Magic Pan, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1979

242 N.L.R.B. 840 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Magic Pan, Inc. and Robert aw, Peter Hochman,
and Amalgamated Clothing and Textile Workers
Union, AFL-CIO. Cases 5-CA-9123, 5-CA-9127,
and 5-CA-9187
June 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On February 23, 1979, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and a supporting brief.
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 record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions of 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to the Administrative Law Judge's
ruling that the deposition of Susan Perry was inadmissible as evidence at the
hearing. The Perry deposition was taken prior to the formal hearing because
she was to be out of the country at the time of the hearing. We agree, for the
reasons set forth in the Administrative Law Judge's Decision, that the depo-
sition was inadmissible under Sec. 102.30(c) of the Board's Rules and Regu-
lations, Series 8, as amended, as well under Rule 30(e) of the Federal Rules
of Civil Procedure. However, we disavow the statements and discussion by
the Administrative Law Judge respecting what the contents of Perry's depo-
sition may have been and how he would have evaluated her testimony in
relation to other record evidence. Since the deposition was inadmissible, it
has not played any role in our decision to dismiss the complaint in its en-
tirety.
2 General Counsel has excepted to certain credibility findings made by the
Administrative aw Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Produris, Inc., 91 NLRB
544 (I,0), enfd 188 .2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: These
cases were heard before me on August 16-21 and August
31 and September 1, 1978,1 in Washington, D.C., upon a
charge filed in Case 5-CA-9123 by Robert Gaw on January
12 and amended on February 13; upon a charge in Case 5-
CA 9127 filed by Peter Hochman on January 13 and
amended on February 2; and upon a charge in Case 5-CA-
9187 filed by Amalgamated Clothing & Textile Workers
Union, AFL-CIO (hereinafter the Union), on February 6.
Thereafter, an order consolidating the cases and a com-
plaint issued on March 31 by the Acting Regional Director
for Region 5 of the National Labor Relations Board (here-
inafter the Board).
In essence, the complaint alleges that Magic Pan, Inc.
(hereinafter the Employer), violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended (hereinaf-
ter the Act), by engaging in various conduct which inter-
fered with, restrained, and coerced employees in the exer-
cise of rights guaranteed them in Section 7 of the Act and
by discharging its employees Peter Hochman, Pierre Vial,
and Katherine Haddock because of their activity on behalf
of the Union. The Employer filed a timely answer which
denied the substantive allegations of the complaint.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral argu-
ment. Post-hearing briefs have been received from the
Board's counsel for the General Counsel and from counsel
for the Employer. Those briefs have been carefully consid-
ered.'
Upon the entire record, and from my observation of the
witnesses and their demeanor in the witness chair, and
upon substantial, reliable evidence, "considered along with
the consistency and inherent probability of testimony"
(Ul niversal Camera Corporation v. '.L.R.B., 340 U.S. 474,
496 (1951)), I make the following:
FINDINGS AND CONCLUSIONS
I. PROCEDURAL ISSUES
In its brief, the Employer interposed, inter alia, four spe-
cific procedural issues.
First, the Employer contests the Union's status as a labor
organization. This issue is disposed of hereinafter in section
III.
Second, the Employer objects to my ruling at the hearing
which sequestered all witnesses except the alleged discrimi-
natees and Charging Party Gaw. On the first hearing day
the Employer moved to sequester witnesses. I granted the
motion except for the three alleged discriminatees and
Charging Party Gaw. That ruling was issued prior to the
Board's Decision of August 25. 1978, in Unga Painting Cor-
poration, 237 NLRB 1306 (1978). In that case, the Board
revised its sequestration rule. The Board stated that alleged
discriminatees should be excluded from hearings at times
when other General Counsel's or Charging Party's wit-
nesses are testifying about events to which the discrimi-
natees have test,fied or will or may testify. Despite this new
I All dates hereinafter are in 1978 unless otherwise stated.
2 The General Counsel's unopposed motion to correct transcript, filed after
the hearing closed. is granted.
242 NLRB No. 137
840
MAGIC PA
rule the Board preserved some latitude to administrative
law judges to determine whether special circumstances exist
which warrant either the unrestricted presence of discrimi-
natees or their total exclusion. Previous to the LUnga Deci-
sion persons named as discriminatees had been entitled to
attend the entire unfair labor practice hearing in which they
were involved. T. . L. Sportswear Corporation, 131 NLRB
176, footnote I (1961); Donald L. Trettenero, ei al. d/h/a
Trettenero Sand & Gravel Co., 129 NLRB 610, footnote I
(1960): Jaques Power Saw Company, 85 NLRB 440. 443
(1969). Thus, I conclude my ruling upon the Employer's
sequestration motion to have been proper at the time it was
made. The Employer did not renew its motion, nor seek
modification of it, on any of the hearing dates subsequent to
issuance of the Unga Decision. In these circumstances. I
find no merit to the Employer's post-hearing objection to
the procedure excluding witnesses. Moreover, in view of the
credibility resolutions and disposition of issues which I shall
make hereinafter, I conclude that no prejudice has befallen
the Employer from my sequestration order.
Third, the Employer continues its objections (made at the
hearing) to the receipt in evidence of the decision of an
appeals examiner for the District of Columbia unemploy-
ment compensation board, together with that board's final
decision on Hochman's claim for unemployment compen-
sation. Those documents were received in evidence as Gen-
eral Counsel's Exhibit 17, over the Employer's objection.
The General Counsel acknowledged those documents "can-
not be determinative of' my findings. Nonetheless, she of-
fered the exhibits, with whatever probative value they bear,
to show the unemployment compensation board concluded
no rule existed at the instant Employer prohibiting nonem-
ployee use of its employee lounge. As will be seen below.
this matter forms part of the context of Hochman's termi-
nation.
The General Counsel has urged that some probative
weight be accorded General Counsel's Exhibit 17 to estab-
lish testimonial defects of certain of the Employer's wit-
nesses.
Unemployment compensation board findings have pro-
bative value but are not conclusive. Charles H. Seyfert
d/b/a Sejert Foods Co., 109 NLRB 800. 810. footnote 5
(1954): Aerovox Corporation, 104 NLRB 246, enfd. 211
F.2d 640 (D.C. Cir. 1954). The findings of those tribunals
are not controlling in Board cases. Supreme Dyeing & Fin-
ishing Corp., 147 NLRB 1094, footnote I (1964): nonethe-
less, the findings are admissible into evidence. Cadillac Ma-
rine & Boat Company. 1 15 NLRB 107, footnote 1 (1956). for
whatever value the), have. It is error to exclude such evi-
dence. Duquesne Electric and Manufacturing Compan. 212
NLRB 142. footnote 1 (1974). Accordingly, I conclude that
General Counsel's Exhibit 17 was appropriately received in
eviderce.
Fourth, the Employer continues its prehearing claim to
obtain all exculpatory information in possession of the
Board's Region 5. At the hearing, the parties stipulated that
the Employer made several prehearing efforts to obtain
such information from the Regional Director and the Gen-
As will be shown. nfra I consider the existence of a rule pertaining Ito
the use of the employee lounge not critical to resolution of the major issues
Thus. G.C. Exh 17 has been accorded irtually no weight
841
eral Counsel himself. All such requests had been denied
before the hearing opened. There is no evidence that any of
the requested documents were subpenaed for production at
the instant hearing. No request was made of me to order
their production.
The Employer's counsel argued that the Board consid-
ered itself a law enforcement agency. Hence, the Employer
claims that suppression of exculpatory information violates
due process. It appears that the Employer's requests for the
exculpatory information were not made pursuant to the
Freedom of Information Act, 5 U.S.C. 552. because the
requests encompassed documents which were not limited to
affidavits. statements, or declarations of witnesses whom
the General Counsel intended to call to testify.
As already observed, the requests for and denials of the
exculpatory information occurred prior to the instant hear-
ing. Inasmuch as I was not formally involved in the Em-
ployer's to achieve compliance with its requests, I consider
the Employer's post-hearing revival of this issue inappropri-
ate and irrelevant.
Additionally, I find the cases cited by the Employer inap-
posite. Thus, N.L. R. B. v. Seine and Line Fishermen's U'nion
of San Pedro, 374 F.2d 974 (9th Cir. 1967). and General
Engineering, Inc., & Harvey A loniniun v ..L.R. B, 341 F.2d
367 (9th Cir. 1965). involved documents which were clearly
producible for impeachment purposes. The General Coun-
sel, at the hearing herein, complied with each and every
request to produce the prehearing statements of the wit-
nesses. The Employer's counsel were afforded rather
lengthy recesses to digest those documents and use them
during cross-examination of the General Counsel's witness.
Thus, the issue of Seine and General Engineering does not
exist herein.
I consider the Employer's efforts to obtain exculpatory
material tantamount to an attempt to procure prehearing
discovery. In N.L. R.B. v. Globe Wireless. Ltd., 193 F.2d
748. 751 (9th Cir. 1951). the court observed "there is no
provision in the Act authorizing the use of the discovery
procedure." For similar results see Storkline Corporation v.
/N.L.R.B.. 330 F.2d 14 (5th Cir. 1964'; Tevas Industries. Inc.
v. N.L.R.B.. 336 F.2d 128 (5th Cir. 1964): N. L.R.B. v.
Clemnenl-Blvthe Companies. 415 F.2d 78 (5th Cir. 1969).
Similarly. it is well settled that pretrial discover) is not
applicable to Board proceedings. Walsh-Lumpkin Whole-
sale Drug Comnpan', 129 NLRB 294. 296 (1960). Absence of
provision for discovery in Board cases does not violate due
process. W. H. Sackert, d/h/a Sackertt Transportationt
and/or Inland Cities Erpress, 169 NLRB 346. fn. 3 (1968).
and cases cited therein.
Upon all the foregoing, I find the Employer's claim of
error regarding its requests for exculpatory material lacks
merit.
II. rHt: EMPI.O( ER'S BISINESS
The Employer is a San Francisco-based corporation
which runs a nationwide chain of restaurants. During the
12 months immediately preceding issuance of the complaint
herein, a representative period, the Employer received gross
revenues in excess of $500,000. During this same period of
time the Employer purchased and received. in interstate
[)DECISIONS 01: NATIONAL LABOR RELATIONS BOARD
commerce, materials and supplies valued in excess of
$50,000 from points located outside the District of' Colum-
bia. Only one of its restaurants located at 5252 Wisconsin
Avenue, N.W., Washington. D.C., at the corner of Jenifer
Street (hereinafter called the Jenifer Street location) is in-
volved in this case.
The Employer admits, the record reflects, and I find it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
111. rIlE ABOR OR(iANI.A I()ON INVO()I.VI)
As already indicated, the Employer contests the Union's
status as a labor organization.
The Union's International representative, Jack Coury,
testified, without contradiction, that the Union admits em-
ployees to membership and deals with employers on behalf
of employees' wages. hours, and working conditions. Coury
testified that the Union engages in organizational efforts,
files representation petitions at the Board, participates in
representation elections, and negotiates with employers on
behalf of the employees the Union represents. Particularly
relevant to the instant case is the fact that the Union par-
ticipated in a representation election ordered by the Board's
Decision on Review and Direction of Election reported at
234 NLRB I. The terminations of Hochman. Vial, and
Haddock are asserted to have occurred in retaliation for
their activities on behalf of the Union in the attendant orga-
nizing drive. In fact, I shall find below that Hochman and
Vial, at least, actually were active proponents in the
Union's behalf'
The essential elements for finding an entity a labor or-
ganization are (a) that employees participate in its activi-
ties, (bh) the organization exists, in whole or part. for pur-
poses of dealing with employers with respect to matters
appropriate for collective bargaining. A/to Pl.stic.s Moanu-
fitcturing Corporation, 136 NLRB 850, 851 852 (1962).
Upon all the foregoing, I conclude that the evidence dem-
onstrates the existence of these criteria herein.
Based upon the foregoing, I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Underwritexv .ldjusting (ompnlt. 227 NI. RB 453 (1976).4
IV. 11ti11e AlL(il) NI AIR ABOR Pl'RA('II(ES
A. (rediilil v
The ultimate choice in making my findings of fact is
based upon my observation of the demeanor of the wit-
nesses. the weight of the respective evidence provided by
them, established or admitted facts, inherent probabilities,
and reasonable inferences which may be drawn from the
record as a whole. N orthridge Knitling M;/ls. Inc. 223
NLRB 230 (1976): 4 Warren L. RK,sw (a.stings, Inc. dl/la
V & W ('x.ting.s, 231 N.KRB 912 (1977): (;old .Sttndard
Enterpries, Incl.. el al., 234 NLRB 618 (1978).
Moreover, I have carefully weighed all of the testimony
bearing in mind the tendency of witnesses in general to
testilfy as to their impressions or interpretations of what was
The IUnion was Iound Ito he a successor lahlr organimzalon to, the I extile
Workers ofI America. See J. P Stevens & (;o., I, . 239 Nl.RB 73K (1978)
said rather than attempting to give verbatim accounts and
also bearing in mind that even the person testifying about
his own remarks may well tend to elucidate or express what
he said or intended to say in language more explicit or clear
than he used in the actual speech or discussion.
The evidence presented is replete with instances of wit-
nesses for each litigant providing testimony in direct oppo-
sition to that presented by those of opposing litigants. I
shall not discuss completely all of the conflicts of testimony,
for to do so would unduly lengthen this Decision. On the
other hand, I have not ignored all such testimony. nor the
arguments of counsel thereon. While the truth may rest in
the testimony of one side in a given respect and of the other
side in another, the overall impression of credibility with
respect to each witness does not allow for such fine distinc-
tion where, as herein, virtually every fact has been placed in
issue by contradictory testimony.
In general, the recitation of facts contained herein will
conform to the Employer's version. This is not to say that I
have discredited each of the General Counsel's witnesses. In
many instances the General ('ounsel's witnesses and those
of the Employer were mutually corroborative. Nevertheless,
I find, as a whole, the Employer's witnesses to be more
reliable in their narrations. I am not unmindful that my
credibility conclusion carries along with it items of credibil-
ity on which the Employer should not prevail. I)espite this
problem and such possibility, the totality of the record con-
inces me that the evidence sufficiently supports the Em-
ployer's version even ift' witnesses whose testimony is cred-
ited did at times themselves either stray fromn or honestly
omit the truth.
I find the following specific. but not exhaustive, elements
persuasive indicators of the respective reliability of the wit-
nesses. he following employer managerial officials testi-
fied: homas 1. I)ieirich. Jeniter Street manager: James
('onboy, assistant manager; Susan Stamp assistant man-
ager: Mark Ilustgarten. relieft manager and former manager
and relief manager. respectively. Roger Parsons, and
('harlcs 1. Dunlap. IEach of these individuals testified in a
direct, succinct, candid, forthright. logical, and inherently
plausible manner. The narrations of each are inherently
consistent. In certain areas some of their testimony is sup-
ported by documentarry evidence.
The (;eneral (Counsel, in effect, asks for credibility resolu-
tions to he made on what I consider to be distorted testi-
mony. For example. I am asked to credit employee Vince
Arias because his account of the conversation in which it is
alleged (complaint par. 5(b)) Dietrich is supposed to have
promised Arias increased health benefits. The iGeneral
(Counsel asserts that Arias' tWO prehearing affida, its pro-
vided to the Board are consistent with his testimon on
direct examination. Arias proided the Board with an atti-
dlavit on January 16 and AuguIst 14 (i;.C. lxch. 12 and
Resp. Exh. 6. respectively). Arias' direct testiniony indcedi is
substantiall, consistent ith the first of these aflidaits. In
the later Board affidavit. Arias claiims he did not provide a
completc account of what hlad occurred in his first afida it
becase allged discrimlina;tee Vial Was present. Accordilng
to Arias Vial's presence inhibited Arias because Vial hiad
put him in ear of personal injury and property damage.
Also. in the second Board affidavit. Arias indicated he had
842
MAG;I PAN. IN(C.
been interviewed on January IX hb the Employer's emale
attorney, Kelly. Though he acknowledged they spoke. he
claimed he did not recall whether or not Kell wrote ailn-
thing. In any event, Arias' second Board affidavit claims
that he was shown an affidavit purportedly written bv Kelly
and signed by him as a result of their Januar, IX discussion.
In that Board affidavit, Arias denied the Kelly affidavit
contained his signature.
While testifying before me, Arias continued his denial
that he had given an affidavit to Kelly. She confronted him
with it and he once again denied it contained his signature.
l.ater. Kelly testified.' She said that the January 18 docu-
ment (Resp. Exh. 7) as written b: her rom the declara-
tions orally made hy Arias to her on that date. Further. she
testified Arias signed it in her presence. When signing. Kel-
ly testified Arias said "it is all true and the truth can't hurt."
Although counsel for the General Counsel cross-examined
Kelly. no questions were asked of her relative to her direct
testimony descriptive of the circumstances surrounding the
affidavit provided by Arias to KelIl. hus. Kell's testi-
mony that Arias signed the anuars 18 alida' it is unretiit-
ed. Mn, obsersation of Kellv's demeailnor as a witness pro-
vides no justification to doubt her. It is in this context that
the (ieneral Counsel nonetheless urges I should ccept
Arias' testimony because. mtlr lita. he "denies . .. (the
statement provided to Kell . . . contains his signature.
Also. the General Counsel's brief urges Arias should he
credited because the statement given to Kell "conitains no
evidence it uias witnessed hb anyone and it was not nota-
rized." If the quoted language is intended to attack Kelly's
veracity hb implication. I consider this a reckless method.
Such activity should be discouraged. I have carefuill 3 com-
pared the initials "V.A." which appear ill the various af;ida-
vits purportedl) Arias'. Also, I have examined the arious
signatures on each document. This procedure is appropri-
ate. 4ere (orporalion. 149 NlR 1283. 1287 88 (1964).
Even to m uneducated eyes. there are positie resem-
blances.
'The matter of Arias' affidavits and the Kell 3 staterlent
aside, there is yet other reason to discredit hii. 'There w\as
considerable testimon\ that Arias' testimon had been f'ash-
ioned in a light most f'vorahle to the General Counsel he-
cause he was iearful Vial would do him physical iinjur or
damage his property. I have placed little significance on this
factor because there also is evidence that Arias mnil have
considered himself' beholden to Vial. Vial had given living
quarters to Arias and his wite upon their arrilal into the
United Stailtes. If Arias had heen trul, apprehensie, this
would account for his deial he signed the Kell 5 sta tement.
Arias would not havse wanted his ads erse coiniits about
Vill in that aflidasvit to become public knouledge.
Nopetheless, the record shous Arias voluntaril, (Resp.
Fxh. 17) g;ve his statement to Kell 3 . Kelhl afforded Arias
an opportunity to decline to give her a stateniLnt. I Arias
wished to be faithf'ul to the truth and also presere his
Ifealtv to Vial, he could ha've declined the ulsitation to
I esillon5 h counscl of recolrd on hehalit it hs Ior her then is pernittcd
in Board proceedligs L.,,/ n I Vo v ,, tht hler I ler idtIl, l I nl I l tOpr -
,lJug Enincer (The FultIlrJ Silr (;rn'il C('npam I 2 N R 129. fn
I 1974)
speak to Kelly. Instead Arias gave Kelly a statement and
later repudiated it.
Tlhe General Counsel suggests I should credit Arias be-
cause some of his testimony before me is consistent with
parts of his Board affidavit. I cannot do so.
I interpret the sum of Arias' conduct as symbolic of his
disregard for his testimonial obligations and in contradic-
tion to his oath as a witness. His actions so taint any part of
any of his versions as to render nugator their prohative
value.
Accordingl, I totally discredit Arias as to the material
elements of eidence of which he is the source. I find the
testimonx provided by him upon svhich the General (ourn-
seT places entire reliance as prool of the allegations of com-
plaint paragraphs 5(b) and (d) is untrustworth.
Another example of a distortion is the General (Counsel's
imputation of sinister significance to the refusal of tormer
Manager Parsons to grant Haddock's request for a Satur-
da night of. t Haddock testified she asked for a Saturday
night oilf around the end of April. 'Ihis was earl in m the
l ion's rganiziig canmpa;igin. Parsons did not accede to
her request. According to lladdock, Parsons said. "If otu
weren't pirt of the lnion or iniLolsed with the nion. then
I could treat ou as an individual. but since ou are in-
solved ith the rniton. I all't ido that." Parsons recalled
that lltaddock asked fir time of 1 bhut he presented a more
explicit and cotlnprehensis e version of the material con ver-
satioll. Ihus Iarsons testified that hen Hladdock made
her request he was aware olf the organizttional drive hut did
not et full understand all its ra;lmifications. According to
Parsons. he was concerned he would take no action hich
might adversely afclt tie Imployer's position or grant the
employees special betnefits. lle testified he explained this to
Hladdock. Parsons testified that Iladdo,,c then ioll him she
had nothing to do with the nion. Parsons claimed he told
Htaddock he w;as nol interested in her personal eelings and
that the ranitlng of the favor to Ther might he considered
improper.
TIhe (ieneral Counsel asserts the Parsons-Iladdock inci-
dent as an element of the Iniploxer's antiunion attitude
Howlever. in the contest between Haddock and Parsons. I
credit Parsons' version. I;laddock, an alleged discriminatee.
clearl had a ested interest in the outcome of the inslant
proceedings. Parsonls was a more independent witness. hav-
ing left his position with the E:miployer long before he testi-
fied. As indicated, Parsons was comprehensive, direct, and
certain in his testilmon tl. addock was less assured. or
example. in one point within her testimon l;iaddock testi-
fied she discussed her interest i the linion with an assistant
manager nailed "John." She did not know his last namle.
Nowhere in the record does it appear that the mploser
had any such assistant manager in its emplo . No such
individual is alleged as a supervisor in the complaint.
T naill , IlIddock's reliabilit as a witness is stronglx di-
minished because her account of the incident forling the
basis of hel discharge (loes not withstand logical scrutiny.
She was discharged for what [)ietrich concluded w as abet-
ting a theft of food h another waitress, lillbrecht. It is
undisputed that Hlilbreclit ser ed food to her friends with-
out properl, rlectr(ding tlitt tranlisactioln on customer checks.
Ihe dc1.l t Ihs I ,I req(IC,t t. n t .allegedl .'I, a tolitIon *. the ,gI
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In apparent contravention of established employer policy of
check-handling, Hilbrecht asked Haddock to write a substi-
tute check. Haddock did so after Hilbrecht gave Haddock
the money to pay for the food and told Haddock that she
needed to pay for her friends to assure she would not be
discharged. Though Haddock denied she attempted to ap-
proach the cash register several times she did admit delay-
ing payment because she noticed Marosek standing near it.
Finally, the payment was made when Marosek was not
near the register. Marosek later confronted Haddock and
she disclaimed that she had been engaged in any theft.'
Haddock later conferred with Dietrich where she continued
her denial of complicity. At the hearing, Haddock further
continued this denial.
It is illogical to credit Haddock's denial, and I do not do
so. Marosek's testimony to the effect that he had observed
Haddock approach the register several times is inherently
consistent with his activities before and after the time that
Haddock actually made the payment at the register. Thus,
he would not have instructed the bartender who received
the money from Haddock to advise him when the guest
check had been paid unless, as he testified, he earlier had
observed the suspicious circumstances, one of which in-
volved Haddock's movements. Haddock's explanation that
at least 5 minutes elapsed between the time she received the
money from Hilbrecht and the time it was paid was due to
the fact that Haddock had other customers to serve is not as
probable. It may be assumed that waiters and waitresses
have customers to serve throughout their entire work shifts.
Similarly. the need to take customer payments to the cash
register equally engages their worktime. If Haddock actu-
ally harbored no apprehension concerning the payment re-
quested by Hilbrecht, Haddock need not have delayed de-
livery of the money to the cash register. Having in mind
Hilbrecht's caution that Hilbrecht might be terminated if
the money were not paid, coupled with her knowledge of
appropriate guest check-handling, it is reasonable to believe
that Haddock was aware that she was assisting in Hil-
brecht's misconduct. Fortifying this conclusion is the testi-
mony of waitress Joann Munger. Munger testified she over-
heard Haddock and Hilbrecht talking shortly after
Hilbrecht asked Haddock to write and pay the check. Ac-
cording to Munger, Haddock told Hilbrecht that she (Had-
dock) had been unable to leave the check because Marosek
was waiting near the cash register. During cross-examina-
tion. Munger also testified she saw Haddock approach the
register area "several times." Although Munger testified she
did not convey the substance of her testimony to any em-
ployer officials until 2 weeks before she testified. I do not
deem this fact sufficient to discredit her. In all other re-
spects, Munger was forthright and unshaken. Moreover,
Munger's credibility is not attacked by the General Coun-
sel's post-hearing brief.
I consider former employee Michael Barnet to be less
reliable a witness than Dietrich and Marosek, the employer
witnesses who testified upon Barnet's subject matter. Barnet
presented testimony in support of complaint allegations
paragraphs 5(a) and (c). Dietrich's account (and Marosek's
also) of the incident in which it is alleged Dietrich is sup-
' Hilbrecht was discharged as a result of this incident. Her discharge is not
alleged herein as an unfair labor practice,
posed to have threatened employees with closing the restau-
rant in retaliation for their union activities was direct, forth-
right, and comprehensive. In contrast, Barnet was
extremely subjective and generalized in his account. For
example, when Barnet was asked to describe what Dietrich
said during a meeting with employees, Barnet responded
that Dietrich spoke about the "evils and ills of unions."
Later. Barnet testified Dietrich was "talking about how ter-
rible the unions are." In contrast, Dietrich's description of
what he said in this meeting was explicit. Viewing Barnet's
testimony in its entirety, I conclude it is imprecise.
As already observed, Hochman's discharge resulted from
a confrontation with Conboy. Each presents mutually cor-
roborative accounts of the incident leading to the discharge,
except in one critical respect. Conboy claimed Hochman
referred to him in profane terms. Specifically, Conboy said
Hochman called him the "rudest m - f-- and a real
f- a h --." tlochman testified he could not recall
using profanity. Iochman was consistent in this claim. He
made it to Dietrich at his termination interview, continued
it in his prehearing affidavit, and repeated it during cross-
examination. The Employer urges Hochman must be dis-
credited because he evaded making a specific denial. I dis-
agree.
I make no finding to discredit Hochman in general. In-
stead, I believe Hochman's professed failure to recall
whether he used profanity. I also credit ('onboy's firm and
positive recollection that profhnity was used. Two other
persons were present in the vicinity of the Hochman-Con-
boy conversation where the profanity allegedly was uttered.
T hose persons are then Assistant Manager Dunlap and
waitress Susan Perry. Dunlap testified that he heard Hoch-
man use the profanity toward Conboy.
Perry did not testifly at the hearing. She was then in Af-
rica. In anticipation of Perry's departure from the United
States the General Counsel arranged for Perry to give a
deposition. That deposition (marked G.C. Exh. I I and G.C.
Exh. 19(a)) was offered in evidence. I rejected it because
Perry had not signed it and inquiry regarding the circum-
stances of her failure to do so persuaded me that I had no
assurance of its trustworthiness as evidence. (See colloquy
regarding the deposition appearing at pp. 323-324, 350-
357, 377 392. and 812 843 of the official transcript). In
their post-hearing brief counsel for the General Counsel re-
quest I reconsider my rejection of the deposition. Addition-
ally, in order to obviate protracted appellate litigation, the
Employer's counsel suggested in their post-hearing brief
that I review the contents of Perry's deposition "after reach-
ing but before publishing" my Decision. I have reconsid-
ered my rejection of the deposition in the light of the record
as a whole. I have not read or reviewed any part of the
deposition. For the reasons which follow, I reaffirm my re-
jection of the deposition as an exhibit and decline to pursue
the procedure suggested by the Employer's counsel.
As already stated, Dunlap recalled specifically hearing
Hochman make the profane remarks to Conboy. Dunlap
was tending the bar at the Jenifer Street location at the
time. Conboy aiid Hochman agree they conversed near the
bar. In the course of the discussion regarding admissibility
of Perry's deposition, counsel for the General Counsel rep-
resented that Perry was at the bar during the Hochman-
844
MAGIC PAN, INC.
Conboy conversation. The Employer asserts Perry came up
to the bar at a time when she could not have heard the
entire conversation. Dunlap testified that Perry approached
the bar to give him a customer drink order. Dunlap further
testified Perry was not at the bar when the Conboy-Hoch-
man conversation began. According to Dunlap. Perry ap-
peared sometime later. It is undisputed the confrontation
occurred during working hours.
I credit Dunlap's account which indicates Perry was not
present throughout the confrontation. It is clear Perry was
on duty as a waitress at that time. To adopt the General
Counsel's assertion that Perry was at the bar during the
conversation is unrealistic. I have no doubt that Perry did
appear at the bar sometime during the conversation. How-
ever, it is unreasonable to believe Perry remained there for
an extended period of time. That location, of course, was
Dunlap's work station. There is no reason to suspect that he
could not have been privy to the entire conversation be-
tween Hochman and Conboy. Upon the foregoing, then, I
conclude Perry came to the bar in the midst of the Hoch-
man-Conboy conversation.
As noted, I have credited Hochman in his claim of lack
of recall concerning whether he used profanity. At the hear-
ing, the General Counsel agreed I could assume that Perry's
deposition corroborates Hochman. Making such an as-
sumption and viewed in its worst posture to the General
Counsel, Perry's testimony would be to the effect that she,
too, did not recall whether or not Hochman used profanity
to Conboy.
Now, once again assuming Perry would corroborate
Hochman, and viewed in its best posture to the General
Counsel, Perry's testimony would be to the effect that she
did not hear Hochman use profanity.
In either case, and in view of my conclusion that Perry
was not present throughout the entire Hochman-Conboy
conversation, I find no reason to discredit the Employer's
version of what occurred. In view of the General Counsel's
concession that I might assume Perry would have corrobo-
rated Hochman, it is unlikely that Perry would have affir-
matively testified she heard Hochman use no profanity.
Having made the assumptions concerning Perry's deposi-
tion, I conclude the General Counsel's cause has not been
prejudiced by my failure to receive the deposition into evi-
dence.
Assuming, arguendo, Perry positively related that she was
absolutely certain Hochman used no profane language dur-
ing the disputed conversation, I would not alter my conclu-
sion that Dunlap's and Conboy's versions are more reliable
than Hochman's and, of course, Perry's for the following
reasons. In skeletal form, the reason for adopting Conboy's
version of his conversation with Hochman reduces itself to
probability. As will be observed, infra, from the description
of evnts leading to Hochman's discharge, Hochman acted
in a provocative manner. He approached Conboy three
times to pursue Conboy's request of Hochman's lady friend
to leave the employee lounge. Hochman admitted that, al-
most immediately, he insulted Conboy by saying. "You're
the rudest person I have ever had the displeasure of work-
ing with." After the incident seemingly was completed,
Hochman again approached Conboy. Hochman clearly was
disturbed at Conboy's eviction of his friend. Hochman de-
manded an apology. The entire scenario was pervaded with
Hochman's outrage. I consider this setting supports the
probability that Hochman used profanity and also reason-
ably explains Hochman's memory lapse. Buttressing this
conclusion is the testimony of waitress Terez Touhey, al-
luded to hereinafter. In relevant part, Touhey testified that
on the day following Hochman's discharge Conboy told her
that Hochman swore at him. Additionally, Touhey testified
that profanity was in common usage by employees at Jeni-
fer Street. In this context, I find it likely that Hochman
manifested his frustration by using profanity to Conboy.
As with Hochman, Vial is not generally discredited by
me. Clearly an intelligent and articulate person, Vial's testi-
mony was not factually different from the Employer's wit-
nesses who testified on the same subject matter. Yet, I find
Vial to have been prone to exaggeration, particularly as to
his self-evaluation of his work performance. One example
of such exaggeration is his claim that he had been ex-
tremely tired and overworked on the shift during which he
received his final written warning. Vial orally testified that
he had previously worked six consecutive shifts. The time-
cards in evidence, however, show he worked only two shifts
between October 25 and 29. October 29 is the day on which
he received his final warning. Vial sought to explain this
discrepancy by testifying that, on occasion, he punched his
wife's timecard instead of his own. However, no effort was
made to further substantiate Vial's bare assertion. I regard
this omission critical because there is no assertion, nor evi-
dence, that the Employer's records in evidence are inaccu-
rate.
Vial was discharged for incompetency as a waiter. A pa-
rade of witnesses was presented by the General Counsel to
attest to Vial's good work performance. I place little proba-
tive value on their testimony. Their perception of Vial's
performance is vulnerable. In virtually all instances, oppor-
tunities to observe his performance were limited by their
own work obligations. In at least one instance the testimony
of fellow employees is refuted by documentary evidence.
Thus, Gaw testified he was sure his observation of Vial's
work occurred after Vial received his written final warning.
Yet, records in evidence show that testimony was baseless.
The records indicate that after the warning Gaw and Vial
were not scheduled to work the same shift with the fre-
quency claimed by Gaw.
As already noted, the most persuasive factor in assessing
the reliability of evidence relating to Vial's performance is
his failure to have attempted to rebut the extremely detailed
and explicit testimony of Stamp and Marosek.
I find Gaw, also, to be less reliable than the employer
witnesses who testified on identical subject matter. Gaw ex-
aggerated his testimony and was self-contradictory. Gaw
testified that after Vial had been discharged Vial had to be
forceably removed from the Employer's premises by the po-
lice. However, when confronted with his prehearing affida-
vit, Gaw agreed that he had earlier informed Board agents
that Vial left voluntarily.
Additionally, Gaw's testimony was in contradiction to
Vial. Thus, Gaw's testimony, described above, that he ob-
served Vial's performance after Vial received his warning is
refuted by Vial himself. Vial testified that he and Gaw did
not work on the same shift after Vial received his warning.
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Touhey was the most impressive of the General C'oun-
sel's witnesses. I fully credit her. In doing so I have care-
fully considered an admitted interpersonal relationship be-
tween Touhey and Hochman. This has been evaluated
against Touhey's overall demeanor. Touhey was spontane-
ous, straightforward and inherently consistent throughout
her testimony. She impressed me with her sincerity. Analy-
sis of her testimony as a witness in the General Counsel's
case-in-chief, and in rebuttal, leads me to conclude that
Touhey provided no testimony which adversely affects the
Employer's defenses. Thus, her version of a conversation
with Conboy the day after Hochman's discharge is in sub-
stantial accord with Conboy's own account. Next, as previ-
ously mentioned, during her cross-examination upon that
conversation, Touhey acknowledged Conboy told her
Hochman swore at him without repeating the profanity ver-
batim.
Finally, on rebuttal Touhey testified that fellow em-
ployee Kathy Hawkins used profanity toward her, saying
"What the f-k do you want. You are a small b- ." This
incident occurred sometime after the instant hearing first
convened-at least 7 months after Hochman's discharge.
Touhey reported the incident to Stamp. Touhey reminded
Stamp that Hochman had been discharged for using such
language. The record reveals Kathy Hawkins was not disci-
plined and still was employed by the Employer at the time
of the hearing. Stamp had told Touhey that Hochman's
discharge was unrelated to the incident between Hawkins
and Touhey. At the hearing, Stamp explained what she
meant by unrelated. Thus, Stamp said that Hawkins' offen-
sive language to Touhey was between employees, whereas
Hochman's remarks to Conboy were from an employee to a
supervisor. Even Touhey testified, on rebuttal, that employ-
ees "constantly" used profanity. I consider Stamp's version
reasonable. Words which are innocuous in one circum-
stance may be opprobrious language in another. To call
down one's supervisor, as Hochman did, clearly is ground
for discipline. "An employee . . . [even when engaging in
concerted activities] . . . does not acquire a general or un-
qualified right to use disrespectful epithets toward . . . his or
her employer." N.L.R.B. v. Blue Bell, Inc., 219 F.2d 796,
798 (5th Cir. 1955). Accordingly, I consider the totality of
Touhey's rebuttal testimony to have been neutralized and
of no practical aid to the General Counsel's cause.
B. Background and Factss
The unfair labor practices alleged herein occurred in the
context of a rather protracted organizing campaign which
began in early 1977. The Union filed a representation peti-
tion for an election among all the employer's full and regu-
lar part-time employees at the Jenifer Street facility. The
I The facts set forth herein are based on a synthesis of the credited aspects
of the testimony of all witnesses, the exhibits, and careful consideration of
the logical consistency and inherent probability of the facts found. Although
I may not, in the course of this Decision, discuss every bit of record testi-
mony or documentary evidence, all has been carefully weighed and consid-
ered. To the extent that evidence not mentioned herein might appear to
contradict my factual findings, that evidence has not been disregarded but
has been rejected as unreliable, lacing in probative worth, superfluous, or
irrelevant.
petition was filed March 25, 1977. Hearings on the petition
were conducted by the Board on April 26 and on May 2 5,
1977. On July 20, 1977, the Acting Regional Director for
Region 5 issued a decision and order dismissing the peti-
tion. A request for review was granted and, as previously
noted, the Board granted review and ordered an election.
The election was conducted on January 27. Thereafter, the
Employer filed objections to the election, and on August 15
the Board directed a hearing upon certain of those objec-
tions.
The discharges of the alleged discriminatees occurred as
follows: Vial. November 9: Haddock. December 8 and
Ilochman, January 8, 1978.
Parsons had been general manager of the Jenifer Street
location when the Union's organizational drive was initi-
ated. Parsons left his employment with the Employer dur-
ing the summer and was replaced by Area Supervisor Paul
Tebbs who also acted as manager of the Jenifer Street loca-
tion. Because of his dual functions it appears the Jenifer
Street's operational supervision deteriorated.
Dietrich was appointed permanent manager at Jenifer
Street in September. He physically assumed that position
on October 6. Thus, he came on the scene at a time when
the request for review of the Acting Regional Director's
dismissal of the Union's petition was pending before the
Board.
Dietrich was especially selected for this position because
of his earned reputation with the Employer as a manager
who imposed strict standards of food quality and customer
service. Dietrich earlier had served as a so-called trouble-
shooter in other of the Employer's facilities which needed
improvement in operational standards.
Dietrich spent the first week of his management observ-
ing the Jenifer Street operations. Particularly, he took note
of food preparation procedures, the activities of waiters and
waitresses (hereinafter jointly called the staff) in maintain-
ing their work areas, and their service to customers. Also,
Dietrich took note of the manner in which the staff and the
supervisory personnel followed the Employer's operating
policies. He also observed the manner in which the back
(where the food is prepared) and front (where the food is
served) of the facility coordinated with one another.
After his first week at work Dietrich conducted a series of
employee meetings. The general condition of, and problems
at, the Jenifer Street facility were discussed. From time to
time, Dietrich engaged specific employees in discussion of
specific problems relating to the employees' work area and
performance.
In mid-October Dietrich conducted a general meeting of
employees. He there set forth his observation that the res-
taurant was in generally poor condition. Dietrich explained
his policy of' strict adherence to customer service standards
and general comportment of employees. Thus, Dietrich told
the employees, inter alia, that he expected the staff to be
attentive to customer needs, that the staff should be more
conscientious about the cleanliness of their work stations,
that employees in uniform were prohibited from using cus-
tomer restrooms without previous permission of manage-
ment, and advised that the staff lounge was not to be used
by nonemployees. It was during this meeting that Gaw
846
MAGIC PAN. INC.
asked Dietrich if it was his job to "smash the Union." but
Dietrich ignored references to the Union.'
The existence of' two policies of the Employer is relevant
to the termination of Hochman and Vial. Those policies are
(a) the prohibition of nonemployees to be present in the
employee lounge: and (b) the existence of a so-called coop-
erative food service policy. As previously suggested. the
purported employee lounge policy prohibited all nonem-
ployees from its use. An exception was made for personnel
of service organizations who might have been required to
be present in the lounge to conduct business. Such excep-
tions were granted in appropriate circumstances by the Em-
ployer's managerial personnel. The General Counsel urges
that no such rule existed prior to Hochman's discharge. The
General Counsel relies on the testimony of Barnet. Hoch-
man, and Gaw, each of whom testified that they had been
unaware such a rule existed. The other witnesses produced
by the General Counsel were not asked whether or not they
knew of such a rule. On the other hand, employees Antonio
Hawkins and Jill Fried each heard that rule discussed either
by Dietrich at the October general employee meeting or by
Tebbs who was with him at that meeting. 's The employer
witnesses who testified as to the employee lounge rule were
specific in their recollections while the General Counsel's
witnesses on this subject merely disclaimed having heard
anything about it. Consistent with my overall credibility
resolutions, I find the employee lounge rule was in existence
at least at the time of the October meeting between Dietrich
and the employees.
The existence of the "cooperative" food service policy at
all times material herein is undisputed. The policy was ex-
plained to exist to assure that all customers are served hot
food with minimal delay. Its existence was for the customer
convenience and as a deterrent to diminution of food qual-
ity. The policy required the staff to pick up any hot food
they observed in the food service window, located between
the kitchen and dining room, and deliver the food as
quickly as possible. This was to be done by any available
staff member, whether or not that particular staff member
actually took the food order. Thus, food delivery is assigned
the highest priority over all other staff functions.
Related to the cooperative service policy are other staff
requirements imposed by the Employer. For example, each
staff member is expected to check each work station at the
outset of his or her shift to assure each table contains the
proper utensils and other ingredients of a table setting: each
is expected to clear dirty dishes remaining from each course
before serving later courses: each is responsible to assure
that all tables serviced by him or her are maintained in a
condition of high cleanliness; and each member of the staff
is expected to be prompt in assisting customers when pay-
ing their bills.
9 To the extent that this finding is contrary to my overall conclusion that
Gaw was not as reliable a witness as those presented by the Employer, this
finding is permissible. A trier of fact is "not required to discount everything
[witnessesl testified to because he did not believe all of it and nothing is more
common than to believe some and not all of what a witness says." Edwards
Transportation Company, 187 NLRB 3 (1970), enfd. per curtam, 437 F 2d 502
(Sth Cir. 1971)
10 Tebbs did not appear as a witness. He was on vacation during the course
of the hearing.
Dietrich also conducted weekly meetings with his man-
agerial personnel. During those meetings Dietrich asked the
managers to discuss and evaluate the performance of the
staff members. Additionally, these meetings were employed
by Dietrich to discuss improvement of managerial func-
tions. There is no evidence in the record to reveal the Union
or its pending campaign ever had been discussed at an
such meeting.
C. Inrererence, Restraint, and Coercion
(I) The complaint (par. 5-a) alleges that on or about
October 15 Marosek threatened employees with discharge
unless union buttons were removed.
During the course of the union campaign certain staff
members wore round metalic buttons approximately I-1/4
inches in diameter. On these buttons appeared a clear desig-
nation identifying the Union. Barnet, who was regularly
assigned to work in the kitchen (hereinafter also called the
back of the house), testified that on about August 25 Maro-
sek saw Barnet wearing a union button. According to Bar-
net. Marosek told him to remove the button or he would be
discharged. Barnet was a crepe assembler. This job required
him to constantly handle food which would be served to the
customers.
Marosek testified that he did, in fact, see Barnet wearing
the union button. Upon making this observation. Marosek
admitted that he told Barnet to remove it from his person.
However. Marosek unequivocally denied threatening Bar-
net with discharge. Marosek further testified that he did tell
Barnet he could not continue working with the button on.
Barnet complied, but told Marosek he would file an unfair
labor practice charge. The Employer contends Marosek
was enforcing an employer rule which required all staff
members who handle food to wear no jewelry with the ex-
ception of a wedding band and the Employer's service pins.
An employee handbook entitled "Introduction to the
Magic Pan Creperie" is distributed to each employee. On
pages 13 and 14 there is language which confirms the exis-
tence of the rule. A supervisor's food handling and sanita-
tion manual (Resp. Exh. 13{a)) reiterates the existence of
that rule and imposes a yet more strict requirement as to
back-of-the-house employees. Thus, paragraph 9 of the per-
sonal hygiene section of the manual prohibits food prepara-
tion employees in the kitchen from even wearing the Em-
ployer's service pin. Marosek testified that the dress
standards are posted to the employees' attention on the bul-
letin board. (A copy of such a posting was received in evi-
dence as Resp. Exh. 19). The posted document contains
prohibitions as to jewelry similar to those already de-
scribed." It is not alleged that the existence of the rule or
Marosek's attempt to enforce it is a violation of the Act.
I credit Marosek's account of this incident. Barnet's
claim that Marosek threatened to discharge him is attrib-
uted to Barnet's tendency to provide generalized testimony.
Accordingly. I find the record fails to establish by a prepon-
derance of credible evidence that Marosek uttered the al-
" Barnet testified he was not aware the rule prohibiting jewelry existed. In
view o the posted notice in evidence. there is yet another reason to find
Barnet's testimony unreliable.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leged threat.'2 I find, instead, Marosek merely told Barnet
he could not continue working while wearing the button. In
all the circumstances herein I consider that statement does
not rise to the status of a threat to discharge. Thus, I find no
merit to the allegations contained in paragraph 5(a) of the
complaint.
(2) It is alleged that Dietrich, in October, promised
health insurance benefits to employees if they would not
support the Union (complaint par. 5(b)). This allegation
rests solely on Arias' testimony. I have already discredited
Arias.' 3 Even the General Counsel's post-hearing brief con-
cedes "Arias became somewhat confused" in his description
of the conversation from which the alleged threat is sup-
posed to have emanated.
I credit Dietrich. Dietrich and Arias testified they dis-
cussed Arias' health insurance eligibility in January 1978.'4
Dietrich testified Arias came to his office sometime in early
January to determine whether he was eligible to participate
in the Employer's health insurance program. Dietrich told
him minimum eligibility required a staff member to work
an average of 25 hours per week. Arias, at that time,
worked less than the average minimum requirement. Die-
trich unequivocally denied he referred to the picketing or
the Union.
Upon the foregoing, I find the allegations of the para-
graph 5(b) of the complaint are not supported by the requi-
site degree of credible evidence.
(3) In complaint paragraph 5(c) it is alleged that in Janu-
ary Dietrich threatened that the Jenifer Street facility
would be closed if the employees selected the Union as their
bargaining representative. Shortly before the January 1978
Board-conducted representation election, Dietrich dis-
cussed with some staff members his past experience with
unions. Dietrich also distributed flyers.' Barnet was pre-
sent. In perhaps the most generalized testimony presented
by any of the General Counsel's witnesses, Barnet testified
Dietrich was "talking about how terrible the Unions are"
and (as earlier noted) about the "evils and ills of unions."
According to Barnet, Dietrich is supposed to have said that
if a union were to come into the restaurant it would totally
take over, his job would be threatened, and there was a
possibility that the restaurant would close down.
Dietrich, specifically and generally, denied he threatened
to close the restaurant. Dietrich admitted the subject of clo-
sure was mentioned in Barnet's presence. Dietrich testified
that one of the other staff members present asked whether
12 The record reflects Barnet was discharged in March 1978, that a charge
was filed with the Board in June alleging it to have been discriminatory, and
that in July the charge was withdrawn. I have not at all relied on any of these
circumstances in concluding Barnet's testimony is less reliable than Maro-
sek's.
'3 Arias gave differing versions of what Dietrich said which is supposed to
be the alleged promise. Thus, Arias' first Board affidavit shows Dietrich said,
if Ari., did not have anything to do with he Union, he would receive his
health insurance. The second Board affida% it shows Dietrich is supposed to
have said "because there was picketing," Dietrich would have to "go by the
book." I do not wish to exalt form over substance. However, in the context
of Arias' overall demeanor, I consider these variations are a further element
of Arias' disregard for the need to be precise.
14 The complaint alleges the conversation occurred "in or about October
1977." No evidence was adduced as to such a promise in October and no
motion to conform the pleadings to the proof was made.
15 It is not alleged that the flyers contained anything which would com-
prise an unfair labor practice.
the Jenifer Street facility would close, as did another restau-
rant in close geographic proximity to, but unaffiliated with,
the Employer. Dietrich could not identify the employee
who asked that question. Dietrich responded that "such a
decision is certainly out of my league, and that personally I
didn't think so." At the time of the discussion between Die-
trich and the staff members the other restaurant was not
closed. However, it had been closed for "a couple of
months" after Dietrich came to work at Jenifer Street. Ac-
cording to Dietrich, who was uncontested on this point, the
closing of the unaffiliated restaurant was due to redecora-
tion.
I accept Dietrich's account of this incident for all the
previous reasons stated regarding the relative reliability of
his and Barnet's testimony. Additionally, during his cross-
examination, Barnet was asked for a precise account of
what Dietrich said at the staff meeting. Barnet first re-
sponded with continued generalization, stating Dietrich
spoke "about the up-coming election and what could con-
ceivably happen to the company, what could conceivably
happen to our job." Later in cross-examination, Barnet re-
counted the alleged threats as he did during direct examina-
tion. Barnet further expanded what Dietrich told the staff.
My examination of the other things Dietrich said leads me
to conclude he presented a rather factual and lawful expres-
sion of the reasons for the Employer's opposition to union-
ization.
While the issue is not entirely free of doubt, I have uti-
lized all the elements relating to relative credibility of wit-
nesses already described to resolve the instant issue. Also, I
have taken note of the fact that no other staff member who
attended the January meeting with Dietrich was called to
testify. In the absence of testimony corroborating Barnet's
description of the alleged threat, I attribute his testimonial
version to be a personal perception rather than an accurate
description of actual fact. Accordingly, I find that Dietrich
did not issue the threat to close as alleged in complaint
paragraph 5(c).
(4) The General Counsel alleges that Marosek, on Janu-
ary 7, threatened that the Jenifer Street facility would close
if the employees selected the Union as their representative
(complaint paragraph 5(d)). This allegation wholly relies on
the testimony of Arias.
Arias testified that sometime after he had the conversa-
tion with Dietrich, where it is alleged Dietrich is supposed
to have promised Arias health insurance benefits, Marosek
told him that a union attempted to organize the unaffiliated
restaurant referred to above and it closed because the
owner there did not want the union. Arias could not recall
the date on which Marosek is supposed to have made this
comment. Additionally, Arias said Marosek told him the
Employer was large enough to afford closing and that could
possibly happen and the employees would be laid off.
Marosek denied having any such conversation with
Arias. He also specifically denied making each and every
one of the statements attributed to him by Arias, including
words to that effect. I accept these denials. In doing so, I
rely upon my earlier stated basis of credibility resolution.
Also, I find it improbable that Marosek would have dis-
cussed the Union with individual employees. This conclu-
sion is based on two factors: (1) the record indicates that
848
MAGIC PAN, INC.
only Dietrich among the Employer's managers engaged in
publication of the Employer's election campaign; and (2)
Dietrich's actions throughout the relevant period of time
reflect that even he (Marosek's superior) engaged in a stud-
ied effort to refrain from casual union discussion. As to this
latter point, I have credited Dietrich's testimony that when
he was confronted, at the January meeting with some staff
members, with the question of closure, he disavowed his
authority to effectuate such action. Even as early as his first
general meeting with the staff in October, he totally ignored
Gaw's question whether it was Dietrich's job to "smash the
Union."
Upon all the foregoing, I find the record fails to support
the allegations of the complaint in paragraph 5(d) by a pre-
ponderance of the credible evidence.
. (5) Complaint paragraph 5(e) alleges that the Employer
violated the Act when Dietrich ordered Vial to leave the
premises on November 9 after he had been terminated.
After his termination which occurred on November 9 at
the end of the day shift for waiters and waitresses, Vial left
Dietrich's office (where the discharge was effected), went to
his locker, and changed from his uniform to street clothes.
Vial then went to the restaurant bar. Vial himself testified
that he moved around the bar area, engaged the bartender
in conversation, and greeted other staff members who came
in and out of the vicinity by saying "hi" to them.
Dietrich approached Vial and told him he was distracting
employees and told Vial he should complete any business
he (Vial) had to conduct and then vacate the premises. At
the hearing, Dietrich testified he requested Vial to leave the
restaurant because at the time of the incident the day-shift
staff was in the process of turning over their stations to the
night staff. This function involved the day-shift staff mem-
bers apprising their night reliefs of the status of each cus-
tomer's order. Dietrich testified that he believed Vial's ac-
tivity in the bar area interfered with a smooth transition
from day to night shift.
Vial became angered at Dietrich's request. Vial com-
mented he was a customer and refused to leave. The police
were called and Vial voluntarily left with them.
The General Counsel contends that the reason provided
by Dietrich for asking Vial to vacate "was to demonstrate
to other employees that pro-union employees would not be
tolerated." Additionally, the General Counsel argues that
"calling the police to remove a well-known union sup-
porter, in order to inhibit unionization, has been held to
violate the Act." I do not agree that the Employer's defense
is a sham. To accept the General Counsel's formulation of
theory in the circumstances herein, which I find are other-
wise free of 8(a)(XI) violations and (as I shall find hereinbe-
low) of discrimination, requires me to substitute my per-
sonal standards in place of what I perceive to be a
managerial judgment.
Cathy Pringle, the bartender on duty and a General
Counsel witness, credibly testified there was "a lot of confu-
sion" at the bar area after Vial arrived there. Vial engaged
Pringle in a conversation regarding his termination. Pringle
herself was supposed to have been taking inventory of sup-
plies and preparing the bar for the night-shift work. Admit-
tedly, Pringle testified her changeover functions "just take a
second." Obviously, this is an exaggeration. However, for
analysis purposes I have assumed that the changeover du-
ties of a bartender do not consume too long a period of
time. Despite this assumption. Dietrich's managerial per-
ception might he otherwise. Clearly, it was. In the full con-
text of the circumstances, neither the General Counsel's nor
my standards should be imposed on Dietrich. Given Diet-
rich's stringent implementation of the Employer's policies, I
consider his position to have been reasonable.
The uncontested, and in part admitted, evidence reveals
that Vial engaged Pringle in conversation and distracted.
however momentarily, other employees. In this context
and, considering it was shift-change time, and in the ab-
sence of other proven union animus, I find Dietrich's ac-
tions were justified. Accordingly, I conclude there is no
merit to the allegations of paragraph 5(e) of the complaint.
In sum. I find none of the allegations in complaint para-
graphs 5(a)-(e) is supported by a preponderance of the
credible evidence.
D. Discrimination
(a) Peter Hochman: Hochman began his employment in
September 1976. Until the events herein, Hochman re-
ceived no warnings or other disciplinary action.
Ample record evidence shows Hochman's performance
at least met the Employer's standards for wage increases.
As a result of written performance evaluations, he received
increases in August and November.
Hochman openly wore a union button. On one occasion,
he and Vial visited another of the Employer's facilities
where they were identified by the manager as activists in
the Jenifer Street union campaign. In May Hochman dis-
tributed a union pamphlet. His name appears as author of
an article in that pamphlet. Also, he distributed literature
on behalf of the Union outside the Jenifer Street location in
December. Hochman also distributed leaflets immediately
after the Board ordered the election.
As already indicated, supra, section IV, A, the sole issue
in dispute as to Hochman is whether he had been insubor-
dinate to Conboy. I have found he was.
The relevant facts leading to Hochman's discharge fol-
low: On January 8, 1978, Hochman was tending bar in
accordance with his regular duties. At approximately 2
p.m., Hochman requested a break so he could eat lunch.
Dunlap relieved him. Hochman ordered lunch and
punched out. While waiting for his lunch to arrive, he be-
gan to restock the bar. A female friend of his then entered
the restaurant. When Hochman observed her, he told her
he was going to his break and invited her to sit with him
and talk. The two of them walked to the employee lounge.
In doing so, Conboy observed them. When Hochman and
his friend arrived in the lounge they observed it was full of
people. While waiting to be seated, Hochman's friend stood
by the doorway to the lounge. Conboy approached her and
politely asked her to leave. Hochman expressed surprise
and told Conboy he was not aware of any rule which lim-
ited the use of the lounge to only employees. Conboy re-
sponded by politely repeating his request that Hochman's
friend leave. Hochman escorted his friend to the exit.
Hochman then returned to the employee lounge to await
his lunch. While waiting, he decided to confront Conboy.
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hochman left the lounge and found Conboy near the food
service window. Hochman spoke to Conboy, saying that
Hochman thought Conboy was "the rudest person he
[Hochman] had ever had the displeasure of working with."
Conboy did not answer; he simply stared back at Hoch-
man. At that point, Hochman returned to the employee
lounge. There, he spoke with other people about the inci-
dent. As a result, Hochman decided he wanted Conboy to
apologize.
Hochman left the lounge to seek Conboy. Conboy was
standing near the bar. Hochman approached Conboy and
told him that he had embarrassed Hochman and his friend;
that his friend had come from over 1,000 miles away, and
that Conboy had treated her rudely so that he owed Hoch-
man an apology. It is at this point that the profanity which
I have found Hochman to have uttered was exclaimed by
him. Conboy told Hochman to punch out and go home.
Hochman said he did not wish to do so and that he wanted
to complete his shift. Conboy told Hochman that he (Hoch-
man) would have to speak to Dietrich before he could work
again. Hochman asked if he was fired. Conboy told him he
would just have to talk to Dietrich before he could work
again. Then Conboy walked away. Hochman changed his
clothes and punched out. As he was leaving Conboy came
to him and advised him that Dietrich had just come into the
Jenifer Street facility. Hochman, however, said he would
talk to Dietrich later. Hochman left the premises.
The following day Hochman reported to work as earlier
scheduled. Dietrich called him into his office, with Marosek
present. Dietrich asked Hochman to relate his side of the
story regarding his confrontation with Conboy. Hochman's
version generally comported with that described immedi-
ately above and also the version of the incident provided by
Conboy to Dietrich, with one deviation. Apparently, Con-
boy had reported that Hochman used profanity toward
him. Dietrich asked if he did so. As earlier indicated, Hoch-
man told Dietrich that he did not recall having used profan-
ity. Dietrich said Dunlap reported having witnessed Hoch-
man's profanity. Hochman steadfastly maintained he could
not recall. Deitrich said there was no way he could continue
Hochman's employment. Dietrich presented Hochman
with the precise amount of money due him and with papers
for Hochman's signature. Dietrich repeated that though
Hochman was off the clock when he confronted Conboy,
Dietrich observed that Hochman was still in uniform and
had overreacted. Thus, Dietrich said he could not maintain
Hochman in his employ. Hochman signed the papers, took
his money, and left Dietrich's office. He then went to his
locker, changed clothing, and left the restaurant.
(b) Pierre Vial: The Employer defends Vial's discharge,
claiming he was incompetent as a waiter. The General
Counsel contends the discharge was motivated by an inten-
tion to retaliate against Vial for engaging in union activity.
Vial began to work for the Employer on or about July 4,
1976. He worked in the back of the house for about 3
weeks; then at various positions until becoming a waiter in
the middle of September 1977.
Vial was one of the staff who initiated union interest.
Being Spanish speaking, Vial was designated to assist in
organizing the approximately half-dozen staff members
who also were Spanish speaking. He solicited 15-20 signa-
tures on union authorization cards. The solicitation was
conducted during his nonworking hours both off the Em-
ployer's premises and in the staff lounge. Vial also distrib-
uted union leaflets.
Vial wore a union button on a virtually daily basis. He
gave a union button to Tebbs and later to Dietrich. As
observed above, Vial was recognized as a union proponent
when he visited another of the Employer's locations.
During his employment Vial received a few warnings for
being tardy. No warnings were received for poor perform-
ance until the situation which is described below.
The relevant facts pertaining to Vial's termination are:
As previously noted, Dietrich met with the supervisory staff
to acquaint himself with problem areas at Jenifer Street and
to present them with his policies during the initial phase of
his position as manager. During this orientation period,
Dietrich received reports from the supervisors on the work
performance of individual employees. I have already found
that those reports show Vial's performance was substan-
dard. Dietrich instructed the supervisors to counsel Vial
with a view toward improvement.
On October 29 Vial worked from approximately 5 p.m.
until shortly after midnight. Three managers, Dietrich,
Marosek, and Conboy, had occasion to observe Vial's per-
formance that shift. At the shift's end, Vial was given a
written final warning for failing to carry his share of food
and adequately serve his station by picking up plates and
serving water. The warning resulted from the following in-
cidents. Dietrich did not see Vial carry any food to his or
any other waiter's or waitress' table until sometime past the
busy period that evening. Dietrich saw one customer of
Vial's wait at least 15 minutes to receive a salad. Dietrich
also observed Vial serve another customer an entree with-
out having fist served a salad which was ordered. Dietrich
saw Vial take several orders without providing the required
water to the table. He also saw Vial asking bus personnel to
assist him in serving coffee throughout his station. Addi-
tionally, as described hereinabove, one of the customers
waiting in line to be served explained to Dietrich that a
customer who was seated was waving a $20 bill in an effort
to gain Vial's attention.
Marosek and Conboy also observed Vial's shortcomings
that evening. Thus, Marosek saw some of the same prob-
lems noticed by Dietrich. Marosek also saw Vial serving
courses out of order and failing to serve coffee and water as
needed. Marosek saw dirty dishes throughout Vial's station
which remained on his tables an inordinate length of time.
Marosek also saw that Vial did not carry his proportionate
share of food in accordance with the cooperative food-carry
policy. Conboy was required to pick up several checks from
customers seated in Vial's station and he observed an exces-
sive number of dirty plates on tables serviced by Vial, and
that Vial improperly filled water glasses and coffee cups.
Conboy also saw that Vial carried less than his share of
food that shift.
Interestingly, Vial did not directly dispute some of the
deficiencies noted by the three supervisors. Instead, Vial
testified that it was his birthday, October 28, and some of
the other staff were assisting him by doing some of his
work. Also, Vial claimed he was not feeling well that eve-
ning.
850
MAGIC PAN. INC.
Before giving the warning to Vial, Dietrich consulted
with Marosek and Conboy. They confirmed Dietrich's own
observations and rated Vial well below the Employer's
standards. When Marosek delivered the warning Vial gave
a variety of excuses for his performance. He did not, how-
ever, deny the observations. Instead, he alluded to his birth-
day, his apparent illness, and the fact that his underwear
was too tight. Vial argued that this was his first warning for
poor performance and it should not have been a final warn-
ing. The warning indicated Vial would have I week to im-
prove his performance to avoid termination. Marosek,
when the warning was delivered, told Vial he should begin
to concentrate on improvement and assured him that if
such improvement were observed Vial's job would not be in
jeopardy.
Vial was absent from work several days after receiving
the warning. Dietrich voluntarily extended the probation-
ary period to November 9. After returning from his illness,
Vial worked approximately 1 week before his discharge.
During that period Dietrich, Marosek, and Stamp watched
Vial and counseled him wherever necessary. They con-
cluded that he did not appear to make any effort toward
improvement.
Conboy testified without contradiction that on a slow af-
ternoon in Vial's last workweek he saw two customers
seated in Vial's station with their menus lying on the table.
The customers were looking around in search of a waiter.
Conboy saw Vial walk into the staff station and waited to
see if Vial would return to the table with glasses of water. A
significant period of time elapsed. Vial did not reappear.
Conboy then went to Vial's table and took the order from
the customers. Those customers told Conboy they' were in a
hurry. Conboy served the salads and left the guest check at
the serving window to have the meal prepared. Conboy
gave the check to Vial and told him the customers were in a
hurry. Vial said he would care for their needs. Later, how-
ever, Conboy found the table was covered with dirty dishes.
Conboy picked up the dishes himself and asked the custom-
ers if they needed anything else. Conboy was told the cus-
tomers were waiting for their check. Conboy found Vial at
the end of the bar counting his tips. At the end of that shift
Conboy reviewed the incident with Vial and expressed his
extreme dissatisfaction at Vial's performance. Conboy also
reported the incident to Dietrich.
Before effectuating Vial's discharge Dietrich obtained
oral evaluations from the various supervisors. The unani-
mous opinion was that Vial had not at all improved since
having been given the written warning. Thus, Dietrich ter-
minated Vial.
The events which immediately followed the discharge are
described above in section IV, C(5) and need not be re-
counted.
(c) Katherine Haddock. She was employed as a waitress
from July 1976 until her December 7, 1977, discharge.
Unlike Hochman and Vial who were patently active on
behalf of the Union during its organizational campaign, the
record shows Haddock was simply a union sympathizer.
There is no evidence she was particularly active in the
Union's behalf. Thus, she attended five or seven union or-
ganizational meetings at the homes of Gaw and Pringle.
Haddock wore a union button on her street clothes both
outside and inside the Jenifer Street facility. There is no
direct evidence that any supervisor saw her wearing it. On
one occasion Haddock was reading (apparently in a per-
functory manner) the transcript of the related representa-
tion proceeding. This was done in the staff lounge. Conboyv
may have observed this.
The General Counsel attempted to adduce direct evi-
dence of employer knowledge of Haddock's union interest
by way of her April discussion (described above) with Par-
sons. I have, however, found Haddock actually disavowed
any relationship with the Union at that time.
Haddock was terminated for abetting Hilbrecht's con-
cealment of having served food to Hilbrecht's friends with
an intent to avoid payment. Thus, Dietrich credibly ex-
plained (Hilbrecht) "had already committed the ... (theft)
. ., realized she was caught, was now trying to cover up for
it, and Kathy (Haddock) was helping . . . (Hilbrecht) cover
up for what she had done."' 6
The events which resulted in Haddock's discharge oc-
curred on December 4. That evening Haddock and Hil-
brecht were working in adjoining serving sections. (At one
time they shared an apartment). During the evening friends
of Hilbrecht had been seated in Haddock's section. Hil-
brecht asked Haddock if she could wait on them and Had-
dock agreed. Haddock then exchanged her table for one of
Hilbrecht's. At some point Haddock became aware that
Hilbrecht's friends had ordered two kabobs and two des-
serts.
The guest checks used at the Jenifer Street location are in
two parts; a hard copy and a soft copy. The soft copy is
carbon-backed so that what is written on it also will come
through onto the hard copy. The staff is required to turn the
soft copy into the kitchen and food orders are prepared
from the soft copy. The staff retains the hard copy until the
customers are presented with the bill. When the ordered
food is picked up from the service window, the soft copy is
to be spindled. Random audits of the guest checks are made
to determine that the hard and soft copies correspond.
Thus, it is not permissible to discard the soft copy. Beverage
orders are written directly on the hard copy. The bartenders
prepare the necessary drinks from what appears on the
hard copy of the check.
When writing the order for her friends, Hilbrecht admit-
ted separating the soft copy from the hard copy. Accord-
ingly, the kabobs and desserts did not appear on the hard
copy. Hilbrecht then spindled the soft copy after she picked
up the food for delivery.
Marosek noticed Hilbrecht was serving a party outside of
her station. He also saw Hilbrecht speaking with them more
than staff members ordinarily talk to customers. He walked
by the table and saw that Hilbrecht's friends had ordered
the kabobs. (Kabobs are one of the higher priced items).
Marosek examined the spindled soft copy. He compared
it to the hard copy which did not contain the food order.
Marosek concluded Hilbrecht gave the food away. At the
hearing Hilbrecht admitted she had intended to give her
friends free food. Hilbrecht also admitted she went to Had-
'I The General Counsel misconceives the Employer's asserted reason for
Haddock's termination. Thus, General Counsel's brief erroneously states
"Haddock was fired for allegedly assisting Hilbrechtl to give free meals to
customers."
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dock (as will be described in the paragraph immediately
below) to "clear herself' from her intended larcency.
Meanwhile, Hilbrecht was preparing to leave work. In
her street clothes she approached Haddock and asked her
to write a check to pay for her friends who were seated in
Haddock's station. Hilbrecht did not tell Haddock why she
needed a new check. Haddock complied with the request
from her personal knowledge of what the customers or-
dered. Haddock then threw away the soft copy of the
check. Hilbrecht had given Haddock the money to pay for
the food. It is at this point that Haddock delayed her ap-
proach to the cash register until Marosek left the immediate
area.
Marosek confronted Hilbrecht with the discrepancy he
found in the checks written by her before she asked Had-
dock to write a new check and gave Haddock the money to
pay for it. Marosek told Hilbrecht he would make no deci-
sion on the incident but would report it to Dietrich. Maro-
sek advised Hilbrecht to speak with Dietrich before work-
ing another shift.
When Haddock was finished with her work, Marosek
spoke to her. He showed her the check written by her and
the one written by Hilbrecht. Marosek asked for an expla-
nation. Haddock identified the check which she wrote but
not the other. She told Marosek she wrote the check be-
cause Hilbrecht had asked her to do so. Marosek pressed
Haddock for additional information and commented that
Haddock had not followed the proper guest check proce-
dure. Haddock said she did not want to discuss the matter
further with Marosek. Marosek told her that she, too,
should speak with Dietrich before working another shift.
Haddock came to work again on December 7, her next
scheduled workday. She was told to speak to Dietrich. Die-
trich had already discussed the incident with Marosek and
had resolved to terminate both Hilbrecht and Haddock.
Dietrich immediately advised Haddock of his decision to
discharge her. She claimed she was innocent and told her
side of the story. He advised her that he would reconsider
his decision.
Dietrich credibly testified that he reviewed all the facts
and decided that Haddock must have been aware that she
was being asked to "cover up" Hilbrecht's attempted theft. I
have already found that this conclusion was reasonable,
taking into consideration Haddock's various activities on
the night in question together with the reasonable infer-
ences which flow from the knowledge of proper check-han-
dling procedures. See Rock Tenn Company, Corrogated Di-
vision, 234 NLRB 823 (1978).
The next day Haddock returned to work and again spoke
with Dietrich. He advised her that he had reviewed the
situation and again concluded to discharge her-and he did
so that date.
2. Analysis
The elements of proof of an 8(a)(3) violation are (a) an
employee's union activity; (b) employer knowledge of it; (c)
adverse personnel action against such an active employee;
and (d) the adverse action must have been motivated by a
discriminatory intent or animus.
The thrust of the parties' contentions makes it clear that
the cases of Hochman, Vial, and Haddock turn on a finding
that their discharges were discriminatorily motivated. The
Employer contends the record fails to prove animus.
Despite my finding that no independent violation of
8(a)(1) exists herein, it is nonetheless possible that the requi-
site discriminatory intent actually prompted the discharges.
It is not essential, in order to find any of the discharges
discriminatorily motivated, that the conduct be attributed
solely to the employees' union activity. It is sufficient to find
a violation of the Act, notwithstanding that a valid cause
may have existed justifying the employer's conduct, as long
as a substantial or motivating ground for the conduct was
union activity. N.L.R.B. v. Whitin Machine Works, 204
F.2d 883, 885 (Ist Cir.).
On the other hand, while action taken against, or disci-
pline imposed upon, employees may appear extreme, it
does not follow that the ascribed reason for such action or
discipline is pretextual. If an improper motive is not in-
volved, "the Board cannot substitute its judgment for that
of the employer as to what constitutes reasonable grounds
for [those actions]. The question of proper discipline of an
employee is a matter left to the discretion of the employer."
Corriveau & Routhier Cement Block, Inc. v. N.L.R.B., 410
F.2d 347, 350 (Ist Cir. 1969), citing N.L.R.B. v. Ogle Pro-
tection Service, Inc., 375 F.2d 497, 505 (6th Cir. 1967), cert.
denied 389 U.S. 843. "Direct evidence of a purpose to dis-
criminate is rarely obtained, especially as Employer's ac-
quire some sophistication about the rights of their employ-
ees under the Act." Corrie Corporation of Charleston v.
N.L.R.B., 375 F.2d 149, 152 (4th Cir. 1967). The burden of
proving such motive rests squarely on the General Counsel
and that burden never shifts.
Counsel for the General Counsel argues that there are
three principal factors which establish animus: (1) the con-
duct alleged as 8(a)(l) violations in complaint paragraphs
5(a)-(b); (2) Conboy's admitted remark to Touhey that he
thought Hochman's female friend might have been a union
organizer: and (3) Parsons' refusal to grant Haddock a Sat-
urday night off in April because she supported the Union.
I find the totality of evidence does not support the Gen-
eral Counsel's contentions. First, I have concluded the Em-
ployer did not commit any of the alleged independent
8(a)(1) violations.
Next, I find Conboy's remark to Touhey is not as proba-
tive as the General Counsel suggests. I interpret Conboy's
comment in the entire context herein simply as an unso-
phisticated expression of concern that the rule prohibiting
nonemployee use of the staff lounge was being violated.
Even assuming the analysis is imprudent, I conclude, at
best, Conboy's comment comprises his personal union an-
tipathy. It is true that such expressions by a supervisor can
be imputed to ascribe unlawful motivation by his employer.
There must however exist a nexus between the antiunion
expression and the unlawful conduct. Such a casual connec-
tion is not present in the case at bar. Assuming Conboy's
admission to Touhey is of unlawful tenor, it was in no way
the basis of Hochman's termination. Conboy did not termi-
nate Hochman; Dietrich did. No effort was made to show
herein that Conboy transmitted his beliefs to Dietrich.
There is evidence only that Dietrich discharged Hochman
because of Conboy's report Hochman used profanity
toward him. On the state of this record I cannot infer Con-
852
MAGIC PAN. INC.
boy's belief that Hochman's friend possibly was connected
to the Union constituted an element of the discipline meted
out by Dietrich on Hochman. All that can be said of Con-
boy's remark is that his eviction of Hochman's friend consti-
tuted a separate violation of Section 8(a)( I). I conclude it is,
at most, the eviction of Hochman's friend from the lounge,
not Hochman's discharge, which resulted from Conboy's
belief the friend was possibly a union organizer. The evic-
tion is not alleged as a violation. Even if it had been, it is
speculative to assume that allegation would have merit.?
Upon the foregoing, I conclude Conboy's remark to Tou-
hey not sufficiently probative to prove any of the discharges
were discriminatorily motivated.
Similarly, the Haddock-Parsons discussion fails to afford
proof of the Employer's union animus. I have found
Parsons' account the most credible. Thus, I conclude it was
Haddock who volunteered a denial of any support for the
Union. Even if I were to adopt the General Consel's version
of the incident, I find it too remote to be considered proba-
tive evidence of animus. It occurred in April--6 months
before the first of the three alleged unlawful discharges; and
Parsons left his position with the Employer long before Die-
trich started his manager's job. There is no evidence that
the incident, or Parsons' actions, was known to Dietrich,
who implemented each of the discharges. On the record as a
whole, it would be straining to give significant probative
value to the Haddock-Parsons incident, even if credited.
General Counsel explicitly, and by implication, pro-
pounds a variety of other indicia of employer animus or
hints of fabricated defenses. Some of these follow:
1. The General Counsel claims there was no rule in exis-
tence prohibiting the use of the staff lounge to only employ-
ees. The General Counsel asserts the rule described by the
Employer's witnesses is a fabrication to disguise its true
unlawful motives. Both employer witnesses Fried and An-
tonio Hawkins credibly testified the rule was discussed at
Dietrich's October orientation meeting with the staff. I have
found, in addition, that either Dietrich (or Tebbs or who
also was present) mentioned it at that time. Assuming, how-
ever, the rule was nonexistent before the eviction of Hoch-
man's female friend, its precipitous conception and birth
would be relevant only to the issue of whether the eviction
was an 8(a)(I) violation.
Neither Hochman nor Dietrich presented testimony to
show that the rule was challenged or its enforcement em-
phasized during Hochman's termination interview. The
eviction incident clearly was but background to the profan-
ity. It was the insubordinate activity, not the breach of the
lounge rule, which Dietrich consistently expounded as the
reason for Hochman's discharge. In these circumstances, I
find no merit to the General Counsel's contention relative
to the rule.
2. The General Counsel observes that the reasons con-
tained in the documentary evidence reflecting Vial's termi-
nation are too well documented compared to those of other
employees who had been terminated. Thus, the General
Counsel implicitly urges the disparate documentation man-
7 Such an allegation has not been fully litigated. If it had been so litigated,
I might conceivably find Sec. 8(a)(1) had been violated in this respect Cf.
New England Web, Inc., 135 NLRB 1019 (1962), reversed other grounds 309
F.2d 696 (Ist Cir. 1962).
ifests the Employer's desire to subvert its guilt. I reject this
argument. It is without foundation. The record reflects the
contrary. Thus, if the Employer had been lying in wait to
ambush the union proponents, it had the opportunity to do
so when Hochman received his second written evaluation
which resulted in his November wage increase. Surely, an
employer harboring the unlawful motivation proposed by
the General Counsel could have found a continuum of mi-
nor indiscretions committed by Hochman to prevent his
receiving a raise, to give him a warning, and even perhaps
to impose greater discipline. Instead, Hochman was pro-
vided an entirely commendable report. The record is devoid
of any evidence that any other known union proponent was
ill treated in this connection. Thus, I place little significance
on this argument.
3. As indicated above, Dietrich had Hochman's exact
wages due in advance of the termination interview. The
General Counsel argues that this shows "Dietrich had no
intention of allowing him [Hochman] to stay." The General
Counsel also contends that the fact the money had been
prepared in advance also shows that when Dietrich af-
forded Hochman an opportunity to present his version of
his confrontation with Conboy that was a sham.
Dietrich testified having payout funds available was in-
tended to keep the Employer in compliance with the em-
ployment statutes of the District of Columbia. No evidence
was adduced to show that Dietrich misrepresented the im-
port of that law. Even if Dietrich had concluded to termi-
nate Hochman, without evidence of antiunion hostility.
there is no basis for upsetting Dietrich's obvious reliance on
his assumed credibility, and support, of his supervisors.
Thus, I find these examples cited by the General Counsel to
comprise nothing more than suspicious circumstances. Sus-
picions alone do not form such probative evidence as to
support complaint allegations.
4. The General Counsel suggests the possibility that
union animus is derived from "a change in the established
custom" when Parsons denied Haddock's request for time
off on a Saturday in April. I have found Parsons' explana-
tion that he did not want to run afoul of the Act a plausible
fact. Accordingly, I find the asserted "change" innocuous.
5. The General Counsel argues there was a disparate ap-
plication of the no-jewelry rule. Featured in this regard is
Vial's testimony. which I credit, to the effect that on a daily
basis while at work he wore a religious cross at the end of a
chain around his neck. There is no evidence Vial was re-
quested to remove it. Seemingly, this demonstrates what the
General Counsel suggests. However, it is not dispositive.
Vial worked, at all times material, in the front of the
house. As already concluded, the distinctions made be-
tween the front and back of the house are valid. I have
studied the photograph of how staff members are to look
when they are in uniform. This photograph appears in the
staff orientation manual. The male staff member is depicted
wearing a shirt buttoned to its top, and a tie knotted at the
neck. Considering the attire which is worn above the waist
by male staff, I conclude that it is unlikely that Vial's reli-
gious medal would have been observed by anyone. It thus
could not have had a detrimental effect upon the Employ-
er's sanitation rules and requirements. Accordingly, I place
little significance on the argument relative to the disparate
application of the jewelry rule.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have considered each and every other argument, not
enumerated above and relating to animus, made by the
General Counsel but will discuss none further. It is suffi-
cient to state that those arguments are not, in my opinion,
supported by credible oral testimony, documentary evi-
dence, probability, or logic. Hence, they are rejected.
Upon all the foregoing, I find that the essential ingredient
of discriminatory motivation is absent as an element of the
prima facie cases of all three alleged discriminatees. Addi-
tionally, I find there is insufficient evidence of employer
knowledge of Haddock's union activity to support the
8(a)(3) allegation as to her.
In sum, I find the Employer had justifiable cause to dis-
charge Hochman, Vial, and Haddock. That the discharges
resulted from Dietrich's stringent implementation of rules
of employee production and conduct does not suffice to
make the discharges unlawful on the state of this record,
viewed in its totality.
The credible facts and the inferences which may be rea-
sonably drawn therefrom fall short of that quantum of
proof required under Board law to prove the unfair labor
practices alleged. The test is authoritatively set out in
N.L.R.B. v. Glen Raven Silk Mills, Inc., 203 F.2d 946 (4th
Cir. 1953), which speaks of the necessity for a preponder-
ance of evidence on the record as a whole. The Board in
adhering to this principle declared "the National Labor Re-
lations Act does not require that an employer act wisely, or
even reasonably; only, whether reasonable or unreasonable,
that it not act discriminatorily." Paramount Metal & Finish-
ing Co., Inc., and Paramount Plating Co., Inc., 225 NLRB
464, 465 (1976).
The General Counsel's case rests squarely on the credibil-
ity of witnesses presented by them. Had those witnesses
been credited, I possibly could have made the requisite
finding of union animus or discriminatory motivation. John
L. Donnelly, Sr., etc., d/bla Shelby, Liquors and Athens Dis-
tributing Company, a Division of Shelby Liquors, 208 NLRB
859 (1974).
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CON(CI.JSIONS OF LAW
1. The Magic Pan, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Employer did not engage in any of the unfair
labor practices alleged in the complaint.
Upon the entire record and upon the above conclusions
of law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER18
The complaint is dismissed in its entirety.l
'B 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, 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.
19 In view of this disposition, it is unnecessary to rule on the General
Counsel's post-hearing prayer that backpay be awarded with interest com-
puted at 9 percent.
854