Le Madri Restaurant

National Labor Relations Board - Board Decisions

May 26, 2000

331 N.L.R.B. 269 (N.L.R.B. 2000)

LE MADRI RESTAURANT 269
127 Restaurant Corp. d/b/a Le Madri Restaurant and
Luis Jerez and Walter Magnuson. Cases 2–CA–
30176 and 2–CA–30729
May 26, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 23, 1999, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, 127 Restaurant Corporation
d/b/a Le Madri Restaurant, New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.

Christene Mann, Esq., for the General Counsel.
Michael Etkin, Esq. (Ravin, Sarasohn, Cook, Baumgarten, Fisch &
Rosen, P.C.), of New York, New York, for the Respondent.
Beth Margolis, Esq. (Gladstein, Reif & Meginiss, Esqs.), of
New York, New York, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge in Case 2–CA–30176 filed by Luis Jerez, an individual,
on March 4, 1997, and based on a charge in Case 2–CA–30729
filed by Walter Magnuson, an individual, on August 25, 1997, a
complaint was issued on July 31, 1998, against 127 Restaurant
Corp. d/b/a Le Madri Restaurant (Respondent).
The complaint alleges essentially that Respondent (a) warned
and informed its employees that it would be futile for them to
engage in union or protected concerted activity, (b) refused to
grant time off to Magnuson because he engaged in protected con-
certed activity in furtherance of his being a plaintiff in a lawsuit
against Respondent, (c) reduced the work shifts of Magnuson
because he engaged in protected concerted activity, and (d) dis-
charged Jerez and Magnuson because they engaged in concerted
activities, and because Respondent believed that Jerez had en-
gaged in union activities and to discourage employees from en-
gaging in such activities.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. Additionally, in the absence of excep-
tions, we adopt pro forma the judge’s recommended dismissal of the
allegation that Respondent’s president violated Sec. 8(a) (1) of the Act
by remarks concerning his employees’ lawsuit.
2 In affirming the violations with respect to employee Walter
Magnuson, we rely solely on Sec. 8(a)(1), and not Sec. 8(a)(3).
Respondent’s answer denied the material allegations of the
complaint, and on February 3, March 5, and April 16, 1999, a
hearing was held before me in New York City.1
On the evidence presented in this proceeding, and my observa-
tion of the demeanor of the witnesses2 and after consideration of
the briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation having its office and place of busi-
ness at 168 West 18th Street, New York, New York, is engaged in
the operation of restaurants serving food and beverages to the
general public. Annually, in the course of its business operations,
Respondent derives gross revenues in excess of $500,000, and
purchases and receives at its facility products, goods, and materi-
als valued in excess of $5000 which are purchased from suppliers
located in New York State, but which suppliers are firms engaged
in interstate commerce. I accordingly find and conclude that Re-
spondent is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The lawsuit against Respondent
Luis Jerez and Walter Magnuson were waiters employed by
Respondent, a Manhattan restaurant.
In late February1996, Jerez and Magnuson were among a total
of 19 named plaintiffs, members of the wait staff of Respondent,
who sued it in Federal court for violations of Federal and state
labor law. Specifically, the suit alleged that Respondent failed to
pay the plaintiffs’ minimum wage, overtime, call in pay, and
failed to reimburse them for the cost of purchasing and maintain-
ing their required uniforms. The suit also alleged that Respondent
unlawfully made deductions from their wages for tips and cash
losses, and misappropriated their tips by requiring them to partici-
pate in an involuntary tip sharing method, pursuant to which they
were required to share their tips with other “dissimilar” employees
and/or with agents of the Respondent.
A couple of days after the suit was filed, employees were re-
quired to attend a meeting at which Respondent’s president, Pino
Luongo, spoke to the entire wait staff which consisted of 15 to 20
employees. Also present was Alysa Adler, the day manager and
admitted supervisor. According to Jerez, this was the first meeting
conducted by Luongo in Jerez’ 4-month tenure there.
Jerez and employee Todd Piorier testified that Luongo threw
the lawsuit papers on the table, and asked why “this” happened
and why didn’t anyone come to him before “it got to this.” Piorier
characterized his demeanor as being “very angry, intimidating,
1 Following the close of the hearing, certain Charging Party exhibits
were missing from the exhibit file. Copies of those exhibits were in-
cluded in the exhibit file with the consent of all parties.
2 Charging Party moved that the testimony of Manager Alysa Adler
be struck on the ground that she violated the sequestration order by
reviewing the transcript of the hearing. My denial of the motion is
hereby affirmed. Respondent’s attorney represented that Adler did not
review the testimony of its other witness, and apparently thus only
reviewed the testimony of the General Counsel’s witnesses in order to
prepare for rebuttal of their testimony. As such, her review of the tran-
script was permissible. Greyhound Lines, 319 NLRB 554 (1995).
331 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
solemn and mean.” Several employees voiced their opinions in
response to Luongo’s statement. One unnamed employee volun-
teered that it was not possible to approach Luongo.
Jerez testified that he said that although Luongo had the author-
ity to set restaurant policy, the tips received by the waiters was
their business and they should decide how they are distributed. He
also told Luongo that the wait staff had voiced their concern to
management over being sent home although scheduled for shifts,
and over management’s abusive language during meetings with
the staff.3
Jerez also told Luongo that if this was a “union house, none of
these things would happen.” Luongo told those assembled that the
lawsuit was “totally frivolous and without merit,” adding that they
would not get any money from him since he was in complete
compliance with state and Federal laws. He also stated that their
“pro bono” attorney would be “crushed” by his $450 corporate
lawyer. He also said that “over [my] dead body, Le Madri would
become a Union restaurant,” and he would “close it down before.”
Piorier testified that Jerez voiced concerns that he had with Re-
spondent’s policies: tips were being illegally allocated to people
who were not entitled to receive them, such as parking lot atten-
dants and restaurant management; employees who were scheduled
for shifts and reported to work were told to leave when managers
decided that they were not needed; and complaints to management
were not acknowledged, but instead were ridiculed.4
According to Piorier, Jerez also remarked that “in a union
house, this would probably not ever have escalated to the point
that it’s gotten to.” Luongo, then became “irate” and said, “over
my dead body will you ever get this house to be a union house,
that before I would ever let that happen, I would close these doors
down.” The meeting ended “abruptly” at that point.
Piorier stated that perhaps one or two other employees made
comments concerning similar issues.
Piorier testified that 1 or 2 days after the meeting, General
Manager Alysa Adler approached him, and told him that Luongo
asked her to tell him that there would not be any “ramifications or
repercussions” if he decided to withdraw from the lawsuit. She
also mentioned that if he remained a plaintiff, there may be “coun-
terclaims” made against him by Luongo, and information may be
revealed which would have to be reported to the Internal Revenue
Service (IRS) as tip income. Piorier replied that he felt “confi-
dent” in his position as a plaintiff, and would continue with the
suit. Jerez also testified that Adler told him that the lawsuit had no
basis, and that Luongo would not penalize anyone if they with-
drew from it, adding that there was still time to withdraw. Jerez
replied that he did not think it was appropriate to be discussing the
lawsuit, and that they should leave it to the attorneys.
Piorier also testified that in the spring of 1996, Luongo dined in
the restaurant and he was assigned as his waiter. During the course
of the meal, Luongo, who was “jovial and blasé” about the suit,
told him that he would not win that case, and that there would be
no problems if he wanted to withdraw his participation in it. Lu-
ongo also told him that there would be counterclaims made
against him if he proceeded, and also mentioned that his tip in-
come would remain as a plaintiff.

3 A shift is one work session, for example one lunch on Monday, or
a dinner on Tuesday.
4 Poirier first testified that Jerez also complained about overstaffing
because Respondent absorbed employees of a closed restaurant, but
later conceded that overstaffing was not a problem at that time since
that other restaurant had not yet closed.
Piorier stated that following that conversation, he was told by
Philip Smith, the maitre d’, that Luongo did not want Piorier to
serve as his waiter when he dined at the facility, and thereafter he
was not assigned to work in the VIP section, where Luongo dined.
Piorier also stated that other lawsuit plaintiffs were not allowed to
wait on Luongo following the filing of the suit.
2. Luis Jerez
a. Complaints to management
Jerez worked for Respondent from June 1995 to November
1996. He has worked in the restaurant industry for more than
20 years, and prior to his service with Respondent, he was a
manager at the Rainbow Room in Manhattan.
In September 1996, a restaurant called Mad 61, which was
owned by Luongo, closed, and about four to six members of
that wait staff became employed at Respondent. Jerez testified
that because of the additional employees, Respondent’s wait
staff worked fewer days, were assigned to fewer tables, re-
ceived less tips, and were sent home more frequently, even
after being scheduled to work and reporting to work.
Jerez voiced these concerns to General Managers Adler and
Lesley Whitten and Night Manager John Hankinson during
preservice meetings and in private. He also spoke with his co-
workers about these matters. Jerez stated that Hankinson and
Whitten told him that this situation was temporary, and would
be resolved. However, according to Jerez, it became a perma-
nent problem and when he later became more outspoken about
it Whitten told him that if he did not like it he could leave.
Piorier corroborated Jerez’ testimony that he complained to
Whitten about overstaffing, and that she told him that he could
leave if he was dissatisfied.
Jerez testified that in late October and early November 1996,
he spoke to his coworkers, and with Managers Price and
Whitten, and Maitre d’ Smith, in protest of the tip policy, which
allocated tips to Managers Price and Smith, and other nonwait
staff.5
At about the same time, Jerez spoke with management per-
sonnel at preservice meetings about the adverse effects of the
addition of the Mad 61 employees, including being sent home
early. He was told that if he did not like it he could leave. He
also protested Luongo’s alleged verbal abuse of employees, and
his failure to tip them when they waited on him. Whitten told
Jerez that as an officer of the corporation Luongo did not have
to leave a tip.
Jerez also spoke to the kitchen staff about their complaints
that the new chef reduced their work hours, and sent them
home before they accumulated 40 hours per week in order to
avoid paying overtime rates. He advised them that they did not
have to accept such treatment, and that they should consider
getting together and unionizing, and that there were unions
which could help them stop Respondent’s abuse. He had four
such conversations with the kitchen staff, which took place in a
basement locker room next to a management office. Jerez
stated that when he used that office he could overhear conver-
sations in the locker room. Bartender Marcus asked Jerez
whether he heard anything about unionizing or mention of a
union. Jerez said that he did not, adding that a union was “long
overdue.”
5 Jerez conceded that Price may not have been employed in the period
September through November 1996, but nevertheless stated that Price had
been receiving part of the waiters’ tips during Jerez’ employment.
LE MADRI RESTAURANT 271
Whitten testified that she did not recall that Jerez complained
about overstaffing due to the Mad 61 closing, or about tips
being given to managers. She denied telling him that he could
leave if he was dissatisfied. Whitten stated that Respondent was
not overstaffed, but rather there was a shortage of wait staff,
and in fact the restaurant had required four to five additional
waiters, who had come from Mad 61.
b. The discharge of Jerez
(1) The General Counsel’s evidence
Jerez testified that on November 15, 1996, Whitten told him
that a customer made a complaint which had “gone to head-
quarters, all the way to the top”, and because of the “gravity of
the complaint” a decision had been made at headquarters to
discharge him.
Jerez replied that he doubted that that was the reason for his
termination, adding that he never had a complaint about his
work. Whitten denied that there was another reason, but added
that management had been “working with” him on his service.
When asked for an explanation, Whitten answered that John
Hankinson has had to assist him in his station and work with
him. Jerez denied that he had such help, and asked that Hankin-
son be called into the meeting, which he was. Hankinson told
Jerez and Whitten that he had been working in, and helping
with his (Jerez’) station. Jerez answered that that was part of his
job—management helps with and opens wine and helps with
family-style service. According to Jerez, Hankinson looked
“evasive,” and then left.
Whitten then showed Jerez an employee counseling notice
regarding this incident which noted that his performance was
“below standards” and recounted the customer’s complaint. As
testified by Whitten, on that day she received a call from Lu-
ongo who said that he had received a complaint from an attor-
ney with a large law firm with which the Respondent does a
great deal of business. The attorney told Luongo that a female
associate in the firm and her female friend had dined in the
restaurant the night before. The counseling notice prepared by
Whitten in relevant part, is as follows:

Two lady customers sat . . . in Luis’ section. They fin-
ished their meal at 9:30 p.m. having eaten 2 appetizers and
2 main courses and drank 2 glasses of wine. . . . They felt
that they had been ignored. They were not asked if they
wanted another glass of wine with their main course. They
said that they had to raise their hand each time to ask for
service. They had left the restaurant quietly and decided
never to return. They felt as if they had been treated like
second class citizens—maybe because they were 2
women, or had not spent enough, or not beautiful enough
or something.
Action Taken: For the last 2 days at pre-service meet-
ings we had discussed the importance of making everyone
feel welcome and have everyone leave with the wish to
come back. I consider this complaint serious enough to
warrant immediate termination.
Jerez recalled waiting on those customers, but denied provid-
ing less than his usual excellent service. He did not recall any
unusual incidents, did not see them raising their hands for ser-
vice, and did not recall that they left any less than the usual 15
percent tip.
Jerez testified that on that evening, he had been assigned by
Manager Hankinson to take special care of a table of customers
who were just being seated in his serving area. They had threat-
ened to leave the restaurant because they received poor treat-
ment at the door and because they had to wait too long for their
table. Jerez waited on the table and the customers were “very
happy” when they left.
Jerez testified that other waiters had received customer com-
plaints, including Paul Abrusso who forgot the first course for
his table. When the main course arrived, the customers com-
plained. According to Jerez, Abrusso replied that he was too
busy, “what do you expect me to do?” The customer, who was
“furious” complained to Hankinson, who reassigned Abrusso to
a different table. Jerez stated that Abrusso was not discharged
or disciplined for his conduct, which occurred in the same week
that Jerez was discharged.
Jerez was not aware of any waiter being discharged for a
customer complaint. He denied having a counseling session
with Hankinson or any other manager, and never received a
written warning concerning his work.
Jerez denied being told that he was fired for his participation
in the lawsuit, or because he complained about Respondent’s
rules or policies. Nor did he speak with Whitten concerning the
lawsuit.
(2) The Respondent’s evidence
Whitten testified that when Luongo told her of the customer
complaint, he directed her to look up the customer’s name, and
take care of the matter. She then found the customer’s name
and determined that Jerez served her. Whitten then asked Han-
kinson if he had observed any problems at that table or in that
area of the dining room, and Hankinson said that he had not.
Neither had Whitten noticed any problems with customer ser-
vice, nor had any been brought to her attention. She checked
with Maitre d’ Smith who also did not notice any problems.
Hankinson told her, however, that he had been working in
Jerez’ section, trying to give him “pointers” and “coach” him to
correct such problems and issues as lateness in serving, and
timing of the delivery of food to the tables.
Whitten stated that for the last 4 days before this incident,
she spoke to the waiters at the preservice meeting about the
importance of making every customer feel special, spoiled, and
overwhelmed with extraordinary service, so that they would
wish to return to the restaurant. She noted that sales had de-
clined from the prior year, and that a book which critiqued
restaurants noted that customers should “watch out for the ser-
vice—it has a bit of an attitude to it.” She told Hankinson that
she was disappointed in receiving the customer’s complaint,
particularly since she had stressed the importance of special
service. She decided that they would speak to Jerez that eve-
ning. Prior to discharging Jerez, Whitten had not spoken to the
customer who complained, or to her law partner who spoke to
Luongo.
At their meeting, Whitten told Jerez that she received a “very
serious complaint” and was upset since she had been stressing
the importance of great service, and that Hankinson had to
work with him often in addressing these issues. Whitten stated
that at that point, Jerez became “extremely defensive,” stating
that the incident was “made up,” was “ridiculous” and he did
not believe that there had been any problem with the customers.
He further stated that he did not believe that his patrons waited
too long for service, or that they would have wanted to order
more wine, especially since they were in a rush to leave.
Whitten then told him that “perhaps you just don’t understand
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
what I’m trying to accomplish here. Maybe this just is not the
right spot for you.”
Whitten testified that prior to the meeting, she had not deter-
mined to discharge Jerez, and had not known that he was a plain-
tiff in the Federal lawsuit. She decided to fire him when he “disbe-
lieved” that there was a problem with his service that evening,
which was in “complete disregard” of her attempts to improve
service. She stated that perhaps he had a problem taking orders
from her because she is a woman. She stated that she decided to
discharge Jerez because of his attitude toward the problem, and
because she had been speaking to the staff for the past 2 days
regarding this specific issue. She decided to fire him because he
did not understand that there had been a problem at the table, and
he did not understand what she was trying to “convey” to the staff.
She further stated that the incident was an extremely big problem
because this incident was an example of the issue she was trying
to correct. When she spoke to Jerez, she saw that he “just did not
understand.” She concluded that she was not going to “get
through” to him, he was being very defensive, and she did not
understand why he insisted that there was another reason for his
firing.
Whitten stated that after hearing Jerez’ reaction to the criticism
of his service, she decided to fire him, and she completed the “ac-
tion taken” section of the notice in his presence in which she wrote
that he was discharged. In support of her testimony that she had
not decided to discharge Jerez when she first met with him,
Whitten stated that she did not discuss with Luongo her decision
to fire Jerez. She denied Jerez’ statement that she told him that he
was being fired by direction of someone in the corporate hierar-
chy.
Whitten’s testimony is contradicted in two respects. First, Jerez
denied that Whitten wrote the “action taken” section while he was
present at the meeting, and stated that the form, including the
action taken noting that he was discharged, was completely filled
in when presented to him.
In addition, Jerez testified that Whitten told him that a decision
had been made by headquarters to fire him. In that respect, Jerez is
supported by Luongo’s deposition testimony in the Federal law-
suit that Jerez is “the one that I requested to be dismissed based on
the customer complaint.” He based that decision on a rating report
which spoke about his “lack of performance, inconsistency of
service,” and that he always needed a floor captain’s help in his
station, was “very sloppy in [his] overall performance,” and was
“struggling with the computers.” He stated that Whitten often told
him that Jerez was not performing well, and when he heard about
the customer complaint, “I made the decision myself without even
knowing that it was there at first, just the basis of the customer
complaint, and I choose to do this.” He also noted that Whitten
and Hankinson suggested that Jerez be fired because they did not
believe that he was “improving too much.”
Further, Whitten’s pretrial affidavit stated that, “I announced to
Jerez that I was disappointed because I had just discussed service
issues, and I said that I had decided to terminate him.” At hearing,
Whitten characterized that statement as a “summary” of what had
happened during the entire conversation, and not, as the General
Counsel contended, a statement that she entered the meeting with
the intention of firing Jerez.
Whitten conceded that she had never spoken to Jerez concern-
ing performance problems prior to that evening, and she had never
told Luongo about any such problems. She stated, however, that
she believed, although she never saw, that Hankinson addressed
some issues with Jerez concerning timing of service, but such
discussions were not considered disciplinary action against him.
With respect to customer service, Whitten explained that the
waiter is responsible for service in that if the kitchen staff does not
prepare the food in a timely manner, he is required to demand that
the food be presented.
With respect to Hankinson’s assistance to Jerez, Whitten con-
ceded that the floor manager’s job is to “back up” the waiter, and
if the waiter is too busy and cannot service the tables sufficiently,
he calls for the help of a floor manager. Further, if the floor man-
ager sees that help is needed he is expected to assist, even if not
requested by the waiter.
The Respondent’s personnel manual in effect at that time pro-
vides that if the employee breaks a policy or fails to follow proce-
dure, he was subject to “poor performance warning” progressive
discipline consisting of a counseling session with a manager for a
first offense and a note placed in the employee’s personnel file, a
written warning for a second offense, and termination for a third
offense.6
The manual also provided that grounds for immediate dismissal
included “gross neglect, such as careless handling or abuse of
company property,” fighting, theft or vandalism, serving free food
to customers, using profane language, insubordination including
refusal to obey an instruction or using insulting, abusive or threat-
ening language to a supervisor, tampering with a time card or
punching another employee’s timecard, possession or use of a
weapon, gambling or illegal drug use on the premises, sleeping on
company time, dishonesty, altering a check including changing a
tip, and confronting a customer over a tip or any other difference
of opinion.
In answer to a leading question by Respondent’s counsel,
Whitten testified that she believed that Jerez’ treatment of the
customer at issue constituted “gross neglect” of the customers and
therefore constituted grounds for immediate discharge pursuant to
the personnel manual’s rules.7
Piorier, who was employed from October 1995 to April
1998, knew of no other waiter who was fired for a customer
complaint. Indeed, no evidence was presented that any member
of the wait staff had been disciplined or discharged due to a
customer complaint.
3. Walter Magnuson
a. The General Counsel’s evidence
Magnuson was employed by the Respondent for over 4 years,
from April 1993 to June 1997. He was a plaintiff in the February
1996 lawsuit against the Respondent. Within 1 or 2 days after the
lawsuit was filed, he received a phone message from Manager
Alysa Adler, asking him to call her. He did not do so, but 1 or 2
weeks later, Adler told him that as part of the lawsuit, the Respon-
dent had to present its books to the IRS, and she hoped that he had
reported all his tips. Magnuson replied that he had.
Adler testified, admitting that she contacted or attempted to
contact every plaintiff, advising them that they could withdraw the
suit if they wished, and that there might be counterclaims filed
against them if they did not withdraw it. She also told them that
since the suit concerned tips, their tax information would be “ex-
posed” and provided to the Government. She also told them that

6 A somewhat different procedure was in effect later, in April 1997,
pursuant to a revised personnel manual.
7 “Q. Do you consider Mr. Jerez’ conduct with regard to the patrons
that evening as gross neglect of those customers? A. Absolutely.”
LE MADRI RESTAURANT 273
they did not report their tips accurately and now, because of the
suit, they would have to reveal their tip records. She did not
threaten them with discharge, or tell them that their jobs were in
jeopardy if they did not withdraw the suit.
At hearing, Adler explained that she contacted the plaintiffs be-
cause the Respondent was not aware of the reason for the suit, and
wanted to leave the matter “open for discussion.” She told them
that if there was “something we could help you with” as an alter-
native to their pursuit of the legal action perhaps they could “work
it out” or “help” them.
b. Discipline and discharge of Magnuson
One month after the filing of the lawsuit, while at work on
March 19, 1996, Magnuson went into the kitchen and asked the
expediter, who was Executive Chef Johnny Scapan, about the
status of an order for his table. Scapan answered that he could not
speak with him about the tables. Magnuson said, “fuck you” and
left the kitchen. Magnuson explained that the job of the expediter
is to facilitate the movement of food out of the kitchen.
Magnuson stated that profanity was used in the kitchen, and he
had used the same language toward Scapan in the past, and Sca-
pan had also used such language in a joking way which was part
of the “give and take” and stress of the serving atmosphere. Nev-
ertheless, this time Magnuson received a two-shift suspension.
The notice stated that “Walter made a remark that offended the
executive chef in front of all his staff with disrespect.”
That was the first time that Magnuson was disciplined or coun-
seled in the 3 years that the Respondent had employed him.
One year later, on Tuesday, April 22, 1997, a deposition was
taken from General Manager Adler in the office of the Charging
Parties’ attorney, Beth Margolis. Magnuson and other waiters
were present. Occasionally, Magnuson was asked questions by
Margolis as he sat in the audience.
Adler testified that the April 1997 deposition she gave as part of
the lawsuit was the first deposition she had ever given. She said
that she was nervous and described the experience as unpleasant.
Although she knew that observers could be present, she was sur-
prised to see Magnuson there as she did not know that he would
be in attendance.
Magnuson stated that prior to the deposition, his working rela-
tionship with Adler was friendly and warm. However, the next
day he found Adler to be “very distant, cold,” with no eye contact
between them, and they did not converse that day.
At the end of that week, as he was leaving work, Night Man-
ager Hankinson told him that Adler was very upset about a cus-
tomer complaint card left at his table on April 23. The card stated
that “the food was good but the service wasn’t—our waiter disap-
peared repeatedly, and a business dinner that should have taken 2
hours took 3 hours. I would think twice about coming back espe-
cially for a business dinner.” Magnuson replied that he was sur-
prised at the complaint, but that he would be “extra attentive” in
the future.
Adler testified that she tried to call the customer at her resi-
dence in California but she had not returned to that state by the
time Adler called her. She stated that if a waiter receives a nega-
tive customer comment, someone in management speaks to the
waiter about it. She did not notice a problem at that table, but was
told by Hankinson that he (Hankinson) had to give extra attention
to the table. She asked Hankinson to speak with Magnuson about
the matter, and to write a warning notice. Hankinson wrote the
notice, which will be discussed, below.
During his employment, Magnuson was enrolled in a master of
fine arts program in college that involved his acting in certain
performances during the school year. At various times, he re-
quired as much as 2 weeks off from work in order to rehearse for
the performances. Respondent accommodated his school and
performance schedules, and his work schedule varied according to
these endeavors.
Magnuson testified that in mid-April 1997, he asked Adler for
time off from May 7 through May 18 for rehearsals and an up-
coming performance. Adler told him “okay” and advised that he
put a written request in the schedule box, which he did. Thereaf-
ter, he submitted the same request on each Wednesday, through
the end of April.
On April 30, Magnuson again made a request for that time off,
and was told by Adler to give his request to Sue, the day manager
who was then doing the scheduling.
Magnuson gave his written request to Sue, and told him that he
had previously requested the time off from Adler, with a modifi-
cation that he was available on May 10.
On May 3, the schedule was posted, and Magnuson noted that
he was scheduled to work on May 10 and 11, which was Mother’s
Day. He told Sue that he could not work on May 11.
At the end of his shift on May 10, Hankinson told Magnuson
that the following day was Mother’s Day, and everyone was re-
quired to work that day. Magnuson replied that he (Hankinson)
knew that Magnuson would not be working the following day
because of a rehearsal. Hankinson said that he would leave a note
for Sue.
In the morning on May 11, Magnuson called Sue and told her
that he would not be reporting to work as he had a rehearsal all
day. Sue replied that he was scheduled to work, he must come in
and if he did not, “appropriate action” would be taken. Magnuson
did not report to work.
On May 16, Magnuson called the restaurant and learned that his
name was not listed on the daily work schedule for the week end-
ing May 25. On May 19, he went to the restaurant and asked
Adler why his name was not on the schedule. Adler replied that
she was confused, and did not list his name since she did not know
when he was returning from the show. She also said that the Re-
spondent hired many full-time employees, and since he was work-
ing only half time, the Respondent’s priority was to “take care” of
the full-timers. Adler said, however, that she would ensure that he
was on the next week’s schedule. Adler did not mention the fact
that Magnuson did not work on Mother’s Day.
Magnuson’s name was listed on the bottom of the next week’s
schedule, the week ending June 1. He was assigned to one shift
that week. The following week he was scheduled for five shifts,
but not his former schedule—which was Wednesday, Saturday,
and Sunday nights.
Magnuson and Piorier stated that preference in time off was
given by seniority. The schedule was arranged with the most sen-
ior employees being listed at the top. Piorier stated that scheduling
was done by seniority, with those employed the longest asking for
and receiving the shifts they wanted. Piorier further stated that the
shifts employees worked were based on what shifts they wanted
and when the waiter was available to work. Piorier also stated that
manager Price told him that employees were listed on the schedule
in order of seniority.
Adler stated that there was no significance to Magnuson’s be-
ing at the bottom of the schedule. She copied the names from the
prior week, and since he was not listed that week, she wrote his
name on the bottom of the schedule. She conceded that if an em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 274
ployee is not working for 1 week, usually his name would be in
the same place on the schedule. It should also be noted that for the
week ending June 8, his name was again on the bottom of the
schedule, but nevertheless, according to the Respondent’s sched-
ule, was scheduled to work five shifts that week, more than his
normal workload.
On June 7 the restaurant was used solely for a private party to
begin at about noon. Magnuson was scheduled to report at 10 a.m.
and work until the end of the party, at 3 or 4 p.m. On that day,
Magnuson drove to work and was delayed by traffic. He arrived at
about 10:20 a.m. Adler approached him and told him that he was
late. Magnuson apologized and said that he was delayed in traffic.
He had considered calling to say that he would be late, but did not
want to take the extra time to make the call.
At the end of his shift, he was told to speak with Adler. At the
meeting, at which Hankinson was also present, Adler told him he
was terminated because he was 20 minutes late to work that day.
Adler showed him a notice in which she wrote that Magnuson
arrived at 10:24 a.m. without calling to say he would be late.
“There was a private function at the restaurant and a full staff was
required to be in at 10:00 a.m. to set up the rooms.” Magnuson
wrote on the form “stuck in traffic on Brooklyn Bridge, no history
of lateness.”
Adler also showed him three other disciplinary notices: cursing
Executive Chef Scapan; the customer complaint; and his refusal to
work on Mother’s Day.
The only written notice he had received prior to that day was
the one for cursing Scapan, discussed above. The writeup for the
customer complaint simply repeated what the customer wrote on
the card, set forth above. On June 7 Magnuson wrote on that
counseling notice that he could not account for the customer’s
perception, in that he never disappeared, and attempted to give
excellent service.
The notice for Mother’s Day stated that Magnuson was sched-
uled to work 2 shifts that day, and was told that requests for time
off would not be honored because “the business of the restaurant
requires a full staff on Mother’s Day. Walter did not show up nor
did he call that day.” Magnuson wrote on the notice that he called
and spoke to Sue. Adler conceded at hearing that Magnuson was
only scheduled to work one shift on Mother’s Day, and that he
called in that day.
Magnuson testified that before and after the filing of the lawsuit
in February 1996 he was given whatever time off he requested,
other than Mother’s Day, 1997.
Magnuson testified that after the suit was filed, and beginning
about September 1996 he began working about three shifts per
week as opposed to a full five plus shifts per week. Nevertheless,
his schedule requests were honored at all times. Other waiters
worked about three shifts per week.
At the time of his discharge, other plaintiffs, such as Piorier, Se-
ron, and Virhuez were still employed.
c. The Respondent’s evidence
Adler stated that with respect to the lawsuit, she was not in-
structed to treat any of the plaintiffs differently or scrutinize their
work any differently than any other employee. She told them that
whatever they wanted to do was their own business, but when
they were working it was “business as usual.”
The event that precipitated Magnuson’s discharge, the private
party, involved an extensive setup according to Adler. Tables,
chairs, and hutches had to be moved and the party involved an
unusual style of service that included a dance floor, buffet area,
and a children’s area.
When Magnuson arrived, Adler told him to change his clothing
as there was work to do. The employees had a 30-minute meal and
a staff meeting before the party. Although Adler agreed that
Magnuson could have chosen not to eat the meal but instead work
during the meal period, she stated that he could not choose the
time to report to work. Adler stated that he arrived during the
period of time used to prepare the room.
Although the party began on time at noon, Adler stated that the
hosts were expected to arrive before that time for a “walk-
through” in order to ensure that the room was arranged according
to their expectations. Last minute changes are made then. Adler
apparently was emphasizing the importance of early room setup
so that it would be ready for the hosts’ inspection.
Adler conceded that to her knowledge Magnuson had no prior
history of lateness, and she had no reason to doubt that he was
delayed by traffic that day.
Adler stated that at the end of the day, she decided to issue a
written warning to Magnuson for being late and not calling to
inform Respondent that he would be late, as is required. In this
regard, the Respondent’s personnel manual states that employees
are required to call if they will be late to work. It further states that
“tardiness will result in a warning and excessive tardiness may
result in termination of employment.” She opened his personnel
file, observed three other prior writeups, and decided to discharge
him.
It was stipulated that of the counseling notices written for em-
ployee misconduct during the period July through December
1997, only one referred to lateness. However other counseling
notices written outside that period of time referred to lateness.
Respondent’s personnel manual in effect at the time of
Magnuson’s discharge provides that unacceptable conduct may
lead to disciplinary action up to and including termination in cer-
tain circumstances:

Failure to perform job or work assignments satisfactorily,
safely and efficiently. . . .
Interfering with or hindering work schedules, failing to
work on a shift as scheduled . . . failing to call in advance
when late or absent, excessive tardiness or absenteeism.

The manual in effect at that time provided for “standard steps
of progressive discipline” for violation of company rules, includ-
ing a documented verbal warning, written warning, final written
warning, suspension pending investigation, and termination.
These steps were not followed. Magnuson testified that, aside
from the written warning he received concerning the chef, he
received no other discipline or warnings prior to his discharge.
Adler testified that she alone made the decision to fire
Magnuson, and did not consult with anyone prior to making that
decision, or before advising him that he was terminated. She spe-
cifically denied speaking to Luongo before discharging
Magnuson. However, her pretrial affidavit stated that she called
Luongo and told him that Magnuson was late that day. She men-
tioned that there were some other writeups, and Luongo asked
what they were. Adler told him, and Luongo “then agreed with me
that Magnuson should be fired.”
At hearing, in explanation, Adler stated that on June 7, the day
of the private party, she decided to terminate Magnuson on her
own, and did so. About 1 hour later she spoke to Luongo about the
party, and he asked how it went. She told him that there was a
“little bit of a mishap” in the morning in that Magnuson was late.
LE MADRI RESTAURANT 275
Adler told him that she was going to write him up, but looked at
his file and determined that it was “time to fire him.” Luongo
asked what the previous instances of misconduct were and Adler
told him. He then said that she “made a good decision.”
With respect to the other three writeups she relied on in basing
her decision to discharge Magnuson, she had no firsthand knowl-
edge of the incident concerning the cursing of the executive chef.
Regarding the customer complaint, Adler stated that customer
complaints are a daily part of the restaurant business. The Re-
spondent is a “classy” restaurant whose clientele of demanding
customers and celebrities have high expectations. She agreed that
complaints may be very subjective, and that one customer might
find objectionable what another would not, and that management
sometimes does not agree that a complaint is valid. Respondent’s
personnel manual states that “with the expectation level that our
guests have of us, critical comments are a daily part of business.
Tastes and expectations are outside of our control to some de-
gree.”
Regarding Magnuson’s refusal to work on Mother’s Day, Adler
testified that the Respondent honored Magnuson’s requests for
time off if they did not interfere with its business. Mother’s Day
was the only day in which his request for time off was not hon-
ored. That request was not honored because it is historically a very
busy day where all staff members are required to work. She noted
that during the several months before Magnuson’s termination in
June 1997, she noticed a slight reduction in his performance or
attitude. He seemed “very cavalier” about his job. Her pretrial
affidavit stated that she could not recall when Magnuson first
asked her for time off during the period including Mother’s Day.
She conceded that it was possible that he first made a written re-
quest in early April for such time off. She further conceded that
she may not have answered the request. He conformed to her
procedure in that he put the request in the envelope. Adler further
stated in her pretrial affidavit that she had no recollection that he
asked for the block of time off, from May 5 to 18, but that had he
done so because of his unavailability, she would not have sched-
uled him for Mother’s Day.
Indeed, Respondent’s personnel manual provides that Respon-
dent “will allow team members to take a limited number of weeks
off as an unpaid leave of absence. Employees are required to ad-
vise their supervisor immediately of such a request which “must
be reviewed and approved by Human Resources.”
Eleven of the 13 members of the wait staff worked on Mother’s
Day.8 Of those 11, 4 worked a double shift—lunch and dinner.
Adler stated that the restaurant was busy that day.
Adler testified that she could have requested that employees
Jack Buttigleg, Sal Kader, and Olof Sander, who worked only the
lunch shift that day, work the dinner shift on Mother’s Day, but
did not do so. Such an assignment would cause them to be paid
overtime, which Adler was reluctant to do.
With respect to the wait staff working overtime, a review of
certain employee weekly work schedules in evidence for the 6-
month period from the weeks ending September 22, 1996, through
March 30, 1997, reveals that an average of 15 wait staff worked
each week. In only 4 of those weeks no employee worked more
than 40 hours. In contrast, in 2 weeks 10 of the 15 employees
worked more than 40 hours;9 in 2 weeks 9 employees worked
more than 40 hours;10 in 1 week 8 employees worked more than

8 CP Exh. 9.
9 November 3 and December 15.
10 November 10 and 17.
40 hours;11 in 3 weeks 7 employees worked more than 40 hours;12
in 2 weeks 6 employees worked more than 40 hours;13 in 4 weeks
5 employees worked more than 40 hours;14 in 1 week 4 employees
worked more than 40 hours;15 in 1 week 3 employees worked
more than 40 hours;16 in 3 weeks 2 employees worked more than
40 hours;17 and in 1 week18 1 employee worked more than 40
hours. In 1 week, March 23, the schedule stated that one em-
ployee “was cut early to avoid overtime.”
Adler stated that one waiter, Piorier, was out of town on
Mother’s Day. In fact, as he testified, on April 29 he requested to
have Mother’s Day off because it was his birthday. That weekend,
Adler announced to the wait staff that the entire staff would be
working on Mother’s Day. Piorier told her that he had requested
the day off as it was his birthday. Adler told him not to worry, and
that she would “work something out.” Piorier stated that 1 year
earlier, on Mother’s Day 1996, the restaurant was not busy al-
though a full staff was present that day. He stated that the restau-
rant was staffed according to the expected volume of business.
The Respondent had always granted Magnuson’s requests to
change his schedule, and had granted him leaves of absence for
his school and acting endeavors. In fact, in December 1996, Re-
spondent permitted Magnuson to be absent from work for 3 weeks
at Christmas, typically the busiest time of the year.
Adler stated that no employee ever discussed union activity or a
desire for union representation with her, and she never heard any-
one discussing that topic.
Adler stated that Respondent’s employment policy includes
giving a warning to an employee and, depending on the situation
and on how many problems he has had, permitting him an oppor-
tunity to correct his behavior. She stated that for each problem, the
manager is supposed to inform the employee, document it in writ-
ing, and give him the opportunity to correct it.
Piorier stated that he knew of only one waiter, other than Jerez
and Magnuson who was fired for misconduct—that was Roy, who
was fired for drinking on the job. Another employee, Antonio
DaSilva, was suspended for the same reason. In addition, Mary
Faith Cerasoli was discharged. According to Piorier, she was one
of the “initiators” of the lawsuit, and management showed an
“open dislike” for her.
Analysis and Discussion
A. The Alleged Violation of Section 8(a)(1) of the Act
The complaint alleges that in February 1996 Luongo warned
and informed employees that it would be futile for them to engage
in union or protected concerted activity.
As set forth above, 19 employees of the Respondent became
plaintiffs in a lawsuit against it in February 1996 which alleged
that the Respondent had engaged in certain unlawful activities
with respect to their pay and tip policies.
It is well settled that the filing of a civil action by employees
is protected activity unless done with malice or in bad faith.
Trinity Trucking & Materials Corp., 221 NLRB 364, 365
(1975); Host International, 290 NLRB 442, 443 (1988). There
is no evidence of malice or bad faith here. Of course, by joining
11 September 29.
12 October 13, 27, and December 22.
13 October 20 and February 23.
14 November 11, December 29, February 9 and 16.
15 February 2.
16 September 22.
17 January 12, 19, and 26.
18 March 30.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 276
together to file the lawsuit they engaged in concerted activity.
Respondent’s answer admits that the employees concertedly
filed the action.
I credit the uncontradicted testimony of Jerez and Piorier that at
the meeting called shortly after the suit was filed, Respondent’s
owner Luongo, in response to Jerez’ remark, told the assembled
employees that “over my dead body” would the Respondent be-
come a “union house,” and before he would let that happen he
would close the restaurant. This warning was clearly informing
employees that Luongo would not permit union representation at
the restaurant, and that he would close the business in order to
prevent its unionization. Such a remark violated Section 8(a)(1) of
the Act since its impact is advice to employees that it would be
futile to seek union representation. Portsmouth Ambulance Ser-
vice, 323 NLRB 311, 319 (1997); South Nassau Communities
Hospital, 262 NLRB 1166, 1175 (1982).
However, I cannot find that Luongo’s further remarks sug-
gested that it would be futile to engage in protected concerted
activity, as alleged. Luongo told the assembled employees that
their lawsuit was frivolous and without merit, and that he would
not have to pay any money since Respondent was in compliance
with all laws. He added that their lawyer would be “crushed” by
his lawyer. These remarks constitute a lawful prediction of the
outcome of the lawsuit based on Luongo’s belief that Respondent
did not commit violations of the law. There was testimony here
that the Federal lawsuit was settled. There was no evidence pre-
sented that Respondent was in violation of any of the laws it was
charged with, or that Luongo did not have an objective, good-faith
belief that the case had no merit. I accordingly find no violation in
Luongo’s remarks concerning the lawsuit.
B. The Alleged Violations of Section 8(a)(3) of the Act
1. The discharge of Jerez
The complaint alleges that Jerez was discharged because of his
concerted activities, and because the Respondent believed that he
engaged in union activities.
Jerez was a plaintiff in the lawsuit brought against the Respon-
dent, and was outspoken at the mandatory meeting conducted by
Luongo shortly after the suit was filed. As set forth above, Jerez’
corroborated and uncontradicted testimony established that at the
meeting he expressed his coworkers’ concern about working con-
ditions and loss of tips. When he voiced his opinion that if the
Respondent was a union house this would not have occurred, he
was the subject of an unlawful threat that the Respondent would
close before it became a union house. By expressing his opinion,
Jerez identified and aligned himself with a union solution to the
problems faced by employees.
I am aware that Jerez did not contact a union and no overt at-
tempts at unionization occurred. However, it is clear that Luongo
apparently believed that Jerez had union sympathies based on his
comment at the meeting.
Jerez’ voicing of employee complaints, including the allegedly
improper deduction of money from tips constituted protected
concerted activity. Liberty Ashes & Rubbish Co., 323 NLRB 9, 11
(1997); C & D Charter Power Systems, 318 NLRB 798 (1995);
Neff-Perkins Co., 315 NLRB 1229 fn. 1 (1994).
Thereafter, from September through November 1996, Jerez
continued to complain to his managers about the loss of work and
pay due to the assumption of the Mad 61 employees, and the tip
allocation problem. I credit Jerez’ corroborated testimony over
that of Whitten who said that she could not recall that Jerez raised
these problems.
In view of the lawsuit that addressed the tip issue, and Jerez’
uncontradicted testimony that he mentioned certain of these mat-
ters at Luongo’s meeting, I find that Jerez would have spoken to
his managers about these issues. Further, his testimony in this
regard was corroborated by employee Piorier. These complaints,
too, constituted protected concerted activity. “Concerted activity
encompasses those circumstances where individual employees
seek to initiate or to induce or to prepare for group action, as well
as individual employees bringing truly group complaints to the
attention of management.” Liberty Ashes, supra at 11. Jerez’
comments were certainly an outgrowth of the action taken by
employees in bringing suit against the Respondent.
Based on the above evidence, I find that the General Counsel
has made a showing that Jerez’ union and protected concerted
activities motivated the Respondent’s decision to discharge him.
His publicly expressed belief that unionization of the Respondent
would have prevented the alleged misallocation of tips and poor
working conditions evoked a strong reaction in the Respondent’s
president, who said that unionization would occur over “my dead
body” and that he would close the Respondent before that took
place.
Jerez’ concerted complaints about working conditions contin-
ued up until the time of his discharge. Whitten’s reaction to them
were advice that Jerez should quit.
Having found that the General Counsel has established that the
union and protected concerted activities of Jerez were motivating
factors in his discharge, the burden shifts to the Respondent to
establish that it would have discharged Jerez even in the absence
of his union and protected activities. Wright Line, 251 NLRB
1083, 1089 (1980).
Prior to his discharge for a customer complaint, Jerez had not
received any disciplinary action during his 1-1/2 years of em-
ployment with the Respondent.
There has been no evidence that any employee has been dis-
charged for a customer complaint. “The failure of an employer to
show that it has treated employees in the past in a similar manner
for engaging in similar misconduct to that of the alleged discrimi-
natee has been held to be an important defect in the employer
meeting its Wright Line burden.” Grand Central Partnership, 327
NLRB 966, 972–973 (1999).
Further, Respondent’s treatment of Jerez differed substantially
from another customer complaint which occurred in the same
week as Jerez’ discharge. Thus, as set forth above, waiter Abrusso
was rude to customers who complained to the manager. He was
reassigned to another table, but did not suffer any discipline and
was not discharged for that conduct. Indeed, as recognized by the
Respondent’s manual and the testimony of Managers Adler and
Whitten, customer complaints, which are very subjective and may
not always be valid, are a daily part of the restaurant business. As
set forth in the manual, the Respondent’s emphasis appears to be
to try to placate the customer while she is at the table with offers
of a replacement dish or free food. The emphasis is not on disci-
pline of the wait staff.
With respect to the specific complaint for which Jerez was dis-
charged, there was no evidence that any of the managers or maitre
d’ saw anything lacking in Jerez’ service that night. Indeed, he had
been assigned that evening by Manager Hankinson to take special
care of customers who had received poor service at the door. In
this respect, Hankinson’s helping at Jerez’ station cannot be con-
sidered an effort to improve his service. Rather, a manager is ex-
pected to assist when needed. Even according to Whitten’s testi-
mony, Hankinson told her that he noticed no problems at the table
LE MADRI RESTAURANT 277
in question or at Jerez’ station. Further, Hankinson’s assignment
of Jerez to unhappy customers undermines Whitten’s testimony
that Hankinson told her that Hankinson had to assist Jerez.
The disciplinary report was written prior to Jerez being asked
about the incident. In this connection, I credit Jerez’ testimony that
the disciplinary report, including the notation that he was termi-
nated, was completely written when he entered the room.
Whitten’s testimony that she simply wanted to discuss the incident
with Jerez, and then terminated him when he became upset and
defensive, is not credited. Jerez’ testimony that he was told that
the complaint had gone all the way to the top and that a decision to
discharge him had been made at headquarters is supported by
evidence that Luongo was made aware of the complaint, and ac-
cording to Luongo’s deposition testimony he gave the order to fire
Jerez.
The notice of discharge refers to the customer complaint, and
the fact that at preservice meetings service to customers was
stressed. However, the notice does not refer to Jerez’ alleged poor
attitude as being the reason for the discharge. Whitten asserted
that both the incident and his refusal to believe that he had done
anything wrong contributed to the decision to discharge him,
however there is nothing in the discharge notice which indicates
that Jerez’ refusal to believe that he did anything wrong and de-
fensive attitude toward the problem played a part in his discharge.
Indeed, the notice states that Whitten “considers this complaint
serious enough to warrant termination.” Thus, the reason for the
discharge as set forth in the notice is the customer complaint only.
The manner in which the termination was made is also indica-
tive of an improper motive. Whitten had not even spoken directly
to the customer involved. Her report was third-hand. The cus-
tomer related the story to her partner who told Luongo, who then
advised Whitten. As the only person with direct knowledge of his
service, Jerez was not given an opportunity to relate his response
to the complaint prior to the decision to discharge him. Paper
Mart, 319 NLRB 9, 10 (1995). It is significant that the managerial
personnel present during the evening’s service who were in a
position to see any problem with Jerez’ performance observed no
problems at all.
With respect to the Respondent’s argument that Luongo and
Whitten did not know the name of the waiter to whom the com-
plaint referred, apparently Luongo became aware that Jerez was
the waiter involved. Luongo’s deposition testimony sets forth in
detail that he was made aware of Jerez’ alleged shortcomings prior
to his discharge, and that he decided to terminate him when he
heard about the customer complaint. Accordingly, I cannot credit
Whitten’s testimony that she did not speak to Luongo about Jerez’
performance prior to his discharge when Luongo stated that she
did. Further, if they spoke, it was likely that Whitten discussed
Jerez’ complaints about working conditions.
Even assuming that Jerez’ performance was the subject of prior
discussions, no documentation was made of it, and no discipline
was given. Indeed, the testimony that Hankinson allegedly needed
to assist Jerez on the evening in question is suspect inasmuch as
Hankinson apparently thought enough of Jerez’ abilities to assign
him to a table of disgruntled customers that night.
Jerez’ termination appears to have deviated from the Respon-
dent’s rules concerning progressive discipline. According to those
rules, the employee is to be warned for his first offense. This was
the first disciplinary action that Jerez had received during his ten-
ure with the Respondent, and accordingly he should have been
warned for this offense. Whitten testified however, in answer to a
leading question by counsel, that his discharge constituted “gross
neglect of customers” and his discharge was therefore proper
pursuant to the manual’s provision that “gross neglect” is a ground
for immediate discharge.
However, a plain reading of those provisions does not lead me
to believe that this type of conduct, especially unnoticed by any
managerial personnel when it occurred, constituted gross neglect
of the customer sufficient to warrant immediate discharge. The
manual described “gross neglect” as “careless handling or abuse
of company property.” It does not mention customer relations.
Other examples of grounds for immediate discharge set forth in
the manual strongly suggest that only the most serious misconduct
warranted summary discharge. Such conduct included fighting,
theft, cursing, insubordination, sleeping, timecard offenses, weap-
ons, gambling, drug use, sleeping, dishonesty, and confronting a
customer.
In this connection, it should be noted that Magnuson was not
immediately discharged for cursing the chef, although the rules
provided for that disciplinary action. He was given a written warn-
ing instead. In addition, Whitten did not seem to base Jerez’ dis-
charge on that provision of the manual. Rather, she only sought to
give him a warning for that offense but then, according to her
testimony, decided to fire him on hearing his defensive reaction.
Respondent argues that the passage of time, 9 months, since the
time of the filing of the lawsuit until Jerez’ discharge disproves the
existence of an antiunion motive, citing Meco Corp. v. NLRB, 986
F.2d 1434, 1437 (D.C. Cir. 1993). First, the timing of the dis-
charge in relation to the employee’s union or concerted activities
is only one factor to be considered in determining the lawfulness
of the discharge. The court in Meco stated that the Wright Line test
requires that the timing of the alleged reprisal be proximate to the
protected activities.
Here, I find that Jerez’ concerted activities were proximate to
the discharge in that his complaints about working conditions to
Whitten continued up until his discharge. Whitten, who dis-
charged him, was the same person who told him he could leave if
he did not like the situation. In addition, the discovery phase of the
Federal lawsuit was ongoing at that time, and Luongo was sched-
uled to be deposed in late October or early November. Given
Luongo’s reaction to the lawsuit exhibited in February, his ex-
treme reaction to Jerez’ suggestion that a union would have pre-
vented the problems which prompted the lawsuit, and his advice
to plaintiff Piorier thereafter that if the suit was not dropped coun-
terclaims could be brought against the plaintiffs, it is clear that
Luongo harbored animus toward Jerez up until the time of his
discharge. See Flannery Motors, 321 NLRB 931 (1996).
Based on the above, I find that Respondent has not met its bur-
den of proving that it would have discharged Jerez even in the
absence of his union and concerted activities, and therefore, I
conclude that his discharge violated Section 8(a)(3) and (1) of the
Act. Wright Line, supra.
1. Walter Magnuson
a. General Counsel’s case
Magnuson engaged in protected concerted activities by partici-
pating as a plaintiff in the Federal lawsuit brought against Re-
spondent. He received no disciplinary warnings in the 3 years
prior to the institution of the suit. However, about 3 weeks after
the lawsuit was filed, he received a warning for using foul lan-
guage toward the chef. That discipline is not at issue here. Indeed,
Magnuson conceded that his conduct was not proper behavior. In
addition, the personnel manual provides that such behavior is
grounds for immediate discharge. Nevertheless, according to his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278
testimony, cursing was commonplace in the kitchen, and there
was no evidence of others who have received discipline for engag-
ing in such conduct.
Accordingly, there appears to have been a change in Respon-
dent’s handling of infractions of its rules. Thus, prior to the institu-
tion of the lawsuit, there was no evidence that discipline was given
for violations of, at least this rule. Following the filing of the suit,
discipline was imposed.
The lawsuit was filed 15 months before Magnuson’s discharge.
Respondent argues that the passage of such a long period of time
must negate any inference that it bore animus against the plain-
tiffs. That argument would have merit if no activity in the lawsuit
had occurred between the time of the filing of the suit and the
discharge. However, as set forth above, Adler gave a deposition
on April 22, 1997, at which Magnuson was present, and assisted
the Charging Party’s attorney.
Adler testified here that she was surprised to see Magnuson,
and the event was not pleasant. I credit Magnuson’s testimony that
Adler’s attitude toward him changed immediately following her
appearance at the deposition. Thereafter, within 2 months,
Magnuson was denied a day off which he had requested, his work
shifts were reduced, and he was discharged, the basis for which
being one lateness and three disciplinary notices, only one of
which he was shown at the time of the actual incident.
Based on the above evidence, I find that the General Counsel
has made a showing that Magnuson’s protected concerted activi-
ties motivated the Respondent’s decision to deny him time off,
reduce his work shifts, and discharge him.
Having found that the General Counsel has established that the
protected, concerted activities of Magnuson were motivating fac-
tors in the discriminatory actions taken against him, the burden
shifts to the Respondent to establish that it would have taken such
action even in the absence of his protected activities. Wright Line,
251 NLRB 1083, 1089 (1980).
b. The alleged refusal to grant time off and the reduction
of work shifts
The complaint alleges that in mid-May 1997 Respondent
unlawfully refused to grant time off to Magnuson, and reduced his
work shifts.
I find that Magnuson made a timely request in mid-April to be
absent from work on May 11, Mother’s Day. He asked for a block
of time off, from May 7 through May 18. According to his testi-
mony, which I credit, Adler told him “okay” and asked him to
make a written request, which he did. Adler conceded that it was
possible that he may have asked for that time off.
Magnuson made repeated requests for the day off, and was told
to make his request to Sue. He was ultimately refused the day off,
and received a warning notice.
Although I agree with Respondent that Magnuson was liberally
granted time off both before and after the filing of the lawsuit, the
question is why he was not granted Mother’s Day off. I found,
above, that Respondent was motivated in not granting him that
time off because of his protected, concerted activities. In this re-
gard it is significant that in mid-April he asked for, and received
permission from Adler for the time off, whereas Adler’s deposi-
tion took place later, on April 22. Immediately after the deposi-
tion, her attitude toward Magnuson changed, and he was later
denied permission to take Mother’s Day off.
Adler testified that Magnuson’s request to be off on Mother’s
Day was not granted because that day was historically very busy,
and that all staff members were required to be on duty. However,
that testimony was contradicted by Piorier’s uncontradicted testi-
mony, which I credit, that he was granted Mother’s Day off by
Adler in order to celebrate his birthday. I find that he was not out
of town, as testified by Adler. Even if he was going to be out of
town, applying Adler’s reasoning, he would have been ordered to
report to work anyway since all staff members were required to be
at the restaurant on Mother’s Day. Alder’s attitude toward
Piorier’s request for the day off was markedly different than that
for Magnuson. She told Piorier that he should not worry, and that
she would work something out. Although Piorier was also a plain-
tiff, the difference is that Magnuson was present at Adler’s deposi-
tion, and assisted Charging Parties’ attorney there.
It is significant that Magnuson had always received time off for
the periods of time he requested, and in fact received this entire
time off, from May 7 through 18, except for May 11, Mother’s
Day.
Adler seemed to have known that Magnuson requested
Mother’s Day off. When asked on cross-examination whether it
was possible that Magnuson asked her repeatedly for that time off,
Adler answered that “it’s possible he may have mentioned it, yes.”
She also conceded that it was possible that he first requested the
day off in early April, and in her pretrial affidavit stated that al-
though she did not recollect that he asked for certain time off dur-
ing that time period, if he had done so, she would not have sched-
uled him for Mother’s Day.
Thus, Adler’s explanations for not granting Magnuson’s re-
quest for Mother’s Day off is contradictory. First, she stated that
all wait staff were required to work as it was a busy day. Second,
she would have given him the day off if she knew that he re-
quested it.
Further, as set forth above, other wait staff could have been as-
signed to perform overtime work that day. Respondent’s wait staff
had historically and consistently worked overtime.
The warning notice given to Magnuson erroneously stated that
he was scheduled to work two shifts that day, and that he did not
call in to say that he would be absent. Adler conceded that both
statements were false. Thus, the notice made it appear that
Magnuson’s refusal to work that day constituted greater miscon-
duct since he would not be covering two shifts, and had not given
advance notice that he would be absent. In fact, Magnuson was
only scheduled for one shift and had given Respondent ample
notice, approximately 3 weeks, that he needed the day off for a
rehearsal. He had also called in that morning to remind Sue that
he would not be in. She could have made arrangements for a re-
placement then, if one was needed.
I accordingly find and conclude that Respondent has not met its
burden of proving that it would not have granted Magnuson
Mother’s Day off in the absence of his concerted activities. Wright
Line, supra.
With respect to the complaint allegation that Magnuson’s work
shifts were reduced, the evidence establishes that on his return to
work following his time off until May 18, his name was not on the
shift schedule. He was given inconsistent explanations by Adler as
to the reason. Adler told him that she did not know when he would
be returning to work, and also said that she had to first employ the
full time employees. He was not scheduled for any shifts that
week—the week ending May 25—and in fact his name was re-
moved from the schedule completely following his return to work
on May 19. He was given only one shift the following week, but
then was scheduled for about five shifts the following week—the
week ending June 1—which was more shifts than his normal
workweek. He normally worked about three shifts per week.
LE MADRI RESTAURANT 279
Although there was testimony by the General Counsel’s wit-
nesses that scheduling was done according to seniority, Respon-
dent’s personnel manual stated that schedules are adjusted to meet
the fluctuating demands of the business. Apparently this was a
change from the previous manual, in effect just one month before,
which stated that scheduling was determined by seniority and
performance.
Based on the inconsistent explanations by Adler, I cannot find
that Respondent has met its burden of proving that it would not
have scheduled Magnuson for his normal work shift on his return
from leave on May 19. Thus, there was no distinction between full
time and part time employees, and but for his requests for time off,
Magnuson would have worked the same number of shifts, three,
as other employees worked during the weeks that he was not
scheduled for any shifts, and during the week that he was sched-
uled for only one shift.
c. The discharge of Magnuson
Magnuson’s discharge was based on his refusal to work on
Mother’s Day, a customer complaint received in April, a two-shift
suspension for cursing the chef, and because he was late to work
on June 7, the day of the private party.
I have found above, that Respondent’s refusal to grant Mother’s
Day off to Magnuson was an unfair labor practice. It should be
noted that Adler said nothing adverse to Magnuson until his dis-
charge regarding his not working on Mother’s Day. With respect
to the customer complaint, Adler did not speak with the customer,
and the matter seemed to be resolved with Magnuson’s agreeing
to be “extra attentive” in the future. As set forth above, customer
complaints are a daily part of the restaurant business, and no evi-
dence has been presented that anyone was lawfully discharged for
a customer complaint.
Magnuson’s late arrival to work for the private party had no
adverse effect on the party itself. Adler conceded that he could
have worked through the lunch period provided by Respondent.
No evidence has been adduced to show that a written warning for
lateness had been issued to any other employee in June 1997.
Timecards for the period July through December 1997 were re-
ceived in evidence. Charging Parties argue that they indicate that
on numerous occasions the wait staff arrived late to work. That
coupled with the parties’ stipulation that only 1 written discipli-
nary notice for lateness was issued during that time leads Charg-
ing Parties to contend that lateness was tolerated by Respondent. I
cannot agree. First, the timecards of course do not indicate
whether any of the employees received permission to arrive late to
work, or whether they called in late, which might have excused
the lateness. Second, the time period involved, July through De-
cember 1997, which followed Magnuson’s discharge, is remote in
time to Magnuson’s June 7 discharge. Thus, there was no evi-
dence of tolerated latenesses prior to Magnuson’s discharge.
It must be noted that Respondent employed a progressive disci-
pline system at the time of Magnuson’s discharge. It appears that
the system was not employed. Thus, the five steps of documented
verbal warning, written warning, final written warning, and sus-
pension pending investigation were not followed prior to the fifth
step—his termination. As to the Mother’s Day matter, and the
customer complaint, Magnuson was not advised that either matter
had been considered so serious as to warrant a written warning.
He gave uncontradicted testimony that he was not shown the
warnings until the time of his discharge. Clearly, he was not given
an opportunity to correct his allegedly improper behavior, as con-
templated by the progressive discipline system. He was not given
a final written warning, or suspended pending termination.
I note that the personnel manual states that in some instances
progressive discipline may not apply, and depending on the infrac-
tion, immediate termination may result. However, Magnuson’s
alleged infractions clearly did not encompass the types of viola-
tions contemplated by the manual for immediate termination, and
immediate termination for a single infraction was not imposed.
Adler stated that on reviewing the infractions set forth in
Magnuson’s file she believed that it was appropriate that he be
discharged.
Finally, in answer to Respondent’s argument that certain plain-
tiffs remained employed by Respondent and were not discharged,
the Board has held that “an employer’s failure to eliminate all
union adherents does not prove that its actions toward a few were
untainted by antiunion bias.” George A. Tomasso Construction
Corp., 316 NLRB 738, 742 (1995).
I accordingly find and conclude that Respondent has not met its
burden of proving that it would have discharged Magnuson even
in the absence of his concerted activities. Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent 127 Restaurant Corp., d/b/a Le Madri Res-
taurant, is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
2. By warning its employees that it would be futile for them to
engage in union activity, Respondent violated Section 8(a)(1) of
the Act.
3. By discharging its employees Luis Jerez and Walter
Magnuson, Respondent violated Section 8(a)(3) and (1) of the
Act.
4. By refusing to grant time off to Walter Magnuson because he
engaged in protected concerted activity, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. By reducing the work shifts of Walter Magnuson because he
engaged in protected concerted activity, Respondent violated
Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged employees,
it must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be ordered to make whole Walter
Magnuson for the reduction of his work shifts during the weeks
ending May 25 and June 1, 1997.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280
ORDER
The Respondent, 127 Restaurant Corp. d/b/a Le Madri Res-
taurant, New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Warning and informing its employees that it would be fu-
tile for them to engage in union activity.
(b) Discharging or otherwise discriminating against any em-
ployee because of their union or protected concerted activities.
(c) Refusing to grant time off to employees because they en-
gaged in protected concerted activity.
(d) Reducing the work shifts of employees because they en-
gaged in protected concerted activity.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Luis
Jerez and Walter Magnuson full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Luis Jerez and Walter Magnuson whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and to the
unlawful refusal to grant time off to Magnuson, and to the
unlawful reduction of work shifts of Magnuson, and within 3
days thereafter notify the employees in writing that this has
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.”20 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 28, 1996.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in union activity or protected concerted
activity.
WE WILL NOT warn our employees that it would be futile
for them to engage in union activity,
WE WILL NOT refuse to grant time off to our employees be-
cause they engaged in protected concerted activity.
WE WILL NOT reduce the work shifts of our employees be-
cause they engaged in protected concerted activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer Luis Jerez and Walgreen Magnuson full reinstatement
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Luis Jerez and Walter Magnuson whole for
any loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, plus interest.
WE WILL make Walter Magnuson whole for any loss of
earnings and other benefits resulting from our unlawful refusal
to grant him time off, and for our unlawful reduction of his
work shifts.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charges, and discriminatory treatment of Luis Jerez and Walter
Magnuson, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that the
discharges and other discriminatory actions will not be used
against them in any way.
127 RESTAURANT CORP.,D/B/A/ LE MADRI RESTAU-
RANT