MacCafferty's Irish Pub

National Labor Relations Board - Board Decisions

Jun 9, 1977

230 N.L.R.B. 49 (N.L.R.B. 1977)

MacCAFFERTY'S IRISH PUB
Raymond C. MacCafferty d/b/a MacCafferty's Irish
Pub and Hotel, Motel, Restaurant, Bar and Club
Employees Union, Local No. 17, affiliated with
Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO. Case 18-CA-
5177
June 9, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On April 18, 1977, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Raymond C.
MacCafferty d/b/a MacCafferty's Irish Pub, St.
Paul, Minnesota, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by Hotel, Motel, Restaurant, Bar and
Club Employees Union, Local No. 17, affiliated with Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO (referred to herein as the Union) on
November 9, 1976,1 the Regional Director for Region 18
issued a complaint on December 22, which he amended on
February 9, 1977. The complaint, as amended, alleged that
Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub
(referred to herein as the Respondent) had violated Section
8(a)(1) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), referred to herein as the Act,
by threatening to discharge an employee for engaging in
union activity. The complaint also alleged that the
Company discriminated against Michael J. McGibbon in
violation of Section 8(a)(3) and (1) of the Act. In its
answers to the complaint and the amended complaint, the
Respondent denied commission of the alleged unfair labor
practices. The hearing in this case was held before me on
February 22, 1977, at Minneapolis, Minnesota.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
Raymond C. MacCafferty is, and at all times material to
this case has been, an individual proprietor doing business
under the trade name of MacCafferty's Irish Pub, with
office and place of business at St. Paul, Minnesota, where
he has been, and is, operating a retail restaurant, selling
food, beverages, and related products to the public.
Raymond C. MacCafferty is and at all times material to
this case has also done business as an individual under the
trade named of Regal Homes, with office and place of
business at St. Paul, Minnesota, where he has engaged in
advertising and selling homes to the public. MacCafferty's
Irish Pub and Regal Homes are, and at all times material to
this case have been and are affiliated enterprises, enjoying
common ownership and management, constituting a
single-integrated enterprise with a common labor relations
policy formulated and administered by Raymond C.
MacCafferty. I find the two enterprises, which began their
respective operations on August 15, have enjoyed gross
revenues which, when projected for I year from that date,
show that jointly or individually the Respondent and Regal
Homes will derive gross revenues exceeding $500,000 from
their business operations. Also, based upon Respondent's
operations since August 15, I find that Respondent will
annually purchase and cause to be transported and
delivered at its St. Paul, Minnesota, establishment goods
and materials valued in excess of $50,000, of which goods
and material valued in excess of $50,000 will be shipped to
its St. Paul establishment directly from points outside the
State of Minnesota, or will be received from suppliers
located in Minnesota, each of which will have received said
goods and materials delivered to them in Minnesota from
points situated outside the State. From the foregoing
admitted commerce data, I find, and the Respondent
concedes, that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Unless otherwise stated all dates referred to henceforth are in 1976.
230 NLRB No. 6
49
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted, and I find, that Hotel, Motel,
Restaurant, Bar and Club Employees Union, Local No. 17,
affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In mid-October, the Respondent permitted the Union to
post the following notice in its establishment:
To all employees of maccaffertys
There will be a meeting to discuss the possibility of
becoming a union shop and its benefits, on Thursday,
10-21-76, at 4:00 p.m.
Approximately 10 of Respondent's employees, including
bartender Michael J. McGibbon, attended the union
meeting on October 21, held at Respondent's pub. After a
union spokesman explained health and welfare benefits
and other reasons for employees to seek union representa-
tion, Union Official Gene Tonda solicited and obtained six
signed authorization cards from the assemblage. Toward
the meeting's close, McGibbon signed a card and volun-
teered to assist the Union's organizing effort at Respon-
dent's pub. He received several blank authorization cards
from Gene Tonda. Thereafter, McGibbon actively sup-
ported the Union as its prime solicitor among the pub's
employees. He solicited and obtained about 10 signed
authorization cards, engaging in such union activity openly
during his working hours at the pub.
Between 3 and 4:30 p.m. on November 6, Raymond
MacCafferty went behind the pub's bar and asked
bartender Patrick R. Leahy where "the cards" were.
MacCafferty was referring to the authorization cards
McGibbon had stored in a drawer behind the bar. Leahy
responded by pulling the blank authorization cards from
the drawer and handing one to MacCafferty.
Immediately, MacCafferty read the authorization card
and asked Leahy if he had signed such a card. Leahy
answered, "Yes I did." MacCafferty continued: "Do you
know what it says?" Leahy replied: "It says that we will
have an election to see whether we want a union."
MacCafferty rejected Leahy's opinion, noting that the card
authorized the Union to represent the signatory and that
"it reads to me as if you are joining the union." After
returning the authorization card to its drawer, MacCafferty
sought out the pub's manager, Patrick Igo, and told Igo
that he, MacCafferty, wanted to talk to McGibbon when
he came on duty.
McGibbon appeared for work at 5 p.m. that same day.
At approximately 5:30 p.m. MacCafferty summoned
McGibbon to his office. With no other persons present,
MacCafferty began the discussion.2 First, MacCafferty
2 MacCafferty and McGibbon's testimony regarding this discussion
present the only substantial issue of credibility. As between the two,
McGibbon impressed me as the more reliable witness. McGibbon testified
fully in a forthright manner and without self-contradiction. In contrast,
remarked that he was disappointed in McGibbon because
of his lack of loyalty towards MacCafferty as shown by his
"support to the Union and . . . soliciting of cards."
McGibbon responded in substance that it was up to the
employees, and not MacCafferty, to decide if they wanted
a union to represent them. To this, MacCafferty retorted:
"Well I don't want union people working for me and I
don't want the Union here. You may not realize but some
people are probably going to get screwed if the Union
comes in to represent them." McGibbon responded again
that the question of whether or not a union would represent
the employees was up to the employees to decide and that
it was not up to MacCafferty. McGibbon then went on to
discuss the benefits which he thought union representation
would obtain for the employees including time and a half
for overtime, and a health program. MacCafferty came
back with "I will never pay any union health plan."
McGibbon responded that if the employees selected a
union to represent them that he, MacCafferty, would "be
legally bound to pay into a union health plan plus what
other stipulations there may be in the contract." MacCaf-
ferty declared that, "I don't want a union in here. I'm not
going to give in to a union. I don't want union people
working for me. You work for me .... You do not work
for the Union." MacCafferty also accused McGibbon of
using sneaky tactics in his soliciting for the Union.
MacCafferty warned McGibbon, "Mick, if you turn in one
more union card you are fired." McGibbon warned
MacCafferty that his right to solicit on behalf of the Union
was protected by state and Federal law and that if
MacCafferty discharged McGibbon for that reason that he,
McGibbon, would litigate the matter. After a further
discussion MacCafferty concluded their argument with,
"O.K., Mick if that is the way you are going to be I want
you to work until I o'clock tonight, punch out and Pat Igo
will have your check ready for you."
At this point it was approximately 6 p.m., less than an
hour into McGibbon's shift behind the bar. However,
realizing that, "I was being fired," McGibbon declined to
work until 1 a.m. and said that if MacCafferty was firing
him, he was fired at that moment and McGibbon "wasn't
about to work until I o'clock for him." MacCafferty
protested: "But Mick, the only reason you're doing this is
because you know I will be short a bartender then if you go
out now." McGibbon did not answer and started walking
out. MacCafferty called him back saying, "Mick, what are
you going to do?" McGibbon answered that he was going
to begin looking for another job. MacCafferty remarked,
"No, not that. What about you said you might sue me?"
McGibbon answered, "Well, Ray, we will soon find out."
McGibbon went to the bar, took his vest off, placed it on
the bar, put his coat on and left. In a short while
MacCafferty appeared at the bar and in response to
bartender Leahy's question about what had happened
between MacCafferty and McGibbon, MacCafferty re-
plied, "We need a new bartender." When Leahy pressed
him for a reason MacCafferty answered, "I told him to quit
MacCafferty found it difficult to remember details and, as shown later in
this Decision, contradicted himself in attempting to explain his motive for
seeking the November 6 confrontation with McGibbon. Accordingly, I have
credited McGibbon's version of their conversation on that date.
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MacCAFFERTYS IRISH PUB
selling those cards and he refused." At this, Leahy
complained about working alone behind the bar. MacCaf-
ferty responded: "Don't worry about it, I will have another
bartender here."
B. The Respondent's Defense, Analysis, and
Conclusions
General Counsel contends that Respondent violated
Section 8(a)(1) of the Act by threatening McGibbon with
discharge if he continued to solicit union authorization
cards and Section 8(aX)(1) and (3) by discharging McGib-
bon on November 6. 1 find from MacCafferty's remarks to
McGibbon on the evening of November 6 that the
Company violated the Act as alleged in the complaint.
Here indeed is one of those unusual cases in which the
employer in his parting remarks to a leading union
advocate reveals his true motive. Clearly included in the
remarks to McGibbon was MacCafferty's warning that
continued union activity by McGibbon would result in
discharge. Such a remark clearly restrains, coerces, and
interferes with employees' Section 7 rights. Finally, when
McGibbon refused to surrender his right to engage in
union activity, MacCafferty discharged McGibbon, not-
withstanding that MacCafferty indicated that McGibbon
could work to the end of the shift. Having been informed of
the end of his employment, McGibbon was under no
obligation to work until the end of his shift. For he was
effectively terminated by MacCafferty's words. It was
merely the effect of those words which was delayed. In
sum, I find from MacCafferty's interview with McGibbon
that the Respondent violated Section 8(aX 3) and (1) of the
Act, as alleged.
Analysis of the Company's defense reveals fatal infirmi-
ties. First, I note the presence of inconsistent and shifting
reasons. At the time of the discharge on November 6,
MacCafferty did not confront McGibbon either with
complaints of harassment from pub employees, or com-
plaints about confusion in the pub's operations, or a no-
solicitation rule. Instead, at the hearing for the first time
MacCafferty testified on direct examination that he had
"various complaints from a few of the staff about another
member of the staff." MacCafferty also testified that one
employee complained that McGibbon "was strong arm-
ing" employees into signing union cards; that he had heard
from his counsel, Mr. O'Toole, that an employee, Nina,
had complained to O'Toole "about Mick McGibbon
threatening her into joining the Union." At a later point in
the Company's defense, Manager Patrick Igo testified that
he complained to MacCafferty that McGibbon's activity
was causing confusion in the operations of the pub.
Finally, in its brief the Respondent added a fresh
complaint that McGibbon violated an established no-
solicitation rule. These tardy attempts to offer lawful
reasons for McGibbon's termination suggest that they
played no part in MacCafferty's decision to discharge
McGibbon.
MacCafferty's inconsistent and contradictory testimony
provides further ground for discrediting the Company's
defense. When asked to identify employees who com-
plained to him about McGibbon's tactics MacCafferty
testified:
Pat Igo mentioned to me about several employees had
talked to him. I don't recollect any employees com-
plaining directly to me except Nina afterwards.
By "afterwards" MacCafferty meant after November 6.
When questioned again about the identity of the persons
complaining to him he said "from various people." When
asked again to identify who complained to him he testified:
"I don't remember. The hostess, Nina, Pat Igo, Mr.
O'Toole." More confusion flows from the following cross-
examination:
Q. The hostess complained to you after Novem-
ber 6?
A. I don't remember when it was. I know she did
complain afterwards. I don't remember the people who
complained before.
Again, on redirect examination, a contradiction arose
when MacCafferty answered "Yes" to the following
questions: "Mr. MacCafferty were you aware [of] Nina's
complaints when you talked to Mr. McGibbon?" Finally,
under examination by the Administrative Law Judge,
MacCafferty testified that he had received complaints from
Mr. O'Toole, Mr. Igo, and Nina, the hostess. When asked
if he remembered when he got the complaint from the
hostess, he testified, "I had three or four over the previous
couple of days. So it was building up." Finally, when the
Administrative Law Judge asked MacCafferty, "Who else
did you get a complaint from?" He answered "several
employees." And then asserted that he had received them
himself. In sum, MacCafferty's vacillating testimony does
not persuade me that employee complaints provoked him
to confront McGibbon and attempt to restrain him.
Nor do the Respondent's other witnesses substantiate its
defense. Hostess Nina Hiers testified that, while she was
tired of McGibbon's unsuccessful attempts to obtain her
signature on an authorization card, she did not complain to
anyone about his bothering her. According to Manager
Igo's testimony, he complained to MacCafferty about
McGibbon only once and that was on the afternoon of
Saturday, November 6. However, MacCafferty's testimony
regarding his conversation with Igo that afternoon con-
tained no reference to a complaint regarding McGibbon.
Instead, the record shows that on November 6 MacCaffer-
ty's interest in seeking out McGibbon arose when he
discovered that the purpose of the authorization cards was
to obtain union representation rather than an election.
This discovery ran counter to MacCafferty's plan to
sharply limit the Union's organizing effort. Thus, in
relating his concept MacCafferty testified as follows:
I told the Union they were very welcome to come into
the bar. They were very welcome to organize. They
could post their notices. I would give them a room,
anything. There was only one stipulation and that
would be that my employees would make up their mind
for themselves without any pressure from me or Pat Igo
or any member of the staff.
Thus it appears that MacCafferty was unwilling to
countenance union activism among his employees. When
51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confronted with McGibbon's leading role in obtaining
union authorization cards from his fellow employees,
MacCafferty reacted by calling him into the office in an
attempt to thwart his union activity.
The Respondent's attempt to show that McGibbon's
union activity impaired the pub's efficiency also fell short
of the mark. There was no showing that the pub's
performance suffered loss of trade or customer complaints
because of McGibbon's union activity. Finally, there was
no showing that complaints regarding the pub's operations
were relayed to MacCafferty by Igo or any of Respon-
dent's employees.
Finally, contrary to its belated claim, there is no record
evidence even suggesting that Respondent promulgated
any no-solicitation rule prior to McGibbon's discharge. On
the contrary, MacCafferty's testimony included a denial
that he had any intent to establish such a rule.
In sum, apart from its pretextual nature, I find the
Respondent's defense wholly without substance. I have,
therefore, rejected it.
Upon the foregoing findings of fact, and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Raymond C. MacCafferty d/b/a MacCafferty's Irish
Pub is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Hotel, Motel, Restaurant, Bar and Club Employees
Union, Local No. 17, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with discharge because of
their union activity, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging
in unfair labor practices violative of Section 8(aXI) of the
Act.
4. By discharging employee Michael J. McGibbon
because he engaged in union activity, the Company
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices I find it necessary to order
Respondent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged
employee Michael J. McGibbon I find it necessary to order
the Respondent to offer full reinstatement to employee
McGibbon. In accordance with the usual requirements,
reinstatement shall be to McGibbon's former position or a
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
substantially equivalent position, without prejudice to his
seniority or other rights and privileges. I shall also order
the Respondent to make McGibbon whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he normally would have earned from
the date of the initial discrimination to the date the
Respondent has offered or shall offer him reinstatement,
less net earnings if any during such period, to be computed
in the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Finally, I shall order the Respondent to
post the usual notice to employees.
The unfair labor practices committed by Respondent
strike at the very heart of employees' rights safeguarded by
the Act. I shall therefore place Respondent under a broad
order to cease and desist from in any other manner
infringing upon the rights of employees guaranteed in
Section 7 of the Act. N.LR.B. v. Entwistle Manufacturing
Co., 120 F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, I
hereby issue the following recommended:
ORDER 3
The Respondent, Raymond C. MacCafferty d/b/a
MacCafferty's Irish Pub, St. Paul, Minnesota, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in support for or activities
on behalf of Hotel, Motel, Restaurant, Bar and Club
Employees Union, Local No. 17, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other labor organization, by
discriminating in any manner against any of its employees
in regard to their hire and tenure of employment or any
term or condition of employment because of their union
membership, sympathies, or activities.
(b) Threatening employees with discharge because of
their membership in, or support for, or activities on behalf
of Hotel, Motel, Restaurant, Bar and Club Employees
Union, Local No. 17, affiliated with Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations,
including Hotel, Motel, Restaurant, Bar and Club Employ-
ees Union, Local No. 17, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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MacCAFFERTYS IRISH PUB
(a) Offer employee Michael J. McGibbon immediate and
full reinstatement to his former position or, if this position
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges.
(b) Make whole employee Michael J. McGibbon for any
loss of earnings suffered by reason of Respondent's
discrimination against him in the manner set forth in the
section herein entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful to an analysis of the amount of backpay
under the terms of this Order.
(d) Post at its pub in St. Paul, Minnesota, copies of the
attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by Respondent, shall be
posted by it 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 Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Regional 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, the National Labor Relations Board found that I,
Raymond C. MacCafferty d/b/a MacCafferty's Irish Pub,
violated the National Labor Relations Act, and ordered me
to post this notice and to keep my word about what I say in
this notice.
The law gives you the right:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things.
The Board has ordered me to promise you that I will
not discharge you or otherwise discriminate against you
because you have engaged in organizing activity for, or
are a member or supporter of Hotel, Motel, Restaurant,
Bar and Club Employees Union, Local No. 17,
affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO or any
other union.
I WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to engage in or to refrain from engaging in any or
all of the activities specified in Section 7 of the Act.
The Board found that I violated the law because I
discharged employee Michael J. McGibbon.
I WILL offer to reinstate Michael J. McGibbon to his
former job without loss of seniority or other rights.
I WILL make Michael J. McGibbon whole for any
loss of earnings he may have suffered because I
discharged him, together with 6-percent interest.
RAYMOND C. MACCAFFERTY
D/B/A MACCAFFERTY'S
IRISH PUB
53