Loby's Cafeteria

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 752 (N.L.R.B. 1971)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charlena Lobianco, d/b/a Loby's Cafeteria and Hotel
& Restaurant Employees and Bartender 's Union,
Local i47, AFL-CIO. Case 26 -CA--3827
August 18, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND M$MBERS
FANNING AND KENNEDY
On April 30, 1971, Trial Examiner Herbert Silber-
man issued his, Decision in the above-entitled
proceeding, finding that General Counsel had not
sustained the burden of proving by a preponderance
of the' evidence that Respondent violated Section
8(a)(1), (3), and (4) of the Act as alleged and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examine'r's
Decision. Thereafter, General Counsel filed excep-
tions to the Trial Examiner's Decision with support-
ing brief, and the Respondent file cross-exceptions
with supporting brief and answering brief.
Pursuant to the provisions of Section 3(b) of the
National, Labor Relations Act, as amended, the
National Labor Relations..Board has delegated its
power in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at .the hearing ' and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-excep-
tions, 'and briefs, and the entire record'in the case,
and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be dismissed in its entirety.
1 The General Counsel has excepted to certain 'credibility findings
made by the Trial Examiner. It is the Board 's established policy not to
overrule a Trial Examiner's resolutions with respect to credibility unless
the clear , preponderance of all of the relevant evidence convinces us that
the resolutions were incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the
record and find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner : Upon a charge
and an amended charge, respectively, filed on October 13,
1970, and January 4, 1971 , by Hotel & Restaurant
Employees and Bartenders Union, Local 847 , AFL-CIO,
herein called the Union, a' complaint dated January 5,
1971, was issued alleging that the Respondent . Charlena
Lobianco, an individual, d/b/a Loby's Cafeteria, has
engaged in and is engaging in conduct constituting unfair
labor , practices within the meaning of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended.
In substance, the complaint alleges that the Respondent `on
October 9, 1970, unlawfully discharged Carzester Smith
because she gave testimony , in a prior Board proceeding
and because she had joined or assisted the Union and, by
reason of said discharge and other conduct set forth in the
complaint, Respondent also has interfered with , restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act . Respondent filed an answer to the
complaint generally denying that it had engaged in the
alleged unfair labor practices . A hearing in these proceed-
ings was held in Memphis, Tennessee, on March 2 and 24,
1970. Subsequent i to the hearing, General Counsel and
Respondent ' filed briefs which have been ` considered.
Upon the entire record in this case and from my
observation of the witnesses and their' demeanor, I make
the following:
FwDINGs OF FACT
1. THE BUSINESS OF RESPONDENT
Charlena Lobianco, who' is doing business under the
trade name and style of Loby's Cafeteria, operates a food
concession service at the Defense Depot located in
Memphis, Tennessee. The Defense Depot is a major field
activity of the Defense Supply Agency of'the United States
Department of Defense. The Defense Supply Agency is
charged with the mission of providing services and supplies
of 'common usage to the military forces. The Depot
involved in these proceedings receives , stores, and ships to
units of the Armed Forces supplies, including clothing,
medical supplies, bridge construction equipment, and other
types of equipment. The facility occupies 640 acres and
employs in excess of 2,300 civilians and 35 military
personnel. Charlena Lobianco, pursuant to the terms of a
concession agreement, operates three full service cafeterias
and a large number of vending "machines at the Depot.
Except for an officers' club, there are no other eating
facilities within the confines of the Depot nor are there
other eating' facilities in the area 'adjacent to the Depot
adequate to provide food service for the employees at the
Depot should Respondent's operations be discontinued.
Respondent's,gross receipts from the business she conducts
at the Depot during the period of 12 months immediately
192 NLRB No. 109
LOBY'S CAFETERIA
preceding the hearing herein were $175,176. I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) andt_(7) of the Act and that it will effectuate
the policies of the Act to assert jurisdiction in these
proceedings.'
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A threshold question raised by-Respondent is whether
the Depot is a joint employer with herself of the persons
who are employed in the operation of her food concession
service. The principal basis for this contention stems from
a provision of the concession agreement which reads as
follows: "That if, in the opinion of FUND, the conduct of
any employee, servant or,agent of CONCESSIONAIRE in
and about the premises covered by this Agreement
interferes with 'proper service, at the request of FUND
such employee, servant or agent will be removed." Despite
this provision in the concession agreement the evidence
shows that the Depot in fact exercises no authority over
Respondent's employees.-During the past 15 years on only
one occasion, which occurred about 12 years ago, did the
Depot request a concessionaire to remove an employee and
in that case the reason was related to discrimination in
violation of the Civil Rights law and was not related to the
employee's performance of his duties. I find no merit to
Respondent's argument that the Depot is a joint employer
with Respondent of Respondent's employees.
Carzester Smith has been a longtime employee at the
Depot having worked for Respondent and Respondent's
predecessors for about 18 years. Respondent did not begin
operating the food concession at the Depot until about
February 20, 1970. Only a month later on March 27, 1970,
Smith was discharged. Smith had been employed as a
pastry cook and otherwise to assist in Respondent's
operations by doing short-order cooking during meal
periods and performing other tasks. Unfair labor practice
charges were filed with respect to Smith's discharge on
March 27, 1970. In the proceedings instituted in conse-
quence thereof it was found that Smith's discharge was
unlawfully discriminatory and her reinstatement was
ordered.2 Smith returned to work for Respondent on
September 14, 1970.
Smith testified that about September 30, 1970, she
complained to a Mr. Walpole, a representative of the
National Labor Relations Board, that since her reinstate-
ment she was being harassed by Mrs. Lobianco.3 The
harassment, according to Smith, took the form of com-
plaints from Mrs. Lobianco about her baking, complaints
from Mrs. Lobianco that she was too slow in doing her
work, and irritatingly close supervision when on one
occasion Mrs. Lobianco spent a protracted period sitting
on a stool watching her bake.
' Charlena Lobianco, an Individual, d/b/a Loby's Cafeteria, 187 NLRB
No. 54.
2 Charlena Lobianco, etc., supra.
3 Smith testified that no employee who worked with her at the Depot
753
According to Smith, 'The next morning (after she spoke
to Walpole) when I got back in there, Mrs. Lobianco told
me . . . `Don't you go around here reporting me.' .. .
This is my job.' ... .You don't report me to nobody.' And
she got this stool I usually sit the mixer on to mix the rolls
up, and she say, `Don't put that pot, that mixer on the
stool. I am going to -sit on this stool this morning.' She got
that stool and she snatched it to the side of the wall and she
sat on it, and crossed her legs and sat on it, and told me she
would sit there as long as she wanted to and watch me,
bcause that was her job there, and I dare not report her to
nobody." 4
According to Smith's further testimony, from that day
forward until she was discharged, Mrs. Lobianco "was on
'me every day ... about something, just tell me every day
after that, tell me she was going to terminate me because
my work wasn't pleasing." Finally, Smith was discharged
on October 9, 1970. The explanation given to her by Mrs.
Lobianco for her discharge was that her work was
unsatisfactory and that customers had been complaining
about her baking.
-Mrs. Lobianco testified that she never spoke to Smith
about Smith's alleged complaint to Walpole and further
testified that neither Walpole nor any other representative
of the National Labor Relations Board had informed her
that Smith had complained to them. She further testified
that after Smith's reinstatement she found that Smith's
baking was unsatisfactory. She also testified that she had
received numerous complaints from customers about the
poor quality of the baked products, on one occasion, 2
days before she discharged Smith, she had had to throw
out an entire tray of bread pudding because it was not
edible and James Dolan, the post restaurant officer at the
Depot, had directed her to discontinue serving biscuits
baked on the premises because they were unsatisfactory. In
addition, Lobianco testified that Smith was so slow at the
short order counter that Smith had to be relieved of such
duties. Lobianco denied that she had spent any more time
observing Smith at work than any other cook, According
to Lobianco, it is her practice to spend considerable time
watching all the cooks, but she did not single out Smith for
any special attention.
Smith was aware of Mrs. Lobianco's complaints.
According to Smith, Lobianco on various occasions had
criticized her because she was too slow at the short order
grill, because the biscuits she had baked did not rise,
because she once left her section of the kitchen area in a
mess, and because the cobblers she had baked were
unsatisfactory. Smith also testified that Lobianco ultimate-
ly directed her to discontinue baking cobblers and biscuits
and confirmed Lohianco's testimony that the latter threw
out a tray of bread pudding allegedly because it was
inedible.
Respondent called several witnesses, including Dolan,
who corroborated Mrs. Lobianco's testimony. General
Counsel also called corroborating witnesses, seven of
whom testified that they ate Mrs. Smith's baked products
knew that she bad complained to a Board agent.
4 Smith testified that this was the only occasion that Mrs, Lobianco sat
on a stool and watched her work.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and found ` them good . Two of these witnesses, Mamie
Owens and Mattie Laurie Goss, testified that Lobianco
nagged Smith unduly. More specifically, Goss testified that
Lobianco quarreled with Smith more than with any other
employee and that one day Lobianco sat on a stool about 3
or 4 feet from Smith. Goss was unable to give any other
meaningful examples of the alleged nagging. Owens
described the nagging by explaining, that Lobianco in a not
mild tone of voice would ask Smith, "[W]hat were you
doing, what are you going to do with that, how many eggs
did you use, or something like that." Owens also testified
that one morning Lobianco "sat on that stool ... and she
would leave, and she would come around, and she would
stand over us and she would watch us, and once or twice
she followed me to the icebox . . . -she wouldn't just
constantly stay on the stool around there with her (Smith).
She would come around and be around there with us,
standing and watching awhile, and then she would back
around and take a seat around there." Thus, according to
Owens, on the occasion that Lobianco spent considerable
time observing Smith in the kitchen Lobianco did not' limit
her observations to Smith alone but extended them to,-,all
the cooks.
The principal conflict in testimony in, this case is between
Lobianco and Smith concerning Lobianco's alleged re-
marks quoted, above. of the two, I am of the opinion that
Mrs. Lobianco was the more reliable witness and I
therefore credit her testimony. The testimony of Owens
and Goss does , not demonstrate undue harassment of
Smith. Mrs. Lobianco is a high strung individual who, the
evidence shows, tends to raise her voice when talking to
and particularly when criticizing her employees . However,
there is no proof that she unfairly or unnecessarily or more
often than with others raised her voice to Smith . As to the
alleged cause of discharge, I recognize the difficulty of
proving that the quality of Smith' s baking was either good
or bad. However, Respondent produced reasonably con-
vincing corroboration for her contention that Smith's
baking was unsatisfactory. Upon consideration of all the
evidence I find that General Counsel has not sustained the
burden of proving by a preponderance of the evidence the
violations of the Act alleged in the complaint and I shall
therefore recommend that the complaint be dismissed.
CONCLUSION OF LAW
Respondent has not violated Section 8(axl), (3), and (4)
of the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusion of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby' issue 'the !following " recommended:
ORDER
The complaint is dismissed in its entirety.