Lemon Drop Inn

National Labor Relations Board - Board Decisions

Apr 16, 1984

269 N.L.R.B. 1007 (N.L.R.B. 1984)

LEMON DROP INN
Lemon Drop Inn, Inc. and Hotel, Motel, Restaurant,
Bar and Club Employees Union Local No. 99,
Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO
Lemon Drop Inn, Inc. and Hotel, Motel, Restaurant,
Bar and Club Employees Union Local No. 99,
AFL-CIO, Petitioner. Cases 18-CA-6944, 18-
CA-6944-2, and 18-RC-12817
16 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 December 1981 Administrative Law
Judge Robert W. Leiner issued the attached deci-
sion. On 17 August 1983 the Board remanded the
proceeding to the judge for the purpose of prepar-
ing and issuing a supplemental decision setting
forth certain credibility resolutions and containing
new findings of fact and conclusions of law. On 31
August 1983 the judge issued the attached supple-
mental decision. The Respondent has filed excep-
tions to both decisions, with supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order, as modified.
' The judge incorrectly found, in connection with the layoff of Betty
J. Brock, that the Respondent hired II waitresses in November 1980. As
these hirings occurred after Brock was employed and during a period in
which the Respondent usually experienced a diminution of business, the
judge's error does not affect the correctness of his analysis of the hiring
as a factor in finding unpersuasive the Respondent's asserted business jus-
tification for terminating Brock.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
' In the absence of exceptions we adopt, pro forma, the judge's finding
that the Respondent's no-solicitation and no-distribution rules violated
Sec. 8(aXl) of the Act and that the Respondent did not violate Sec.
8(aXl) by its enforcement of its rule regarding food consumed by em-
ployees. However, we will not order the Respondent to remedy this vio-
lation by refraining from promulgating or maintaining a rule prohibiting
conduct during "working time." Subsequent to the judge's decision, the
Board issued Our Way, Inc., 268 NLRB 394 (1983), in which it overruled
TR.W. Bearings, 257 NLRB 442 (1981), relied on by the judge, and re-
turned to the rules in Essex International, 211 NLRB 749 (1974). Since
the rules involved here would be lawful on their face, under our Our
Way no useful purpose would be served by ordering the Respondent to
expunge, or otherwise not to promulgate, its rules. The Order and notice
are modified accordingly.
In view of his adherence to T.R. W Bearings and his dissenting opinion
in Our Way, Member Zimmerman would adopt the remedy recommend-
ed by the judge.
269 NLRB No. 173
As our dissenting colleague notes, the unlawful-
ness of the purpose of each employee's termination
must be established before such termination can be
found to violate Section 8(a)(3). However, the
Board and the courts have long regarded union
animus demonstrated by 8(a)(1) coercion as a
highly significant factor in determining motive.
Blue Star Knitting, 216 NLRB 312, 318 (1975);
NLRB v. Dan River Mills, 274 F.2d 381, 384 (5th
Cir. 1960); R. J. Lallier Trucking v. NLRB, 558
F.2d 1332, 1325 (8th Cir. 1977). Also well recog-
nized as an important circumstance indicating an-
tiunion motivation is timing-an employee's dis-
charge occurring soon after the employer learns of
his union activity. See 1 Morris, The Developing
Labor Law, 193, 214, and cases cited in Chapter 7,
fns. 75, 198, and 199 (2d ed. 1983). These factors
are applicable both to the discharge of Jody Grif-
fith and to the layoff of Betty Brock. And they
present, along with other circumstances discussed
in the judge's decision and peculiar to each termi-
nation, a strong prima facie case that, as found by
the judge, union activity was a motivating factor in
both cases. Further, we agree with the judge that
the Respondent has failed to offer persuasive evi-
dence that the reasons it assigned for the termina-
tion were the real reasons. Thus, we adopt the
judge's analysis of the Respondent's defense to the
8(aX3) allegations, except as corrected in footnote
1 of this decision, and conclude that the alleged
violations of Section 8(a)(3) have been established.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lemon Drop Inn, Inc., Duluth, Minneso-
ta, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Delete paragraph l(c) and reletter the subse-
quent paragraphs accordingly.
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly.
"(b) Remove from its files any reference to the
unlawful discharge of Jody Griffith and the unlaw-
ful layoff of Betty Brock and notify the employees
in writing that this has been done and that these
will not be used against them in any way."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
While I agree with my colleagues that the
judge's credibility findings with regard to the Re-
spondent's threat to close its restaurant establish a
violation of Section 8(a)(1), I do not believe the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel has proved a prima facie case of
unlawful motivation in the discharge of employee
Griffith and the layoff of employee Brock.
Griffith was discharged only after, as the judge
found, he acted in an insubordinate manner toward
his shift manager, Peterson. Peterson decided to
discharge Griffith but another shift manager,
Stoneburner, persuaded him to give Griffith an op-
portunity to talk things out with Peterson. Stone-
burner, therefore, wrote on the work schedule he
was about to post for the following week a nota-
tion for Griffith to see Peterson. Several days later
Stoneburner saw Griffith and asked him if he had
talked to Peterson. Griffith said he had not. Stone-
burner related this to Brown, the Respondent's
chief operating officer, who previously had ex-
pressed surprise that Peterson had not fired Griffith
immediately. Brown told Stoneburner to discharge
Griffith and Stoneburner did, citing his earlier in-
subordination and his failure to talk to Peterson.
In the face of his eminently reasonable justifica-
tion for discharging Griffith, the General Counsel
alleges and the judge finds that Griffith was dis-
charged because he participated in soliciting an em-
ployee to sign a union authorization card and was
overheard on one other occasion talking about the
Union. To find that Griffith's union activities con-
stituted the real reason for Griffith's discharge, the
judge relies on the 8(a)(1) threat and the Respond-
ent's receipt, on the day before the discharge, of a
letter from the Union demanding recognition and
bargaining. These events are insufficient to warrant
the inference of a motivation other than the one
which the Respondent stated. The commission of
an independent 8(a)(1) violation, even together
with some known union activity by the discharged
employee, does not prove a specific antiunion pur-
pose behind the discharge in question. Midwest
Stock Exchange v. NLRB, 635 F.2d 1255, 1264 (7th
Cir. 1980). Cf. Larid Printing, 264 NLRB 369, 370
(1982); NLRB v. Service Garage, 668 F.2d 247 (6th
Cir. 1982). Here, an unlawful statement by a super-
visor who was not involved in the discharge is too
weak a link between the union activity and the dis-
charge on which to build a case under the circum-
stances presented. Except for that supervisor's
statement there is no evidence of an antiunion re-
sponse to the organizing activity. Griffith's miscon-
duct, although minimized by the judge, was not re-
futed. Imposition of discipline for misconduct is a
managerial decision which may not be disturbed
absent convincing evidence of pretext and unlawful
purpose. Midwest Stock Exchange v. NLRB, supra
at 1265. I would thus heed the comment adopted
by the Seventh Circuit in Midwest Stock Exchange,
pronounced by the Fifth Circuit in NLRB v.
McGahey, 233 F.2d 406, 412-413 (1956):
The Board's error is the frequent one in
which the existence of the reasons stated by
the employer as the basis for the discharge is
evaluated in terms of its reasonableness. If the
discharge was excessively harsh, if lesser forms
of discipline would have been adequate, if the
discharged employee was more, or just as, ca-
pable as the one left to do the job, or the like
then, the argument runs, the employer must
not actually have been motivated by manageri-
al considerations, and (here a full 180 degree
swing is made) the stated reason thus dissipat-
ed as pretense, nought remains but antiunion
purpose as the explanation. But as we have so
often said: management is for management.
Neither Board nor Court can second-guess it
or give it gentle guidance by over-the-shoulder
supervision. Management can discharge for
good cause, or bad cause, or no cause at all. It
has, as the master of its own business affairs,
complete freedom with but one specific, defi-
nite qualification: it may not discharge when
the real motivating purpose is to do that
which Section 8(a)(3) forbids.
As to the layoff of Brock, who knew when she
was hired in the fall that business slowed down in
the winter, the link between her insignificant union
activity of serving as the Union's election observer
and her subsequent layoff is even weaker.' The
seasonable nature of the Respondent's business is
undisputed, as is the fact that the Respondent's em-
ployee complement was down, that Brock was the
least senior of the hostesses, and that her position
remained vacant until she was recalled in the
spring. While a suggestion was made, when Brock
was hired, that she might be reassigned to waitress
duty when business got slow, there is no evidence
that she requested such a reassignment at the time
of the layoff. In light of the business justification,
whether the Respondent's decision to lay Brock off
was made before or after her minimal union activi-
ty there is simply no proof that such activity was a
factor.
Accordingly, I would dismiss both allegations of
8(a)(3) violations.
l An employee may serve as a union's observer in response to simply
being asked and does not necessarily indicate prounion sympathies.
1008
LEMON DROP INN
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 terminate, discharge, or lay off, or
otherwise discriminate against any of our employ-
ees because of their activities in behalf of, sympa-
thy, for, or membership in Hotel, Motel, Restau-
rant, Bar and Club Employees Union No. 99, Hotel
and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, herein called the Union,
thereby discouraging membership in the Union, or
in any other labor organization.
WE WILL NOT threaten to close down or go out
of business if our employees choose the Union, or
any other labor organization, to serve as their col-
lective-bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Jody L. Griffith and Betty J.
Brock immediate and full reinstatement to their
former jobs or, if such jobs no longer exists, to sub-
stantially equivalent positions, and WE WILL make
them whole for any loss of pay they may have suf-
fered by reasons of our discrimination against
them, with interest.
WE WILL notify Jody Griffith and Betty J.
Brock that we have removed from our files any
reference to their respective discharge and layoff
and that these will not be used against them in any
way.
LEMON DROP INN, INC.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. Upon
the charge in Case 18-CA-6944 being filed and served
on November 10, 1980, by Hotel, Motel, Restaurant, Bar
and Club Employees Union Local No. 99, Hotel, Motel,
and Restaurant Employees and Bartenders International
Union, herein called the Union, upon Respondent,
Lemon Drop Inn, Inc.; and the charge and two amended
charges in Case 18-CA-6944-2 having been filed by the
Union and respectively served on Respondent on or
about December 29, 1980, January 9, 1981, and February
11, 1981, the Acting Regional Director for Region 18,
National Labor Relations Board, herein called the Board,
issued a complaint and notice of hearing in Case 18-CA-
6944 on December 24, 1980, and thereafter, on February
19, 1981, the Regional Director issued an order consoli-
dating these cases, amendment to the complaint and a
further notice of hearing. At the hearing, the amended
complaint was further amended. Respondent filed timely
answers to the several General Counsel complaints and
amendments.
Pursuant to a petition for certification filed by the
Union on November 5, 1980, and upon a Stipulation for
Certification Upon Consent Election executed by Re-
spondent and the Union, and approved by the Regional
Director for Region 18 on November 28, 1980, a Board-
supervised election by secret ballot was conducted in a
unit of Respondent's employees employed in the Lemon
Drop Inn facility in Duluth, Minnesota, on Wednesday,
December 17, 1980. The tally of ballots served on the
parties on that day showed, inter alia, that of 45 votes
cast, excluding a void ballot, there were 22 valid votes
cast for the Union and 22 votes cast against the Union,
with I challenged ballot. The challenged ballot was
found sufficient to affect the results of the election.
On December 24, 1980, the Union filed timely objec-
tions to the election which resulted in the Regional Di-
rector causing an investigation to be conducted on the
issues raised by the objections and the challenged ballot.
Following the Union's withdrawal of all other objec-
tions, the remaining objection alleged that the Respond-
ent, on November 5, 1980, discharged its employee, Jody
L. Griffith, because of his support and activities on
behalf of the Union. The Board agent conducting the
election challenged the ballot of Jody L. Griffith because
his name did not appear on the voter eligibility list. Re-
spondent contends that Griffith was discharged for
lawful reasons prior to the election and was therefore in-
eligible to vote; the Union contends that Griffith was dis-
charged in violation of Section 8(a)(l) and (3) of the Act
and was eligible to vote. The discharge of Griffith was
alleged as unlawful in the complaint in Case 18-CA-
6944.
In his February 26, 1981 Report on Objections and
Challenged Ballot, the Regional Director concluded that
the November 5, 1980 Griffith discharge, allegedly in
violation of Section 8(a)(l) and (3), occurred on a date
between the filing of the petition for certification (No-
vember 5, 1980) and the date of the election (December
17, 1980). Thus, the Regional Director concluded that
the alleged unlawful discharge raised substantial and ma-
terial questions of fact with regard to the Union's objec-
tions, the resolution of which could be resolved only by
a hearing; and the alleged unfair labor practice may be
considered as objectionable conduct in determining
whether the election should be set aside. Further, the
matter of Griffith's eligibility to vote could be resolved
only by disposition of the alleged unfair labor practice
concerning his preelection discharge.
In consequence of the above findings, the Regional Di-
rector, on February 26, 1981, together with his Report
on Objections, issued an order directing a hearing on the
discharge of Griffith as a matter of objection to the con-
duct of the election, and further issued an order consoli-
dating that hearing with that of the consolidated unfair
labor practice cases. The consolidated complaint alleges,
1009
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inter alia, in addition to the alleged unlawful discharge of
Griffith, the unlawful discharge (but not objectionable
conduct), on or about December 22, 1980, also in viola-
tion of Section 8(a)(3), of Respondent's employee Betty
J. Brock; and, as further amended at the hearing, various
acts of independent violation of Section 8(a)(l) of the
Act (but not objectionable conduct) including the distri-
bution among employees, on or about January 13, 1981,
of an employee rule book wherein Respondent promul-
gated and maintained rules prohibiting all discussions of
unions on Respondent's property.
At the conclusion of the General Counsel's case-in-
chief, on Respondent's motion, I dismissed as unproved
so much of the complaint (par. 5(c)) as alleged that Re-
spondent, on or about December 20, 1980, unlawfully
implemented a new rule requiring employees to pay for
their own food before consuming same. Pursuant to Re-
spondent's further motions to dismiss allegations of com-
plaint, I either denied or reserved decision on them refer-
ring disposition thereof to the instant recommended De-
cision and Order.
On August 26 and 27, 1981, in Duluth, Minnesota, pur-
suant to prior notice, a consolidated hearing was held on
the allegations of the amended consolidated complaint as
further amended, together with the matters raised by the
objection and challenged ballot. Respondent and the
General Counsel were represented by counsel, were
given full opportunity to call and examine witnesses, to
introduce testimony and evidence, and to argue orally on
the record. At the conclusion of receipt of testimony, all
parties waived oral argument and thereafter Respondent
and the General Counsel filed timely briefs which were
carefully considered.
On the record as a whole, including the briefs and my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admitted in its
pleadings or at the hearing, and I find that, at all material
times, Lemon Drop Inn, Inc., a Minnesota corporation
with an office and place of business in Duluth, Minneso-
ta, has been and is engaged in the operation of a public
restaurant selling foods and beverages at retail. It is fur-
ther admitted, and I find, as alleged, that Respondent has
been and is a wholly owned corporate subsidiary of
Como Oil Company, a Minnesota corporation, with
places of business in the States of Minnesota and Wiscon-
sin, which is engaged, as a jobber, in the retail and non-
retail sale and distribution of petroleum products, includ-
ing home heating oil and fuel for motor vehicles. Re-
spondent admits that, at all material times, it and Como
Oil Company have been, and are, affiliated businesses
with common officers, ownership, directors, manage-
ment, and supervision, with a commonly formulated and
administered labor relations policy affecting the employ-
ees of the two enterprises; and that it and Como consti-
tute both a single integrated business enterprise and
single employer within the meaning of the Act.
Further, Respondent admits that in the calendar year
ending October 31, 1980, Respondent and Como, in the
course and conduct of their combined business oper-
ations, derived gross revenues in excess of $500,000 and
purchased and received at their facilities, within the
State of Minnesota, products, goods, and materials
valued in excess of $50,000 shipped directly from points
outside the State of Minnesota. Respondent admits, and I
find that, at all material times, Respondent has been, and
is, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE UNION AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, Respondent admits, and I find
that, at all material times, the above-captioned Union has
been, and is, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES;
OBJECTIONABLE CONDUCT; RESOLUTION OF THE
VOTING ELIGIBILITY OF GRIFFITH
The consolidated complaint, paragraph 5(a), alleges
that in or about late October or early November 1980
Respondent, acting through its manager Joel Berg,'
threatened that Respondent would close its doors if the
employees selected the Union as their bargaining repre-
sentative. In support of this allegation, the General
Counsel's witness, Ruby Cassidy, testified that around
October 29 or 30, 1980, while she, a waitress, and her
co-waitresses, Sherry Rubarb and Sharon Borg, were all
on duty, about noon, standing in the hallway near the
kitchen, Berg told them that he previously had over-
heard Cassidy talking about the Union with Jody Grif-
fith and told the waitresses that he "better not hear of it
anymore because Mr. Hall [the owner of Como Oil and
Respondent] said he'd close the doors [of the Lemon
Drop Inn] and we wouldn't have a job." (Tr. 257.) Cas-
sidy said that there was no response from her or her
coemployees.
Joel Berg denies Cassidy's testimony but admits having
made such a statement in the spring of 1980 (Tr. 513-
514) before any of the present union organizational effort
occurred and under vastly different circumstances.
Cassidy admitted that she was discharged by Respond-
ent on May 25, 1981, for having called in sick, an excuse
not accepted by the Company notwithstanding that, at
the hearing, Cassidy insisted that she was ill at the time.
On the other hand, notwithstanding that neither the Gen-
eral Counsel nor Respondent called or accounted for the
absence of Sherry Rubarb as a witness to this alleged
Berg statement, Sharon Borg, an alleged witness to this
statement, did testify as a witness for the General Coun-
sel. Yet, as counsel for Respondent expressly admitted
(Tr. 152), Sharon Borg was a witness favorable to Re-
spondent. Her demeanor and hesitant, equivocal testimo-
ny concerning certain conversations with Respondent's
supervisors clearly supports Respondent's admission.
Borg's testimony is discussed hereafter.
I The Lemon Drop Inn has three shift managers, all of equal and con-
cededly supervisory status: Joel Berg, Keith Stoneburner, and Jess Peter-
son.
1010
LEMON DROP INN
It might well be that, as Respondent argues, Cassidy's
credibility was undermined because of her having been
discharged for cause, and because contrary to my seques-
tration order, she spoke to her husband (who was in the
hearing room) prior to her testimony (but allegedly on
subjects not concerning the hearing). I regard this latter
circumstance as of little consequence and, on the present
facts, not prejudicial. RAI Research Corp., 257 NLRB
918 (1981). In addition, her testimony concerning the
Berg threat (which included the identification of Griffith
with union activities) was "convenient" in that it includ-
ed an unlawful Respondent admonition against union ac-
tivities as early as October 29 or 30 and named Jody
Griffith.
The issue, of course, is not whether Cassidy actually
discussed union activities but whether Berg made the
statement as of the time Cassidy testified. Borg was
present at the conversation according to Cassidy. Borg
was a witness friendly to Respondent. Borg testified at
the hearing and was still employed at the Lemon Drop
Inn. Respondent's failure to call Borg to deny Cassidy's
testimony leads to the inference, which I draw, that she
would not have denied Cassidy's testimony.
In addition, Borg testified that even before she notified
Respondent on November 3 that Cassidy and Griffith
were handing out union membership cards, Respondent
apparently knew of union activity among its employees.
Moreover, Berg admitted to making such a statement
albeit he placed it as occurring in harmless circum-
stances. However, I regard Respondent's failure to call
or recall Sharon Borg, an admittedly friendly witness, in
its employ, to deny the Cassidy testimony concerning
Supervisor Joel Berg's threat that Respondent would
close down and the employees would lose their jobs if a
union came in and warning them against continued con-
versation about the Union, as the dispositive element in
favor of believing Ruby Cassidy and crediting her testi-
mony that Berg did make this statement on or about Oc-
tober 29 or 30, 1980. His threat at that time of a close-
down by Miles Hall, and with his warning against con-
versations about the Union are unlawful coercive acts of
a most serious character and violate Section 8(aX)l) of
the Act, I so find. NLRB v. Jamaica Towing, 632 F.2d
208 (2d Cir. 1980); General Stencils, 195 NLRB 1109
(1972). That he attributed the threat of closedown to an-
other supervisor's action is not material. J. W. Mays, Inc.,
147 NLRB 942, 964 (1964), enfd. in pert. part 356 F.2d
693, 699 (2d. Cir. 1966).2
2 The General Counsel also elicited similar testimony from Griffith.
Griffith stated that sometime in early October 1980, after he had received
his pay raise but before Griffith met with the Union in late October,
while he was in the manager's office with Berg and a cook by the name
of Connor, Connor suddenly asked Berg, without prompting, what
would happen if they had a union in the restaurant. According to Grif-
fith, Berg answered, "We close the doors." The General Counsel did not
elicit this testimony for the purpose of an unfair labor practice but merely
to show union animus and hostility on behalf of Respondent. The Gener-
al Counsel did not seek to corroborate this testimony by the testimony of
the other witness present at this alleged conversation, Connor. Respond-
ent did not call Connor or explain Connor's whereabouts in refuting the
testimony.
Berg denied making any such statement to Griffith.
The complaint further alleges that on or about Decem-
ber 20, 1980, Respondent, by its manager Keith Stone-
burner,3 commenced enforcing a previously unenforced
rule regarding food consumed by employees to be served
by another employee.
In support of this allegation, the General Counsel ad-
duced testimony of Betty J. Brock. Brock testified that
when she was first employed on or about September 29,
1980, a coemployee told her that the employees did not
pay for tea or coffee they consumed. On the other hand,
Brock admitted that managers have asked employees
whether they paid for their food but that this usually
happened with only particular employees. She said this
was Respondent's practice since the start of her employ-
ment. In addition, she testified that she did not drink
coffee but either brought tea from home or served her-
self tea and sat in the back except on rare occasions
when she drank her tea in the front and watched the
cash register since she was one of Respondent's three
hostesses. She admitted that there was a company food
rule whereby waitresses served cooks, waitresses, and
other employees but that only cooks served themselves.
Respondent's witnesses, particularly Brown and Stone-
burner, testified that Respondent posted a typewritten
food policy rule on the employee bulletin board on Oc-
tober 1, 1980, and, at the same time, put memoranda on
each timecard of employees working in the period
ending October 15, 1980, advising employees of the food
policy already posted on the employee bulletin board. In
support of its early October advice to employees, Re-
spondent and the General Counsel stipulated that em-
ployee timecards showed (metal) staple marks. Respond-
ent's witnesses testified that the staple holes on the time-
cards arose from wire staples which had supported the
memoranda attached thereto. In addition, Respondent's
testimony was uncontradicted that it surrendered to the
National Labor Relations Board the previously posted,
typed food policy memorandum at the commencement
of the Board investigation following the November 10,
1980 filing of the first charge. Nevertheless, Brown also
testified, without contradiction, that because the employ-
ees did not pay absolute attention to the stapled memo-
randum on their timecards or the posted typewritten
memorandum, Respondent also posted on the bulletin
board a further handwritten memorandum, drafted by
Stoneburner, which stated:
1. No one cooks their own food or gets their
own desserts or beverages.
2. Anything a customer is not able to get an em-
ployee can.
3. All food is to be eaten in the restaurant at the
back table.
In view of the disposition of a similar Berg statement which was the
subject of Cassidy's testimony, it is unnecessary and merely cumulative to
resolve this conflict. I refrain from doing so.
3 As above noted, Respondent's managers at the Lemon Drop Inn.
Keith Stoneburner, Joel Berg, and Jess Peterson, are admitted to be Re-
spondent's supervisors and agents within the meaning of the Act. Similar-
ly, Lawrence (Larry) Brown, treasurer of Como Oil Company and chief
operating officer of Respondent, is similarly admitted to be a statutory
supervisor and Respondent's agent within the meaning of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No take out food.
I conclude from the above testimony that, while Re-
spondent's enforcement of the rule concerning food con-
sumed by employees was neither fully effective nor fully
enforced, there is no question that the rule existed and
no question that it was changed on or about October 1,
1980. In addition, there is no showing, by disparate treat-
ment or otherwise, that, because on or about December
20, as Brock testified, Stoneburner asked her whether she
paid for the tea (and insisted that she pay for it) Re-
spondent suddenly was enforcing a previously unen-
forced rule.
I conclude, on the basis of the above, that the prepon-
derant credible evidence demonstrates that Respondent,
at all material times, had a rule which required all food
consumed by employees (other than cooks) to be served
by other employees and that Brock was mistaken in be-
lieving that no such rule existed. That Respondent was
not sucessful in enforcing the rule against all employees
or in enforcing it at all times does not make the rule un-
enforced and certainly does not prove that the unen-
forced rule suddenly came life on December 20, 1980. I
conclude that the General Counsel failed in his statutory
burden to prove that on or about December 20, 1980,
Respondent commenced enforcing a previously unen-
forced rule regarding the service by employees of food
to be served by other employees, and therefore I do not
find a violation of Section 8(a)(1). I recommend that
paragraph 5(b) be dismissed as unproven.
4
Lastly, the General Counsel alleges, paragraph 5(d),
that Respondent violated Section 8(a)(1) of the Act be-
cause, on or about January 13, 1981, Respondent issued
and distributed an employee rule book whereby Re-
spondent promulgated and maintained a rule "prohibiting
all discussions of unions on Respondent property." There
is no dispute (Jt. Exh. 1) that on or about January 13,
1981, Respondent issued, and now enforces, an eight-
page document entitled "Lemon Drop Personnel Poli-
cies" drafted by its labor relations representative (Wil-
liam R. Sample). At pages four and five therein, Re-
spondent's rules regarding "Solicitation" appear. On pain
of discipline including discharge, the rules expressly
forbid, inter alia, solicitation (or distribution of literature)
on Respondent's "premises" by employees during "work-
time" on behalf of, inter alia, any labor union. The prohi-
bition applies to all forms of solicitation, particularly pro-
moting "support for any cause or organization" and for-
bids off duty employees to "enter or remain anywhere
on the premises" for such solicitation.
5
4 As above noted, at the end of the General Counsel's case I dismissed
as unproven par. 5(c) of the complaint which alleged that on or about
December 20, 1980, Respondentimplemented a new rule requiring em-
ployees to pay for their own food before consuming it.
* The text of the scope of the prohibitions is:
SOLICITATION:
Rules governing solicitation or distribution of literature by em-
ployees and outsiders are as follows:
1. No employee shall solicit or promote support for any cause or
organization during his or her working time.
2. No person shall solicit or promote support for any cause or or-
ganization by contacting an employee during the working time of
the employees at whom such activity is directed.
Discussion and Conclusions
The complaint, paragraph 5(d), alleges that Respond-
ent's new rules against employee solicitation (Jt. Exh. 1),
violate Section 8(a)(1) of the Act in that Respondent
therein promulgated and maintained a rule prohibiting
"All discussion of unions on the Respondent's property."
No other allegation appears in the complaint.
The first and second paragraphs in the rules, pages
four-five, Joint Exhibit 1, relating to "Solicitation," is
that employees may not "solicit or promote support for
any cause or organization during his or her working time
.. . or the working time of the employee at whom such
activity is directed." The sixth paragraph makes the pro-
hibition applicable to labor union solicitation. The Board
rule, in the recent T.R. W. Bearings, 257 NLRB 442, 443
(1981), is that:
In view of the foregoing, we hold that rules pro-
hibiting employees from engaging in solicitation
during "work time" or "working time," without
further clarification, are, like rules prohibiting such
activities during "working hours," presumptively in-
valid.
In reaching this rule, the Board overruled to the extent
inconsistent, Essex International, Inc., 211 NLRB 749
(1974). Respondent's prohibition, under T.R. W., supra, is
clearly presumptively invalid. I conclude that Respond-
ent's newly circulated "personnel policies" in paragraphs
1 and 2 prohibit union solicitation by employees, includ-
ing "promoting support" for unions, during "working
time" and that the presumptive invalidity of such rules
was not rebutted by a demonstration that such restriction
on statutorily protected activity was required for pur-
poses of production, safety, or discipline. Thus, Respond-
ent violated Section 8(a)(1) by the promulgation and
maintenance of such rules (prohibiting solicitation on
"worktime").6
3. No employee shall distribute or circulate any written or printed
material during his or her working time or in work areas at any time.
4. No person shall distribute or circulate any written or printed
material to any employee during the working time of the employee
at whom such activity is directed.
5. Outsiders and off duty employees are not authorized to enter or
remain anywhere on the premises for the purpose of soliciting or for
distributing literature of any kind.
6. These rules apply to all types of solicitation and distribution ac-
tivities, including, but not restricted to, charitable organizations or
campaigns, labor unions, political parties, religious organizations,
clubs, societies and associations. It does not apply to promotional
programs wherein the Company's facilities are contracted for and
used in specific areas for such declared purposes.
All employees are expected to comply strictly with these rules.
Failure to obey the rules will result in discharge or other disciplinary
action. Any employee who is in doubt concerning the application of
these rules while on the premises is advised to consult with manage-
ment.
6 I note, in passing, that Respondent's other rules, 3 and 4, which, inter
alia, prohibit distribution or circulation of any written or printed material
(circulation of union membership cards being "solicitation") during the
distributor's, and distributee's "worktime," appear also to be presumptive-
ly unlawful within the prohibition of Stoddard-Quirk Mfg. Co., 138
NLRB 615 (1962), as modified by TR.W. Only the prohibition against
"discussion" was alleged as unlawful by the General Counsel. Since the
prohibition against "circulation" was not alleged, and seems specifically
Continued
1012
LEMON DROP INN
The Discharge of Jody L. Griffith
Activities among Respondent's employees in support
of the Union started on or about October 28, 1980, and
on or about Saturday, November 1, 1980, some 8 to 10
of them (including Griffith) (G.C. Exh. 2) attended a
union meeting and signed union membership cards. As a
result of the meeting, Union Local President Carol Carl-
son, on November 3, 1980, dispatched a letter of that
date (G.C. Exh. 3) which Respondent received in the
afternoon of November 4, -1980. The letter asserts that
Local 99 represented the majority of Lemon Drop em-
ployees and requested a meeting in order to discuss a
contract relating to wages, hours, and working condi-
tions. The letter offered a "card check" by a neutral
third party at Respondent's restaurant in the morning of
the next day, November 5, 1980. After cautioning Re-
spondent against any acts of discrimination or intimida-
tion against employees, Respondent stated that it had "si-
multaneously filed a petition with the National Labor
Relations Board." In fact, however, the petition, while it
may have been mailed on November 3, was filed at the
Labor Board at 8:34 a.m., on November 5, 1981 (G.C.
Exh. 1).
On October 1, 1980, Griffith received a 25-cent-per-
hour wage increase and engaged in a conversation with
one of Respondent's three "managers" who, on varying
shifts, were the highest Respondent supervisors running
the Lemon Drop Inn.7 The manager who announced the
pay raise to Griffith was Keith Stoneburner who told
him that Respondent's supervisors had been "watching"
Griffith's performance and felt that he deserved a raise.
Griffith, hired by Respondent in April 1980 as a dish-
washer, was made a cook 6 to 8 weeks after being hired.
He remained a cook until his discharge on November 5,
1980. In announcing the pay raise to Griffith, Stone-
burner told him that performance, rather than length of
service, was critical in determining that he merit a raise.
Sometime on or about the time of the raise, when Grif-
fith was apparently loitering in a place where he did not
belong and Manager Joel Berg told him to go where he
belonged, Griffith responded by saying: "If you don't
to hawve not been alleged, I need not and do not pas on it. However, rule
five's prohibition against outsiders or "off duty employees" remaining
anywhere on the premises for the purpose of both "soliciting" and distrib-
uting union literature would appear to run afoul of the Le Tourneau rule.
See Stoddard-Quirk Mfg. Co., 139 NLRB 615, 618-619, and Mandarin,
221 NLRB 264 (1975). Since the prohibition encompasaes "on the prem-
ises" rather than narrowly limiting it to work areas, the prohibition is fur-
ther unlawful. G. F. Business Equipment, 252 NLRB 866 (1980); Continen-
tal Bus System, 229 NLRB 1262 (1977). Thus, since rule 5 relates to solic-
itation, and hence to "discussion," I pam on its validity and conclude that
it is presumptively invalid; that such presumption was not rebutted and
that it violates Sec. 8(aXl) both as to employees remaining on and enter-
ing Respondent's nonwork areas to solicit on behalf of the Union. I note,
finally, that at p. 4 of the rules (Jt. Exh. I), "off-duty" employees are al-
lowed on the premises to patronize Respondent. See Conclusion of Law
i, herein.
I The chief operating officer of Lemon Drop, Larry Brown, visited
the Lemon Drop Inn approximately three times a day but maintained his
office at Como Oil Company, several miles away. He testified and Re-
spondent conceded (Br., p. 2) that Lemon Drop managers made their
own decisions to hire and fire, and that he becomes involved in the dis-
charge of an employee only when a manager requests his advice (Tr.
471).
like it, you can fire me."8 No discipline resulted from the
exchange.
Consistent with Respondent's policy of not permitting
employees to eat food which they serve themselves
(except if they are cooks), on Sunday, November 2,
1980, while Griffith and waitress-hostess Ruby Cassidy
were eating together in the restaurant, they were served
by waitress Sharon Borg. There is no dispute that they
asked Borg, at that time, on November 2, 1980, to sign a
union membership application card, and that Borg then
and there did so.
Called as a witness by the General Counsel, when the
General Counsel showed Borg her signed union member-
ship application card, there was an immediate objection
by counsel for Respondent on the ground that the mere
showing of the card to Sharon Borg was an act of "in-
timidation" of the witness. When'inquiry was made as to
why the mere showing of an otherwise lawful card was
an act of "intimidation," counsel for Respondent asserted
that Borg, a Respondent employee at the time of her tes-
timony, was a witness favorable to Respondent. I infer
that the General Counsel's showing of the card was con-
strued to be an act designed in some way to undermine
Borg's persuasion or loyalty. In any event, Borg testified
that while she was waiting on Cassidy and Griffith, they
told her that it was her "last opportunity" to sign the
card. Borg then signed the card but that night apparently
had second thoughts when she spoke to her husband, a
former manager of the Lemon Drop.
Joel Berg, manager of the Monday, November 3, 6:30
a.m. to 3 p.m. shift, testified that at 7 a.m. he received a
phone call from Sharon Borg telling him that she had
something to say to him and Larry Brown and wanted a
meeting with them away from the Lemon Drop restau-
rant. A meeting was in fact arranged at the Como Oil
office at 9 a.m. which meeting was attended by Borg,
Brown, and Berg. She told them that, after talking to her
husband, she felt an obligation to tell Brown that the
Union was trying to organize the restaurant; that she had
been asked to sign a union card; and that she did sign a
union card. Brown and Berg testified that Borg men-
tioned only Cassidy as approaching her to sign the card.
Borg, however, testified that she told Brown and Berg
that "Ruby and Jody" gave her the card in the restau-
rant and she also told them when it happened. Later, in
further direct testimony, it appeared that she could not
recall telling Brown and Berg who gave her the card.
She also testified that Brown and Berg suspected that
there was talk of getting the Union in the restaurant al-
though they said nothing of Cassidy or Griffith. When
prodded on the point, she said that there was nothing in
what Brown and Berg said but it was her conclusion that
they suspected that there was union activity in the res-
taurant. She then added that it appeared to her that
Brown and Berg were "to some extent" suprised at the
news of union activity in the restaurant. I was not im-
pressed by Borg's veracity.
' Griffith is 19 years old; Manager Berg, 23 years old; and Manager
Jess Peterson, 20 years old. It appeared to me that Larry Brown was
twice the age of his managers.
1013
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On demeanor alone, without Respondent's concession,
I would conclude that Borg was a witness favorably dis-
posed to Respondent. However, Borg initially admitted
that she told Berg and Brown, on Monday morning, No-
vember 3, that it was Griffith and Cassidy who gave her
the card to sign. To the extent that Borg appeared to
modify her prior testimony by suggesting that she could
not remember telling Berg and Brown that morning that
it was "Ruby and Jody" who gave her the union card, I
do not credit such subsequent failure to remember. Not
only her testimony but the circumstances fail to suggest
why she would unaccountably omit Griffith as one of the
card solicitors in her conversation with Borg and Brown.
I therefore specifically discredit both Berg and Brown in
their testimony that Borg told them it was only Ruby
Cassidy who solicited her to sign the card. I thus con-
clude that on the morning of November 3, 1980, Borg
told Brown and Berg that Griffith was engaged in card-
soliciting activity in support of the Union.9
After Borg told Berg and Brown of the events of the
previous day (November 2), Brown cautioned Berg and
Borg to say nothing of this event to any of the employ-
ees and to carry on as usual. Berg recalls that Brown
told them to run the restaurant in the same way that
they had done before, to do nothing about the Union,
and not to mention the Union to anyone or what had
happened at their meeting. Thus, this meeting ended
sometime after 9 a.m. on November 3, 1980. About 5
p.m. of this day, as more fully discussed below, Brown
met with Manager Stoneburner at the restaurant and no-
ticed that the words "see Jess [Peterson]" were the only
notations on Griffith's work schedule (for the period
Tuesday (November 4) through Monday (November
10)).
On the next day, Tuesday, November 4, 1980, Re-
spondent received in the mail, about 2 p.m., the certified
letter (G.C. Exh. 3) from the Union, asserting its majori-
ty status, requesting negotiations toward a collective-bar-
gaining agreement and noting its simultaneous filing of a
petition with the National Labor Relations Board. The
letter, addressed to the president of Como Oil, Miles F.
Hall, was seen by Brown about 2 o'clock. He immediate-
ly told Manager Jess Peterson that there would be a
meeting of the managers that day at 5 p.m. About 5 p.m.,
Brown, together with his three Lemon Drop managers
(Stoneburner, Berg, and Peterson), met in Brown's office
at Como Oil. Brown testified that he believed that ac-
companying the letter was a union list of "do's and
don'ts," on the union stationery, addressed to employers,
describing various prohibitions against interference with
9 The General Counsel adduced considerable testimony regarding em-
ployees Judy Helgesen and Jody Griffith (at the end of October, after
union activities started) engaging in a conversation in Respondent's park-
ing lot where they were allegedly overheard by, and followed by, Man-
ager Joel Berg. No evidence was produced linking Berg with any at-
tempted surveillance of Helgseen and Griffith notwithstanding he was
present when they were in the parking area. Moreover, the evidence is
unclear as to whether Helgesen and Griffith even mentioned the Union
either inside the restaurant or as they walked outside into the parking lot.
I conclude that, on this record, there was no proof of an act of surveil-
lance by Berg and I specifically find that no evidence shows that Berg
was suspicious of Helgesen and Griffith engaging in a discussion of the
Union at that time.
employee rights under the National Labor Relations Act.
Brown testified that although he did not inspect the
many prohibitions mentioned in the document (R. Exh.
5) he told the managers, generally, what conduct to
avoid and to conduct their business as usual. None of the
testimony of Respondent's witnesses (Brown, Stone-
burner, Peterson, and Berg) present at the November 4
meeting relates to a description concerning Respondent's
position concerning the employees' attempt to gain bar-
gaining rights through the Union. The only reference, as
above noted, was with regard to the "do's and don'ts" of
employer conduct towards the employees.
After discussing receipt of the Union's letter request-
ing recognition, the subject was then changed to Grif-
fith. As Keith Stoneburner testified, all four of the
Lemon Drop supervisors present at the meeting won-
dered what they should "do" with Griffith. In fact,
Stoneburner used the very words: "What to do with
Griffith" as the language used at the meeting. Stone-
burner testified that Peterson explained to Joel Berg and
Larry Brown what had happened on the previous
Friday, October 31, 1980, regarding an incident between
Manager Peterson and Jody Griffith. There was no testi-
mony suggesting that Griffith's union activities were dis-
cussed. Respondent's witnesses stated that Peterson's ex-
planation to Berg and Brown was necessary because they
and particularly Berg had no prior knowledge of the in-
cident. Brown, of course, knew of the incident because,
as Stoneburner testified, on cross-examination, he had
mentioned the Griffith incident to Brown as early as 5
p.m. on November 3, 1980, in describing the odd work
scheduling notations as will be hereinafter more fully de-
scribed. Brown testified that on November 3, when Ston-
eburner told him of the incident, he told Stoneburner
that he was surprised that Peterson did not fire him on
the spot. In addition, Brown testified (Tr. 474) that, at
the November 4 meeting, Peterson and Stoneburner told
him that, before the meeting, they had, together, decided
to fire Griffith (Tr. 473). Yet, Peterson's pretrial state-
ment to the National Labor Relations Board clearly
states: (1) he was not involved in the decision to termi-
nate Griffith; (2) nothing was said at the November 4
meeting about terminating Griffith; and (3) Peterson
merely wanted to talk to Griffith before he worked again
(Tr. 342-343). Nothing was said about Griffith being ter-
minated if he failed to speak to Peterson by Wednesday,
November 5.
As a result of the meeting of November 4, 1980, at
which Larry Brown became extremely irritated with
Keith Stoneburner for his scheduling Griffith to work on
Friday, November 7, it was Stoneburner, at Brown's di-
rection, who on November 4 directed that Griffith be
discharged on Wednesday, November 5, 1980, at 9:30
p.m.
Stoneburner, on November 5, 1980, drafted a dis-
charge notice which, inter alia, read as follows:
His employment was terminated because of his in-
subordination. He did not clean windows when he
was asked and he left without permission from man-
ager [Jess]. When told to come in to talk to Jess
about Circumstance he never showed up, claiming
1014
LEMON DROP INN
he was to [sic] busy. This is why he was dis-
charged. [Emphasis added.]
As below noted, Peterson testified that he gave Grif-
fith permission to leave (Tr. 327). Whereas at the hear-
ing, Peterson testified that he knew that Stoneburner dis-
charged Griffith (Tr. 344), as late as his December 10,
1980 statement to the National Labor Relations Board,
he stated he did not know who made the decision to dis-
charge Griffith; only that Stoneburner and Brown talked
it over after the November 4 meeting (Tr. 342).
Stoneburner testified that, when he told Brown, on
November 5, that Griffith had not seen Peterson, Brown
directed him to telephone Griffith and disharge him.
The Sequence of Events from October 31 (Friday)
Through November 5 (Wednesday), 1980
Stoneburner came to work on Friday, October 31,
1980, at his regular scheduled time toward 3 p.m. He
saw Manager Jess Peterson who was upset because, as
he told Stoneburner, he had instructed Griffith to wash
the outside windows of the restaurant and that Griffith
performed poorly. The events of the afternoon of Octo-
ber 31 regarding Griffith's failure to properly wash the
windows are actually not in dispute and a composite of
the testimony of Peterson and Griffith shows that, about
9:30 a.m., Griffith asked Peterson to leave at 2 p.m., an
hour early, because of personal considerations. I find that
Peterson told Griffith that he would let him know later
as to whether Griffith would be given permission to
leave an hour early. 0 According to custom, Brown took
lunch at the Lemon Drop Inn, had lunch with the man-
ager on duty, Peterson, and Brown suggested that the
windows be cleaned. Thereafter, Peterson asked the two
cooks, Scott Hansen and Jody Griffith, which of the two
would volunteer to clean the windows. When neither
volunteered, Peterson asked Griffith to clean the win-
dows and Griffith told him that he was "pissed" in being
selected to do the job. Griffith testified that at about 2
p.m. when he next saw Peterson, he again asked to leave
early, but Peterson said that the windows had to be
cleaned.
In any event, Griffith got the window washing equip-
ment and started to wash the eight 6-by-8 foot windows
which job ordinarily takes about a half hour. About 10
minutes later, he returned to Peterson's office and told
him that he had finished and also added that, if Peterson
did not like it, he could fire him. Peterson then left to
check the windows and discovered that there were
marks on the windows and the ledges were dirty. He re-
turned to the office, got Griffith, and showed him the
unacceptable windows. While he was describing the in-
adequate job, with his back to Griffith, Griffith left and
Peterson ended up talking to himself. Peterson had told
him to return and clean up the windows. Griffith re-
trieved the equipment and again cleaned the windows.
About 10 minutes later, Griffith returned to Peterson's
office, again told him that he was finished, and added,
10 Scott Hansen, present during certain Griffith-Peterson conversa-
tions, still employed by Respondent at the time he testified, was unclear
whether he heard Griffith ask Peterson to leave early at any time.
"I'm leaving." Peterson told him that that was not the
way employees left Respondent's premises when they
were scheduled to work and that he must get permission
before punching out. Griffith then said: "Yes, sir, I un-
derstand; may I punch out?" Peterson testified that he
answered yes and that then Griffith then punched out.
Peterson also testified that an hour or two thereafter,
he hired Steven Donovan as a daytime cook. He testified
that he hired Donovan on October 31 because he did not
want Griffith working there any longer (Tr. 303) and,
indeed hired Donovan as a replacement t ' for Griffith. 2
About 3 p.m. Peterson said that he told Manager Ston-
eburner, who was coming on duty, that he was upset
with Griffith and did not want Griffith working there
any longer. Stoneburner recalled that Peterson said that
he was going to fire Griffith but Stoneburner said that
Griffith was a good employee; that Peterson should talk
to Griffith first and work things out with him. Stone-
burner said that that was Larry Brown's rule regarding
disputes with employees. Stoneburner, on cross-examina-
tion, was unsure whether Peterson, on October 31, told
him that Peterson had given Griffith permission to leave.
His testimony varied from an inability to remember to an
assertion that Peterson said that Griffith had left without
permission. Then Stoneburner stated that he was prob-
ably in error in his testimony. The parties stipulated that
Griffith punched out at 2:35 p.m. on Friday, October 31,
1980.
" Brown testified that as of November 4, he believed that before Grif-
fith could be reinstated he was obligated to first speak with Peterson by
November 5 (Tr. 444 445, 476). Griffith had not been laid off or dis-
charged by anyone over this incident prior to his actual November 5 dis
charge. Thus his being "reinstated" at that early point appears premature.
Moreover, if Peterson hired Donovan on October 31 or, as other Re-
spondent records (G.C. Esh. 15) show, November 4, to replace Griffith,
then Griffith's failure to come in and speak to Peterson by Wednesday,
November 5, was a merely academic gesture and a futility. Donovan's
hiring mooted the matter. On the other hand, Brown insisted that Griffith
was directed to speak not only to Peterson by Wednesday, November 5
(Tr. 476), but, contrary to Peterson's testimony that he hired Donovan on
October 31 (Tr. 302) Respondent's records show he was hired as late as
November 5 (R. Exh. 6). At bottom, Peterson's inconsistent testimony
(and pretrial statement) and Brown's contrary testimony and Respond-
ent's records are difficult to reconcile. Peterson cannot at the same time
assert that he hired Donovan (Tr. 303-304) either on October 31 or on
November 4 (G.C. Exh. 15) to replace Griffith and that Donovan did re-
place Griffith because he did not want Griffith working any longer and
then state that he had no objection to Stoneburner scheduling Griffith to
work (Tr. 330) but merely wanted to talk to Griffith before he worked
again (Tr. 330). Such testimony and activity by Peterson is, in turn, in-
consistent with Brown's testimony that, as late as November 4, at their
November 4 meeting, it was not only their (Stoneburner's and Peterson's)
decision to discharge Griffith, but that it had been made before Novem-
ber 4 (Tr. 473). Brown says that, at the November 4 meeting, he forbid
the Griffith discharge by Peterson and Stoneburner but, as above, Peter-
son says that nothing was said at the meeting about discharging Griffith.
I do not credit Respondent's witnesses regarding the source, timing, or
motivation of the hiring of Steve Donovan or, more particularly, the
Griffith discharge. (Compare Tr. 342-343 with Tr. 473-476). The only
reasonably clear "facts" to be deduced from this labyrinth is that, as Re-
spondent's records show, Donovan was scheduled to work no earlier
than November 5 (G.C. Exhs. 8a and 8b) and that, no later than Novem-
ber 3, Peterson had changed his mind and thus had no objection to Grif-
fith working for Respondent provided Griffith speak to him first.
12 Donovan did not testify at the hearing. Counsel for Respondent
stated and Respondent's records show that Donovan was no longer in
Respondent's employ. Peterson did not testify that he told Donovan that
he was being hired as a replacement.
1015
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As above noted, it was on Monday, November 3,
1980, about 9 a.m., when Borg, Berg, and Brown met in
Brown's Como office and Berg told them that Griffith
and Cassidy had solicited her to sign a union card.
Sometime on either the previous Saturday or Sunday,
November I or 2, according to Stoneburner's testimony,
he was charged with the obligation to execute the work
schedule for all employees and managers for the period
Tuesday, November 4, through Monday, November 10.
He testified that he scheduled Donovan to work on
Wednesday, Thursday, and Friday (November 5 through
7) and posted the schedule after 8 p.m. on November 3
(Monday), after a phone conversation with Peterson, as
appears below.
About 5 p.m., according to his usual custom, Brown
visited the Lemon Drop Inn on November 3 (Monday)
and Stoneburner told him of the proposed schedule.
When he saw the schedule he saw that Stoneburner had
written the words "see Jess" across the columns on the
work schedule form for part of Tuesday, all of Wednes-
day, and part of Thursday (R. Exh. 19). Brown testified
that he asked Stoneburner what that meant and Stone-
burner told him of the Peterson-Griffith window wash-
ing incident. Stoneburner testified that, when Brown
asked about the meaning of "see Jess," Stoneburner told
Brown that Peterson wanted to fire Griffith if the matter
could not be worked out, but agreed not to do so and
speak to him first. Brown testified that he told Stone-
burner he was surprised Peterson did not fire Griffith on
the spot but did not give any advice or direct any action
for either Peterson or Stoneburner.
Meanwhile it should be noted that Scott Hansen, a
cook, like Griffith, on October 31, asked Stoneburner,
who was then preparing the November 4-November 10
work schedule for time off to go deer hunting on the fol-
lowing weekend, from Friday, November 7, through
Monday, November 10. Stoneburger never told Peterson
of Hansen's request.
About 8:30 of that evening, November 3, 1980, after
Brown had earlier seen the work schedule, Stoneburner
posted it. About the same time, he recalled that deer
hunter Scott Hansen had requested the next weekend off
commencing November 7. Around 8:30 p.m., November
3, 1980, Stoneburner telephoned Peterson and told him
that he had already scheduled Scott Hansen to work the
following weekend of November 7, 8, and 9 (Friday
through Sunday) but had forgotten that Hansen had re-
quested the weekend off to go deer hunting. Stoneburner
told Peterson that he would put Griffith on the schedule
for Friday, November 7, and Monday, November 10, in
place of Hansen but wanted Griffith to consult Peterson
first. Peterson said that he had no objection but "wanted
to see Griffith first before he started to work on Friday
[November 7, 1980]."
Manager Jess Peterson was scheduled to work (G.C.
Exh. 9) the morning shift on Tuesday and Wednesday,
November 4-5 (6:30 a.m. through 4 p.m.), and the
evening shift on Thursday, November 6, from 4 p.m. to
closing around midnight.
Shortly after the conversation between Peterson and
Stoneburner, about 8:30 p.m., on November 3, a day on
which he was not scheduled to work, Griffith visited the
Lemon Drop to check the work schedule for the follow-
ing week. Griffith testified that when he saw the sched-
ule, contrary to the testimony of Brown and Stone-
burner, above, he saw that, in each of the spaces on the
work schedule wherein he was not scheduled to work,
i.e., in the spaces allotted to Tuesday, November 4,
Wednesday, November 5; Thursday, November 6; Satur-
day, November 8, and Sunday, November 9, there was
the notation "see Jess." 13 For the reasons cited in the
the accompanying footnote, I credit much of Stone-
burner's version. I conclude that the November 3 posted
Griffith work schedule, seen by Griffith, contained the
statement "see Jess," but that this phrase, however, was
spread over all the spaces occupied for Tuesday,
Wednesday, and Thursday, November 4-6, rather than
merely, as Stoneburner would have it, squeezed substan-
tially into the Wednesday space with some overlapping
in Tuesday and Thurday. I also conclude that there was
no line drawn horizontally through the spaces. I make
these findings on the theory that Stoneburner, in accord-
ance with his conversation and agreement with Peterson
earlier that evening, wanted and desired Griffith to see
Peterson before he started to work on Friday, November
7. In addition, I credit Griffith's testimony: that on No-
vember 3, while he was copying down Peterson's work
schedule, Keith Stoneburner told him to "see Jess";
failed to tell him why he should see him; and (Griffith,
as below noted, would not be obliged to infer that the
reason was his own misconduct) did not say when, in
particular, he should see Peterson.14 Further, I also
' 3Stoneburner admitted that immediately after Griffith was discharged
on November 5, allegedly because Griffith ceased being an employee, he
erased the entire work schedule on the Jody Griffith line which he had
posted. The document being rendered useless for this purpose, oral testi-
mony was admitted. See G.C. Exh. 8(a), as opposed to G.C. Exh. 8(b),
which is the reconstructed work schedule according to the testimony of
Jody Griffith. While such conduct, on this record, might lead to an infer-
ence of spoliation, I believe that there is insufficient surrounding evidence
to support such a conclusion. Any such reference may be refuted, in part,
I believe, in Griffith's testimony which leads to the illogical situation of
having "see Jess" inserted by Stoneburner even after the first day of
Griffith's scheduled work, Friday, November 7. It is reasonable that such
an admonition would appear on the spaces of Tuesday, Wednesday, and
Thursday but hardly on Friday and Saturday after Griffith was supposed
to start work and even when Peterson was not scheduled. I therefore
conclude not only that Griffith's recollection of the schedule as he re-
called it as of 8:30 p.m., November 3 (G.C. Exh. 8(b)), was erroneous,
but that Stoneburner's testimony, except as to spacing of the words "see
Jess," is more accurate; that no negative inference need be drawn, and
that, in any event, "see Jess" was spread all over the spaces assigned for
Tuesday, Wednesday, and Thursday (November 4, 5, and 6) rather than
merely squeezed mostly into Wednesday with some minor overlapping
into Tuesday and Thursday. Such a conclusion is consistent with Peter-
son's work schedule and would force Griffith to see Peterson at Peter-
son's convenience, i.e., when Peterson was working at the restaurant.
Compare R. Exh. 19 with G.C. Exhs. 8(a) and 8(b).
14 Stoneburner testified that he specified that Griffith was to see Peter-
son on either Tuesday or Wednesday, but not on Thursday, notwith-
standing that Peterson was scheduled to work Thursday (as well as Tues-
day and Wednesday) and notwithstanding that the "see Jess" which
Stoneburner drafted (and which Griffith copied down on Monday night,
November 3) clearly included and referred to Thursday, November 6. 1
do not credit such testimony. Neither Brown nor Stoneburner could rea-
sonably explain or support their testimony that Thursday in some way
was too late and that 2 days were enough time for Griffith to act not-
withstanding that Peterson's testimony and prior statement to the Board
consistently demonstrate that he wanted merely to talk to Griffith and
Continued
1016
LEMON DROP INN
credit Griffith's uncontradicted testimony that notes to
employees are frequently placed on the schedules and
that it is not rare for there to exist a notation for a par-
ticular employee to see a particular manager, although
this had not happened to Griffith prior to this time. It is
for this reason that I have concluded, above, that Grif-
fith would not necessarily infer the reason for Stone-
burner's direction.
Thus, crediting Griffith's contrary testimony, I do not
credit Stoneburner's testimony that he told Griffith to
see Peterson because Peterson was upset with him; and I
further conclude that Stoneburner did not tell Griffith to
see Peterson only on Tuesday or Wednesday (which
were only two of the three days on which Peterson was
scheduled to work); and I particularly discredit Stone-
burner's explanation as to why, in any event, he did not
at that time tell Griffith that he could also see Peterson
on Thursday, as well. Stoneburner testified that he told
Griffith to see Peterson on Tuesday or Wednesday only
because "2 days were enough."15 I conclude that the
only thing that Stoneburner told Griffith on Monday
night, November 3, was for Griffith to see Peterson
before Griffith started to work on Thursday, a finding
consistent with Peterson's pretrial statement, his testimo-
ny, and the Peterson and Griffith work schedules.
Indeed, I further conclude that Stoneburner's (and
Brown's) testimony with regard to "2 days are enough"
was a post-facto explanation to dovetail the reason Grif-
fith was precluded from speaking with Peterson on
Thursday, a scheduled Peterson workday, with the fact
that Brown, through Stoneburner, already caused Grif-
fith to be discharged on Wednesday, November 5, 1980.
As above noted, about 2 p.m. of the next day, Novem-
ber 4, 1980, when Brown received the Union's letter re-
questing recognition and bargaining, he scheduled a
not to discharge him. Thus, on November 3, when faced with Stone-
burner's forgetfulness in scheduling Hansen, Peterson showed no reluc-
tance in voicing agreement to Griffith being scheduled for work on
Friday, November 7. The heat, animus and direction for discharge all
started the next day, from Brown, when he discovered Stoneburner's
"mistake": the scheduling of Griffith (actually the posting of the sched-
ule), according to Stoneburner, prevented Brown's November 4 dis-
charge of Griffith and resulted in Brown's reluctant November 4 admoni-
tion that the managers talk to Griffith, but not fire him. The only person,
therefore, who wanted the discharge was Brown; and this, remarkably on
November 4 when, at that time, Griffith still had at least Wednesday,
November 5, to come in and talk, even if Respondent's witnesses are
credited and Griffith was not afforded Thursday as an opportunity to
"see Jess." While Respondent is under no legal obligation to be logical or
even reasonable in its relation to its employees, I cannot help but observe
that Brown's rather harsh and illogical actions must be viewed in the
context of the General Counsel's prima facie case; of Respondent, on this
record, having singled out Griffith for a merit pay increase only a few
weeks before, together with a commendation; of Brown's receipt of (a)
knowledge of Griffith as a union card distributor early on November 3;
and (b) the Union's request for recognition on November 4; and (c) of
Brown's displays of anguish and animus on the subject of discharging
Oriffith; and of Peterson's desire to talk to Griffith before he started to
work.
" Again, since Brown, on Wednesday evening, November 5, directed
Stoneburner to telephone Griffith and discharge him, Respondent's wit-
nesses could hardly permit Griffith to "see Jess" on Thursday, when Jess
Peterson was still scheduled to work, to expiate his October 31 insubordi-
nate attitude. It is unnecessary to speculate what prompted Brown to act
on Wednesday when he could have waited until Thursday, except that he
might have feared Griffith actually visiting Peterson's on Thursday
before working on Friday, as scheduled.
meeting of his managers at Como Oil for about 5 p.m., at
which time the Union's demand was discussed (without
detail in this record) but not Respondent's position re-
garding the Union. It was about this point that the man-
agers, in general, and Stoneburner, in particular, asked:
"What do we do about Jody [Griffith]?" Although
Stoneburner (and Peterson) testified that at this point Pe-
terson explained to Berg and Brown the facts of Grif-
fith's insubordination of the preceding October 31, I find
it difficult to believe that Brown and Berg were unfamil-
iar with Griffith's conduct in view of the fact that Berg
is a manager in the same restaurant as Stoneburner and
Stoneburner had explained it to Brown the evening
before. Rather, I conclude that Stoneburner's question
("What do we do about Jody?") occurred in the context
of the discussions of the Union's request for recognition
and the identification of Griffith as a union card distribu-
tor who, destined for discharge therefor, had been inno-
cently scheduled on November 3 for work on Friday,
November 7. Thus, I find it was then that Stoneburner
testified that he told the group, for the first time, that he
had already scheduled Griffith for work having acceded
to Scott Hansen's request for time off for the period be-
ginning Friday, November 7. Stoneburner obviously was
not privy to Brown's and Berg's knowledge of Novem-
ber 3, for Respondent's witnesses, at this point, mutually
corroborate each other in that Brown then became very
upset, telling Stoneburner that, when he had left Stone-
burner on the preceding evening, Stoneburner told him
that Griffith would have to talk to Peterson first before
being permitted to work. Stoneburner told Brown that
he had no alternative for, after giving Hansen time off,
there was no other person to schedule for the cook's job
on Friday, November 7. Stoneburner then asked Brown:
"Now what do we do?" Brown answered that they
could not fire Griffith now because Stoneburner had ac-
tually scheduled him for work (Tr. 345) and, since Grif-
fith was actually scheduled, they could talk to him but
not fire him. Stoneburner recalls that Brown said this to
all three of them. Yet, as above noted, even if Respond-
ent's witnesses are credited and Griffith had only Tues-
day and Wednesday to talk to Peterson, Brown's firm
desire to fire Griffith was manifested on that Tuesday,
when Griffith still had the admitted opportunity to come
in and talk to Peterson all day, Wednesday, November 5.
Wednesday, November 5, 1980
On Wednesday, November 5, a payday, about 4:30
p.m., Griffith came to the Lemon Drop to pick up his
pay. The manager on duty, Keith Stoneburner, distribut-
ed the paychecks. Griffith testified that Stoneburner
asked him whether he had been in to see Peterson as yet.
When Griffith said that he had not, Stoneburner asked
him why. Griffith answered that he planned to see Peter-
son when he was in town because it was too expensive
to drive in just to talk to him for 10 or 15 minutes.
Stoneburner did not tell Griffith when to see Peterson,
did say to be sure and see him, but did not mention the
gravity of the situation.
About an half hour later, about 5 p.m., Larry Brown
came to the Lemon Drop office and spoke to Stone-
1017
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burner. He asked whether Griffith had spoken to Peter-
son. Stoneburner told him that he had spoken to Griffith
and that Griffith told Stoneburner that he was "too
busy" to talk to Peterson. I credit Griffith's testimony
that he told Stoneburner that he would see Peterson
when he was next in town and it is quite possible that
Stoneburner told Brown, in characterizing the conversa-
tion he had had with Griffith, that Griffith had said that
he was "too busy" to talk to Peterson at that time. In
any event, Brown then told Stoneburner that, if Griffith
was too busy to talk about his job, he should not be on
the payroll and Brown told Stoneburner to discharge
Griffith.
About 7:30 the same evening, Griffith again came to
the restaurant and asked Stoneburner for permission to
leave his car on the company parking lot. Stoneburner
said that he granted him permission but told Griffith to
speak to him on his return. When Griffith returned about
9:30 p.m., Stoneburner asked him if he had seen Peterson
as yet and Griffith answered that he had not. Although
Stoneburner did not use the word insubordination, he
told Griffith that he was terminated. Griffith asked if
that was all that Stoneburner had to say and, when
Stoneburner said that was all, Griffith left. Stoneburner
testified that he had told Griffith that he was terminated
because he did not come in to talk with Peterson and be-
cause of the window incident on Friday. It is unneces-
sary to resolve this conflicting testimony.
Immediately after his discharge of Griffith, on
Wednesday night, Stoneburner prepared the discharge
notice (R. Exh. 13). As above set forth the Stoneburner-
drafted discharge memorandum notes that Griffith was
discharged for insubordination when, after failing to
properly clean the windows and was asked to do so, he
left without permission from Peterson. Again, it should be
noted that Peterson, on cross-examination, admitted that
he never told Stoneburner that Griffith left without per-
mission. In fact, Peterson's testimony demonstrates that,
after admonishing Griffith concerning Griffith's insubor-
dinate attitude in declaring that he would leave, he re-
minded Griffith that he needed permission from Peter-
son. Peterson admits that he then did give Griffith per-
mission to leave.
In this same regard, Stoneburner testified, at first, that
at the November 4 meeting Peterson said that he had not
given permission to Griffith to leave, then said that he
could not remember and then said that Peterson declared
that he, Griffith, had left without permission. Thereafter,
Stoneburner said that the last part of his testimony was
erroneous and that Peterson did give Griffith permission
to leave (Tr. 583). Stoneburner gave no explanation why
he drafted the erroneous November 5 discharge memo-
randum which shows that Griffith's discharge, inter alia,
was based on his leaving without permission (R. Exh.'
13). As the General Counsel observes (Br., p. 8), Brown
failed to consult Peterson on the discharge.
Discussion and Conclusions
I have already concluded that Cassidy's testimony,
concerning Berg's statement of "closing down" in re-
sponse to unionization, should be credited over Berg's
denial; that Berg's late October 1980 statement to Cas-
sidy in the presence, inter alia, of Sharon Borg, a witness
favorable to Respondent, that he had overheard Cassidy
talking to Griffith about the Union and that he had
better not hear anymore of it because Respondent would
close the doors if employees brought in the Union, vio-
lated Section 8(a)(1) of the Act. Regardless of any simi-
lar statement' to Griffith, I conclude that Respondent has
demonstrated a degree of animus against labor organiza-
tions to affect its personnel dispositions and, in my judg-
ment, the credibility resolutions regarding the discharge
of Griffith. I do not suggest that the presence of union
animus requires a conclusion that the Griffith discharge
was motivated by his union activities; I do conclude that
Berg's late October 1980 threat and admonition to Cas-
sidy (which threat of a closedown is among the most se-
rious and coercive statements of union animus and coer-
cion, General Stencils, 195 NLRB 1109, 1110 (1972);
NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980)),
coming immediately before the Union's claim of majority
status and so soon before the November 5, 1980 dis-
charge of Griffith, may well be taken into account with
regard to the ultimate inference of Respondent's motiva-
tion.
I conclude that Respondent's discharge of Griffith on
November 5, 1980, violated Section 8(a)(3) and (1) of the
Act; that Respondent's defenses are either palpably
untrue (failure to obtain permission to leave) or pretex-
tual (insubordination in failing to see Peterson); and that
such discredited defenses, themselves, support the infer-
ence of an illegal motive, especially in the presence of a
prima facie case, Heartland Food Warehouse, 256 NLRB
940 (1981), and cases cited therein.
In preliminarily assessing the lawfulness of the dis-
charge under the Wright Line analysis,' 6 the General
Counsel proved a prima facie case when he adduced
credible testimony that Respondent, both through the
testimony of Cassidy regarding Berg's retaliatory threat
after overhearing the alleged union conversation between
her and Griffith (thus giving Respondent knowledge or
at least suspicion of Griffith's union activity) and
through Borg's testimony that she told both Brown and
Berg, on November 3, 1980, 'that Cassidy and Griffith
had solicited her to sign a union card. Such credited tes-
timony, from a reluctant witness, is strong evidence that
Respondent had actual knowledge of Griffith as a union
card distributor and activist. That knowledge, acquired
on this record no earlier than on or about October 31
and no later than November 3, 1980, occurring concur-
rently with Berg's expression of union animus, and fol-
lowed in a few days by the discharge of one of the two
union card distributors, fully describes the elements
(timing, knowledge, animus, and precipitate discharge) of
a prima facie case of violation of Section 8(a)(1) and (3)
of the Act in the discharge.
Respondent ultimately defends the discharge on the
grounds that it did not discharge Griffith for any unlaw-
ful reason within the meaning of the Act, but rather dis-
charged him because (1) of his insubordinate attitude in
washing or failing to wash the windows for Peterson on
16 Wrighrt Line, 251 NLRB 1083 (1980).
1018
LEMON DROP INN
October 31, 1980; (2) he failed to follow Respondent's in-
struction to see Peterson to discuss his distress over Grif-
fith's Friday misconduct in failing to properly wash win-
dows; and (3) his leaving the premises on October 31
without permission from Peterson on that same Friday
afternoon. If Respondent's overall motivation included,
in fact, a geniune reliance on Griffith's conduct or mis-
conduct, then, according to Board rule, there would be
two reasons for the discharge and the Board rule in such
case, Wright Line, 251 NLRB 1083 (1980), would place
the burden of proof, following the General Counsel's
proof of a prima facie case, on Respondent to prove that
its discharge of Griffith was motivated entirely apart
from any union considerations and was based wholly on
the above three reasons. However, the Board does not
require an analysis of Respondent's "dual motive" where
the alleged basis for the discharge is found to be pretex-
tual. In this regard, the Board has specifically cautioned
against believing that the Board will attach significance
to merely articulated reasons for discharge or discipline
where they were ultimately found to be pretextual. See
American Tool Co., 257 NLRB 608, 609 fn. 4 (1981). In
short, in the instant case, while I have no doubt that on
October 31 Griffith behaved in an insubordinate manner
before Peterson (as he had previously behaved, without
consequences, to Manager Berg: that if he did not like
Griffith's conduct, Berg could fire him), I conclude, nev-
ertheless, that Respondent seized on Griffith's Friday
night "insubordination" and his failure to speak to Peter-
son on the following Tuesday and Wednesday as con-
venient "straw man" excuses to fire him because of his
union activities. Nothing further need be said of the third
reason for the discharge, Griffith's failure to receive Pe-
terson's permission to leave, because it was admitted by
Stoneburner, author of the discharge memorandum, to be
untrue. Since I independently do not credit either of the
remaining two "reasons" for the discharge, I need not
reach or decide the extent to which the obviously false
(and nowhere explained) third "reason" poisons the
other two.
In reaching these conclusions, I rely on the following
findings to support the pretextual nature of reasons for
the discharge of Griffith.
1. In the first place, one must recall that Griffith, ac-
cording to Stoneburner, was an employee whose per-
formance had been under Respondent's observation in
consequence of which it was concluded that the quality
of his work merited the special pay raise on or about the
beginning of October 1980, no more than a month before
his discharge. It is odd that although Brown, on Novem-
ber 5, directed Stoneburner to use the telephone, if nec-
essary, to discharge Griffith, none of Respondent's super-
visors ever informed Griffith, from October 31 through
November 5, that he faced discharge-for whatever
reason.
2. Peterson, the object of Griffith's insubordinate and
insolent attitude in the window washing incident of
Friday, October 31, may well have expressed great dis-
pleasure at that misconduct to Stoneburner on the after-
noon immediately after its occurrence but, according to
their mutual testimony, Peterson did not wish to fire him
after speaking to Stoneburner, who cautioned that Peter-
son should calm down and first speak to Griffith before
taking any action. Peterson agreed to this mode of pro-
cedure and, thereafter, to Stoneburner's innocent sched-
uling of Griffith on November 3. The evidence shows
that, on November 3, Borg told Berg and Brown of
Griffith soliciting her to sign a union card, with Brown
cautioning silence on the spread of this information. On
that evening, at 5 p.m., Stoneburner told Brown of the
Peterson-Griffith altercation of the preceding Friday and
of Stoneburner's and Peterson's agreement not to sched-
ule Griffith for work until he saw and spoke with Peter-
son regarding Griffith's display of arrogance on October
31. Brown expressed surprise that Peterson failed to dis-
charge Griffith "on the spot."
3. The uncontradicted facts regarding the forces sup-
porting and the mechanics of the discharge demonstrate
that Peterson, the aggrieved manager, did not seek Grif-
fith's discharge after Peterson spoke with Stoneburner on
the evening of October 31 and was not involved in the
decision to discharge him (Tr. 342). The evidence,
beyond cavil, shows that Brown-whose opinion and aid
was not sought, and who ordinarily does not participate
in managers' hiring and firing decisions-was the sole
moving party in the discharge of Griffith. The testimony
of record is clear that the aggrieved Peterson relin-
quished his desire to fire Griffith, and the only person
thereafter involved and subject to personal upset and ir-
ritation on this question was Larry Brown. Larry
Brown, on November 4, when he suddenly learned of
Stoneburner's action, became supremely irritated with
Stoneburner's scheduling of Griffith, not because of a
lost opportunity to discipline him but because the publi-
cation of the work schedule prevented Respondent from
immediately discharging Griffith. At this time, of course,
even if Griffith had only until Wednesday, rather than
until Thursday, November 5, to "see Jess," Brown was
already indignant that Griffith could not have been al-
ready set for discharge. Since Brown had thus already
determined to discharge Griffith a full day prior to the
expiration of the time Stoneburner (and he) set for Grif-
fith's act of contrition, it is unnecessary to decide wheth-
er-as was Peterson's desire (Tr. 311)--Griffith see him
before he started to work again (i.e., by Thursday, No-
vember 6) or by the end of Wednesday, November 5.
Brown wanted him fired as early as November 4 but de-
sisted because of the published work schedule (Tr. 311).
Moreover, even if it were necessary to decide the scope
afforded to Griffith, to "see Jess," I conclude that nei-
ther Peterson nor Stoneburner attached "Tuesday or
Wednesday" as a condition; and that the only condition
was that Griffith "see Jess" before he started to work
(on Thursday). I specifically credit Griffith that Stone-
burner did not mention a particular period and discredit
Stoneburner's and Brown's contrary testimony ("Two
days are enough") as fabricated to cover the discharge. I
credit only so much of the evidence as discloses that Pe-
terson wanted to see Griffith before he started to work;
that Stoneburner and Peterson gave Griffith until Thurs-
day, November 6; that even if, as Respondent's witnesses
assert, Griffith had only until Wednesday, Respondent's
witnesses testimony shows that Brown desired Griffith to
1019
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be discharged as early as Tuesday, November 4-lament-
ing the inability to do so. Thus Griffith's failure to "see
Jess," even by Wednesday, is a mere pretext.
4. I do not fully comprehend Respondent's position
with regard to the hiring of Steve Donovan, allegedly on
October 31, 1980, as a cook. If, as Peterson testified,
Donovan was hired on October 31 as a replacement for
the offending and offensive Griffith, there is no reason
Griffith was not given his walking papers on and after
October 31 and certainly by November 3. Further, I am
puzzled that Stoneburner did not know (a) that Donovan
was hired to replace Griffith; and (b) whether anyone ac-
tually did Griffith's job after the discharge (Tr. 589). I
am further puzzled by Stoneburner's innocence since the
matter was apparently discussed with Peterson at the
time (Tr. 303-304). Thus it is unnecessary to find that
Donovan was not hired as a replacement for Griffith, but
merely to reject, as I do, Peterson's testimony that on
October 31 he hired Donovan as Griffith's replacement. I
conclude only that Donovan was interviewed on Octo-
ber 31 and hired as a cook. 17
5. Brown's testimony asserting that he caused Grif-
fith's discharge because, by Wednesday, Griffith had
failed to "see Je-,s" is not credited for other reasons.
Brown's angry exclamation to Stoneburner on November
4 was not preceded by any recommendation of discharge
by either Stoneburner or Peterson. On the contrary, Pe-
terson explicitly stated, in his December 1980 pretrial
statement to the National Labor Relations Board, that at
this November 4, 1980 meeting: "Nothing was said at
this time about terminating Griffith." I conclude that Pe-
terson was not telling the truth at that time in particular,
and that Brown was insistent that Griffith be terminated.
Finding that Peterson and Stoneburner made no recom-
mendation to cause Brown's outburst, I find that it was
Brown, and Brown alone, who wanted to discharge
Griffith. I conclude that his angry November 4 an-
nouncement' s found its source in the information Brown
17 Peterson testlfied that he hired Donovan on October 31 (Tr. 302-
303). Yet Respondent records also show that Donovan was hired both on
November 5 (R. Exh. 6) and on November 4 (G.C. Exh. 15). There was
no explanation advanced for this three-way confusion. If he were hired
on November 4 or 5, this would be consistent with a hiring after the
Brown decision to discharge Griffith.
iA Brown's anger at the November 4 meeting is not unreasonable. He
gained actual knowledge of Griffith's activity as a card distributor on
Monday morning, November 3. In a meeting, later on November 3, he
shows surprise that Peterson did not discharge Griffith "on the spot" (Tr.
474). On the next day, November 4, he is met with the Union's letter re-
questing recognition and bargaining. He immediately calls a meeting of
his Lemon Drop supervisors for the same afternoon and discovers that
Stoneburner, innocently, scheduled Griffith for work on Friday, Novem-
ber 7, and showed the schedule to Griffith. The discharge for union ac-
tivities, in view of Griffith receiving permission to leave, of course, can
no longer clearly rest on the October 31 window washing incident;
hence, the "insubordination" of failing to "see Jess" in the artificial Tues-
day-Wednesday period. Why Stoneburner added the false ground of
Griffith's failure to receive permission to leave is a matter not subject to
immediate analysis. What does explain Brown's change in attitude, from
his evident November 3 surprise and irritation (that Griffith was not dis-
charged "on the spot"), when he knew only that Griffith was a union
card distributor, to his November 4 display of real anger and dismay at
Stoneburner for scheduling Griffith for work, is Brown's receipt of the
Union's recognition and bargaining request earlier on November 4, which
prompted the November 4 meeting of supervisors. Brown recognized the
new seriousness of the situation: now, no mere card distribution, but a
claim of majority status and a demand for bargaining. That accounts for
received from Borg (concerning Griffith as a card dis-
tributor) on November 3 and especially the Union's re-
quest for recognition earlier on that same day, November
4. I specifically discredit Brown's testimony (Tr. 473)
that, on November 4, Stoneburner and Peterson told
Brown that they, together, previously decided to fire
Griffith. At the very least, such testimony contradicts
Stoneburner's and Peterson's testimony and Peterson's
prior statement. It also is inconsistent with the circum-
stances.
In view of all these circumstances, and in view of the
General Counsel's prima facie case, I conclude that Re-
spondent's stated defense that Griffith was discharged on
November 5 for insubordination was at least a mere pre-
text with regard to his failure to see Peterson before
working and otherwise palpably false (with regard to
leaving without Peterson's permission) masking its true
reasons, Griffith's union activities, which were confirmed
on the morning of November 3, and its alarm at receiv-
ing the Union's claim of majority status and recognition
request on November 4. The above findings make it un-
necessary to inquire into or analyze the facts as if there
was a genuine "mixed motive" in the discharge. Golden
Beverage of San Antonio, 256 NLRB 469, 472 fn. 14
(1981).
In view therefore of proof of Respondent knowledge,
the precipitate timing in the face of expression of union
animus, and the false and pretextual explanations, I con-
clude that on November 5, 1980, Respondent, in viola-
tion of Section 8(a)3) and (1) of the Act, discharged
Jody L. Griffith, as alleged.
The Discharge of Betty J. Brock
Brock, first employed by Respondent on September
29, 1980, was terminated on December 22, 1980. Re-
spondent asserts that she was laid off at that time and the
General Counsel alleges that she was discharged. In any
event, there is no dispute that she was thereafter asked to
return to work and did return to employment on the Sat-
urday before ]Easter Sunday, April 1981, and that she
quit her subsequent employment with Respondent at the
Lemon Drop Inn on June 15, 1981.
On September 29, 1980, she was hired by Manager
Keith Stoneburner as a cashier-hostess notwithstanding
her original inquiry and request was to be hired as a
waitress. I credit her testimony, undenied on this record,
that when she was hired Stoneburner told her that he
had a job only as a hostess-cashier but that, when winter
came, and things got slow, she might be able to do some
"waitressing." At the time that she was hired, there were
already two other hostesses: Toula Trifon, who worked
4 days per week, and Karen Bail, who worked 2 days a
week, principally on the weekends. Brock was hired to
work 4 days a week, Friday through Monday, inclusive.
In early October 1980, Btock first met with a repre-
sentative of the Union and, thereafter, at the end of Oc-
tober or beginning of November, attended a union meet-
Brown's serious anger and his dismay "that Griffith could not be immedi-
ately discharged because Stoneburner scheduled him for work. Any Grif-
fith failure to "see Jess-whether by Wednesday or Thursday-falls as a
contrivance.
1020
LEMON DROP INN
ing. At the election of December 17, 1980, she acted as
the union observer.
Larry Brown admitted that he was surprised when
Brock was brought in as the union observer at the pree-
lection conference immediately prior to the December
17, 1980 election. He also admitted stating that he was
surprised that Brock was the union observer. Brown also
admitted having said that: "Seniority has no place in the
restaurant business."
After the December 17 election, Brock was next
scheduled to work on Saturday, December 20, from
11:30 to 7 p.m. At that time Stoneburner was the manag-
er on duty.
Before she began work about 11 a.m., while she was
drinking tea, Stoneburner asked whether she had served
tea to herself. When she answered that she had, he told
her to pay for it. At that moment, Stoneburner walked
away and, directing his comments to nearby cooks, told
them that thereafter there would be no more employee
personal phone calls and, saying this, he turned and
looked at Brock. Brock then paid for the tea and com-
menced working.
The evidence shows that Respondent had a rule
whereby enployees did not pay for their coffee but paid
for tea. It is also clear, on this record, according to
Brock's credited testimony, that she honestly believed
that both tea and coffee were freely provided by Re-
spondent whereas food was not. I also credit Brock's tes-
timony that no manager ever told her of a rule prevent-
ing service by an employee of any food or beverage con-
sumed by the employee. I also find that, as Respondent's
witnesses testified, Respondent's managers, from time to
time, did caution other employees that they were not to
consume food or beverages which they themselves pre-
pared; but that Brock did not know of such rule.
It is also the company rule that there are no incoming
phone calls to be relayed to employees unless it is a case
of emergency. With regard to outgoing calls, employees
are allowed such calls in case of an emergency or in ar-
ranging a car ride for transportation. I find that although
Brock's husband, on Saturday, December 20, attempted
to telephone her, she never told Peterson or Stoneburner
that she was expecting an emergency phone call regard-
ing her sick mother. Brock also admitted that, after her
return to the Lemon Drop Inn in April 1981, she ob-
served the rule of not serving herself, whether it was tea
or food.
After her husband had attempted to telephone her at
the Lemon Drop Inn on Saturday, December 20, Brock
worked on Sunday, December 21 from 8 a.m. to 3 p.m.
Sometime immediately after 3 p.m. on Sunday, as she
was punching out, she overheard Manager Stoneburner,
in a snickering tone, tell Manager Peterson that Brock
had received phone calls and that Stoneburner had not
put them through to her.
While Stoneburner admits receiving a phone call about
6 p.m. on December 20 from Brock's husband, he denies
discussing any such phone calls with Peterson. In addi-
tion, with regard to his admonishing Brock to pay for
the tea, he admits asking her whether she was paying for
the tea and asserts that Brock told him that she had not
paid for the tea but planned to pay for it and inquired
whether Stoneburner was accusing her of stealing.
Stoneburner testified that he had often spoken to em-
ployees about Respondent's food policy whereby tea
must be paid for but not coffee. He did not say he spoke
with Brock.
With regard to this conflict of testimony, I credit
Brock both on the straightforwardness and particularity
of her testimony. The demeanor of Respondent's manag-
ers was not impressive and they have already shown a
lack of credibility in their testimony. I noted, in particu-
lar, that Peterson and Berg often testified, both on direct
and cross-examination, with great pauses between the
questions and answers as if each element of the question
was being construed prior to an answer. While this con-
duct, under other circumstances, might demonstrate seri-
ous consideration, thoughtfulness, and restraint, here it
struck me as a preliminary to rehearsed testimony, par-
ticularly in the direct examination, and particularly in
that they both testified in that fashion. In any event, the
consistent lack of spontaneity was clear. With regard to
Stoneburner, although his demeanor on the witness stand
was impressive and his answers spontaneous, I carefully
observed and compared both Brock and Stoneburner. I
believe that Brock, although she has at least a financial
stake in the outcome as a discriminatee, described the
snickering conversation between Stoneburner and Peter-
son with such evident attention to detail that I do not be-
lieve that she was fabricating this story. I credit her and
discredit Stoneburner's denial that there was no such
snickering conversation between him and Peterson re-
garding the failure to convey to Brock her husband's
telephone call on the preceding day.
When Brock arrived at work early on the following
day, Monday, December 22, about 10 a.m., she spoke
with Larry Brown and Berg in Joel Berg's office. She
told them that she was being harassed, treated badly,
given the silent treatment, and she had not received tele-
phone calls from her husband. She also mentioned the in-
cident regarding her paying for the tea and the fact that
Peterson and Stoneburner had snickered the prior day
with regard to not putting phone calls through to her.
Berg made no response but Brown told her that Stone-
burner and Peterson ("The two boys") were being "cru-
cified" and that a "lot of things were coming down on
them." When Brock said that Stoneburner had displayed
a great deal of playfulness and bad language in the kitch-
en, Brown answered that the two managers were being
crucified. The meeting lasted more than a half hour and
Brown thanked her for her statements. She then started
her normal (11:30 a.m. to 7 p.m.) shift.
About 3 p.m. Berg told her to come into his office. He
told her that he did not know whether it was good news
or bad news to her, but he had to lay her off because
business was slow. He told her he did not need three
hostesses in view of the lack of work. Brock worked to 5
p.m. instead of 7 p.m. and left the Lemon Drop Inn.
Brock admits that in the last week, she was scheduled
for 3 days of work instead of 4, but also testified, with-
out contradiction, that in a prior conversation with Man-
ager Joel Berg, he told her that there would be no layoff
1021
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the first of the year because business would be ex-
pected to pick up.
Brown testified that he, indeed, said that he was very
surprised to see Brock as the union observer and that her
appearance on December 17 at the election was his first
knowledge of her support of the Union. Brown admitted
that Brock was the only employee laid off and testified
that she was selected because she was not a student who
would be the subject of layoff by attrition; that she was
laid off because there were not enough hours of work
for a third hostess-cashier and therefore not enough
hours to accommodate her. Berg testified that, after
Brock was laid off, the remaining hostesses were re-
quired to work longer hours and that one of them com-
plained (Tr. 522). Berg also testified that Brock often
complained about the quality (youth) of the waitresses
and other working conditions.
Evidence introduced by Respondent demonstrates that
the sutmmer months are the peak months of Respondent's
business and that Respondent traditionally shows dimin-
ishing profits commencing with September and running
through to December of each year (R. Exh. 7). There is
also no question that the number of hours worked per
week by hostesses in the weeks commencing December
14 and 21 declined from 54-1/2 to 39-3/4 hours. Howev-
er, the record shows that the number of hours worked
per week for hostesses in the week ending November 9
was 67-3/4; November 16, 70-3/4; November 23, 51; No-
vember 30, 60; December 7, 68; December 14, 54-1/2;
December 21, 39-3/4; December 28, 49-3/4; January 4,
43-1/2 and Janaury 11, 37-3/4 (R. Exh. 8). The peak
number of hours for hostesses shown on the evidence of
record was 80 hours for the week ending October 5 fol-
lowed by 77 hours for the week ending October 12 and
73-3/4 hours for the week ending October 19. For the
week ending October 26, there were 62-1/2 hours avail-
able and for the week ending November 2, 72 hours and
the week ending November 9, 67-3/4 hours. The evi-
dence also shows (G.C. Exh. 15) that in the period Octo-
ber 6 through October 27, 1980, when the availability of
hours worked for hostesses declined from 80-3/4 hours
to 62-1/2 hours, Respondent hired 11 waitresses.
Brown testified that in November 1980, "long prior"
to the December 17 National Labor Relations Board
election (and Brown's knowledge of Brock's union sym-
pathy) he and Berg "made the decision to terminate"
Brock (Tr. 496). This was due to a decline in business,
according to Brown, whereby Respondent did not need
three hostesses. His testimony was unclear as to whether
this was in early November when Respondent's hours
for hostesses for the week ending November 2 were 72
hours (or for the week beginning November 9, 67-3/4
hours; or the week beginning November 16, 70-3/4
hours; or the week beginning November 23, 51 hours,' 9
or whether it was the week beginning November 30
when the number of hours for hostesses rose to 60
hours). At any rate, the first charge in this case was filed
and received on or about November 10, 1980. About that
time, Brown had a meeting with his three Lemon Drop
19 The week begining November 23, Thanksgiving week, is a slow
week, according to Brown, for the type of restaurant they ran.
managers and Respondent's labor relations consultant,
William Sample. In that meeting, in November 1980,
Brown testified that Sample told him, after Brown and
Berg had discussed the proposed Brock layoff, not to lay
off any employees pending disposition of the election pe-
tition. Brown testified that he wanted to lay Brock off at
that time, i.e., in November. Brown further testified that
on seeing Brock as the union observer at the December
17 election, he told Sample that Respondent had long
before decided to terminate her and that since Respond-
ent was going to do so, Respondent could expect receiv-
ing an unfair labor practice charge filed on Brock's
behalf. Sample was never called to corroborate Brown's
testimony in this regard.
Berg testified that he was involved in a decision to lay
off Brock; and that in the fall, there was a falling off of
business. Berg also testified that Brock was the least
senior hostess and that seniority was a factor in her layoff,
and that the decision to lay her off occurred in Novem-
ber, but it took until December 22 to lay her off because
of professional advice not to lay her off until after the
election.
Quite apart from the General Counsel's prima facie
case (knowledge, abrupt termination), I have weighed
both Respondent's supporting economic evidence and
the resulting Brown and Berg testimony on the timing
and motivation of Brock's termination. I do not credit it.
I do not credit it because Sample was not produced to
corroborate the conversation; because the economic cir-
cumstances in November did not support Respondent's
testimony; because Respondent was inconsistent on
whether seniority was a factor (except in Brock's case)
because she was the only employee laid off for lack of
work; because it did not deny or explain its failure to
offer her a waitress job even in the face of slow business
as her uncontradicted testimony indicated; and because
Respondent, in November, when it allegedly made the
decision to lay Brock off, hired 11 waitresses.
What particularly attracted my attention was Berg's
testimony that this decision arose from restaurant busi-
ness having slowed "more and more and more [andj we
knew that we did not have the amount of hours for the
amount of hostesses we had" (Tr. 515). The context of
that testimony shows and requires that this was the eco-
nomic consideration underlying this alleged "November"
(i.e., before Brock was known to be a union supporter)
discussion with Sample concerning layoff of a hostess.
Respondent's records (R. Exh. 8), however, fail to sup-
port the assertion that decline in hostess hours led to the
layoff: 72 hours' hostess hours worked in the week be-
ginning (Sunday) November 2; 67-3/4 hours in the week
beginning November 9; 70-3/4 hours in the week begin-
ning November 16; 51 hours in the week beginning No-
vember 23; and 60 in the week beginning November 30.
In December, for the week beginning December 7, the
hours rose to 68; for the week beginning December 14,
54-1/4 hours. In short, the first precipitate drop occurred
in the week ending December 21 when the hours fell to
39-3/4 (but rose to 49-1/4 hours in the week beginning
December 28).
1022
LEMON DROP INN
Thus, except for the week beginning November 23
(Thanksgiving week was a slow and historically excep-
tional week for the Lemon Drop Inn-type of restaurant),
the loss of hours, comparing all October and the regular
November weeks, is marginal: the remaining poorest No-
vember week, 60 hours in the week ending November 30
is only 2-1/2 hours less than the poorest week in October
(62.50 hours, October 26); and no layoffs were planned
or perfected in October.
I conclude that there was no November decline in hos-
tess hours justifying a decision to lay off Brock; that the
Berg testimony concerning a November decision based
on November decline of hours was not supported by Re-
spondent's records or corroborated by the professional
advisor (Sample) who allegedly suggested against layoffs
(in November) until after the election (Tr. 515); that the
first precipitate work decline occurred in the week be-
ginning December 21, and that it was then that the deci-
sion was made to lay off a hostess, Brock. I do not credit
Brown's-or Berg's-testimony of a November decision
on Brock.
I further conclude that Respondent, in this proceeding,
showed clearly inconsistent positions concerning compa-
ny policy on seniority in the selection for layoff. A com-
parison of Brown and Berg supports the inconsistency.
Respondent failed to deny or explain Brock's testimo-
ny that Stoneburner told her, in late September 1980,
that she would be considered for "waitressing" when
things got slow, and its records show that, in November
(when business was allegedly getting slower and slower,
according to Berg), Respondent hired 11 waitresses
(whether these were replacements is immaterial) without
then, or thereafter, asking Brock to become a waitress.
Regarding Brock, therefore, I regard Respondent's
union animus, its knowledge (December 17) of Brock's
position as a union supporter and then the timing of the
precipitate December 22 termination as constituting a
prima facie case. Further, I regard that the Stoneburner-
Peterson snickering concerning the Brock phone call he
had not put through as the kind of petty harassment,
given Respondent's animus, which might be directed
against Brock, then recently discovered as a union sup-
porter. I also note (a) that Brock's testimony is undenied
that she told Brown and Berg, immediately before her
termination, that she was being harassed, treated badly,
and given the "silent treatment." If this were untrue, it
should have been denied and was not; (b) that Brock was
the only employee laid off for lack of work; (c) Re-
spondent was hiring 11 waitresses when, according to
Berg, business was allegedly falling off; and (d) the other
hostesses were working longer hours as a result of the
layoff. In addition, there was the above Respondent spe-
cific confusion concerning whether seniority was or
should have been considered in the Brock layoff, and I
found Berg's testimony, putatively supporting an eco-
nomic defense, picturing Brock as a crochety, chronic
complainer against coemployees and working conditions,
constituting a new and surprising element suddenly intro-
duced to bolster the selection if not the sudden termina-
tion.
Since Respondent conspicuously failed to support its
economic defense, in view of the November hostess
hours worked (allegedly the basis for terminating a hos-
tess), statistics showing little decline, contemporary
hiring of a large number of waitresses, and Respondent's
failure to call Sample as a witness to show an alleged
November economic decision on terminating Brock, it
would appear that Respondent's economic defense to the
Brock termination, like Griffith's "insubordination," is
another post-hoc pretext. I so find.
Moreover, even if it be assumed, arguendo, that falling
business activity did require a hostess to be laid off, since
Respondent's own testimony (Brown) undermines seniori-
ty as the dispositive criterion for selecting Brock, some
other rationale must have entered into the selection. The
quality and quantity of Brock's work, other than Berg's
observations never communicated to Brock, were not
subject to attack in this proceeding. Compared to Brock
regularly working 4 days per week, hostess Bail regular-
ly worked only 2 days per week and, after the Brock ter-
mination, complained over the resulting longer hours.
In short, in view of the General Counsel's prima facie
case, the ominous failure to call Sample to corroborate
an alleged November decision to lay off anybody-for
any reason-the fact that seniority was not a dispositive
factor in determining who was to be laid off, the unex-
plained petty harassment on December 22 and Respond-
ent's failure to offer her or even consider her, for a wait-
ress job, when it was hiring waitresses, I conclude that
the Brock termination would be, arguendo, a "mixed
motive" case requiring the application of the rule in
Wright Line, 251 NLRB 1083 (1980). I would further
conclude, for the above reasons, that Respondent has
failed to support its burden of proving that the selection
of Brock for termination was based on considerations
wholly apart from those constituting the prima facie
case.
With regard to Respondent's rehiring of Brock in
April 1981, it may be pointed out that complaint on her
behalf issued on February 19, 1981; and that Respondent
entered its denial concerning the unlawfulness of the
Brock termination on February 26, 1981 (G.C. Exh.
I(p)).
Rehiring Brock in April 1981 clearly bears on the
above resolutions of animus and selection. On the other
hand, it is unknown whether, if the Brock complaint had
not issued, she would have been rehired or whether Re-
spondent, in rehiring her, acted for monetary motives or
otherwise. The General Counsel proved a prima facie
case: knowledge, timing, animus. The remaining findings
in such a situation are that a consideration of all the evi-
dence in the consolidated case concerning the December
22, 1980 Brock termination preponderates in favor of the
conclusion that Respondent's economic defense is pretex-
tual; and the further conclusion that, whether or not Re-
spondent had sufficient economic basis for terminating
her, Respondent's selection of Brock violated Section
8(a)(3) and (1) of the Act. Respondent's ambiguous rehir-
ing of Brock 4 months thereafter is another matter, both
as to its rationale and as to the nature of the terms and
conditions under which she then worked. Neither of
these factors was litigated in this proceeding.
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. By promulgating and maintaining (in its "Lemon
Drop Personnel Policies" Rules 1, 2, and 5) rules of em-
ployee conduct which forbid, inter alia, solicitation re-
garding labor organizations by employees during "work-
ing time" and forbid, inter alia, off-duty employees to
"enter or remain anywhere on" Respondent's premises
for the purpose of solicitation, Respondent, in violation
of Section 8(a)(1) of the Act, has promulgated and main-
tained presumptively unlawfully broad rules preventing
such solicitation, Mandarin, 221 NLRB 264 (1975), cf.
GTE Lenkurt, Inc., 204 NLRB 921 (1973); but see Tri-
County Medical Center, 222 NLRB 1089 (1976); since (a)
such rules do not clearly contain a statement that such
restrictions on lawful organizational activity do not
apply during break periods, mealtimes, and other speci-
fied periods during the workday, or prior thereto or
thereafter, when employees are properly not engaged in
performing their work tasks, T.R.W. Bearings, 257
NLRB 442 (1981); and (b) Respondent has failed to
prove that such a restriction is required to ensure pro-
duction, safety, or discipline. Eastex, Inc. v. NLRB, 437
U.S. 556, 573 fn. 22 (1978).
2. By threatening employees that Respondent would
close its doors and go out of business in the event they
selected a labor organization as their collective-bargain-
ing representative, Respondent unlawfully coerced em-
ployees within the meaning of Section 8(a)(1) of the Act.
3. By terminating the employment of Jody L. Griffith
on or about November 5, 1980, and the employment of
Betty J. Brock, on or about December 22, 1980, because
in each case, said employees engaged in activities on
behalf of Hotel, Motel, Restaurant, Bar and Club Em-
ployees Union Local No. 99, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO,
herein called the Union, Respondent unlawfully discrimi-
nated against said employees, discouraging membership
in the Union, thereby violating Section 8(a)(3) and (1) of
the Act.
4. The unfair labor practices engaged in by Respond-
ent affect commerce within the meaning of the Act.
THE REMEDY
It having been found that Respondent made an unlaw-
ful threat, promulgated and maintained unlawful rules,
and unlawfully terminated the employment of Jody L.
Griffith and Betty J. Brock in violation of Section 8(a)(3)
and (1) of the Act, I shall recommend that Respondent
be ordered to cease and desist from any such future con-
duct. Further, I shall recommend that Respondent be or-
dered to offer Jody L. Griffith full and immediate rein-
statement to his former job or, if it no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges. I shall make the
same recommendation with regard to Betty J. Brock not-
withstanding that she was again employed by Respond-
ent commencing April 1981. Although it appears that she
may have well been employed in the same position (i.e.,
legally reinstated) from which she was terminated on
December 22, 1980, and enjoyed the same terms and
conditions of employment, including all privileges there-
to, that is a matter which was not litigated in the instant
matter and can better be resolved in a supplementary
proceeding, if necessary, relating to Betty J. Brock. Jack
Hodge, 227 NLRB 1482, fn. 1 (1977). In any event, I
shall recommend that Respondent make both Griffith
and Brock whole for any loss of earnings each may have
suffered from their above respective dates of termination
to the date Respondent shall make (or shall have already
made, in the case of Brock) a full offer of reinstatement
to their old jobs or a substantially equivalent position.
Backpay shall be computed according to the Board's
policy as set forth in F. W, Woolworth Co., 90 NLRB 289
(1950). Interest on backpay shall be computed in accord-
ance with Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Heating Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2O
ORDER
The Respondent, Lemon Drop Inn, Inc., Duluth, Min-
nesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unlawfully terminating, discharging, or laying off
employees, or otherwise discriminating against them, be-
cause they engage in activities on behalf of, sympathize
with, are members of, or support Hotel, Motel, Restau-
rant, Bar and Club Employees Union Local No. 99,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, herein called the Union, or any
other labor organization, or because they engage in con-
certed activities protected by Section 7 of the National
Labor Relations Act.
(b) Threatening employees that, if they select a labor
organization as their collective-bargaining representative,
Respondent will close down.
(c) Promulgating or maintaining rules of employee
conduct containing restrictions which prohibit employ-
ees, including off-duty employees, from engaging in so-
licitation on behalf of labor organizations during their
"working time" anywhere on Respondent's property
without incorporating in such rules a clear statement that
such restrictions on solicitation, contained in such rules,
do not apply during employee break periods, mealtimes,
or other specified periods during the workday when em-
ployees are properly not engaged in performing their
work tasks and are lawfully on Respondent's property or
have a right to enter or remain on such property.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies and purposes of the Act.
(a) Offer Jody L. Griffith and Betty J. Brock immedi-
ate and full reinstatement to their former or substantially
equivalent respective jobs, without prejudice to their se-
20 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1024
LEMON DROP INN
niority or other rights and privileges previously enjoyed,
discharging, if necessary, any employees hired in their
places, and make them whole for any loss of pay each
may have suffered by virtue of Respondent's discrimina-
tion against them, within the limits prescribed in the
above section entitled "The Remedy."
(b) Post at its place of business in Duluth, Minnesota,
copies of the attached notice marked "Appendix." 21
Copies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
With regard to Case 18-RC-12817, it having been
found that Respondent, in violation of Section 8(a)(3)
and (I) of the Act, unlawfully discharged Jody L. Grif-
fith at or about 9:30 p.m. on November 5, 1980; and the
Union having filed its petition for certification (G.C.
Exh. l(g) in Case 18-RC-12817) at 8:34 a.m. on Novem-
ber 5, 1980, and therefore, I find prior to the 9:30 p.m.
discharge of Jody L. Griffith, cf. Choc-Ola Bottlers, 192
NLRB 1247 (1971); 196 NLRB 1178 (1972); enf. denied
478 F.2d 461 (7th Cir. 1973); and the Union having filed
a timely objection to the conduct of the December 17,
1980 election with respect to the discharge of Jody L.
Griffith; and such discharge, having been found to con-
stitute a serious unfair labor practice, a fortiori constitut-
ing objectionable conduct which occurred on a date be-
tween the filing of the petition and the date of the elec-
tion herein, which conduct materially affected the con-
duct of the election, Ideal Electric Co., 134 NLRB 1275
(1961), I conclude and shall recommend to the Board
that the aforesaid timely objection to the conduct of the
election be sustained.
Additionally, having found that Jody L. Griffith was
unlawfully discharged by Respondent on November 5,
1980, I conclude and recommend that the General Coun-
sel's otherwise lawful challenge to his eligibility, voting,
and ballot in the December 17, 1980 Board-conducted
election be rejected since, for purposes of said election
and the National Labor Relations Act, Jody L. Griffith
was, at that time, and continued to be, an employee of
Respondent and entitled to vote in said election; now,
therefore, on the basis of the above dispositions sustain-
ing the Union's timely objection and rejecting the Gener-
al Counsel's challenge of Jody L. Griffith's eligibility and
ballot at said election.
IT IS FURTHER ORDERED, that Case 18-RC-12817 be,
and it hereby is, severed from the consolidated complaint
and remanded to the Regional Director for Region 18;
21 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
that the ballot of the employee Jody L. Griffith be
opened and counted by the Regional Director in accord-
ance with the National Labor Relations Board Rules and
Regulations, and that a revised tally of ballots be issued
and served on the parties. In the event the Union there-
by receives a majority of the valid ballots cast, the Re-
gional Director shall issue the appropriate Certification
of Representative. In the event the Union has not re-
ceived a majority of the ballots cast,
IT IS FURTHER ORDERED that the election conducted
on December 17, 1980, shall be then set aside and the
Regional Director shall conduct a new election when, in
his discretion, a fair and free election can be held.
SUPPLEMENTAL DECISION
Prior Proceedings
ROBERT W. LEINER, Administrative Law Judge. On
December 21, 1981, I issued a Decision and recommend-
ed Order in the above-captioned consolidated case find-
ing, inter alia, that Respondent committed certain viola-
tions of Section 8(a)(1) and (3) of the Act. In concluding
that, as alleged in paragraph 5(a) of the consolidated
complaint, Respondent, by its supervisor, Shift Manager
Joel Berg, in violation of Section 8(a)(1), threatened to
"close the doors ... if the employees selected the Union
as their bargaining representative," I credited the testi-
mony of Ruby Cassidy and discredited Joel Berg's denial
of any such threat. In so doing, I relied dispositively
upon an adverse testimonial inference arising from Re-
spondent's failure to call or recall a General Counsel wit-
ness, Sharon Borg (who, counsel for Respondent had ex-
pressly conceded, was friendly to Respondent), allegedly
present when Berg threatened Cassidy, to corroborate
Supervisor Berg's denial. The Board, as noted below, by
its Order of August 17, 1981, holding such inference im-
permissible under the circumstances, Hitchiner Mfg. Co.,
243 NLRB 927 (1979), remanded my decision for the
purpose of my reevaluating the Cassidy-Berg credibility
issue without such an inference, both for purposes of the
paragraph 5(a) alleged threat and for the effect, if any,
on the unlawful terminations alleged in paragraph 6
(Jody Griffith and Betty Brock).
Ruby Cassidy, a former Respondent employee (dis-
charged for cause), testified that on October 29 or 30,
1980, during the Union's organizing campaign, Supervi-
sor Berg told her (Cassidy), in the presence of fellow-
employee Sharon Borg,' that he had overheard Cassidy
and Jody Griffith talking about the Union and that he
"better not hear of it anymore because Mr. Hall [owner
or Respondent] said he'd close the doors and we
wouldn't have a job."
The testimony of Borg preceded that of Cassidy. Borg credibly testi-
fied only that on November 3, 1980, she told Supervisor Berg and Chief
Supervisor Larry Brown that Cassidy and Jody L. Griffith (an alleged
discriminatee herein) had asked her to sign a union membership card on
the previous day. Respondent discharged Griffith 2 days later, on No-
vember 5. The General Counsel made no inquiry from Borg concerning
Borg's presence at any Berg conversation with Cassidy concerning the
union activities. Such evidence came subsequently from Cassidy, as indi-
cated above.
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berg denied Cassidy's testimony but admitted partici-
pating in a legally innocuous general conversation, 6
months before, concerning unions and plant closings
with the advent of unions.
In crediting Cassidy and discrediting Berg's denial, I
found it unnecessary in my original decision to pass on
similar Jody Griffith testimony which the General Coun-
sel elicited from Griffith only to show Berg's union
animus. Griffith testified and Berg denied that in early
October 1980, some weeks before the Union's organiza-
tional drive, in response to employee Connor's question
(what would happen if Respondent had a union in
Lemon Drop Inn?), Berg replied, "We close the doors."
In view of the Board's remand, it is now necessary to
resolve the issue of credibility as to the alleged October
29 or 30 Cassidy-Berg conversation without regard to the
aforesaid inference. Additionally, since the findings of
Berg's unlawful threat and union animus related to my
additional findings of unlawful motivation in the dis-
charge and layoff of alleged discriminatees Jody L. Grif-
fith and Betty J. Brock, alleged in paragraphs 6(a) and
(b) of the complaint, the Board's remand further requires
reconsideration of my 8(a)(3) findings in light of my an-
ticipated findings in regard to the alleged Berg independ-
ent 8(a)(1) threat, above.
New and Supplemental Findings of Fact,
Conclusions of Law Concerning Complaint
Paragraphs 5(a) and 6, and Recommended Order
The credibility of Ruby Cassidy, a discharged employ-
ee who disregarded my sequestration order, was closely
scrutinized by me, especially as to bias and motive.
Where she testified that both she and Griffith were men-
tioned in Berg's October 29 or 30 threat, establishing
thereby, inter alia, the essential element of Respondent's
knowledge of Griffith's union activity, I regard it as sig-
nificant that the testimony of Borg, a witness concededly
favorable to Respondent, was not inconsistent with that
of Cassidy on this point: that Borg, on November 3, told
Supervisor Brown and Berg that Cassidy and Griffith
asked her to sign a union card. Berg contradicted Borg,
a friendly witness, and testified that Borg mentioned only
Cassidy as a union card solicitor. Such a contradiction is,
of course, crucial. If Berg were credited over Borg and
Cassidy, there would be no proof of Respondent's
knowledge of Griffith's union activity. In assessing Cas-
sidy's credibility, I have not only carefully considered
testimonial demeanor, closely and continuously observed
by me at the trial, but I have also weighed Borg's testi-
mony and Berg's motive in contradicting Borg. On that
basis, I have no hesitation in concluding that Berg's con-
tradiction of the reluctant testimony of a friendly witness
was motivated by an attempt to evade the imputation of
Responden's knowledge of Griffith's union activity; that
Borg's credited testimony, in this respect, was wholly
consistent with Cassidy's; and that Berg's contradiction
of Borg was false and constituted a severely adverse ele-
ment in judging his credibility. On this ground alone, for
purposes of the threat alleged in paragraph 5(a), and
without regard to any other factor, I credit Cassidy and
discredit Berg.
Berg also denied Griffith's testimony that Berg made a
similar remark redolent with union animus ("We close
the doors") in early October 1980. Cf., e.g., NLRB v. Ja-
maica Towing, 632 F.2d 208 (2d Cir. 1980). I pass on it
now only to support the likelihood that Berg made a
similar remark to Cassidy (as credibly testified by Cas-
sidy) during the organizational drive, a few weeks later.
In preferring the testimony of Griffith to that of Berg, I
credit Griffith if only because Berg consistently im-
pressed me as an untrustworthy witness. Other signifi-
cant instances of Berg's lack of credibility have already
been established in my basic Decision, further causing
me to credit Cassidy in preference to Berg. Thus, for ex-
ample, Berg was untruthful in his testimony concerning
the economic reasons underlying the necessity for the
termination of Betty Brock; he manufactured a baseless,
uncorroborated further reason for selecting Brock for
layoff, picturing her as a crotchety, chronic complainer
against coemployees; and, as I closely observed him on
the witness stand, Berg's testimony demonstrated both a
lack of spontaneity and an apparent reliance on rehearsed
testimony. In contrast, Cassidy impressed me as a forth-
right and candid witness whose words rang true.
For all of these reasons, I conclude that Cassidy (not-
withstanding the impediment of her being a discharged
employee) testified truthfully and Berg untruthfully in
describing Berg's October 29 or 30 threat to close down,
as alleged in paragraph 5(a) of the complaint; that Berg's
threat violated Section 8(a)(1) of the Act and demon-
strated Respondent's union animus; that Respondent, as
previously found, violated Section 8(a)(3) and (1) of the
Act, as alleged in paragraph 6 of the complaint, in termi-
nating Jody L. Griffith and Betty J. Brock. In reconsid-
eration of the entire record in light of the above new and
supplemental findings, without in any way relying upon
any inference flowing from Respondent's failure to call
or recall Sharon Borg, I hereby adopt and reaffirm all of
the findings, conclusions, and recommendations in my
Decision and recommended Order of December 21,
1981.
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