London Chop House, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 638 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
London Chop House, Inc. and Timothy P. O'Neill.
Case 7-CA-19098
September 30, 1982
DECISION AND ORDER
By MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a charge and an amended charge duly
filed, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 7, issued a complaint and notice of hearing,
dated May 1, 1981, against London Chop House,
Inc., hereinafter referred to as Respondent. The
complaint alleges that Respondent has engaged in,
and is engaging in, certain unfair labor practices af-
fecting commerce within the meaning of Sections
8(a)(l) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, and amended charge, and complaint and
notice of hearing were duly served on the parties.
Respondent filed an answer to the complaint, deny-
ing the commission of any unfair labor practices
and requesting that the complaint be dismissed.
Thereafter, the parties entered into a stipulation
of facts and jointly petitioned the Board to transfer
this proceeding directly to itself for findings of
fact, conclusions of law, and Order. The parties
stipulated that they waived a hearing before an ad-
ministrative law judge, the making of findings of
fact and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision. The parties also agreed that
no oral testimony was necessary or desired by any
of the parties, and that the charge and amended
charge, the complaint and notice of hearing, the
answer to the complaint, and the stipulation of
facts, including the exhibits attached thereto, con-
stituted the entire record in the case.
On June 16, 1982, the Board issued its order ap-
proving the stipulation and transferring the pro-
ceeding to the Board. Thereafter, the General
Counsel and Respondent filed briefs in support of
their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing the exhibits, the briefs, and the entire record in
this proceeding, and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of Michi-
gan, engaged in the operation of a restaurant locat-
ed at 155 Congress, Detroit, Michigan, which pro-
vides food and beverages to the general public.
During the year ending December 31, 1980, which
period is representative of its operations during all
times material herein, Respondent, in the normal
course and conduct of its business operations, de-
rived gross revenue in excess of $500,000. During
this same period of time, Respondent purchased
and cause to be transported and delivered at its
Detroit place of business beer, wine, liquor, and
other goods and materials valued in excess of
$100,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to
its place of business in Detroit, Michigan, directly
from suppliers located outside the State of Michi-
gan.
The parties stipulated, and we find, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 24, Hotel, Motel, Restaurant Employees,
Cooks and Bartenders Union, herein called the
Union, is, and has been at all times material herein,
a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Facts
On March 7, 1981,1 following a lawful economic
strike and intervention by a state mediator, Re-
spondent and the Union reached tentative accord
on the terms of a collective-bargaining agreement.
Employee Timothy O'Neill, the Charging Party
herein, served as a member of the Union's bargain-
ing committee. While O'Neill personally did not
agree to the tentative collective-bargaining agree-
ment, he did consent to recommend, in his capacity
as a member of the Union's bargaining committee
and as part of the state mediation process, that the
Union's membership ratify the proposed contract.
On March 8, the Union conducted a ratification
vote on the proposed contract. O'Neill participated
in the ratification meeting as a member of the
Union's bargaining committee in support of ratifi-
I Unless otherwise noted, all dates refer to 1981.
264 NLRB No. 83
638
LONDON CHOP HOUSE, INC.
cation. Thereafter, on March 10, Respondent and
the Union agreed to conduct a second ratification
vote because they believed that a quorum of unit
employees had not been present during the March
8 ratification effort. At or about the same time,
O'Neill wrote and distributed to fellow employees
an unsigned document informing employees about
health care and other issues contained in the pro-
posed contract, believing that doing so would make
rejection of the contract more likely, because he
believed that a quorum had been present at the
March 8 meeting. O'Neill did not secure authoriza-
tion from other bargaining committee members, the
Union, or Respondent prior to distributing the doc-
ument.
In response to O'Neill's actions as outlined
above, on March 14 Respondent advised O'Neill
that he would be terminated unless he resigned. On
March 28, Respondent terminated O'Neill.
B. Contentions of the Parties
The General Counsel contends that it is well set-
tled that the protections of the Act extend to activ-
ities engaged in by employees in opposition to
labor organizations as well as activities in support
of such organizations, including activities engaged
in to oppose ratification of a proposed collective-
bargaining agreement. The General Counsel further
contends that neither O'Neill's status as a member
of the Union's bargaining committee nor his initial
agreement to support ratification of the proposed
contract changes this result. Accordingly, the Gen-
eral Counsel submits that Respondent's discharge
of O'Neill, an action taken in reprisal for O'Neill's
activities in opposition to ratification of the pro-
posed collective-bargaining agreement, violated
Section 8(a)(3) and (1) of the Act. Similarly, the
General Counsel also submits that Respondent's
statement that it would discharge O'Neill for such
conduct unless he resigned violated Section 8(a)(l)
of the Act.
Respondent contends that: (1) O'Neill's activities
were not protected by Section 7 of the Act; (2)
O'Neill's actions were an improper and unlawful
interference with the legitimate business interests of
Respondent and the Union; (3) O'Neill's actions
were morally and ethically reprehensible; and (4)
O'Neill's actions were indefensible. Hence, Re-
spondent alleges that it had just cause to discharge
O'Neill within the meaning of Section 10(c) of the
Act.
C. Conclusions
We agree with the General Counsel that, by dis-
charging O'Neill on March 28, Respondent violat-
ed Section 8(a)(3) and (1) of the Act. We also
agree with the General Counsel that Respondent's
March 14 threat to discharge O'Neill violated Sec-
tion 8(a)(l) of the Act.
As contended by the General Counsel, it is es-
tablished Board law that the Act protects employ-
ees against actions taken in reprisal for their activi-
ties in opposition to labor organizations. Margaret
Anzalone, Inc., 242 NLRB 879 (1979); Sargent Elec-
tric Company, 209 NLRB 630 (1974); Selwyn Shoe
Manufacturing Company, 172 NLRB 674 (1968).
Indeed, we specifically have held that the Act pro-
tects employees against reprisals for their activities
in opposition to contract ratification. Red Cab, Inc.,
194 NLRB 279 (1971); Aerodex, Inc., 149 NLRB
192 (1964). We further have held that such protec-
tion is not lost because the employees, engaged in
activities in opposition to the labor organization,
concurrently held official positions in that labor or-
ganization. Selwyn Shoe, supra,; Golden State Bottling
Company, Inc. d/b/a Pepsi-Cola Bottling Company
of Sacramento, 147 NLRB 410 (1964). Also, see
Aerodex, Inc., supra. Applying these principles to
the facts of the instant case, it is clear that O'Neill's
distribution of a document portraying the terms of
the proposed collective-bargaining agreement was
protected under the Act and, inasmuch as Re-
spondent stipulated that it threatened to discharge
and thereafter did discharge O'Neill solely for
having distributed that document, that the General
Counsel established a prima facie case that Re-
spondent violated the Act as alleged in the com-
plaint.
Respondent's argument that it had just cause to
discharge O'Neill is, in our opinion, without merit.
Contract ratification votes and procedures are in-
ternal union affairs upon which an employer is not
free to intrude. The Greensboro News Company, 244
NLRB 689 (1979); Martin J. Barry Company, 241
NLRB 1011 (1979); North Country Motors, Ltd.,
146 NLRB 671 (1964). See also M & M Oldsmobile,
Inc., 156 NLRB 903 (1966). The fact that O'Neill
initially supported ratification but later changed his
mind and decided to oppose ratification is irrele-
vant-both of those decisions, as well as the ac-
tions taken in support of them, were protected by
the Act. Thus, we cannot agree with Respondent
that O'Neill's conduct was "ethically and morally
reprehensible." Respondent further argues that
O'Neill's actions were not "concerted" within the
meaning of Section 7 of the Act, and were there-
fore unprotected. However, the gravamen of the
instant complaint alleged that he was engaged in
union, or intraunion, activity. Accordingly, the fact
that O'Neill was acting alone is immaterial to our
analysis.
639
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on all of the foregoing, we find that Re-
spondent violated Section 8(a)(3) and (1) of the
Act, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth above, oc-
curring in connection with its operations, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead, and have led, to labor disputes bur-
dening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, certain unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act, we
shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
We shall order that Respondent offer Timothy
P. O'Neill immediate and full reinstatement to his
former job or, if his job no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or any other rights and privileges pre-
viously enjoyed. Moreover, we shall order that Re-
spondent make O'Neill whole for any loss of earn-
ings he may have suffered as a result of the dis-
crimination practiced against him by payment to
him of a sum equal to what he would have earned
from the date of his discharge to the date of a bona
fide offer of reinstatement, less net interim earnings
during that period. Backpay shall be computed in
the manner prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest computed in
the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977).2 We also shall order that
Respondent expunge from its files any reference to
O'Neill's unlawful discharge on March 28, and
notify him in writing that this has been done and
that evidence of Respondent's unlawful conduct
will not be used as a basis for future personnel ac-
tions against him.3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Member Jenkins would award interest on the backpay due based on the
formula set forth in his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
3 Sterling Sugars, Inc., 261 NLRB 472 (1982).
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening to discharge Timothy P.
O'Neill on or about March 14, 1981, Respondent
interfered with, restrained, and coerced its employ-
ee Timothy P. O'Neill in the exercise of rights
guaranteed him in Section 7 of the Act, and there-
by has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(l) of
the Act.
4. By discharging Timothy P. O'Neill on or
about March 28, 1981, for intraunion activities, Re-
spondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
London Chop House, Inc., Detroit, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating
against any of its employees to discourage them
from engaging in intraunion activities.
(b) Threatening to discharge its employees for
having engaged in activities protected by Section 7
of the Act.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Timothy P. O'Neill immediate and full
reinstatement to his former job or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any losses he may have suffered by
reason of the discrimination against him as set forth
in the section of this Decision entitled "The
Remedy."
(b) Expunge from its files any reference to the
unlawful discharge of Timothy P. O'Neill on
March 28, 1981, and notify him in writing that this
has been done and that evidence of Respondent's
unlawful conduct will not be used as a basis for
future personnel actions against him.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
640
LONDON CHOP HOUSE, INC.
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Detroit, Michigan, facility copies
of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge, threaten to dis-
charge, or otherwise discriminate against any
of our employees for the purpose of discourag-
ing their participation in union or intraunion
activities, or in reprisal for having engaged in
such activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Timothy P. O'Neill immedi-
ate and full reinstatement to his former job or,
if that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make whole Timothy P. O'Neill
for any loss of pay he may have suffered as a
result of the discrimination against him, with
interest.
WE WILL expunge from our files any refer-
ence to the discharge of Timothy P. O'Neill
on March 28, 1981, and WE WILL notify him,
in writing, that this has been done and that
evidence of this unlawful discharge will not be
used as a basis for future personnel actions
against him.
LONDON CHOP HOUSE, INC.
641