisting of unanalyzed, raw.
basic data are supplied?
:i" Thus. Rubin himself conceded that although in sharp contrast to the
"increase" and improvement figures shown for November and December
1975 according to Respondent's own comptroller-accountant's chart
(Resp. Exh. 12). there was a most substantial "decrease" in business in
March and April 1975 there were no dismissals then or at any other time in
1975. Rubin's explanation for this is that at that time in apparent contrast,
in his mind at any rate, as demonstrated by his quoted remarks in his
September 17 taped interview with Goulet, to the period of' attempted
unionization here--the Boston Road waitress force was a "very coherent
stalff worked extremely well with teamwork .... the waitress staff was a
very coherent and cooperative staff . . . in the early part of' 1975 as
distinguished from what lit I became toward the end of' 1975."
892
JACK AUGUST ENTERPRISES
sales, rather than in sales at the bar, unrelated to the level
of Chowder House waitress staff. (7) It has not been
demonstrated that the number or median number of hours
which Chowder House waitresses were called to work and
actually worked differed significantly over a significant
period other than seasonally, as explained, or were atypical
over the course of the period shown in 1975-76. (8) Even a
sales decline in a business does not per se establish that its
true reason for discharging a selected employee or
employees was not for reasons violative of the Act. (9) In
the case of Goulet, upon the facts and circumstances
presented, it is incredible that she was discharged for
economic necessity, since at her rate of pay for the number
of hours to which Respondent had cut her down, the
savings to the Company because of her discharge-even
had she not been replaced-were only around $15 per week
($1.32 per hour x 11.9 hours per week = $15.71).37
In the course of the testimony of its comptroller-
accountant attempting to explain and qualify his foregoing
chart, Respondent stipulated upon the record, in lieu of
producing books and records subpenaed by General
Counsel to test out and establish the limitations of the
purported "data" contained on the chart and its "economic
necessity" defense, that Respondent's terminations of
Goulet and Manegre "were not based by the Company on
a consideration of the profitability, or lack of profitability
of the Springfield, Boston Road unit, except to the extent
that it is normal practice to accompany a sales decline with
a reduction in labor cost."
Notwithstanding Respondent's protestations of econom-
ic necessity for Goulet's discharge, it is noted that just
before September 1975 (when, according to Respondent's
comptroller's chart, Resp. Exh. 12, the Boston Road store
suffered a "decrease" in "net sales" of $4,912 or "6.2%")
it-as conceded by its area supervisor, Rappaport-never-
theless hired an additional waitress in its Chowder House,
Cheryl Smith, who has been retained on its waitres, staff
there ever since, and whose hours in January 1976 (50.4)
approximated the median hours (55.4) of the Chowder
House waitresses and exceeded those of Goulet (47.4) in
that month.3 8 Rappaport's explanation for this is that the
Boston Road unit was "understaffed." It is also noted that,
despite its claims of economic necessity for the elimination
of Goulet, Respondent added no less than four waitresses
(one of whom was rehired) at Boston Road in the first 5
months of 1976 (G.C. Exh. 31), although "excellent
waitress" Goulet, who had been there since the restaurant
opened, was not recalled.
As indicated above, in any event statistical data, even if
establishing true economic necessity for work force
reduction-which is not the case here-would still not
establish that as the true, determinative reason for the
selection of a particular employee or employees for
discharge. For reasons some already explicated and others
to be shown, even if Respondent were arguendo to be
assumed to have established economic necessity sufficient
to justify reduction in its work force (which did not
effectively take place), I would still find and hold that its
.:7 Assistant Manager Moquin testified that Respondent's waitresses are
paid only $1.32 per hour and make up the difference between that and the
Federal statutory minimum wage in tips.
discharge of Goulet and Manegre was not for that reason,
but for reasons violative of the Act-in Goulet's case
because of her described union activities; and in Manegre's
case (as will be shown) as a "cover-up" to mask its reasons
for its discharge of Goulet, which would otherwise have
stuck out like a sore thumb.
Finally, President Rubin conceded upon the record that
if not for "economic necessity" Goulet and Manegre
"would not have been terminated." Although, in view of
this concession, rejection of Respondent's "economic
necessity" defense renders unessential the consideration of
Respondent's remaining defense (i.e., the alleged "unsuita-
bility" of Goulet and Manegre), we shall nevertheless
proceed to an evaluation of that defense as well.
b. Alleged unsuitability of Goulet for continued
employment
Respondent also contends that it selected Goulet for
discharge on January 22 (and Manegre on January 23),
1976, because of her unsuitability for continued employ-
ment.
Goulet entered the employ of Respondent's Boston Road
restaurant when that establishment opened in 1972.
continuing there with an absolutely unblemished record-
including promotion to head waitress in mid-1973, which
she held for a year and a half when the position title was
abolished by Rappaport-until, according to President
Rubin, she created "tension" among the employees there
by her attempts to unionize the restaurant. Unquestionably
from that point on her strong hold on her formerly safe and
secure job fell apart. Characterized by her Boston Road
manager at the hearing as an "excellent waitress,"
Respondent suggested that her advent into union organiza-
tional leadership resulted in a "personality ... change" on
her part which engendered a dangerous and alien "tension"
in its formerly "cooperative" and "very happy family" of
Boston Road restaurant waitresses. But there has been no
persuasive demonstration here that Goulet underwent any
such "personality . . . change" at all and, even assuming
her unionization attempt produced "tension" in a previous-
ly tension-free (and union-free) establishment, that would
be an occasional byproduct of unionizational activities
which is wholly irrelevant here. I fully credit the testimony
of Goulet-a plucky lady who testified with impressive
sincerity, candor, and withstood with flying colors a
gruelling cross-examination-that her service to customers
and the way she performed her job remained the same at
all times until her termination. Goulet's self-appraisal of
her qualities as a waitress are substantiated not only by the
estimate of the former Boston Road manager ("an
excellent waitress") but also by that of Chowder House
waitress Dalton, who has also been employed there since
1972 and was still employed there at the time of the instant
hearing,39 that Goulet is just as good a waitress as Dalton
is.
Although Goulet's termination notification (G.C. Exh.
10) states "Laid off, lack of work," Respondent President
Rubin claims that this was merely "an internal communi-
F ig. 3 and G.C. Exh. 21
:"' See In. 24, supra
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation to our accounting department" and not the actual or
only reason. At the same time, however, Rubin also
testified that Goulet would not have been terminated if
there had been enough work for her to do, and he
conceded that her termination turned on "not ... enough
work for her to do at the time." In this connection, it is
again noted that Goulet has, nevertheless, at no time been
recalled, although new waitresses have been hired by
Respondent at Boston Road.
According to Rubin, early in January he notified his
brother-in-law, Area Supervisor Rappaport, and Rappa-
port's recently hired young subordinate, Karen Engstrom
(who has the title of training supervisor), that the Boston
Road restaurant would be "curtail[ed ] . .. by a couple of
people" and delegated to Engstrom the task of "making a
recommendation," which he (Rubin) thereafter automati-
cally adopted. Respondent insists that only through
coincidence, Engstrom-who incredibly at first denied
awareness of Goulet's union activism or that she could
"recall" Goulet's name so much as being mentioned by
Rubin or Rappaport 4° came up with the name Goulet
(and Manegre) to be terminated. Rubin likewise incredibly
insists that it was not his judgment but that of Engstrom
alone and exclusively which determined that Goulet (and
Manegre) was the worst waitress at Boston Road and
therefore selected for termination.
Rubin, Rappaport, Provost, Engstrom, and Balakier 4' -
all testifying as Respondent's witnesses-link the "tension"
at Boston Road to the attempted introduction of unionism
there by Goulet-the "tension" which led inexorably to her
demise. Observing that during this period there were
"fewer smiles" on Goulet's part, Balakier conceded that
this was in a context where "management was giving Mrs.
Goulet a hard time." Balakier's assessment of "fewer
smiles" is seconded by Assistant Manager Moquin, who
nevertheless concedes that, although there was less joviality
on Goulet's part after the election, the quality of her job
performance nevertheless remained the same. Moquin also
conceded that Goulet's reduced joviality was indeed due in
part to her dissatisfaction with her working conditions, and
that this was the reason, as he and Provost discovered, why
Goulet had gone to the Union in the first place. Rappaport
likewise joins in the criticism that, after Goulet attempted
to introduce the Union, he, too, observed a "lack of
enthusiasm [and] smile" on the part of Goulet, and he
sensed a "tension" among the employees which prompted
him to consider means of restoring the former condition of
a "very happy family" of employees. Engstrom conceded
"4 At one point. Engstrom testified that she was unable to "recall"
whether Goulet's name came up at the meeting and that she did not
"believe" Manegre's name came up. She later unconvincingly and
embarrassedly testified that she could not "recall" or "remember" whether
Rubin or Rappaport suggested to her that Goulet or Manegre should be the
ones to be terminated. Engstrom at this point conceded that she was aware
that Goulet was "active in indeed perhaps the starter of the union activity"
and that she had heard the many questions among the employees after the
election as to when Goulet was going to be terminated.
4' It will be recalled that Balakier is a Chowder House waitress whose
husband is Respondent's Framingham Branch manager.
42 Credited testimony of Chowder House waitress Dalton confirms that.
when Engstrom announced and described the new evaluation system to
Boston Road waitresses in January 1976. in the presence of Rappaport
Provost, and Moquin. Engstrom expressly stated (as, indeed. does the
written notification itselfl Resp. xh. 3) that the "evaluations" would be on
that the "tense atmosphere" which she "could feel"-and
of which she testified and for which she docked Goulet on
her "evaluation" scoresheet (as shown below)-[was]
"caused by the union organization of the election."
It will be recalled that Boston Road Manager Provost
testified that not only did he not recommend or suggest
Goulet's discharge, but also that his opinion was not asked
and that he did not even know about it until the decision
had been made and carried out, which angered him.
Respondent, and specifically its president, Rubin, uncon-
vincingly attempts to rest the entire onus for the discharge
of Goulet (and Manegre) on Rappaport's youthful assistant
Karen Engstrom who, he claims, "evaluated" Goulet (and
Manegre) "objectively" and determined on scientific
principles that she was the worst waitress in the restau-
rant-notwithstanding her established record of excellence
for over 3 years there, since the restaurant had opened.
Karen Engstrom entered Respondent's employ in mid-
1975 and surfaced in its Boston Road restaurant, according
to her testimony, [i n October, approximately a week
before the election," as Rappaport's subordinate, with the
title of "training supervisor" for his area, with responsibili-
ty for hiring and training waitresses (whom she says she
also discharged), hostesses, and cashiers. According to her
testimony, in January 1976 she unfurled and announced a
brand new system for the evaluation of waitress perfor-
mance, there having been no such system before then.
According to Engstrom (and Rubin), it was her evaluation
reports on Goulet and Manegre which led to their
termination in January. It is to be observed, however, that
Engstrom's own posted announcement notification as to
the new "evaluation" system thus introduced in January
1976-the very month when Goulet and Manegre were
terminated-expressly states (Resp. Exh. 3; emphasis
supplied) that the evaluation "Reports will be taken
quarterly42 by Training Supervisors [of whom Engstrom
was one] and submitted to Manager"43; and that "Anyone
consistently scoring below 80 and showing no improvement
may receive fewer hours and may eventually be dismissed."
According to Engstrom, she submitted her very first
"evaluation report" on Goulet, dated January 21 (1976),
directly to Rubin-who conceded at the hearing that he
normally did not become involved in terminations of
employees at his various branch restaurants-who immedi-
ately "accepted" and acted upon it without further ado,
notwithstanding the above-quoted express terms of the
"evaluation system" as posted. As a matter of fact,
notwithstanding the further provision in the posted
a 3-month (i.e., quarterly) basis. Further according to Dalton. Deveau, and
Manegre. whose testimony I believe, particularly since Engstrom swore she
was unable to "recall" or "remember" otherwise. Engstrom indicated to the
waitresses at that time that if their evaluation score was less than 70 -even
though the posted notification states "consistently .. below 80 and
showing no improvement" (Resp. Exh. 3. "6")-- Engstrom would work with
them for 9 months to improve it. discharge not even being mentioned.
Indeed, Respondent's own Chowder House lead waitress (and its own
witness) Carol Urban likewise confirmed that at this meeting Engstrom
expressly specified that if a swaitress' quarterly "evaluation" rating was
below 70 three times (i.e.. 9 months). Engstrom would meanwhile work with
her for improvement.
41: There is no indication this was ever done in the case of Goulet and
Manegre. Indeed. as will be recalled, the Boston Road manager. who
charactenzes Goulet as an "excellent waitress." was excluded from that
process and was angered when he learned of the termination.
894
JACK AUGUST ENTERPRISES
statement (Resp. Exh. 3, "2") describing the new "evalu-
ation system" that the "Purpose of the reports are to
inform both Manager and the Employee of that individu-
al's general performance compared to the performance of
others," neither the manager (according to his own
testimony) nor the employee were at any time prior to the
discharge itself so informed. And, since Engstrom's
January 21 "evaluation report" on Goulet, I day before
Goulet's discharge, was the first and only such report on
Goulet (the same is true for Manegre), it is a hard fact that
Goulet (and also Manegre) had not "consistently scor[ed]
below 80" as required by Respondent's own announced
ground rules (Resp. Exh. 3).
According to Engstrom, who concedes awareness that
Rubin was "fiercely opposed" to the Union from the very
start, she (Engstrom) commenced making "evaluations"
under the new system at Boston Road on or about January
11, and placed her "impressions" concerning Goulet and
Manegre, as well as other Boston Road waitresses, on her
new "Waitress Check-off List" form (Resp. Exhs. 6 and
9).44 Notwithstanding the institution of this new system
around mid-January 1976. Engstrom concedes that some
of her "evaluations" on the form (Resp. Exh. 6) filled out
on Goulet reflect her "mental notes" and "impressions"
even prior to the period ("1-1 1-76 to 1-21-76") covered by
the form, including her vague sensing of a "tense atmo-
sphere" at Boston Road during the previous fall, ascribed
by her to a lack of "teamwork" between Goulet and those
waitresses who did not favor the Union, upon the basis of
which Engstrom docked Goulet a total of five points on the
January 1976 evaluation form for her previously demon-
strated lack of "teamwork" and proper "attitude." The
form itself is quite illuminating. Contrary to Respondent's
assertions to the contrary (e.g.. its counsel's letter, quoted
above, to the Board's Regional Director), the evaluations
are not "objective" but purely subjective, under the two
categories of"O.K." and "Needs Impr.." with a subjective-
ly graded, arbitrary point system from "1" to "4" assigned
for each "item" subjectively "rated." If an item is checked
"Needs Impr.," the number of "points" assigned to that
item is deducted from the "score." Thus, for example,
44 Respondent produced forms on only Goulet and Manegre. Engstrom
also testified that she could "not recall" whether she filled out an evaluation
form on any other waitress before the discharge of Goulet and Manegre,
and also that she could not "recall" whether Rubin or Rappaport or any
other company official had ever indicated that Goulet or Manegre should he
the "ones to be let go," while at the same time conceding that she
(Engstrom) Anew that Respondent intended to utilize these two particular
land onl! ) evaluations as "the ones" to "chKoose the employees that were to
he cut off the payroll ....[The two worst performers in the Springfield
restaurant because he said we should have two people cut off the payroll at
Boston Road restaurant." Engstrom conceded that even at the time of the
instant hearing she had not yet completed "evaluations" on all other
employees.
45 Engstrom concedes she received no customer complaints regarding
Goulet; nor did Respondent present any evidence that G(oulet's income
from tips-perhaps the ultimate yardstick of a waitress' effectiveness with
customers-were less during the period and considering the hours she
worked after her advent into unionism and until her discharge. Engstrom
testified that "attitude" on her form means how a waitress "relates to" or
"works with" other employees seemingl) reverting again to the "tension"
ascribed to Goulet's attempted introduction of the Union. Asked what she
saw or heard which resulted in her adverse rating of Goulet on "attitude."
Engstrom was at first unable to answer, then retreated into an alleged
inability to "remember" On cross-examination. Engstrom conceded that
she thought or knew,. and also that she knew "Mr. Rubin believed." that
Engstrom docked Goulet on such heavily rated "items" on
Goulet's scoresheet as "smile" (2 points), "teamwork" (2
points), "attitude with co-workers, customers" (3 points), 45
"suggestive selling: appetizer - wine - dessert" (3 points),
once again on "appetizer sales - liquor sales - dessert sales"
(total 6 points),46 and "saving unused-cream, tartar sauce,
sugar" (4 points)," dragging her total score down to an
incredible "failing" "overall score 69%." 47 To further
justify her "failure" of Goulet, Engstrom added, under date
January 21, 1976 (Resp. Exh. 6), the further alleged
subjective observation that "I found her attitude with
employees & customers unfriendly and cold. Her ability to
work with other employees both in the kitchen and on the
floor was lacking. She was unable to radiate friendliness &
a cheerful smile & attitude while on the floor & servicing
customers. Although she is good in the 'mechanics' of
waitressing, we expect a Jack August waitress to do more
than just go through the motions of waitressing. In the best
interest of the Company I feel that she should be
dismissed."
I believe the testimony of Goulet that at no time was
there any indication to her that she was being evaluated
and that at no time was her "evaluation" discussed with her
or made known to her or any opportunity afforded to
"improve" as laid down in Respondent's own ground rules
(Resp. Exh. 3)-nor does Respondent claim otherwise.
Indeed, on recross-examination Engstrom testified that
Goulet and Manegre were "cooperating" by January. but it
was the extent of their cooperation that "needed improve-
ment."
Notwithstanding Engstrom's foregoing testimony, on
cross-examination she conceded that at the time she
instituted her new "evaluation" system on January I I she had
a "pretty good idea" that the two employees to be terminated
were Goulet and Manegre.
In sharp contrast to Goulet, I found Engstrom to be a
canny, extremely evasive witness, whose testimony was
dotted with gross recollective lapses which did not ring
true, and I received the strong impression that, as she
testified under ever-present eye contact with Rubin, she
was acting the part of Rubin's loyal lackey to provide
Goulet was the cause of the "tension" at the restaurant because her
"attitude" -stemming from attempted introduction of the Union. since this
was what had caused the "tension" among employees was bad.
46 Engstrom claims that these 6 points are based on computerized
"productivity pnntouts." which she then "averaged" for all of Respondent's
restaurants. and which have since been destroyed or discarded and are thus
unavailable for verification. Although it is obvious that "computerized
printouts" are in any event no more accurate than the information fed into
and retrieved from them by human hands (Query- Would Engstrom or
Rubin- who similarly. during his September 17 interview with Goulet.
genuflected before "the computer." as though its alleged "spew-outs" are
automatically sacrosanct from question -blame spelling errors in a typed
letter upon the typewriter?). I do not believe Engstrom. who cannot prose
what she says and has rendered it impossible or unfeasible to establish
because of the destruction or discarding of records germane to this
proceeding before it came to hearing.
47 It is, incidentally, noted that the total possible score on Respondent's
"waitress checkoff list" evaluation form Resp. Exhs. 6 and 9) is 75; and that
Goulet (Resp. Exh. 6. as well as Manegre [discussed inrua 1. Resp. Evh. 9) was
docked "points" (Goulet. 7. Manegre. 9) for "Group performance" not
reflected on the form. If the 7 points which Goulet was docked for "Group
performance" added to her "score" of "69'." it would bring it up to
"76"' whatever that may mean (but seemingly sufficient, under credited
testimony above described concerning the new "esaluation ssstem." not to
justify Goulet's discharge on Inefficiency grounds as in part claimedl.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surface plausibility for the discharges of Goulet and
Manegre. I observed Rubin himself to be a singularly
hostile and belligerent witness who testified with a heated
truculence and bellicosity at times bordering on the near
pugilistic. He demonstrated a consistently high degree of
simmering emotional animosity against unionism or collec-
tive activity by employees in any form or manifestation, as
well as a vendetta-like rancor against Goulet for what he
viewed as her unforgiveable disruption of the former
"family atmosphere" at Boston Road through her intro-
duction of what he regarded as the sedition of unionism.
These attitudes colored and showed through much of his
testimony, resulting in evasiveness and continuous seman-
tical jousting instead of answering questions directly and to
the point.
It may be useful to reiterate at this juncture that Rubin
testified, when called to the stand by General Counsel in
early testimony, that Goulet would not have been discharged
if there had been enough work for her to do and that her
termination was because of insufficient work rather thanfor
the perceived inefficiencies now suggested.
I am convinced, as established by the record, that
Goulet's discharge was decided upon long before Eng-
strom's "evaluation"; and I simply do not believe that
Engstrom, occupying the position she has, was not in effect
privy to Respondent's design to rid itself of Goulet, nor the
philosophy underlying it that "tension" or reduction in
"cooperation" or happy "family atmosphere" among
employees occasioned by a unionizing drive makes the
employee "responsible" therefor unsuitable for continued
employment. But that philosophy is thoroughly alien and
repugnant to the Act and the guarantees afforded to
employees thereby.
The right of employees to engage in activities secured to
them by the Act is not dependent upon existence of "good
faith intention" on their part, and any inquisition into their
underlying motives in exercising those rights would be
intolerable. No inquiry is permissible, in proceedings like
this, as to why an employee exercises his rights under the
Act, any more than as to why an employer is opposed to
such exercise. That is the unfettered right of each. The Act
requires no such explanation. Thus, Respondent's constant
attempts-dating from its counsel's early letter to the
Board's Regional Director (Resp. Exh. 2)-to derail or
detour the proceeding by interweaving the repeated
4i Nonetheless, Rubin conceded that one of the reasons fir Goulet and
other waitresses seeking unionization was dissatisfaction over work
assignments and hours changes. Rubin further conceded upon the record
that Goulet was not terminated because of any misbehavior or possible
personal relationship with the restaurant manager.
14 It has been pointed out repeatedly that in assessing an employer's true
reason for the discharge of an employee engaged in protected concerted
activity, important clues include the leadership or prominence in that
activity of the employee (N.L.R.B. v. Sequoyah Mills. Inc., 409 F. 2d 606
(C.A. 10, 1969); N.LR.B. v. Council Manufacturing Corporation, 334 F.2d
161, 164 (C.A. 8, 1964)). the previously satisfactory work performance of the
employee (N. L.R.B. v. Elias Brothers Big Boy, Inc.. et al. 325 F.2d 360. 366
(C.A. 6, 1973)), the nondischarge of others in the same work category
(N.L.R.B. v. W C Nabors, d/b/a W C. Nabors Compunav, 196 F.2d 272,
275-76 (C.A. 5. 1952). cert. denied 344 U.S. 865 (1952)), the employer's
continued need for that category of employee (N.L.R B. v. Local 776.
IATSE [Film Editors], 303 F.2d 513, 519 (C.A 9, 1962), cert. denied 371
U.S. 826 (1962)), the timing of the discharge (,N.L.R.B. v. Sequovah Mils,
Inc., supra, Tele-Trip Compant', Inc., v. N.L.R.B., 304 F. 2d 575. 579 580
suggestion that Goulet's underlying motive in seeking
unionization was to wreak vengeance on Respondent's
manager for personal mistreatment4 8 is irrelevant to the
issues here.
Upon the total record presented, including (1) Goulet's
sterling employment history and the high regard in which
her employer held her until she precipitously fell from
grace when she became the leader of the employees' ill-
fated attempt to exercise their rights under the Act, (2)
Respondent's bitter and unrelenting union animus, (3)
Rubin's clear accusations against Goulet in their taped
September 17 discussion that her union activity and
continuing as "the only one who is still pushing for the
Union" was the cause of the "tension" that had disrupted
the previous "very warm relationship before this whole
Union bit started" and the "appealing and family atmo-
sphere . . . where everybody was cooperating with one
another," (4) the established and accurate predictions of
various supervisors that Goulet would be discharged within
a reasonable period following the election, and (5) my lack
of faith or belief in the reliability or credibility of
Engstrom's sophomoric subjective "evaluations" of Goulet,
and their application, in violation of Respondent's own
announced ground rules, to lend credence to its purported
justification for its discharge of Goulet, I am utterly
persuaded that Goulet's discharge was planned and
decided upon long before Engstrom's "evaluations" and
that those "evaluations" were utilized as a mere pretext to
afford papered-over plausibility to its longstanding deter-
mination to rid itself of her because of her union organizing
activity, and that she would not have been discharged but
for that activity. The proof to that effect is overwhelming
and irresistible, and I so find.4 9
5. Respondent's discharge of Charlotte Manegre
Within a day after Respondent discharged Jane Goulet.
it also discharged another Boston Road waitress, Charlotte
Manegre. The complaint alleges that this discharge was
likewise in violation of the Act. Respondent's alleged
reasons for Manegre's discharge are the same as those for
Goulet. Unlike Goulet, however, Manegre not only was
not active in the union organizational effort, but was in no
way involved therein and did not even sign a union card.
She was likewise "evaluated" by Engstrom and, alone with
Goulet, thereupon discharged. There is no proof or claim
(C.A. 4. 1965): N.L. RB. v. Montgomery Ward & Co.. Inc.. 242 F.2d 497, 502
(C.A. 2. 1957), cert. denied 355 U.S. 829 (1957). the precipitate nature of the
employer's adverse actions against and eventual discharge of the employee
vts-a-vis the employer's learning of the employee's organizational activities
(Tele-Trtp Company v. N.L.R.B., supra; NL.R.B. v. Council Manufacturing
Corporation. supra), and the replacement of the discharged employee
(N L. R. B. v. Superior Soales, Inc., 366 F.2d 229. 235 (C.A. 8. 1966); N L. R. B
v. Davidson Rubber Companv. 305 F.2d 166, 168 169 (C.A. I. 1962);
N. .R. B. v. Local 776, IA TSE /Film Editors]. supra, N. L. R. B v. Montgom-
erv Ward & Co.. supra), the employer's implausible explanations for its
action (N LR.B. v. Harry F Berggren & Sons. Inc., 406 F.2d 239. 254-246
(C.A. 8, 1969). cert. denied 396 U.S. 823 (1969)). In the instant case, these
and more elements are present, including the element of "antiunion bias and
demonstrated unlawful hostility," which we have been instructed "are
proper and highly significant factors for Board evaluation in determining
motive." (N. LR B, v. Dan River Mills. Incorporated. Alabama Division 274
F.2d 381. 384 (C.A. 5, 1960); accord: N.LR.B, v. Lipman Brothers, Inc.. et
al.. 355 F.2d 15. 20-21 (C.A. 1, 1966); N.L.RB v. Davidson Rubber
('onmpnv, supra.
896
JACK AUGUST ENTERPRISES
that any other of Respondent's waitresses has before or
since been similarly or comparably discharged. In "evalu-
ating" her, Engstrom-who, it will be recalled, finally
conceded on recross-examination that she had a "pretty
good idea" even before she began her "evaluations" that
Goulet and Manegre were to be terminated--"rated" her
in the way she "rated" Goulet, resulting in an overall
failing mark of 60 percent. As in the case of Goulet, neither
the manager nor the employee (Manegre) was informed,
and the employee was given no opportunity for "improve-
ment" or to "score" higher-contrary to Respondent's
posted ground rules (Resp. Exh. 3). In Manegre's case,
Engstrom recommended her dismissal as "not an asset to
our staff' because her "work habits, appearance & speech
leave something to be desired," her "attitude with cowork-
ers & customers is not in keeping with our expectations,"
and "I find her language & appearance particularly
distasteful," as well as "poor service & sloopy sidework."
(Resp. Exh. 9.) As in the case of Goulet-again contrary to
Respondent's posted ground rules-the restaurant manag-
er, according to his testimony, was not consulted or even
apprised of the decision nor did he make any such
recommendation. Testifying on this subject, Rappaport,
who discharged Manegre on January 23, the day following
his discharge of Goulet, also read a prepared note of "6
reasons" to her, including "Business has been very slow"
(Resp. Exh. II 1). Among the "reasons" is "customer service
complaints." At the hearing, Rappaport indicated this was
a complaint in 1974 (possibly as long as 2 years before
Manegre's discharge) about which he had done nothing
other than to speak to her.5 0
Like Goulet, Manegre also entered the employ of
Respondent's Boston Road restaurant when it opened in
1972. Manegre, however, entered as a kitchen salad girl,
progressing to waitress by the beginning of 1974. As has
been indicated, she took no part in the union activity,
actively or passively. At the close of her shift on January
23, 1976, without previous notice or intimation of any kind,
she was directed to go to the office of Rappaport, who told
her that "sometime people have to do things they didn't
really want to do. And that this was one of those times."
Adding that "business was slow" and that he was just
repeating what he had been told to say to her, he
summarily terminated her. When she asked whether she
could collect unemployment insurance, Rappaport replied
that he saw no reason why not and that he would gladly
give her a favorable recommendation, as would Moquin
and Provost. However, when she subsequently applied for
unemployment insurance benefits, they were denied on the
ground that the Company had reported she was terminated
for unsatisfactory work, and she has never been recalled.
At no time was any indication given to her, during her over
3 years of employment, that her work was unsatisfactory in
I" Manegre had a far better recollection of the incident than that
manifested by Rappaport. According to Manegre's uncontradicted account,
in early 1974 one of her customers complained about overdone food. When
she reported this to Assistant Manager Moquin. the latter refused to make
any allowance to the customer, With impressive and commendable candor.
Manegre also referred to two other comparably trivial. seemingly typical
incidents in the life of a waitress, likewise in 1974. neither of which involved
fault on her part or drew criticism from her emploser. Her work
performance since then (early 1974) has been unmarred
"' See fn 24, supra
any respect; nor did any supervisor ever speak to her about
her appearance or fault her for not doing her share of "side
work." After closely observing her while she testified, I
fully credit Manegre's testimony as recounted above. (I
also observed, during her testimony, that she presented a
neat, tasteful, clean-cut and well-groomed appearance, and
she manifested no defects in speech or language produc-
tion.)
Boston Road Steak House waitress Shirley Kernan, still
in its employ5 t since its opening in 1972, testified that in
late January or early February 1976, while having coffee at
Abdul's ("Abdou's"), a nearby establishment, with Chow-
der House waitress Deveau, lead waitress Carol Urban,
and Area Supervisor Rappaport, when the subject of
Manegre's discharge came up Rappaport remarked that
"one girl had to be let go besides Jane [Goulet] and it was
Charlotte [Manegre] .... They had to pick out another
girl to let go at the time." Chowder House waitress Barbara
Deveau, also still in Respondent's employ for over 3 years
and neither a unionizational participant nor card signer,
testified with a compelling sincerity and credibility only
solidified on cross-examination, that she was present on the
occasion and distinctly heard and recalled5 2 that when the
question was asked of Rappaport why Manegre was
terminated, Rappaport replied that "it was for a cover-up
for Jane Goulet." Further according to Deveau's credited
testimony-corroborated by none other than Boston Road
Manager Provost himself, testifying as Respondent's own
witness-around the same time Provost also told her and
others that Manegre had been "fired [as] a cover-up for
Jane Goulet." And Respondent's Chowder House lead
waitress Carol Urban-on whose high credibility I have
already commented, and who was also called by Respon-
dent as its witness-corroborated that she was present on
the occasion at Adbul's when Rappaport definitely stated
that "Charlotte Manegre was let go as a cover-up for Jane
Goulet." On cross-examination, Urban convincingly swore
in a strong voice that she is certain of this.53
Against this strongly corroborated testimony of these
high-grade witnesses, I cannot and do not credit the
mincing 54 denials of Rappaport, whose testimony, as
already indicated, I found to be untruthful in many
respects.
Finally, Boston Road Manager Provost, testifying as
Respondent's witness, conceded that he did indeed. around
the beginning of February tell some employees that he
believed Manegre had been terminated "as a cover-up for
Jane Goulet." On cross-examination, Provost added that
he was informed by Rappaport around the same time that
Manegre had been fired "to cover up for the discharge of
Jane Goulet." As to this, Rappaport merely testified that
he was unable to "recall" such a conversation.
"2 Kernan. testifying as has been described. merely stated she was unable
to "recall" the expression "cover-up" being used.
":, Again. see cases cited fn. 24. supra.
54' Rappaport made an outright denial only in response to a leading-type
question after first having qualified his own account of the conversation at
Abdul's with the seemingly important introductory modifier. "I personally
can only recall that...." Asked about his use of the expression "cover-
up." Rappaport tantalizingly mused. "After Watergate . who knows
the answer?"
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record presented, I fully credit the cumulative-
ly strongly corroborated testimony of the indicated
witnesses, in preference to Rappaport's lone denials and
professed failures of recollection, that Rappaport did
indeed state and admit the true fact that Charlotte
Manegre was discharged, under the circumstances de-
scribed and found, to cover up Respondent's practically
simultaneous discharge of Goulet because of the latter's
protected concerted union activities.
6. Additional rationale concerning Goulet and
Manegre discharges
a. Jane Goulet
Jane Goulet had worked at Respondent's Boston Road
restaurant for over 3 years, ever since its opening. During
that time she was promoted and functioned for a year and
a half as head waitress, and is even now described by her
former manager as an "excellent waitress." At no time
during her relatively long tenure was her efficiency or job
performance in any way questioned. This, however,
suddenly and dramatically changed when she began to
exercise her rights under the Act by attempting, with
others, to introduce a union into Respondent's restaurant
in order to improve lot through collective bargaining with
their Employer. That an employee's "work apparently
became intolerable only after [sheJ had joined the union" is
a circumstance entitled to weight in determining the true
reason for the employee's discharge. N.L.R.B. v. Elias
Brothers Big Boy, Inc., et al., 325 F.2d 360, 366 (C.A. 6,
1963). From then on, as clearly appears, she came under
mounting criticism and retaliation from her Employer, with
her days and hours of work and therefore her income
gradually reduced until her eventual termination upon
spurious and pretextual grounds.
That Goulet to Respondent's knowledge led the unioni-
zational attempt at Respondent's Boston Road restaurant
is unquestioned and beyond doubt. Respondent's reaction
to that attempt is likewise unquestioned and beyond
doubt: bitter, determined, and unremitting resistance. At
an October 10, 1975, convocation of its employees on its
premises on election eve, after no less than 26 had signed
union cards, Respondent President Rubin warned the
employees that if the Union came in he could post a "no
tipping" sign, thus threatening to deprive the waitresses of
a substantial if not the principal source of their income
and, beyond that, even to "close the doors" and thereby
end their jobs. It has been pointed out so many times over
the course of so many years of the Act's existence that
repetition at this date should no longer be necessary, that
an employer can make no more potent economic threat to
his employees than that unionization may cost them their
jobs. In so doing, the employer directly links the otherwise
relatively assured continuation of his employees' jobs to
their nonexercise, or withdrawal from continued exercise,
of rights guaranteed to them under the Act. The Supreme
Court had occasion to observe in N.L.R.B. v. Gissel
Packing Co., Inc., et al., 395 U.S. 575 619-620, (1969) that
"[T]he Board has often found that employees, who are
particularly sensitive to rumors of plant closings, take such
hints as coercive threats rather than honest forecasts."
Such threats are expressly excepted from the "free speech"
proviso of Section 8(c) of the Act, and have long been held
to be unlawful. Cf., e.g., N.LR.B. v. Virginia Electric and
Power Company, 314 U.S. 469, 477, 478 (1941); Holly Hill
Lumber Company v. N.L.R.B., 380 F.2d 838, 841 (C.A. 4,
1967); N.L.R.B. v. Eastern Die Co., 340 F.2d 607, 608 (C.A.
I, 1965), cert. denied 381 U.S. 95 1; Florence Printing Co. v.
N.L.R.B., 333 F.2d 289, 290-291 (C.A. 4, 1964); N.L.R.B.
v. Tru-Line Metal Products Company, 324 F.2d 614, 616
(C.A. 6, 1963), cert. denied 377 U.S. 906 (1964); "notwith-
standing [the employer's] sincere belief that such result
would follow," United Fireworks Mfg. Co., Inc., v.
N.L.R.B., 252 F.2d 428, 430 (C.A. 6, 1958). Highly material
in this regard, also, is the fact that words were beamed at
waitresses, busboys, and similar help-not at labor lawyers.
Cf., e.g., N.L.R.B. v. Gissel Packing Company, supra at 617-
620 (1969); Henry 1. Siegel Company, Inc. v. N.L.R.B., 417
F.2d 1206, 1208, 1214 (C.A. 6, 1969), cert. denied 398 U.S.
959 (1970); Components, Inc., 197 NLRB 163 (1972);
Wigwam Mills, Inc., 149 NLRB 1601, 1611, 1618 (1964),
enfd. 351 F.2d 591 (C.A. 7; 1965). Additionally, Respon-
dent's change in Goulet's schedules and its reduction of her
working hours likewise constituted and effectively served
as a most dramatic, direct, and potent signal and warning
to other employees to desist, at their economic peril to their
jobs and incomes, from exercising rights Federally guaran-
teed under the Act-a true "fist inside the velvet glove"
(Justice Harlan in N.L.R.B. v. Exchange Parts Co., 375 U.S.
405, 409 (1964)). These are serious violations of the Act,
suborning its most basic essentials. As has been warned so
many times that lack of knowledge is devoid of excuse,
discriminatory discharge "goes to the very heart of the
Act" (A. J. Krajewski Manufacturing Co., Inc., 180 NLRB
1071 (1970)) and is the "surest method of undermining a
union's majority or impeding an election process"
(N.LR.B. v. Sitton Tank Company) 467 F.2d 1371, 1372
(C.A. 8, 1972)). Indeed, where a unit union majority is
established, such discharge alone may warrant a bargain-
ing order even without an election. N.LR.B. v. Gissel
Packing Company, supra at 610 and 614; N.L.R.B. v. Sitton
Tank Company, supra. (Herein, no objections were filed to
the election, and the discharges followed. No bargaining
order is sought.)
When, immediately upon his receipt of the Union's
recognitional request and the Board Regional Director's
notification that the Union had petitioned for a Board-
conducted representation election, Respondent embarked
on its campaign to stamp the Union out of Boston Road
root and branch and to restore its formerly "very happy
family," its countercampaign resulted in the withdrawal
from union membership of a significant segment of union
card signers. This left Goulet, the leader of the unioniza-
tional effort so openly and strongly resisted by Respon-
dent, on a collision course with Rubin. She was left
"holding the bag" or in the unenviable position of a troop
leader mounting a charge, who, nearing his objective, turns
around to goad his troops forward, only to discover he is
alone or almost alone, the others having fled and
abandoned him. As we have been instructed, "where the
discharge in question involves the 'key' employee in an
organizational drive, it may supply shape and substance to
898
JACK AUGUST ENTERPRISES
otherwise equivocal circumstances." N.LR.B. v. Davidson
Rubber Company, 305 F.2d 166, 169 (C.A. 1, 1962); see also
N.L.R.B. v. W. C. Nabors, 196 F.2d 272, 275-276 (C.A. 5,
1952), cert. denied 344 U.S. 865. Goulet thus found herself
on her Employer's "sh-t list" (the expression of Respon-
dent's own supervisor), marked for termination at the
earliest feasible date, while also being ostracized by many
of her fellow employees on whose behalf she had exposed
herself as the leader of their concerted effort for economic
betterment. She thus bore the brunt of her Employer's
outrage at the prospect of collective bargaining, while
finding herself abandoned to her Employer's vindictiveness
by her timorous fellow workers while they themselves
scurried for cover. Exposed, cornered, and isolated, she lost
her job for having exercised rights guaranteed to her by
Congress under the Act. However, the law's requirements
may not be thwarted simply because they are not to the
liking of individuals to whom they apply.
Respondent's total aversion to the possibility of the
unionization of its waitresses, as well as its conviction that
it was Goulet who had brought about what Respondent
calls "tension" among the members of its formerly "happy
family" of employees, is amply demonstrated by expres-
sions of its principal and president, Rubin, in a tape-
recorded discussion held in his office on September 17,
1975, with Goulet, during which Rubin clearly unburdened
his state of mind on that subject. The remainder of the
record is replete with further indications of his determina-
tion, and that of his subordinates, to make good his views
on that subject, culminating in the predicted discharge of
Goulet, whose only "offense" was her leadership of the
unionizational attempt.
From the record as a whole it is totally clear and I find
that it was Goulet's leadership of the unionizational effort
(or, in Respondent's vernacular, the ensuing "tension"
among the employees-who were, presumably, previously
free from "tension" of that sort) which ineluctably led to
Respondent's reduction in her days and hours of work and
thus in her income, and finally to her termination. The
circumstances leading to that termination, as well as
Respondent's assignment of the excuse of "economic
necessity" therefor, demonstrate the spurious and pretex-
tuous nature of that action. It is conceded that, following
its termination of Goulet, Respondent has continued to
hire waitresses, without recalling Goulet; and at the instant
hearing Respondent announced its determination not to
take her back into its employ. Since employers are not in
the habit of replacing experienced with inexperienced
employees (N. L. R. B. v. Davidson Rubber Company, supra at
169; N.LR.B. v. Local 776, IA TSE (Film Editors), 303 F.2d
513, 519 (C.A. 9, 1962), cert. denied 371 U.S. 826 (1962)),
this action sheds further light on the pretextuous character
of Respondent's "economic necessity" excuse for its
termination of Goulet and upon its true reason and motive
therefor; namely, her leadership involvement in activities
's It is. for example, based in part upon the evaluations of others as
allegedly reported to Engstrom. It also, for example, docks Goulet several
points for fewer smiles (Query. quantitatively or qualitatively?)-even if
true, small wonder considering the treatment she was being subjected to at
Respondent's hands. Furthermore. if the evaluation form in question-
covering the period January 11 21, 1976. and the first and only one made
out on Goulet -formed a predicate for Goulet's January 22 swift and
which Congress has declared inviolate from employer
reprisal. Notwithstanding Respondent's seeming notion to
the contrary, "tension" in its establishment, resulting from
the exercise of protected concerted activities by its
employees, constitutes no justification for the employer to
terminate the employment of the author of that "tension."
An employee's assertion or exercise of rights under the Act
is not contingent upon their being nontension-producing.
An employee who is "dissident and annoying" by reason of
his protected concerted activities is not exempt from the
Act's protection. Duo-Bed Corporation v. N.LR.B., 337
F.2d 850, 851 (C.A. 10, 1964), cert. denied 380 U.S. 912
(1965); cf. N.LR.B. v. Hudson Motor Car Company, 128
F.2d 528, 531-33 (C.A. 6, 1942).
I reject Engstrom's alleged performance "evaluations" of
Goulet during the period January 11-21 as a predicate for
her termination. Under the entire circumstances of this
case, this written "evaluation" system, newly instituted in
January 1976, just before Goulet's discharge, smacks of a
device concocted for the purpose of serving as technical
"record" documentation to lend plausibility to her dis-
charge. It is at best self-serving; obviously, a respondent's
saying on paper what he says orally does not invest it with
validity or establish the truth of that which is asserted.
Furthermore, Engstrom-an unsatisfactory witness who
broke down during her testimony, seemingly through
inability to respond to questioning or through embarrass-
ment at the kind of testimony she felt constrained to supply
under her employer's watchful eye-conceded that her
"evaluations" of Goulet were based in part upon "mental
notes" and "impressions" stored up in her mind during the
preceding period of Goulet's organizational activity and
derived in part from the unacceptable "tension" in the
restaurant from those employer-disfavored activities.
Moreover, the alleged "rating" system is utterly subjective,
unscientific, and the circumstances under which it was
allegedly designed, placed into effect, and administered
persuade me that it should be accorded no significant
weight here.55 Furthermore, it is at direct variance with the
established facts concerning Goulet's performance as a
waitress. In short, the multifaceted coincidences upon
which Respondent seeks to rest its explanations for its
discharge of Goulet are as unsubstantial as a house of
cards and simply do not "stand under scrutiny." N.L.R.B.
v. Dant, 207 F.2d 165, 167 (C.A. 9, 1953), and cases cited.
The entire record clearly and overwhelmingly estab-
lishes, and I accordingly find, that Respondent's termina-
tion of the employment of Jane Goulet on January 22,
1976, as well as its failure and refusal to recall or reemploy
her since then, was and continues to be because of her
preeminent leadership role in activities protected under the
Act; namely, the attempted unionization of employees at
Respondent's Boston Road Springfield restaurant.
summary termination. Respondent appears to have violated its own
published ground rules for its use, as described above. We have also been
told that "The abruptness of a discharge and its timing are persuasive
evidence as to motivation." Nh'.L.R.B. v. Montgomery Ward d Co., 242 F.2d
497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 t 1957); see also E Anthony
& Sons. Inc. v. N.L.RB., 163 F.2d (C.A.D.C.. 1947), cert. denied 332 U.S.
773.
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Charlotte Manegre
Credited and mutually corroborative testimony of
various witnesses, including two in Respondent's own
hierarchy (Urban and Provost), establishes that a high-
ranking managerial official of Respondent, namely Area
Supervisor Rappaport, stated to them that Charlotte
Manegre was discharged on January 23, almost simulta-
neously with Jane Goulet, "as a cover-up for Jane Goulet."
While Rappaport denies (or cannot recall) having said this,
upon the basis of comparative testimonial demeanor
observations and appraisals, within the framework of the
record as a whole, the mutually corroborative testimony of
the four witnesses to the contrary is compelling.56
Charlotte Manegre, like Jane Goulet, had been in
Respondent's employ at its Boston Road restaurant since it
opened in 1972, until her-again like Goulet's-termina-
tion on January 23, 1976. Manegre, who had started as a
kitchen helper, had--also like Goulet-been promoted,
becoming a waitress at the beginning of 1974. With a few
relatively ancient (1974) and minor episodes seemingly
characteristic of the experiences of a waitress and certainly
satisfactorily explained by her to her Employer's satisfac-
tion, her comparatively long tenure as Respondent's
employee was satisfactory and free of criticism. There was
thus no reason for her discharge, since I have rejected
Respondent's "economic necessity" defense. Manegre had
neither joined the Union nor participated in the unioniza-
tional effort. It is of course true that, so far as the Act is
concerned, an employer may terminate an employee for
any or no reason so long as that action is not in violation of
the Act. Although the usual picture in cases of violation of
Section 8(a)(3) and (I) is discharge of an employee because
of his or her union membership or activity, the mere fact
that an employee is not a union member and has engaged
in no union activity does not per se immunize his or her
discharge from inquiry and answerability under the Act.
Beyond doubt an employer who, as here, discharges a
nonunion employee to "cover up" and confer an aura of
plausibility upon his alleged "economic justification" for
the simultaneous discharge of an unwanted union activ-
ist-a reprehensible device far from unknown to the
Board 57-is answerable under the Act, since such a
discharge of a nonunion employee, as well as the discharge
of the union activist, interferes with, restrains, and coerces
all of the employees in the exercise of rights under Section
7 of the Act, and I so find and hold here with regard to the
discharge of Manegre.
E. Alleged Further Violations Following Goulet and
Manegre Discharges: Respondent's Inquiries into
Board Investigations and Subpenas
It remains to deal with two other violations alleged to
have occurred subsequent to the Goulet and Manegre
discharges. They both involve Respondent's Chowder
"' That a "supervisor's statements are admissible as evidence of his
employer's motivation in discharging individuals." see Montgomery Ward &
Co.. Inc.. 115 NLRB 645, 647 (1956). enfd. 242 F.2d 497, 501 (C.A. 2, 1957).
cert. denied 355 U.S. 829 (1957). Accord: Arlington Hotel Cornspan, Inc., 127
NLRB 736, 737 (1960).
:7 Cf.. e.g.. Havnie Electric Co.. Inc. eli'., 225 NLRB 353 (1976); Steves
Sash & Door Companv v. N.L.R.B., 401 F.2d 676. 681 (C.A. 5, 1968): Looney
Sheet Metal Const ruction Co., Inc.. 160 NL.RB 1635, 1647 (1966).
House waitress Dalton, a General Counsel witness whose
name has figured in other aspects of the case already dealt
with.
The complaint alleges that in March 1976 Respondent
President Rubin in violation of the Act interrogated an
employee regarding her interview by a Board agent
investigating this case, and that in June and July 1976
Respondent Area Supervisor Rappaport interrogated
employees regarding their being subpenaed to testify in this
proceeding.
Evidence in support of these allegations was provided by
waitress Dalton and lead waitress Urban. 5 8 Dalton's
credited testimony establishes the following facts. In
March 1976 Dalton was visited at home by a Board agent.
Dalton thereupon telephoned Respondent Area Supervisor
Rappaport to ask him whether she should talk to the Board
agent. After Rappaport said yes, she did so, answering the
Board's agent's questions. Later in the day, while at work,
she visited Rappaport. Respondent President Rubin
thereafter telephoned her on three occasions, asking her
what the Board agent had asked her, and she told Rubin.
(Rubin concedes he "asked her if she could give me an
indication of what kind of questions were asked.") Rubin
asked her whether she would meet with him at his
attorney's office. She said yes. However, because of
persisting rumors that she would never obtain a transfer to
Respondent's Enfield restaurant which she had been
seeking since August 1975 and that she also would be
terminated, 5 9 she did not go to the meeting with Rubin and
his attorney. Subsequently, in June 1976, shortly before the
inception of the instant hearing, the new restaurant
manager called her at her home and informed her that
Rubin wanted to know who was subpenaed to this hearing
and whether she had been. She told him it was none of his
business. On cross-examination, Dalton denied that she
told him (he did not testify) that she hoped the Company
would lose this case, but conceded that she did say she
thought that Goulet was discharged for union activities and
hoped she won her case. Subsequently, however, during a
conversation with Rubin regarding her transfer to East
Hartford (where she was contemplating or in process of
moving at the time of this hearing), Rubin told her she was
being granted the transfer, and that he knew she had been
subpenaed to "our big day coming up" at this hearing and
would like her to speak to his attorney Hayes (Respon-
dent's counsel herein). This time she met with Rubin and
Hayes at the Boston Road restaurant, with waitress
Symington (another General Counsel witness herein) there.
When Dalton was asked if Goulet was "the poorest
waitress in January when sales were down," she (Dalton) as
well as Symington denied it. When she was asked whether
she would have terminated someone other than Goulet,
Dalton said yes. On cross-examination here, Dalton swore
that Goulet is as good a waitress as she (Dalton) is. General
·~ It is not contended that Respondent's questioning of lead waitress
Urban was violative of the Act.
59 It will be recalled that Dalton was not only one of the original union
proponents (with Goulet and Symington) and had solicited union card
signatures. but he also subsequently withdrew from the Union.
900
JACK AUGUST ENTERPRISES
Counsel conceded that Dalton's participation in this
interview with Rubin and Hayes was voluntary.
With regard to the June incident, no Boston Road
manager testified; but Area Supervisor Rappaport conced-
ed that prior to the instant hearing he had been instructed
by Rubin to supply him with the January 1. 1975, to June
26, 1976, timecards of 12 named employees comprising
almost all of the Chowder House waitresses: and that since
he felt the restaurant would have difficulty in maintaining
operations if all were subpenaed to attend this hearing
(Rubin had not said they were or would be), he asked
Dalton as well as others whether they had been subpenaed,
in order to schedule the restaurant operations so they could
continue efficiently. Also testifying on this subject, Rubin
stated that late in June he supplied Rappaport with the
names of the subpenaed waitresses, without instructing
Rappaport "specifically" to question them.
On the foregoing state of facts, I find and hold that the
complaint's first allegation, comprising Rubin's persistent
interrogations of Dalton as to what she had disclosed to the
Board agent, particularly inasmuch as Rubin failed to
advise Dalton that she was under no obligation to provide
him with such information, constituted impermissible
interrogation in violation of the Act. Contrary to the
requirements laid down in Johnnies Poultry Co., 146
NLRB 770, 775 (1964), enforcement denied on other
grounds 344 F.2d 617, 619 (C.A. 8, 1965), Rubin failed to
communicate to Dalton the purpose of the questioning,
FiRg 4 : Chrdonological
failed to assure her that no reprisal would take place, and
failed to obtain her participation on a voluntary basis, and
at the same time-according to Rubin's own account-
attempted to elicit information concerning her subjective
state of mind, all within the proscribed context of a
situation replete with employer hostility to union organiza-
tion. Rubin's interrogation of Dalton under these circum-
stances was violative of the Act. Cf. Preston Products
Company. Inc., 158 NLRB 322, 348-351 (1966), enfd. 392
F.2d 801, 809 (C.A.D.C., 1967), cert. denied 392 U.S. 906
(1968); Surprenant Manufacturing Company v. N.LR.B.,
341 F.2d 756, 762-763 (C.A. 6, 1965); Johnnie's Poultry Co..
supra
As to the second allegation of the complaint, involving
Rappaport's questions as to who had been subpenaed to
testify on behalf of General Counsel in this case, while
perhaps a measure of suspicion as to Respondent's true
motives would be justifiable under the otherwise aggraat-
ed circumstances of this case, nevertheless, in view of
Rappaport's explanations, which cannot be brushed aside
as incredible, the record on this point is not sufficiently
strong unaided by conjectural speculation to warrant a
finding of illegality. It is accordingly found and held that
this allegation has not been established by substantial
credible evidence.
Figure 4 is intended as a convenient chronological
tabular recapitulation of findings here made with regard to
the manifold allegations of the complaint as amended.
'Recapitulation of Findings
on Complaint'Allegations (Concluded)
Complaint Act
Para. Sec.
Allegation
or
Event
Decision
Sec (s).
Finding and
Basis (Part)
8(a) (3) Resp. dis-
and (1) charges
waitress
Manegre as
cover-up
for Coulet's
unlawful
d ischarge;
since then
fails and
refuses to
reinstate
her
III D 4; Found. Clearly
III D 5b established by
substantial
credible evi-
dence on record
as a whole. Do
not credit
Resp.' s expla-
nations, which
were pretextual.
Date
or
Period
1/23/76 9(c)
(date as
conformed
to proof)
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) Resp. Pres.
Rubin inter-
rogates
employee
regarding
her interview
by NLRB agent
III E Found. Established
by substantial
credible evidence.
8(a)(1) Resp. Area
Supervisor
Rappaport
interrogates
employees
regarding
their being
subpoenaed
to testify
in instant
proceeding
III E Not found. Not
established by
substantial
credible evidence
unaided by surmise,
conjecture, and
speculation.
Fig. 4 : Chronolorical Recapitulation of Findings
on Complaint Allegations (Continued)
Complaint Act
Para. Sec.
Allegation
or
Event
Decision
Sec (s).
Finding and
Basis (Part)
8(a)(1) Resp. Pres.
Rubin tells
employee her
attitude is
not up to
Respt' s
standards,
that she is
"part of the
group that
instigated
or called
the Union
in on this
ordeal,"
and that as
far as he
knew she is
"the only
one still
pushing for
the Union"
III C 3b Found. Estab-
lished by stip-
ulated transcript
of tape recording
of 9/7/75 meeting
of Rubin with
waitress Coulet;
coercive and
restraintful,
particularly in
frame of reference
of record as a
whole.
March
1976
8 (h)
8(i)June
and
July
1976
Date
or
Period
9/17/75 8(d)
902
JACK AUGUST ENTERPRISES
8 (a) (1) Resp. Mgr.
Provost puts
arm around
employee and
tells her,
"We can't
go around
like this
any more if
the Union
comes in"
8(a)(1) Resp. Pres.
Rubin tells
Boston Road
restaurant
employees
that restau-
rant would
close if Union
Union came in,
because he
would "have to
pay all those
III C 3d Not found. No
interference,
restraint or
coercion estab-
1 ished.
III C 3e Clearly established
by preponderance
of substantial
credible evidence.
fantastic
wages"
Fig. 4 : Chronological Recapitulation of Findings
on Complaint Allegations
Allegation
or
Event
Decision
See (s).
Finding and
Basis (Part)
Aug. 8(e) 8(a)(1) Resp. main- III C 3c Crediting testi-
through tains and mony of Quirk,
Oct. enforces in- found as to
1975 valid no period in and
and to solicitation since Oct. 1975.
date rule
8 (c)
8(b)
Before
10/11/75
Board
election
Before
10/11/75
Board
election
Date
or
Period
Complaint
Para.
Act
Sec.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aug. or 8(f) 8(a)(1) Resp. Mgr.
Sept. Provost
1975 orally and
in writing
repr imands
employees
for d s-
cussing
Union and
upcoming
Board elec-
tion
III C 3 Found. Employer
directive overly
broad, unrea-
sonable in des-
cribed situation.
and disparately
applied.
Au.. 8(g) 8(a)(1) Resp. Pres. III B Not found. Em-
1975 Rubin in ployees approached
his office Rubin under cir-
suggests to :umstances which
2 employees cannot be defi-
that they nitely regarded as
withdraw unequivocal. Cannot
their Union be said as ratter
authorization of law that an
cards enplover suggestion
to his employees
that they may
withdraw from union
membership is per
se violative of
the Act.
On and
since
8/1/75
9(a) R(a) (3) Resp. char
and (1) work sched
and reduce
total week
hours of
waitress
Coulet
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. Through its following acts under the circumstances
described and found in "II," supra, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of their rights under Section 7 and has thereby
violated Section 8(a)(1) of the National Labor Relations
Act, as amended:
(a) Respondent's informing employees through its
Boston Road, Springfield, Massachusetts, assistant restau-
rant manager, Bert Moquin, subsequent to the October 11,
1975, Board-conducted representation election under the
Act, that certain named employees there were on Respon-
dent's "sh-t list," substantially as alleged in paragraph
8(a) of the complaint as amended herein.
(b) Respondent's informing employees at its aforesaid
restaurant, through its president, Merwin Rubin, prior to
said October 11, 1975, election, that that restaurant would
close if the Union came in, substantially as alleged in
paragraph 8(b) of said complaint.
(c) Respondent's informing an employee of said restau-
rant, to wit its waitress Jane Goulet, on September 17,
1975, that she was "part of the group that instigated or
hges III C 2; Found. Clearly
lule III D 1 established by
es preponderance of
dy substantial cred-
ible evidence,
documentary as well
as testimonial.
called the Union in on this ordeal," that as far as he knew
she was "the only one who is still pushing for the Union,"
indicating to her that her attitude was not up to Respon-
dent's standards, and making other restraining and
coercive remarks to her in interference with and to
intimidate her and other employees in the exercise of their
said Section 7 rights, substantially as alleged in paragraph
8(d) of the complaint.
(d) Respondent's maintenance and enforcement, since
October 1975, of an overly broad, improper, invalid, and
disparately enforced proscription against conversation
among its employees in said restaurant on the subject of a
union, or to solicit therefor, substantially as alleged in
paragraph 8(e) of the complaint.
(e) Respondent's orally and in writing, through its said
restaurant manager, Roger Provost, on or about October 3
and 6, 1975, reprimanding an employee of said restaurant,
to wit its busboy Brian Quirk, for discussing the Union,
substantially as alleged in paragraph 8(f) of the complaint
as conformed to the proof in regard to date.
(f) Respondent's interrogating an employee of said
restaurant, to wit its waitress Sharon Dalton, through its
president, Merwin Rubin, in March 1976, regarding details
of her interview by an agent of the National Labor
Relations Board and eliciting from her data and informa-
904
JACK AUGUST ENTERPRISES
tion which she had disclosed to said agent, substantially as
alleged in paragraph 8(h) of the complaint.
(g) Respondent's changing the work schedule of and
reducing the working hours of its waitress Jane Goulet at
said restaurant, on and since about August 1, 1975,
substantially as alleged in paragraph 9(a) of the complaint.
(h) Respondent's discharge of its waitress Jane Goulet on
or about January 22, 1976, and its failure and refusal to
recall, rehire, or reinstate her at all times since then,
substantially as alleged in paragraph 9(b) of the complaint.
(i) Respondent's discharge of its waitress Charlotte
Manegre on or about January 23, 1976, and its failure and
refusal to recall, rehire, or reinstate her at all times since
then, substantially as alleged in paragraph 9(c) of the
complaint as conformed to the proof in regard to date.
3. Through its aforesaid change since on or about
August 1, 1975, in the work schedule of and reduction of
the working hours of its Boston Road restaurant waitress
Jane Goulet, as well as through its discharge of its Boston
Road restaurant waitresses Jane Goulet and Charlotte
Manegre on or about January 22 and 23, 1976, and its
failure and refusal at all times since then to recall, rehire, or
reinstate them, under the circumstances described and
found in "II," supra, Respondent has also discriminated in
regard to the hire, tenure, and terms and conditions of
employment of employees to discourage membership in a
labor organization, in violation of Section 8(a)(3) of the
Act.
4. The aforesaid unfair labor practices and each of
them have affected, are affecting, and unless permanently
restrained and enjoined and otherwise appropriately
remedied will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
5. It has not been established by substantial credible
evidence that Respondent has violated the Act in the
particulars alleged in paragraphs 8(c), 8(g), and 8(i) of the
complaint.
6. Respondent has not established the affirmative
defenses set forth in its answer herein."
REMEDY
Respondent, having been found to have interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed to them by Congress in Section 7 of the Act,
should, as is usual, be ordered to cease and desist from
continued and further such violations. Respondent, having
also been found to have changed the work schedules and
reduced the working hours of an employee, and to have
discharged two employees and to have failed and refused
to recall, rehire, or reinstate them, should, as is also usual in
such cases, be ordered to cease and desist from continuing
or other such violations, and to offer reinstatement to the
discharged employees, with backpay and interest comput-
ed as explicated by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962); as well as to expunge
60 Respondent's first two affirmative defenses relate to the Goulet and
Manegre discharges. Its third affirmative defense, that the complaint is
based upon improperly gathered evidence. has in no was been established
and is. upon the record here made, devoid of merit in fact or in law.
61 In the event no exceptions are filed as provided by Sec. 102.46 of the
from its records all references that said employees were
discharged for valid cause or for any reason based upon
their work performance, and to refrain from so indicating
to any prospective employer or reference-seeker. Respon-
dent should also, as usual, be required to preserve and
make available its books and records to the Board's agents
for backpay computation (including income from lost tips
and gratuities) and compliance determination purposes:
and to post the conventional informational Notice to
Employees.
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 6 '
The Respondent, Jack August Enterprises, Inc., Spring-
field, Massachusetts, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Informing employees that they are on Respondent's
"sh-t list" or any other derogatory listing or grouping, or
thereby destined or marked for retaliatory action by
Respondent, by reason of their union membership or
activity or because they exercise or assert any right under
the National Labor Relations Act, as amended.
(b) Threatening employees, in violation of the Act, with
the closing down or discontinuance of Respondent's
restaurant, or other economic retaliation, in the event of its
unionization or continued exercise or assertion by its
employees of their right to bargain collectively, or any
other right under the Act.
(c) Threatening, or coercively or otherwise in violation of
the Act indicating to, any employee that he or she is part of
an illicit or improper group of its employees seeking to
organize to bargain collectively in assertion or exercise of
rights guaranteed to employees under the Act; or otherwise
so as to coerce, restrain, intimidate, or improperly interfere
with its employees' assertion, exercise, or attempted
exercise of any of those rights.
(d) Enforcing or maintaining any written or oral rule or
requirement, whether overly broad or disparately applied
or otherwise in violation of the Act, proscribing or
forbidding solicitation or conversation by any employee on
Respondent's premises concerning a union or concerning
the assertion or exercise of any right guaranteed to
employees under the Act; or reprimanding or censuring
any employee for violating any such rule or requirement.
(e) Interrogating any employee in violation of the Act,
concerning disclosures made by said employee to any
agent or representative of the National Labor Relations
Board in connection with the prosecution or investigation
of any charge made to or proceeding pending before said
Board.
(f) Discriminatorily or otherwise in violation of the Act.
changing the work schedule, reducing the working hours,
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
905
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or otherwise altering any term or condition of employment,
of any of its employees in order to interfere with, restrain,
coerce, or intimidate that or other employees in the
exercise of any right under the Act.
(g) Discharging, terminating the employment of, laying
off, furloughing, suspending, failing or refusing to recall,
rehire, or reinstate, or otherwise in violation of the Act
altering the employment status of any employee, or
threatening so to do, because he or she has joined or is
sympathetic to any labor organization or has engaged in
any lawful activity on behalf of a labor organization or has
asserted, engaged, or sought or seeks to engage, in any right
or activity protected by the Act; or directly or indirectly so
doing so as to discriminate in regard to the hire, tenure, or
terms or conditions of employment of any employee
because he (or she) or another employee has asserted or
exercised, or seeks to assert or exercise, any such right.
(h) Discharging, terminating the employment of, laying
off, furloughing, suspending, failing or refusing to recall,
rehire, or reinstate, or otherwise in violation of the Act
altering the employment status of any employee in order to
conceal, disguise, mask, or cover up Respondent's dis-
charge of another employee for asserting or exercising
rights under the Act.
(i) Directly or indirectly engaging in any of the foregoing
or any like or related act in order to dissipate the collective-
bargaining representational status of its employees' lawful-
ly designated collective-bargaining representative, or for
the purpose of causing its employees to discontinue or
refrain from exercising their right to bargain collectively
with Respondent, or otherwise so as to interfere with,
restrain, or coerce its employees in the exercise of their
rights under the Act.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of
their own choosing; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection: or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement lawfully requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Offer to Jane Goulet and Charlotte Manegre
immediate, full, and unconditional reinstatement to their
former positions in Respondent's Boston Road, Spring-
field, Massachusetts, restaurant (or, if not available, to
substantially equivalent positions), without prejudice to
their seniority and other rights, privileges, benefits, and
emoluments, including but not limited to any and all wage
and rate increases, and nondiscriminatory scheduling of
workdays and working hours; and make them whole for
any loss of income (including overtime, holiday and
vacation pay, income from tips and gratuities, and
hospitalization, medical and other insurance claims and
benefits if any), together with interest, in the manner set
forth in the "Remedy" portion of the Decision of which
this Order forms a part.
(b) Expunge from all of Respondent's books and records
any entry indicating or to the effect that the discharge of
Jane Goulet or of Charlotte Manegre was because of or
related to any fault or work-related deficiency on their
part; and refrain from making any such statement or report
voluntarily to or in response to any inquiry from any
employer, prospective employer, employment agency,
unemployment insurance office, or reference-seeker.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate and waitresses' income records,
work schedules, personnel records and reports, and all
other records necessary to determine the amounts of
backpay and other sums due under and the extent of
compliance with the terms of this recommended Order.
(d) Post at its restaurant premises at 13% Boston Road,
Springfield, Massachusetts, copies of the notice attached
hereto marked "Appendix B." 62 Copies of said notice, on
forms provided by the Regional Director for Region 1,
after being signed by Respondent's authorized representa-
tive, shall be posted in said premises by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint herein, dated
April 7, 1976, as amended, be and the same is hereby
dismissed as to all allegations therein not herein found and
determined to have been violative of the Act, and that
Respondent's affirmative defenses set forth in its answer be
and the same are hereby dismissed.
.2 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."
APPENDIX A
(Excerpts from Respondent President Merwin
Rubin's September 17, 1975 Taped Meeting with
Jane Goulet; emphases supplied)
GOULET: "The only reason I wanted to come down is
to ask if you can answer why I, personally, am the only one
that was singled out to take the blame for this Union bit?
Why am I the only one that is being punished and being
badgered and being harassed at work when I was not the
only one?"
RUBIN: "I don't know how to answer that. Is that the
extent of the question?"
GOULET: "That is my purpose of being here."
RUBIN: "Let me say at this point in time, now that we
have been on this Union matter for probably six or seven
weeks, or whenever they first notified us of the filing, a lot
906
JACK AUGUST ENTERPRISES
of information has come and gone. a lot of people, a lot of
comments have been made."
GOU LET: "A lot of lies."
RUBIN: "I am sure, but worse than that there has been
an awful lot of tension in the restaurant itself, amongst all
employees."
* *
GOULET: ".... I would like to see if you could maybe
straighten it out because I don't feel like I should be
blamed. I didn't even make the initial phone call to the
Union."
RUBIN: "I don't know what facts prevail that started
the Union. * * * you have the right to go and invite them
to come in; any other employee has the same right to. Now
on the other side of the table, we have the right, as you
know, I told everybody in the very first meeting; we have
the right and we will certainly do it, to use every ounce of
strength and every dollar that we can muster to stop the
Union from getting in because we believe that the Union is
not good and I don't mean just not good for us. * * * * I
made that basic statement at a mass meeting the first time
we addressed the issue of the Union and I made it very
clear that if anyone had the mistaken impression that we
were going to sit back and take this lightly, they better stop
and realize that we are going to use every ounce of
management ability that we have to stop it legally."
GOULET: "But I mean is that why I am being
personally persecuted, I mean because I was not-"
RUBIN: "Am I personally persecuting you?"
GOULET: "Well, I don't know who or where it comes
from to begin with. You know my hours are cut in half, I
work any day that they feel like I should work, plus I go on
days that I don't even work."
RUBIN: "I have to challenge that first statement, Jane,
that you made about your hours being cut in half * * * *
as a normal reality, the records show themselves how many
hours a week you were putting in or how many days a week
you were getting as a routine three months ago, six months
ago, 5 months ago."
GOULET: "Since the store opened. But now I work
three nights and my schedule is 5 - 9 which nobody else
works 5 - 9 or 5 - II except me."
RUBIN: "What can I tell you. We run the shop as best
we feel we need to cover the shop .... "
GOULET: ". .. nobody else and this is the fourth week
and I am still on 5 - 9 which I don't mind."
RUBIN: "Your hours, as I understand it, are pretty
much in line with what you were doing before and
everybody elses -"
GOULET: "No, not really."
RUBIN: "I have looked at the records, Jane, and I am
aware that the hours are in keeping -"
GOULET: "I was working like 28-30, 32 -"
RUBIN: "One or possibly two weeks -"
GOULET: "No, all weeks since I have been here."
RUBIN: "Not true, not true. Our records don't show
that unless the computer made a mistake at just your
account, it is not quite so, but I am not really going to
argue -- "
GOULET: "* * * The thing I want to know is why
am I the only one that was singled, I mean everybody else
is fine, I mean everybody else is getting along with
everybody, the only one is me. Why?"
RUBIN: "At this point, at this point in time, I cannot
give you an answer. I really can't. * * * I have not asked
people to harass you. * * ' * We have some thoughts and
ideas, but at this point and probably until such time if we
do have an election, if we're ever going to have an election
we won't really know whether there is two or twenty-two
people. * * * *"
GOULET: "Well, I am really not getting what I came
here for."
RUBIN: "* * * if you ask me why you are being
discriminated against, I can't answer that because I am not
discriminating against you and I haven't -"
GOULET: "Well, maybe Roger [i.e., Boston Road
Manager Roger Provost] can answer it."
RUBIN: "I have not given any answers. I am sorry, I
haven't given any instructions to Roger or anyone else in
the management .... "
S * S
RUBIN: ".... You came in here and I thing [sic] it
took a good deal of courage for you to want to come in and
sit down and talk about it."
GOULET: "It has taken a lot of courage for the last two
months for everything I have done -"
RUBIN: "Well, Jane, in that respect I have to say that
whatever has happened you should have given due consider-
ation to before how many ever there were that made the initial
decision to call the Union in. Once we were made aware of it
immediately I informed the entire employee group that we
were going to do everything in our power to stop it. Now
that in itselfshould have toldyou that we were not going to lay
down and let the Union walk all over us and take our business
awayfrom us or do anything of that nature."
GOULET: "That, sure any business would do that, I
know that, but at the time that all this started, I should
have been smarter and not been so dumb to be so gullible
to take the stand for all of these people who wanted
everything. I should have sat back like the rest of them."
* *
RUBIN: "More likely than not there will be an election
and that solves the problem. If the Union wins then the
Union wins. If they lose, they lose, and then whatever
happens after that happens. * I * They can't attempt to
reorganize us for a period of time so we have a little
breather until they start causing some reorganization
problems again or organizing problems we should say."
* * *
RUBIN: "Unfortunately, it seems we had a very warm
relationship before this whole Union bit started. * '* * I
don't get involved as a normal daily procedure with the
employees in the field. * * ' Now, obviously, I am
involved in this Union issue now because that is a major
issue * * * * Now it is my understanding that he [i.e.,
"Ollie" or "Olley," a supervisor] had some discussions with
907
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you girls and even after that you went to the Union. I am not
saying you, I am saying the girls involved."
GOULET: "No, I never made a phone call down there,
but that was a lot to do with it because they couldn't get
into here."
RUBIN: "Well, there was a meeting that I am aware of
between Olley and several of the girls up there in an attempt
to find out what all the grumbling was about. It came up all
of a sudden. Of course, we know that it was all part of the
switching of schedule from the Chowder House to the
Steak House and some other factors too, but as we sit here
today that is ancient history, we all know that. * * * *
Now, the only thing that bothers me is that we have a very
tense atmosphere between the employees of the floor and that
is a very bad relationship. * * * When I say on the floor, I
mean throughout the whole restaurant of course and that is
most unfortunate because it rubs off on the customers and I
would dare say that you haven't felt the same and some of the
other girls haven't felt the same and because of that may be
they don't come through with the same personallity [sic]
anymore that they did and maybe that reflects on the tips
they are getting too. Worse than that it probably reflects on
the way the customers think about the service the, are getting.
So it's hurting us, it's hurting the girls, both in less tips and
it's hurting us through poor service and yet we have to live
with it until this whole thing is resolved or simmers down and
disappears; just goes away. I would love it to do just that. I
wish this whole thing were over with a month ago."
GOULET: "Me too."
RUBIN: "So it wouldn't still be dragging now, but
unfortunately, we have had to go through one hearing and
chances are there may be another hearing or there may be
five more hearings. I don't know."
RUBIN: "The wheel is in motion. The Union has got a
toe in the door. As long as they have got a toe in the door
they are going to see this thing through, okay. Until the
final decision is made, we are all going to be subjected to a lot
of harassment."
GOULET: "It is still all my fault?"
RUBIN: "I don't know whose fault it is. I don't know all
the facts in the matter. All I can deal with is what I see and
what I am told. * * * * The Union has been called in, the
damage is done."
GOULET: ".... Ijust feel like you could surmise that
if I was really the only guilty person in that place, I
wouldn't be sitting in your office today. I wouldn't even
still be working in Jack August, I would have left a long
time ago."
RUBIN: "Well.--"
This appears to be at odds not only with Respondent's Lead Waitress
UIrban's testimony, but also with Rubin's own previous statement that "I
don't get involved as a normal daily procedure with the employees in the
field" (supra)
GOULET: "But, I feel like I am right....'
# # #
GOULET: "Well, I asked Roger [Provost, the Manager]
about the schedule. He told me that he had another
schedule made up and he said it has been sent down here
[to you], that is why my hours are 5 - 9."
RUBIN: "That is correct. I approve the schedule.'
* * * We will leave the schedule the way we saw it, the
way people are needed in our operation and certainly we
would reward the people we feel who are delivering the
best service to our customers. * * * * but if they're not
doing an average job, if they are not producing in the way
personality, service, and attitude and intermingling with
other . . . help on the floor in a friendly fashion then
certainly we are not going to reward these people by giving
them five or six nights a week.2 There is no needfor us to call
for additional aggravation. We are not lookingfor additional
problems and it's certainly our management decision to put
whoever we want on the floor and we try to reward the girls
that are doing the best job. . . . in order to keep them doing
the best job. "
GOULET: "But, I have worked there for three years and
I always did my job."
RUBIN: "I am aware of how long you have worked
there, but I think you said yourself that you haven't been
the same and you haven't been able to really carry through
because of the pressures and all of the tension and this whole
Union bit...." * * * let's step back for a moment.
Supposing this question of the Union had never come up. You
have been there since the day we opened, right."
GOULET: "Since the first day."
RUBIN: "Okay, now you know that we had very little
turnover. "
GOULET: "Right."
RUBIN: "We had basically the same girls and that is a
tremendous credit to us. Whether you want to recognize it
or not."
GOULET: "Oh, I know that."
RUBIN: "Meaning that in spite of oh some minor petty
differences the fact that we have had almost all of the same
crew working year after year, three years now coming up
next month, shows that we must have treated those girls
pretty well and the kids in the kitchen pretty well. * * * *
we try to keep that family ofpeople working together, working
as a team and doing things for one another. The spirit of
cooperation; that has been our total philosophy, and if a girl
wouldn't cooperate, forget before I am talking about before
this whoel [sic] Union question, now, we weeded her out one
way or another meaning that if she didn't shape up we
didn't keep her. * * * * We want girls who are wide awake
on the floor with plenty ofpersonality and who are capable of
keeping up with the flow of activity not dragging their feet.
Now, again I am not suggesting that you have changed, I
know that you were a top waitress previously, but I would
have to question realistically if you could measure up to that
same ability, in the last month only, I mean because of all of
2 This appears to be at odds with Rubin's former strong insistence (supro)
that Goulet was all wrong in stating that her hours had been cut back.
908
JACK AUGUST ENTERPRISES
these problems that have been ongoing. The attitudes and
the-"
* * , * * *
RUB I N: "Unfortunately the real core of the problem is to
try to get back on I'd say the kind of appealing and family
atmosphere that we had previously. Where everybody was
cooperating with one another. I can assure voufrom my point
of view that if the Union did get in that we would never have
that family atmosphere again because we would constantly
have irritation between those who are pro Union and those who
are con-Union. * * * * if their camp won the Union won it is
going to cause friction between the two and I would assume
that it would be more unbearable than what it is now to the
point where maybe some of the girls who don't want the
Union may leave the place. The some thing is available now.
Some of the girls who want the Union have the right to leave
the place if they so chose. '* *
ARLENE RYAN [Goulet's sister-in-law]: ".... those
people that were for the Union, when it comes right down
to it, if there was a vote and the Union did not get in....
would there be, say personal retaliation in a sense that their
hours would be cut and they would be given less desirable
jobs or positions?"
RUBIN: "There wouldn't be, as far as I'm concerned,
but I can't guarantee that they - * * * * there are a lot of
things to be taken into consideration, and that is what's the
attitude of the employee, and how proficient is that employee,
after that happens. * * * * Let's say, maybe, perhaps there
are a lot of people who were in favor of the same things
that you were in favor of, and who may have broadened
their view or changed their view or stood back and took
another long look and it and said that maybe it isn't quite
the thing that they want. Now if they were flexible and they
came to a conclusion on their own, well then maybe they
are taking this out on you because you have been
inflexible, or maybe irritating them."
GOULET: "But, I haven't done anything more than
what they've done."
RUBIN: "I don't know what the facts are there. I don't
know whether you really have been an instigator in attitude.
There are many little things that are done very snydley [sic]
for the matter and .... it works two ways. It's a two-
edged store [sic]. It's difficult for me to sit here and believe
thatyou have been an inocent [sic] bystander * * *"
GOULET: "I'm not saying that I have been an inocent
[sic] bystander . . . I'm saying that I was not the leader
which everybody in that place seems to think, or seems to
have told everybody in that place because I was not."
RUBIN: "The real question involved is if you were really
interested in changing the atmosphere which appears to be
one of hostility against you from what you've described
* * * *"
GOULET: "But, are you trying to say that I should turn
around and join them and be two faced and lie like them -
.... because I cannot be like them. That's why I am
standing by myself."
' This is demonstrablsy Inorreel. as shrown hb Respondent's aor n records.
as indicated in the ioregoing decision
RUBIN: "Are you suggesting that I fire everybody else
in the organization .... And hire completely new people
.... that's illogical. On the other hand, if there are half a
dozen girls who don't want to work under the tension that is
there now, they are free to leave. We have no strings
attached. "
* * * * *
RUBIN: ".... the crew worked very well together and
they really worked together as a team. Now that has changed
tremendously in just the lastfive or six weeks ... "
* * *
RUBIN: "Unfortunately, I have to repeat that had the
Union issue not become afact * * * * I don't think we would
befacing the same kind ofproblems that we are talking about
here at this table, if the facts were different six weeks ago.
And that's hindsight, that's water over the dam. The fact of
the matter remains that we are going through this Union
organizing attempt and until such time as the matter is
resolved definitively, one way or the other if it is coming in
or it is not coming in. I don't really expect the atmosphere
to change any." * * '
GOULET: ".... the point is, why was I singled out
between the Steak House, The Chowder House and the
kitchen and I am the only one marked on the schedule that
has 5 - 9."
RUBIN: "That's our prerogative to decide how many
hours * * * * I told you earlier that we evaluated who we
wanted to give additional time, who we felt was doing a
superb job, in personality and attitude and everything else
that went through the whole picture. And yet, the total
number of hours that you worked and that most of the
other girls worked are fairly much alike.3 There isn't that
big a spread between them."
GOULET: "Somebody asked me one night to work for
them, to fill in, they couldn't work at night. And I said well,
as far as I'm concerned yes, I mean my husband works out
of town, fine, so I don't care when I work, but I said you
better ask the manager. And he told her that he would find
her a replacement. So I mean why, I was very willing to
work."
RUBIN: "That's our prerogative. We have to say it's quite
obvious that your attitude has not quite been up to our
standards. "
GOULET: "Well, I disagree, but I mean you-"
RUBIN: "It certainly hasn't been on the plus side. It hasn't
been on the plus side of the standard. "
GOULET: "I still do exactly the same as I had done from
thefirst day that I walked in there. "
RUBIN: "Well, maybe so, mavybe so. But again we come
back to thefact as you openly admit that you were part of you
say you weren 't the only one and we haven't said you were the
only one, but you will openly admit that you were . ... part
of the group that instigated or called the Union in on this
ordeal and at this point you may very well be, I don't know.
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From what you are describing it sounds like you are the only
one who is stillpushingfor the Union. "
GOULET: "No, in fact I talked to him just last week and
I told him as far as I'm concerned I haven't talked to that
Union man, what was that that I talked to you it was two
weeks, it must be three or four weeks, and as far as I was
concerned, it was done."
RUBIN: "Well, that remains to be seen."
GOULET: "Well, that I don't know because what I told
him whatever anybody wants done now, they better not
ever come to me and say do it, because they'll do it on their
own."
RUBIN: "I have nothing more than I can add to the
conversation because . . . we are sort of going around the
same issues. ... I understand it is an unpleasant atmosphere
to work in . .. Now, I did not set the yardstick. I didn't ask
you to, and I am sure Roger [Provost, the Manager] didn't
ask you to go out and encourage the Union and to go around
activly [sic] and solicit Union votes. "
GOULET: "No, but everybody else did."
RUBIN: "But, we do know that the others did the same
things. Apparently the others have different views or different
attitudes. And for whatever reason they arrived at they
apparently must have changed their thoughts. From what you
have indicated you are telling us that you stand against the
whole rest of the organization. "
GOULET: "Just about. Would you like to be one person
standing there and saying here I am now you can do
anything you want."
RUBIN: "No, but I think that should tell you something
too."
GOULET: "What?"
RUBIN: "Well what has caused this whole thing."
GOULET: "That's right, what?"
RUBIN: "What has caused this thing? The whole row over
the Union has caused it. You don't seem to want to recognize
that. "
GOULET: "But they were all for that thing to begin with
too."
RUBIN: "I want to ask a question, Jane, realistically,
because from that very first meeting that I came into to
address the entire group I gave some facts and figures that
were perfectly within our rights to give that I was amazed
at the expressions on the kids faces, the younger ones in
particular who had no idea what they were obligating
themselves to when they were signing that union card, in
terms of fees and all the things that I rattled off there which
are taken right from their constitution or their bylaws and
are factual, there is no question, they are factual. Now if
anyone wants to deny that it isn't going to cost them dues
to join the Union, that it can cost, that they can be
subjected to penalties, and what it costs to try to drop out
or to get reinstated, if you are going temporarily out. Now
these are all matters of fact."
GOULET: "See, now I don't know that much about it."
RUBIN: "Well, I think a little more research would have
been helpful to all of the employees had they looked into it
before they got all excited about it."
GOULET: "See, they got excited before they looked into
anything."
RUBIN: "Yes, but somebody had to get them excited.
Now, I don't know who got them excited, but they
obviously got snowed under with a lot of sales talk, that
they really didn't have a lot of knowledge about it. If they
were given all of the facts, and all of the true facts and
allowed to make a decision on their own, I think that
maybe the results would have been a little different. Now
we had to come in after the fact, after they had already
signed the cards and begin to give them some of the facts as
we did in those first two meetings, and that's where they
began to back off, I guess. They began to see the picture
from our side of the thing. I say from our side, we
presented it exactly what it would mean to them if the
Union did get in, or if, they in fact did belong to the Union.
Well, I can't tell you anything more than that, but if you
come up with any constructive ideas I'd be happy to hear
them."
ROGER PROVOST (Boston Road restaurant Manag-
er): "Well, I can say if you have any problems, if you have
to come to see me, as you know I don't see them all of the
time."
GOULET: "Roger, you know that I never ran to the
office like 95% of those people do."
PROVOST: "Well, I can't help you if you don't mention
it, you know that."
GOULET: "But I'm not the kind that goes squealing.
You can't make just me over either, I mean-"
RUBIN: "We fully expect the situation is going to get
much rougher than it is now because the moment that Mr.
Wall [Union business agent] carries through on this threat,
remember, it was his threat, not mine, at the hearing at
which he said we are going to give you the same treatment
that we gave Vincents the night before, two nights before
our hearing last month in Boston, and what he did there
was he had some real loud-mouth people standing in the
picket line standing there swearing like troupers [sic] at the
customers that came in; anybody that walked through that
picket line. And it was most vile and if there is anything
that is derrogatory [sic] about the Union, it is to show how
childish they can act in an informational picket line like
that. Now I don't know if these people had justifiable
cause, but if an innocent customer and I heard of a
situation, I'll pass it back to you, I heard of a situation over
there and this is unfortunate, where an Italian family had a
visitor, a customer from a member of their family from
Italy visiting them and for this special occasion they took
that woman in their car and took her to Vincents and it
happened to be the night that that picket line was in effect
and what those people were subjected to was unbelievable
and that woman, who couldn't speak English who really
couldn't understand what the swearing was all about when
she was told by members of her family, and this came back
to me through some very authentic sources people that I'm
in touch with and I believe, personally, I don't know
whether you do or not that the story was valid. The woman
was appaulled [sic] and she said, I never would believe
that this could have happened in this United States. Here is
a woman coming from Italy who had a painted picture of
the United States of how democratic we are and what she
910
JACK AUGUST ENTERPRISES
was subjected to and the torment of getting their car
through that line and the swearing was unbelievable,
unbelievable. * * I * Probably the same pickets will be up
to our place. They are probably the ones who enjoy it. You
know some people are crazy. Maybe this is their kick in
life."
GOULET: "I know that Mr. Rubin, I know that very
well."
RUBIN: "Maybe that is their kick in life."
GOULET: "Thank you very much."
RUBIN: "But, lastly in closing I would only ask that you
think, I mean independent of our whole talk, that you stop and
think what possible ways you can add to the spirit in terms of
restoring the kind of afriendly relationship that we had before.
Now I don't know if that's at all possible; maybe we are only
dreaming."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all sides had the opportunity to present evidence and
arguments, the decision has been announced that we, Jack
August Enterprises, Inc., have violated the National Labor
Relations Act. We have therefore been ordered to post this
notice and to do what it says.
The National Labor Relations Act gives all employees
these rights:-
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT tell employees that they are on a "shit
list" or any other kind of list to give them the
impression that we intend to retaliate or discriminate
against them for union membership or activity.
WE WILL NOT threaten to close our restaurant down
or otherwise retaliate against any of our employees in
case it becomes unionized.
WE WILL NOT indicate to employees that union
membership or activity does not meet our standards for
continued employment or is wrongful, improper, or
contrary to our policies.
WE WILL NOT maintain or enforce any written or oral
rule or requirement, in violation of the Act, forbidding
or discriminatorily restricting union solicitation or talk
on our premises by our employees.
WE WILL NOT, in violation of the Act, interrogate any
employee as to what information he has given to or told
the National Labor Relations Board or its agent in
connection with any charge or proceeding before that
Board.
WE WILL NOT discriminatorily, or otherwise in
violation of the Act, change the work schedule, working
hours, or any other term or condition of employment of
any employee, so as to interfere with, restrain, coerce,
or intimidate him or her or any other employee because
of union membership, sympathy, or activity.
WE WILL NOT discharge, terminate, lay off, suspend,
or fail or refuse to recall, rehire, or reinstate, any
employee, or threaten to do so, because of his or her
union membership, sympathy, or activity.
WE WILL NOT discharge, terminate, layoff, suspend.
or fail or refuse to recall, rehire, or reinstate, any
employee in order to conceal or cover up our discharge
of another employee for union membership, sympa-
thies, or activities.
WE WILL NOT in any other way violate any of our
employees' rights under the National Labor Relations
Act.
WE WILL offer Jane Goulet and Charlotte Manegre
immediate, full, and unconditional reinstatement to
their former jobs as waitresses in our Boston Road,
Springfield, Massachusetts, restaurant, with full seniori-
ty and other rights, privileges, benefits, and emolu-
ments, just as if we had not discharged them on
January 22 and 23, 1976; and WE WILL pay each of
them in full, plus interest, for any wages and benefits
(including tips and gratuities, overtime, holidays,
vacations, and hospitalization, medical and other
insurance claims and benefits if any), lost by them since
those dates.
All of our employees are free to join or not to join any
union, or to exercise any other right under the National
Labor Relations Act, as they see fit, without interference,
restraint, or coercion from us in any form.
JACK AUGUST ENTERPRISES,
INC.
911