Moonks, Inn, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 978 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monks Inn, Inc. and Michel Haine. Case 2-CA
14330
October 7, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 1, 1977, Administrative Law Judge Herzel
H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge, to
modify his remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),' and to adopt his recom-
mended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Monks Inn, Inc., New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph I(d):
"(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I See, generally, Iis Plumbing &i Healing (., 138 NLRB 716(1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
'The complaint was issued on July 29, 1976, on a charge filed by
employee Haine on June 8, 1976. The Union, Amalgamated Workers Union
Local 88 of the Retail. Wholesale, and Department Store Union, AFL C(10,
232 NLRB No. 155
Relations Act has ordered us to post this notice and
abide by the following:
WE WILL NOT oppose or favor candidates in
employee elections of shop representatives, or
otherwise interfere with the internal union affairs
of employees or their activities for mutual benefit.
WE WILL NOT discharge, lay off, or otherwise
discipline an employee because he insists that we
comply with the work scheduling provisions or
other provisions of our collective-bargaining
agreement.
WE WILL NOT disregard the provisions of our
collective-bargaining agreement respecting sched-
uling of work, or seniority by departmental
classification in effectuating layoffs, work assign-
ments, or other applicable purposes, or otherwise
alter tenure or conditions of employment in order
to discourage employee membership in or adher-
ence to the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to belong to or be active
for a labor union or to engage in concerted
activities, or to refrain therefrom.
Because the Board found that we unlawfully
discharged employee Michel Haine on June 2,
1976, followed by reinstatement that day, and
unlawfully laid him off between June 6 and
August 11, 1976, WE WILL give him backpay with
interest for his loss of earnings and restore his
seniority and the privileges attaching to it.
MONKS INN, INC.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
question in this case is whether Respondent, a restaurant
company, violated Section 8(a)(l) and (3) of the National
Labor Relations Act, as amended (herein the Act) allegedly
by opposing in May 1976 the election of the Charging
Party, waiter Haine, as union shop chairman of the
employees, by disciplining him in June 1976 with a I-day
discharge when as shop chairman he insisted on Respon-
dent's compliance with the union contract in scheduling
employees, and by laying him off a few days later in
disregard of his seniority.'
Respondent denied opposing the election of employee
Haine as shop chairman. Respondent conceded that it
discharged Haine at the time he protested Respondent's
deviation from the scheduling requirements of the contract,
claiming that the discharge was for insubordination and
name calling, but nevertheless reinstated Haine later in the
day of his discharge. Respondent contends that Haine's
layoff four days later was part of a general economic layoff
intervened at hearing solely on the matter of interpreting the seniority
provision of the union contract.
978
MONKS INN, INC.
of several employees effectuated in accordance with
seniority, and that two months later Respondent recalled
Haine to his employment at the restaurant, where he was
working at the time of hearing, but without restitution of
lost wages or his claimed seniority.
The seniority issue was whether employee Haine, who
was laid off on June 6, 1976, was senior to employee
Glavan, who was not laid off. Both were waiters in June
1976, but Haine was a waiter throughout his service for
Respondent, whereas Glavan was Haine's "senior" only if
Glavan's earlier service for Respondent as a busboy is
included in computing seniority by departmental classifica-
tion provided by the labor contract.
The case was heard in New York City on October 5 and
13, 1976. Counsel for the General Counsel and for
Respondent have filed briefs. Counsel for the Intervenor
Union has relied on oral argument given at the conclusion
of the hearing.
Upon the entire record of the case, including my
observation of the witnesses and consideration of the briefs
and oral argument, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Monks Inn, Inc. is a New York corporation
with its principal office in New York City and operating
several restaurants in New York City, Philadelphia, and
Coral Gables, Florida. The restaurant directly involved in
this case is Monks Inn at 35 West 64th Street, New York
City.
Annually in the operation of its restaurant business,
Respondent derives revenues in excess of $500,000, and
receives food, liquor, and other goods valued in excess of
$100,000 at its New York restaurants delivered by firms
which purchased such goods from sources outside New
York State.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor
organization within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent owns and operates four restaurants in New
York, Pennsylvania, and Florida. The two in New York are
in New York City and are known as Monks Inn, located on
the west side of the city, and Monks Court, located on the
2 Operations Director Scott's payroll record, G.C. Exh. 5, p.l. and
testimony show that employee Haine came on the Monks Inn (New York)
payroll on either October 27 or October 28. 1974. for the week ending
November 2 or 3 (a full week of 40 hours plus 16 additional hours). Scott
claimed that starting November 3. 1974. and until December 22. 1974.
Haine was asked to help out in Respondent's Philadelphia restaurant
(Monks Inn Philadelphia) to which he commuted daily from New York.
said Scott. Whether Scott's claim as to time is accurate (and there may be
question, because then Shop Chairman Jacques Racine's work schedules for
December 1974-February 1975. G.C. Exh. 4 show Haine was working in
Monks Inn New York in December 1974 as well as thereafter in January-
February 1975) and whether. as Scott stated. the Philadelphia restaurant
east side. Respondent's office is located at the east side
New York location of Monks Court.
Respondent also operated a restaurant called Monks
Cellar at 37 West 64th Street which was next door to
Monks Inn at 35 West 64th Street in New York City, but
which was closed by Respondent on August 10, 1974, and
the staff transferred to Monks Inn. Charging Party Michel
Haine was one of the waiters at Monks Cellar, hired there
December 14, 1973, who was transferred to Monks Inn.
According to Haine, Monks Inn was a French food
specialty restaurant, with some Swiss specialties, where the
waiters dress as monks. Haine testified that the now
defunct Monks Cellar was also the same type of restaurant
as Monks Inn with the same food and menu, a common
owner and manager, Mr. Paul Jacob, Respondent's
president, and one shop chairman for the employees in
both restaurants who, according to Haine, was Mark
Davis, then a waiter, now assistant director for Monks Inn.
Robert Scott, director of operations for the Respondent
company and its several restaurants, asserted that Monks
Cellar had a separate entrance, a separate liquor license,
and was separately incorporated, from Monks Inn, but did
not deny the actual common ownership and management
of both restaurants personified by President Paul Jacob.
Indeed, said Scott, when "we" (the company) closed
Monks Cellar in August 1974, President Jacob wanted
waiter Haine for Monks Inn because he could be an asset,
and agreed to a leave of absence for Haine (for two months
in which he married and traveled) and put Haine on the
Monks Inn (New York) payroll when he returned for work
in October 1974.2 On whether Monks Cellar employees
were part of one shop and bargaining unit with the Monks
Inn employees in 1974, Scott could only say he was not
aware that Monks Cellar had a union contract with Local
88.3
In addition to President Jacob, management for Monks
Inn4 was Assistant Director Mark Davis, who apparently
devoted his full time to that restaurant. Davis had been
employed by Respondent since 1968, first as a waiter and
then as assistant manager of the restaurant, with the title
assistant director, since about the end of February or
beginning of March 1975. Davis testified that when he was
a waiter he had been shop steward (or shop chairman, in
the contract terminology) beginning in 1973. As assistant
director, he said, he dealt directly with, and was in
immediate charge of, the waiters, cooks, and other
restaurant personnel of Monks Inn.
The restaurant personnel comprises cooks, dishwashers,
waiters, busboys, bartenders, maitre d's, porters, and
cashiers. As Operations Director Scott testified, they,
together with the management employees, constitute the
reimbursed the New York restaurant for the brief penod, the fact is that
Haine was on Monk's Inn New York payroll as a waiter continuously from
October 27, 1974, till his layoff on June 6, 1976.
3 Assistant Director Mark Davis, who testified, did not deny employee
Haine's assertion that Davis. when he was a waiter, had been the shop
chairman in common for Monks Inn and Monks Cellar. Respondent's
payroll record for Haine for Monks Inn shows his hire date as December 14.
1973 (G.C. Exh. 6, p. I), which was the date he began work as a waiter in
Monks Cellar.
4 Unless otherwise characterized hereinafter. Monks Inn means the New
York City restaurant by that name.
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nine departments of the restaurant as shown on Respon-
dent's payroll. Thus department 110 is maitre d's, depart-
ment 120 is cashiers, department 130 is porters, department
150 is management, department 210 is waiters, department
220 is busboys, department 260 is bartenders, department
310 is cooks, and department 320 is dishwashers. Scott also
grouped them, although there was no record similar to the
payroll records giving status to the groupings as depart-
ments, combining departments 110, 120, 130, and 150 as
the front of the restaurant, departments 210, 220, and 260
as the service department or dining room, and departments
310 and 320 as the back or kitchen.
In discussing the differences between the waiters and
busboys in classification, function, and competence,
employee Haine, who is the elected shop chairman of the
employees, observed that the waiters take the food orders,
explain the food to the customers, place the orders in the
kitchen, serve the food, mix drinks when the bartender is
not on duty, write up the bills, and pay the bills (with the
customers' money). In this connection the waiter is
responsible for half of any mistakes he makes in billing,
said Haine.
In contrast the busboys merely clear the tables and bring
back clean dishes. They do not serve or bring food to the
tables except on an emergency request by a waiter, and the
busboy has no direct communication with the customer
except perhaps filling a water glass as a courtesy in walking
by a table.
The waiters must speak English, whereas there is no such
requirement of the busboys; and, said Haine, practically
none of the busboys at Monks Inn speak English. On the
other hand, said Haine, most of the waiters speak one or
more other languages in addition to the required English,
which is not only an asset in dealing with customers but
almost a necessity in communicating with cooks and
busboys who usually do not speak English.
According to Operations Director Scott, a busboy's
hourly rate of pay is slightly higher than the hourly rate
paid a waiter, but this is because of tips from customers
received by waiters which generally exceed what they are
paid by the restaurant in wages. In tips, said Scott, busboys
theoretically share about 15 percent of what the waiters
take in. The average take-home pay of the waiter is about
twice that of the busboy, said Scott.
B. The Union Contract
The Union has had contracts and renewals with
Respondent going back several years. According to
employee Haine, who was elected shop chairman at the
end of May 1976, and before that had been elected
assistant shop chairman in 1974, the current contract was
negotiated in March and April 1976 and was made
retroactive to April 1, 1976, for a 3-year term expiring
March 31, 1979 (G.C. Exh. 3A). In most respects the
current contract was a repetition of the provisions of the
I All of the employee witnesses agreed that these were typical schedules
in 1974, 1975, and 1976, and that they accurately showed the seniority of the
waiters in descending order from top to bottom. In this connection, on these
schedules the name of Michel Haine consistently appears two places ahead
of Marenko Glavan. Assistant Director Davis conceded that on the
schedule he prepared. (G.C. Exh. 2) for the week of March 15, 1976. the
previous contracts; however, an addendum executed April
27, 1976 (G.C. Exh. 3B), purported to expand or make
explicit certain provisions or understandings, namely, the
seniority provision of article 9, the making of the work
schedule, and the percentages of a waiter's financial
responsibility when he makes a mistake on a customer's
check or the customer walks out without paying the check.
The two provisions related to the happenings in this case
are the work schedule provision of the April 27, 1976,
addendum (G.C. 3-B, par. 2), and the seniority provision
article 9 (G.C. Exh. 3A, Art. 9) as expanded by the
addendum (G.C. Exh. 3B, par I).
Work schedule: The work schedule provision of the
contract addendum provides that:
The work schedule shall be made by the Shop
Chairman or, in his absence, by the Assistant Shop
Chairman, only in respect to seniority of the employees
and pursuant to the work requirements of the restau-
rant which shall be determined by management and
subject to its approval.
This was actually a restatement and reinstatement of a
former unwritten practice that had existed prior to about
March 1975 when Mark Davis, former waiter and shop
chairman became part of management, as assistant
director, and took away the shop chairman's function of
making up the weekly work schedules, rather than simply
giving approval subject to any needed changes. (Testimony
of former Shop Chairman Racine, who succeeded Davis as
shop chairman, and Shop Chairman Haine, who succeeded
Racine, and conceded in testimony of Davis.) Actually
there were several separate lists or schedules posted each
week, including one for waiters, one for dishwashers, and
one for busboys. (Testimony of former waiter Michael
Forcade.)
As testified to by Racine, Haine, and Forcade the
schedules, and in particular the waiters' schedules, showed
the assigned work days and hours and the days off for each
waiter and were maintained by name (or nickname) in
descending order of seniority, so that those at the top of the
list had what were considered the better schedules and
were consulted first in order of seniority as to their
preferences for the week. Examples of the waiters'
schedules are General Counsel Exhibit 4 comprising twelve
weekly schedules prepared by former Shop Chairman
Racine (with help from the Assistant Shop Chairman
Haine on weeks 2, 3, and 4) for the period December 1974
through about the end of February 1975, and General
Counsel Exhibit 2 for the week beginning March 15, 1976,
prepared by Assistant Director Davis, shortly before the
prior practice of preparation by the shop chairman was
restored under the amended contract.5
Seniority: Article 9 of the Union contract provides that
names are listed in order of seniority but claimed that Haine's name was out
of sequence and should have been below Glavan's (the employee retained in
the June 6, 1976. layoff in preference to Haine). This was an incredible claim
because Davis admitted he didn't know when Glavan was hired, and, as will
appear hereinafter, was a self-serving claim to cover Davis' hostility to
Haine as shop chairman.
980
MONKS INN, INC.
Seniority shall be by departmental classification, and
the principle thereof shall be applied to layoffs, rehiring
and wherever else applicable, except that no helper or
apprentice may be permitted to work while classifica-
tion employees are laid off. The Employer shall furnish
the Union a departmental seniority list within ten (10)
days from the date of this agreement.
Shop chairman Haine testified, without contradiction,
that this provision had been in continuous existence since
at least the 1972 contract.
In the contract addendum of April 27, 1976, the
application of this seniority principle was further explicat-
ed (apparently in keeping with what had been unwritten
past practice) by saying:
In addition to the provision set forth in the agreement
under Article 9, the principle of seniority shall be
applied in connection with work schedules, days off
and time of vacation preference.
The dispute in this case concerning article 9 was what did
seniority "by departmental classification" mean.
The Union Shop Chairmen Haine and Racine were of
the view that seniority by departmental classification
meant that at any date seniority was invoked or involved it
was measured by the time accumulated by the employee in
the department he was in, as defined by the payroll,
namely, department of waiters (department 210), or
department of busboys (department 220), or department of
cooks (department 310), or department of dishwashers
(department 320), etc., see section 11, A, supra.
The Union took the view that length of service in the
restaurant as a whole controlled seniority within a
department, and that a department meant one of the three
groupings of the payroll departments that Respondent's
Operations Director Scott described, such as the combina-
tion of waiters, busboys, and bartenders comprising a
service or dining room department, see section 11, A, supra.
However, the Union largely backed off from this position,
recognizing that in a layoff situation where many if not
most of the busboys had more years of service than the
waiters (not unusual in Respondent's operations), a
workable layoff required by economic conditions could not
be achieved by the Respondent if years of service in the
dining room, disregarding the differences in competence
between waiters, busboys, and bartenders, controlled. The
Union's residual position was that as between the two
employees, Haine (who served longer as a waiter) and
Glavan (who had achieved a transfer, that was unusual in
6 General Counsel suggested that the Union opposition in this case to
employees Haine and Racine and their views was generated by a petition
filed with the Board by Racine for decertification of the Union, Case 2-RD-
841, which the Regional Director ultimately denied. June 10. 1975.
The Union suggested that Haine and Racine. who headed the employees'
committee at the March-April 1976 contract negotiations with Respondent.
had asked the Union to espouse the view it was now taking in a proposal.
among others. that "seniority is determined by the employee's first date of
employment in the shop." See proposal Viil of Resp. Exh. I. However, shop
chairman Haine. who drafted the employee proposals. testified that the
object of the proposal was not to change art. 9 of the contract and
departmental classification as the basis for determining seniority hut rather
to prevent a senior employee transferred from another of Respondent's
Respondent's restaurant, from busboy to waiter), Glavan
was senior by combining his busboy and waiter service. 6
Respondent's key witness, Operations Director Scott,
initially took the position in his testimony that seniority
was based on when the employee began work in the shop
or restaurant. He then changed this statement to say that,
historically, seniority was calculated from the first day the
employee worked in the department, and not his first day
in the restaurant. By department, said Scott, he meant one
of three, the front (cashiers, porters, management), the
dining room (waiters, busboys, and bartenders), and the
back or kitchen (cooks, helpers, and dishwashers), see
section II, A, above. However, further elaborating, he said,
the historical application of seniority under article 9 would
be the time of the employee within the department but
according to what his function was. Hence, said Scott,
seniority related to the function of the employee within the
department, and his seniority in his function in the
department controlled. To illustrate, he suggested it was
quite unlikely that a waiter such as Haine, though in the
same "department" as the busboys, would be willing to
jump into a busboy's job in a layoff situation. Indeed, said
Scott, it would be outrageous to consider this.
Thus, by a different route, Respondent came out to the
same position as the shop chairmen in the reading and
meaning of "seniority by departmental classification"
under article 9 of the contract. Whether the employee is a
waiter in department 210, comprising only waiters, or a
waiter in the dining room or service department, compris-
ing waiters, busboys and bartenders, his time of service as a
waiter is the time that determines his seniority in layoff or
scheduling of waiters or in other matters controlled by
seniority.
The Union's contention that would add the waiter's
service in other classifications or departments, where he
may have had such, was not made, and is not, part of
article 9 or its addendum.
As between the shop chairmen and Respondent, the
written records buttressed by the summarized testimony
support the view of the shop chairmen that departmental
classification in article 9 refers to the departments
identified in the payroll, each of which classifies a category
of employee by his function. The convenient grouping of
them by Operations Director Scott into the three divisions
of the restaurant he has made, for purposes however useful
to him, was not carried over into the contract as his
testimony has shown.
restaurants taking seniority over employees already working at Monks Inn.
except in the one case. also covered in employees' proposal Vill, that the
transferred employee could add on his previous senionty in calculating the
vacation time due him. The union negotiators, said Haine. thought that it
was not necessary to specify, as the employees proposed, that seniority was
not transferable from another of Respondent's restaurants, and the
employees' proposal was not made to Respondent and obviously did not
become a part of or modification of contract art. 9. Two of the employees'
proposals regarding seniority were proposed by the Union and adopted in
the contract addendum of April 27, 1976, as already quoted above.
explicating that senionty by departmental classification applied to sched-
ules. days off, and vacations, as well as layoffs. and would form the guide for
the shop chairman in making the work schedules.
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent Opposes Election of Employee Haine
as Shop Chairman
Following the final signing of the renewed union
contract in May 1976, the employees held an election to
choose a shop chairman to replace employee Jacques
Racine, who was giving up the post.
According to former employee Michael Forcade, who
worked for Respondent as a waiter for four years from
August 1972 to August 1976, prior to the election he was
engaged in a conversation by Lewis White, an assistant
maitre d', who told Forcade that he and employee George
Demopoulos were being considered as candidates for the
shop chairman's post. Forcade told Lewis that he, Forcade,
would not serve. At that point, said Forcade, Respondent's
Assistant Director Mark Davis joined the conversation,
and said he didn't care who was chosen shop chairman as
long as the men did not give him Michel Haine (then
assistant shop chairman), that he couldn't deal with Haine
and couldn't talk with him. Forcade said Davis repeated
this statement, whereupon Forcade replied it didn't matter
who Davis got, this was an election and Davis had to
accept whomever was elected.
Assistant Director Davis admitted the incident but said
that employee Forcade had asked his opinion before the
election as to Haine and Demopoulos. Davis said he told
Forcade he needed a man he could talk to and communi-
cate with, and preferred George Demopoulos; and added it
was up to Forcade and the men to decide.
The candidates in the election were employees Haine
and Demopoulos, and their fellow employees chose Haine
to be shop chairman.
I credit Forcade's account of the encounter with Davis.
Forcade, as a former employee of Respondent and not a
social friend of Haine, had no interest in the outcome of
this case. In my view, Forcade's testimony was more
reliable than that of Davis, who spoke out of selfinterest,
and exhibited animosity toward Haine, as hereinafter
indicated.
As a supervisor and member of Respondent's manage-
ment of the restaurant, Assistant Director Davis' conduct,
in actively opposing the election of employee Haine as
shop chairman, constituted interference on the part of
Respondent with the rights of the employees to engage in
their union activities and activities for their mutual benefit
protected by Section 7 of the Act, in violation of Section
8(a)(l) of the Act.
D. Respondent Discharges and Reinstates Employee
Haine on June 2, 1976
Employee Haine was elected shop chairman by his fellow
employees in May 1976. Pursuant to the newly adopted
provision of the contract addendum, which restored to the
shop chairman the function previously taken away by
Respondent's Assistant Director Davis, of making the
employees' weekly work and timeoff schedules by seniori-
ty, subject to the restaurant's need and approval, Haine
proceeded to make, obtain Davis' approval of, and post the
weekly schedules in advance of each week.
In the week beginning Monday, May 31, 1976, Shop
Chairman Haine received calls at home on Tuesday, June
1, his day off, from waiters Parrillo and Forcade, each
complaining that his schedule had been changed by
Assistant Director Davis without explanation. As Haine
testified, Davis had not informed him of the changes.
Haine said he telephoned Davis and asked for an
explanation of the schedule changes, which Davis refused
to give. When he reported for work the next day,
Wednesday, June 2, said Haine, Davis fired him.
Shop Chairman Haine further testified that from the
restaurant he telephoned Respondent's lawyer and corpo-
rate secretary, Patestides, who participated in the recent
contract negotiations, and also called the Union Agent
Crisci. Patestides told Haine not to leave while he,
Patestides, talked to Davis. Later in the day, Patestides
telephoned back to Haine and told him he was reinstated,
and Haine worked that evening serving the evening meal.
Assistant Director Davis claimed that on Wednesday,
June 2, Shop Chairman Haine cussed him out for changing
the schedules without informing Haine, and that he fired
Haine for calling him names and gross insubordination.
Respondent's action in firing Shop Chairman Haine,
though later rescinded, was unlawful disciplinary action
against the employee because he had insisted that Respon-
dent abide by a provision of its collective-bargaining
agreement for the making and changing of work schedules.
The protest or presentation of views by employee Haine,
even if vigorous, was concerted, protected activity under
Section 7 of the Act, since the individual action so taken in
implementation of the collective-bargaining agreement was
but an extension of the concerted activity that gave rise to
the agreement, B & M Excavating, Inc., 155 NLRB 1152,
1154 (1965), enfd. 368 F.2d 624 (C.A. 9, 1966), and the
discharge of the complaining employee was a violation of
Section 8(a)(l) of the Act, N.LR.B. v. Interboro Contrac-
tors, Inc., 388 F.2d 495, 500 (C.A. 2, 1967); N.LR.B. v.
Selwyn Shoe Manufacturing Corporation, 428 F.2d 217, 221
(C.A. 8, 1970). In this case, the discharge was also in
violation of Section 8(a)(3) of the Act, since the infliction of
such discipline upon the employee, who was also shop
chairman, because he lawfully complained of Respondent's
failure to abide by a term of the collective-bargaining
contract, had the discriminatory purpose and effect of
discouraging adherence to the Union by the employees.
E. Respondent Lays Off Employee Haine on June
6, 1976
Four days after employee Haine was fired and reinstat-
ed, Haine was laid off along with five or six other
employees, on June 6, 1976. Respondent claimed this was
an economic layoff. As provided by article 9 of the union
contract, such layoffs had to be in accordance with
seniority by departmental classification (see discussion
under Section II, B, supra). Among the waiters retained and
not laid off was one Marenko (or Marinko) Glavan, who
was two places lower on the seniority list of waiters than
Haine (see fn. 5, supra). Haine contended, and correctly as
the evidence showed, that Respondent laid him off out of
seniority and discriminatorily by favoring and retaining his
junior, Glavan.
In this connection, the seniority lists were the weekly
work schedules, written up in order of seniority and
982
MONKS INN, INC.
maintained jointly by management and the shop chairman,
and, for a period of time in 1975 and 1976, exclusively by
management. The samples of the waiters' seniority lists for
1974, 1975, and 1976 (G.C. Exhs. 4 and 2) examined under
Section II, B, supra, consistently showed employee Haine
as two places senior to employee Glavan. Respondent
never claimed otherwise until hearing of this case.7
Respondent's initial claim at hearing, through its princi-
pal witness, Operations Director Scott, that Glavan had
greater seniority by departmental classification than Haine
by counting Glavan's total years of employment at the
restaurant rather than his total time as a waiter, faded with
Scott's changed and more considered testimony (see
discussion under Section II, B, above) that seniority by
departmental classification meant seniority in the employ-
ee's function at the time seniority was applied. In this case,
it meant seniority as a waiter (or, as the shop chairmen
stated it, seniority by the departmental classification of the
payroll, department 210). As a result, Respondent's
ultimate claim was that Glavan had more service as a
waiter in the restaurant than Haine had. However, Scott
was not able to prove this. The company documents he
produced established the contrary.
The earnings records or payroll summaries for employees
Haine and Glavan in the fourth quarter of 1974 (October,
November, December, 1974) and first quarter of 1975
(January, February, March. 1975) are General Counsel's
Exhibits 5 (pp. I and 2) and 6 (pp. I and 2), respectively.
General Counsel's Exhibit 6 shows that Haine's initial date
of hire was December 14, 1973, and Glavan's initial date of
hire was January 10, 1973. Haine was hired as a waiter, and
his initial work as a waiter was in the now defunct Monks
Cellar that operated side by side with Monks Inn.8 Glavan
was hired as a busboy, and as shown on General Counsel
Exhibit 5 he was still a busboy in department 220 (busboys)
throughout the fourth quarter of 1974, whereas Haine is
shown in the fourth quarter of 1974 as a waiter in
department 210 (waiters). Haine had moved from Monks
Cellar to Monks Inn (after an extended vacation interval
on leave without pay) and is shown as having resumed on
the Monks Inn payroll in the fourth quarter 1974 for the
last 9 weeks of the quarter, commencing, with the week
ending November 2 (or 3), 1974, on October 27 (or 28),
1974. Hence, even if Haine's service as a waiter in Monks
Cellar is not counted as part of his departmental classifica-
tion seniority, he still had a starting date as a waiter in
Monks Inn of October 27 or 28, 1974.9
The same records, General Counsel Exhibits 5 and 6,
show employee Glavan listed for the first time as a waiter
in department 210 starting in January 1975. However, in
the last week of December 1974, Glavan's pay rate, which
in the prior 12 weeks of fourth quarter 1974 had been at the
busboy's rate of $1.85 per hour, is shown at the lower
waiter's rate of $1.25 per hour similar to Haine's rate in
that quarter (see explanation of the rate differential under
I If Respondent had believed otherwise prior to the layoff. it had an easy
opportunity to have claimed so under art 9 of the union contract. by which
it was to furnish the Union a departmental seniority list within ten days of
the date of the contract There was no evidence oif an? lists other than the
work schedules.
Respondent's record treating Haine's Initial hire date as December 14.
1973. reinforces Haine's claim that Monks Cellar and Monks Inn were
operated as one shop.
section II, A, above). Thereafter in the succeeding months
of January, February, and March, 1975, Glavan and Haine
are shown at the same rate of pay, with both men listed in
department 210. It is therefore fair to conclude that Glavan
achieved waiter's status in the last week of December
1974.'o
Summarizing the records, employee Haine had two
months seniority by departmental classification over
employee Glavan if service as a waiter strictly in Monks
Inn is computed, and approximately twelve months
seniority by departmental classification over Glavan if
Haine's service as a waiter in Monks Cellar is included.
The samples of the seniority lists for 1974, 1975, and 1976
verify that management and the employees recognized this
seniority of Haine over Glavan.
With this long history of recognition, Respondent's
departure from seniority in laying off waiter Haine and
retaining a junior waiter in preference to him can only be
explained by the hostility of management, particularly of
Assistant Director Davis, to Haine in his role as shop
chairman and his insistence on management compliance
with the scheduling provisions of the labor contract. This
was further discipline of Haine, meted out four days after
his discharge and reinstatement, for having engaged in
concerted, protected activity under Section 7 of the Act,
constituting a further violation by Respondent of Section
8(a)(1) of the Act (see cases cited under Section II, D,
supra) and a further violation of Section 8(a)(3) of the Act
because of the discriminatory purpose and effect of the
discipline to discourage adherence to the Union by the
employees.
In early August 1976, Respondent offered to recall
employee Haine, and on August 11, 1976, he returned to
his job as a waiter at Monks Inn. However, he was given no
backpay for the over 2 months layoff and his seniority was
not restored. Haine testified, in September 1976, when the
restaurant went from a 5-day to 7-day operation, that
Assistant Director Davis gave junior waiter Glavan
preference in assignments over Haine, putting Haine on the
early lunch time arrival and hours rather than the preferred
later dinner time arrival and hours.
CONCLUSIONS OF LAW
I. By advising employees in May 1976 that it opposed
their election of employee waiter Haine as their shop
chairman, Respondent interfered with their union activities
and activities for their mutual benefit protected by Section
7 of the Act, and engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
2. By discharging and reinstating waiter and Shop
Chairman Haine on June 2, 1976, and by laying him off on
June 6, 1976, disregarding his seniority over a retained
junior waiter, because Haine insisted that Respondent
abide by the provision of the collective-bargaining agree-
9 The wntten record refutes Operations Director Scott's oral and
unsupported claim that Haine was not hired into Monks Inn until
December 1974.
10 Operations Director Scott's oral claim that Glavan became a waiter in
the summer of 1974 is without foundation and contradicted by the written
record.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment for the making and changing of work schedules,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
3. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent
I. Cease and desist from its unfair labor practices, and
from infringing in any like manner upon the rights
guaranteed by Section 7 of the Act.
2. Give employee Haine backpay for any loss of pay on
June 2, 1976, and backpay for the period of layoff from
June 6 to August 11, 1976, the backpay to be computed on
a quarterly basis as set forth in F: W. Woolworth Company,
90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up
Bottling Company of Miami, Inc., 344 U.S. 344 (1953), with
interest at 6 percent per annum as provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), approved
in Philip Carey Manufacturing Company v. N.L.R.B., 331
F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888.
3. Post the notices provided for herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER II
The Respondent, Monks Inn., New York, New York, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Opposing or favoring candidates in employee elec-
tions of shop representatives, or otherwise interfering with
the internal union affairs of employees or their activities for
mutual benefit.
(b) Discharging or laying off or otherwise disciplining an
employee because he insists that Respondent comply with
the work scheduling provision or other provisions of its
collective-bargaining agreement.
(c) Disregarding the provisions of its collective-bargain-
ing agreement respecting scheduling of work, or senionty
I" 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 bor all purposes.
by departmental classification in effectuating layoffs, work
assignments, or other applicable purposes, or otherwise
altering tenure or conditions of employment in order to
discourage employee membership in or adherence to the
Union.
(d) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employee Michel Haine whole, in the manner
set forth in the section of this Decision entitled "The
Remedy," for any loss of earnings incurred by him as a
result of his discharge and reinstatement on June 2, 1976,
and his layoff from June 6, 1976, to August II, 1976.
(b) Restore to employee Haine the seniority by depart-
mental classification he enjoyed prior to his layoff of June
6, 1976, correcting any records necessary to achieve the
restoration, and providing him with any choices in work
scheduling or other benefits attaching to his rightful
seniority.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination or copying, all
payroll, social security, time, personnel, and other records
necessary to ascertain the backpay and restoration of
benefits due under the terms of this Order.
(d) Post in the Monks Inn restaurant, in New York City,
copies of the attached notice marked "Appendix."12
Copies of said notice, on forms provided by the Regional
Director for Region 2, after being signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
1 In the event that the Board's order is enforced by a judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
984