Mr. A's Restaurant

National Labor Relations Board - Board Decisions

Apr 4, 1980

248 N.L.R.B. 990 (N.L.R.B. 1980)

990 MR. A'S RESTAURANT
Mr. A's Restaurant and Hotel and Restaurant Em-
ployees and Bartenders Union of San Diego,
Local 30. Case 21-CA-17656
April 4, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 4, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Mr. A's Res-
taurant, San Diego, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
i We agree that Respondent violated Sec. 8(a)(3) and (I) by transfer-
ring Aguilar from the rotunda to the bar and grill. In this connection, the
Administrative Law Judge found that the rotunda assignment carried a
certain prestige, based on employee Rodriguez' testimony that the ro-
tunda was at "the top" of the restaurant. However, the record indicates
that Rodriguez was merely referring to the physical location of the ro-
tunda and not to the desirability of the assignment. Therefore, we do not
rely on the Administrative Law Judge's characterization of that testimo-
ny.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in San Diego, California,
on August 14, 1979.1 On May 17, the Regional Director
for Region 21 of the National Labor Relations Board
issued a complaint and notice of hearing, based upon an
unfair labor practice charge filed on March 23, alleging
I Unless stated otherwise, all dates occurred in 1979
248 NLRB No. 127
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq., herein called the Act. All parties have been afforded
full opportunity to appear, to introduce evidence, to ex-
amine and cross-examine witnesses, and to file briefs.
Based upon the entire record, upon the briefs filed on
behalf of the parties, and upon my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
At all times material, Mr. A's Restaurant, herein called
Respondent, has been engaged in the preparation and
service of meals in a public restaurant located in San
Diego, California. In the course and conduct of these op-
erations, Respondent annually derives gross revenues in
excess of $500,000, and, further, annually purchases and
receives goods valued in excess of $10,000, which origi-
nate outside the State of California. Therefore, I find, as
admitted by the answer to the complaint, that at all times
material, Respondent has been an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Hotel and Restaurant Employees
and Bartenders Union of San Diego, Local 30, herein
called the Union, has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Mario Aguilar, who had been employed by Respon-
dent for approximately 4 years as a waiter, filed a griev-
ance against Respondent on February 22. Shortly there-
after he was transferred to a different work station in Re-
spondent's restaurant. The General Counsel contends
that Aguilar filed a second grievance on March 1. It is
undisputed that during the morning of March 2 Aguilar
was terminated, although Respondent contends that he
had not filed his second grievance until the afternoon of
March 2. It is also undisputed that on the morning of
March 2, prior to the termination, as Aguilar had been
standing with another waiter, Manager Joe Cutri2 had
walked by and had looked directly at Aguilar, saying,
"You son-of-a bitch." When Aguilar stared at Cutri, the
latter had said, "Don't look at me. Look another away. I
want to chop your head off." The complaint alleges that
the change in work station and the termination had been
motivated by the grievance filed by Aguilar and had vio-
lated Section 8(a)(3) and (1) of the Act. It is further al-
leged that Cutri's remarks had referred to Aguilar's
grievances and, accordingly, had constituted a threat of
physical reprisal in violation of Section 8(a)() of the
Act. Resolution of these allegations requires examination
of four incidents: the grievance filed on February 22, the
work transfer, the March grievance, and the termination
of March 2.
2 It is admitted that at all times material, Cutri had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent
within the meaning of Sec. 2(13) of the Act.
990 . ' T
MR. A'S RESTAURANT 991
With regard to the February grievance, the facts are
undisputed. Respondent has maintained a collective-bar-
gaining relationship with the Union for some time and is
regarded by the Union as a "good house." Prior to the
February grievance of Aguilar, there had never been a
grievance filed against it. On February 16, a customer
who Aguilar had served walked out without paying the
check. Aguilar reported this to Maitre d' Giuseppe Vil-
lani.3 While it has been house policy for Respondent to
pay for such "walkouts," Villani, who knew the custom-
er, suggessted that Aguilar pay the check and receive re-
imbursement when Villani next saw the customer. At the
end of the shift Aguilar paid the bill using his Visa card.
However, based upon conversations with other employ-
ees concerning the normal policy regarding payments for
walkouts, and having not heard anything further from
Villani about repayment, Aguilar and attorney John
Murcko prepared a grievance during the afternoon of
Feburary 21. When Aguilar took it to Respondent's fa-
cility, that same afternoon, majority shareholder and
General Manager Dominick "Bud" Alessio 4 asked Agui-
lar to defer filing the grievance until Alessio had an op-
portunity to speak with Villani. Aguilar agreed to do so.
On the following morning, Villani went to Aguilar
and tore up the yellow Visa copy, thereby, in effect, can-
celing the charge to Aguilar's account. Nonetheless,
Aguilar decided to submit the grievance for insertion in
his personnel file "to avoid in the future any more wal-
kouts, any violation of the contract; paying walkouts
from the employees." That same afternoon, he took the
grievance to the office and requested that it be placed in
his personnel file "for any reference in the future." 5
With regard to the transfer of work location the
record shows that when Aguilar had commenced work-
ing for Respondent he had been assigned, as are all bar-
gaining waiters, to a station in the bar and grill. After 4
months, he was transferred to the middle station in the
dining room where he worked for approximately 1 year.
He was then tranferred to the rotunda station where he
worked, Mondays through Fridays, until after he had
filed the first grievance. As his testimony progressed,
Aguilar became more and more confused concerning the
precise date when he had been transferred from the ro-
tunda to the bar and grill. Indeed, near the end of the his
testimony, he acknowledged that he was "confused. The
date I worked in the grill on-could be, like the 20th or
26th." Moreover, in his pretrial affidavit, he stated that
"On February 26, around 10:30 a.m., when I arrived to
work, Rudy told me I was going to work in the bar."
Nevertheless, certain factors do exist which tend to sup-
port the conclusion that Aguilar's transfer had occurred
I It is admitted that at all times material, Villani had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent
within the meaning of Sec. 2(13) of the Act.
4 It is admitted that at all times material, Alessio had been a supervisor
within the meaning of Sec. 2(11) of the Act and an agent of Respondent
within the meaning of Sec. 2(13) of the Act.
8 In his pretrial affidavit, Aguilar stated that he had submitted the
grievance on February 23. However, any argument that this had been a
more accurate statement than Aguilar's testimony as to when the griev-
ance had been submitted, is dispelled by Alessio's testimony that after his
conversation in which he had persuaded Aguilar to defer filing the griev-
ance, Aguilar had "come back in the next day" and had turned in the
grievance.
on Friday, February 23, rather than on Monday, Febru-
ary 26.
When Aguilar was called upon to relate the date of his
transfer to other events in this matter, he testified that he
had been transferred on the morning following the after-
noon on which he had filed the first grievance. That, of
course, would have been on February 23. Moreover,
while Villani acknowledged that he had been the one
who had made the decision to relocate Aguilar's work
station and that this change had occurred following the
filing of Aguilar's first grievance, he did not dispute
Aguilar's testimony that the transfer from the rotunda to
the bar and grill had been made on the day following the
filing of the grievance. Finally, although it is undisputed
that Day Captain Rudolph Lawenda had been the offi-
cial who had notified Aguilar of the transfer, Lawenda
was never called as a witness by Respondent and, ac-
cordingly, there is no dispute from that quarter for Agui-
lar's testimony that the relocation had occurred on the
day after he had filed his first grievances In sum, al-
though Aguilar displayed confusion when questioned
about the transfer with reference to precise dates, his tes-
timony was clear when he was asked to relate the day of
the transfer to the filing of is first grievance and Respon-
dent presented no evidence to contradict Aguilar's testi-
mony in that respect.
With regard to the relative merits of working in the
rotunda versus working in the bar and grill Aguilar's tes-
timony was not consistent. He claimed that whereas his
tips in the rotunda had averaged $25 per day, they had
only averaged $18 per day after he had been reassigned
to the bar and grill. Yet, in his pretrial affidavit, he had
stated that his tips for Feburary 26, 27, and 28 had
amounted to $22.50, $20, and $32, respectively. More-
over, both Villani and Waiter Rolven Rodriguez testified
that the bar and grill stations were more lucrative for
tips than the rotunda because there was more customer
turnover in the former. Nevertheless, there are certain
troubling factors which emerge with regard to Aguilar's
transfer to the bar and grill.
First, a preponderance of the evidence supports the
conclusion that assignment to the bar and grill had been
reserved for beginning waiters. Thus, Villani testified
that "when I do hire a new personnel [sic], I don't put
them in a full station, so I thought, you know, having a
strong waiter, put him in a strange station and put the
new waiter on the small station." The only two waiters
who testified in this matter-Aguilar and Rodriquez-
testified that they commenced employment with Respon-
dent at stations in the bar and grill and had then been
transferred to the dining room later in their employment.
There is no evidence of any newly hired waiter ever
being assigned to any station other than in the bar and
grill.
6 It is admitted that Lawenda had been a supervisor within the mean-
ing of Sec. 2(11) of the Act and an agent of Respondent within the mean-
ing of Sec. 2(13) of the Act during the time that he had worked as a day
captain for Respondent. While Alessio testified that Lawenda was no
longer employed by Respondent at the time of the hearing, there was nei-
ther testimony nor a contention that Lawenda was not available to Re-
spondent as a witness in this matter. However, no explanation was ad-
vanced for failing to call him.
MR. A'S RESTAURANT
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second, it also appears that assignment to the rotunda
station is viewed as being reserved for Respondent's
more experienced waiters. Thus, Aguilar had worked at
the middle station for a year before being relocated to
the rotunda. More significantly, Rodriguez testified that
after working at the middle station, he had been trans-
ferred "[t]o the top. They call it the rotunda area." Con-
sequently, it would appear that assignment to the ro-
tunda carried a certain prestige in that the waiters
viewed it as the "top" station in the restaurant.
Third, in the final analysis, whether Aguilar had been
reassigned to the bar and grill on February 23 or on Feb-
ruary 26, Villani never did explain why he had chosen to
relocate Aguilar at that time. Villani claimed that he had
periodically rotated waiters' stations. Yet, Respondent
presented no evidence of any prior or subsequent station
rotations. Indeed, it is undisputed that Aguilar had
worked at the rotunda station for over 2 years prior to
his late February transfer to the bar and grill. The only
station relocations shown by the evidence presented in-
volved progressive transfers from the bar and grill to the
middle station and, finally, to the "top" station in the ro-
tunda. There is no evidence of any station transfers being
made in the opposite direction: from the rotunda to the
middle station to the bar and grill.
Fourth, despite Villani's assertion that Aguilar's relo-
cation in late February had been a normal rotation of
waiters, the fact is that only three waiters had been relo-
cated at that time. Obviously, the movement of Aguilar's
station required some movement of other personnel to
fill the vacancy created by Aguilar's relocation. Yet, the
fact that only three waiters had been relocated hardly
supports Villani's claim that he had effected a general ro-
tation of stations. Moreover, Villani never chose to ex-
plain why, since only three waiters had been relocated,
he had chosen Aguilar to be one of them. Certainly, it
had not been occasioned by a need to insert a new
waiter into the stations at the restaurant. Villani admitted
that at that time there "[w]asn't a new waiter that was
brought up." Further, even had a new waiter been hired,
that would not explain Respondent's resort to the abnor-
mal procedure of reassigning an experienced waiter to
the bar and grill which is normally the area to which
newly hired waiters are assigned.
With regard to the second grievance, Aguilar began
comparing the collective-bargaining agreement with con-
ditions at Respondent's restaurant. He discussed the find-
ings of his comparison with employees of both Respon-
dent and of another restaurant where he worked during
hours that he was not employed by Respondent. After
conferring with Murcko, on March 1 Aguilar signed a
grievance protesting various working conditions such as
the absence of sufficient lockers, failure to assign stations
by seniority, the quality of meals served employees, and
the conditions of uniforms provided employees. He testi-
fied that he had taken that grievance to Respondent's
restaurant on the afternoon of March I where he had left
it with Office Manager Betty Newton. Newton agreed
that Aguilar had brought the grievance to her in the
afternoon, but she testified that it had been the afternoon
of March 2, rather than March 1. Inasmuch as Aguilar
was terminated during the late morning of March 2, the
date upon which he had delivered the second grievance
to Respondent is of primary importance. Several factors
tend to support Aguilar's testimony that he had delivered
the grievance to Respondent on March 1.
First, Newton had no independent recollection as to
the date upon which the grievance had been delivered.
Her testimony that it had occurred on March 2 was
based exclusively upon a memo which she had prepared,
consistent with Respondent's policy of documenting re-
ceipt of notices, which bears the date "3/2/79."
Second, the memo prepared by Newton states, in part,
When I took the slip he told me that he wanted to
be sure that I understood that he had nothing
against the Company and certainly nothing against
Bud Alessio or Mr. John Alessio-they were fine
people and fair-it was just Giuseppe who was
unfair. This was repeated many times, as if he
wanted me to be sure I understood.
As will be discussed, infra, it had been Bud Alessio who
had terminated Aguilar on March 2. In view of Aguilar's
contention that this termination had been unjust and un-
lawful, as evidenced by the filing of the charge in this
matter, it hardly would have made any sense for him to
have characterized Bud Alessio as being a "fine" person
and as being "fair" approximately 5 hours after the dis-
charge. In short, the substance of Aguilar's words to
Newton are simply not consistent with post-discharge
delivery of the grievance. Rather, they are more consis-
tent with the situation of an employee who is filing a
grievance, but wishes to remain on good terms with the
employer to avoid retaliatory consequences.
Third, in this same vein, the grievance makes no men-
tion of Aguilar's discharge. Surely had he been terminat-
ed before its preparation and delivery he would have in-
cluded that as being one of the matters under dispute.
Certainly it is unlikely that he would have omitted any
mention whatsoever of it had the discharge occurred
prior to the filing of the grievance considering his asser-
tion that his termination had been unlawfully motivated.
Fourth, as set forth above, on the morning of March 2,
Cutri assailed Aguilar, calling the latter a "son-of-bitch"
and threatening "to chop your head off." In its brief, Re-
spondent argues that it has not been shown that Cutri's
comment was related to Aguilar's grievance-filing. Yet,
neither has it been shown that Cutri could have been re-
ferring to anything other than the second grievance filed
by Aguilar. Certainly, the February 22 grievance was
somewhat remote in time to have been Cutri's concern.
Respondent neither called Cutri as its witness nor did it
contend that it was unable to do so. There is no indepen-
dent evidence that Cutri and Aguilar had been at odds
prior to March 1, nor is there any other reason, so far as
the record discloses, for Cutri to have been angered at
Aguilar on the morning of March 2. Accordingly, there
is no basis for inferring other than that Cutri had been
referring to the second grievance filed by Aguilar. That
being the case, the grievance had to have been filed prior
to March 2. Moreover, as will be discussed in greater
detail, infra, certain undisputed remarks made by Villani
MR. A'S RESTAURANT 993
to Aguilar following the termination show that the griev-
ance had been filed prior to the termination.
Finally, Kenneth E. Walden, an employee of another
employer, testified that he had been the one who had
driven Aguilar to Murcko's office to pick up the griev-
ance and that he had then driven Aguilar to Respondent
so that the grievance could be filed. Walden testified that
the grievance had been delivered to Respondent on
March I and, further, that it could not have been March
2, "because I was off that day. I'm off on Fridays."7
Finally, with regard to the March 2 termination, Agui-
lar testified that after he had reported for work that
morning and had been the object of Cutri's remark, he
had been terminated by Alessio, during a conversation in
which Villiani had been present. This is undisputed. It is
also undisputed that during that conversation, Alessio
had confronted Aguilar with the merchant's copy of a
Visa slip on which Aguilar had striken the word "cap-
tain" from the tip portion of the slip, thereby claiming
the $1 tip, allocated initially to the captain, for himself as
waiter.
Aguilar testified that Villani and Alessio had ap-
proached him that morning and that the latter had pro-
duced the slip, asking for an explanati n of the deletion.
According to Aguilar, when he explained that
Lawenda, the captain involved, had i ven him permis-
sion to strike the word, Alessio had replied, "We keep
track on your checks and you [have] been doing this
lately." When, testified Aguilar, he had replied that he
had done so only with Lawenda's permission, Alessio
had announced, "You are fired, Mario. You are fired."
Alessio had then walked away. Both Alessio and Villani
testified that when the former had asked for an explana-
tion, Aguilar had remained mute. Alessio, who had made
the termination decision, testified that in view of Agui-
lar's failure to advance an explanation, he had decided to
terminate him for, in effect, stealing. Yet several factors
serve to undermine Respondent's defense that Aguilar
I In its brief, Respondent attempts to attack Walden's credibility by ar-
guing that the timing of his work hours renders implausible his testimony
concerning the date of his trips to Murcko's office and to Respondent.
However, to do this, Respondent relies on the schedule that Aguilar had
worked for Walden's employer In point of fact, there is no evidence re-
garding the hours that Walden had been working and, accordingly, it
cannot be said that his schedule would have precluded him from driving
Aguilar to Murcko's office and then to Respondent on March 1. In this
respect, it should be noted that Walden, unlike Aguilar, worked a split
shift. Thus, it cannot be concluded that his working hours were the same
as those of Aguilar Furthermore. Aguilar testified that his reason for ob-
taining transportation that afternoon from Walden had been that he had
wanted to show the grievance to Walden, with whom he had previously
discussed the matters that were to become the subject of the grievance
Accordingly, the fact that Aguilar could have driven to Murcko's office
in his own vehicle does not render implausible the testimony that Walden
had done the driving that afternoon. Finally, the fact that Walden had
once been refused employment by Respondent does not tend to show
bias on his part against Respondent in the circumstances of the case. For
Walden had filed his application with Respondent approximately 4 years
prior to the hearing in this matter and, consequently, the incident is
somewhat remote. More significantly, his application had been rejected
because Respondent "had plenty of people." Thus, it was not rejected for
any reason that reflected adversely upon Walden's capabilities, nor was
the reason one that would likely give rise to hostility against Respondent
by Walden. Walden appeared to be a credible witness and I credit his
testimony.
had been discharged for having preempted the Lawen-
da's portion of the tip.
First, Aguilar testified that it had been a common
practice of the waiters to strike the portion of the tip al-
located to the captain on credit card sales whenever the
tip allocated to the waiter had been "real cheap." He fur-
ther testified that he had done this on five prior occa-
sions during the time that he had worked for Respon-
dent, but that he had always notified Lawenda of what
he had done. None of this testimony was disputed by Re-
spondent. Alessio testified that he did not "think" that
such a practice had been occurring. But, Lawenda was
not called to refute Aguilar's description of the practice
and there is no contention that he had been unavailable
as a witness to Respondent, despite the termination of his
employment. Moreover, even assuming that Lawenda
had not been available to Respondent as a witness, it still
could have produced Captain Bruce King to refute
Aguilar's description of this practice. Yet, it did not do
so.
Second, with respect to the particular charge slip that
had occasioned Aguilar's termination, the latter testified
that he had secured Lawenda's specific consent to the
deletion and change because the cashier had refused to
accept the charge slip until Lawenda had given consent.8
Of course, Lawenda was not called to refute this testi-
mony. Neither did Respondent seek to ascertain the iden-
tity of the cashier nor attempt to call a cashier to contro-
vert Aguilar's description of this incident. In short, Agui-
lar had been authorized to claim Lawenda's portion of
the tip.
Third, following Alessio's departure on March 2, there
had been a conversation between Villani and Aguilar.
The latter testified that Villani had produced the March
1 grievance and had asked, "Why you do this to the
boss? You have went too far." Aguilar testified that
when he had inquired why his station had been trans-
ferred to the bar and grill, Villani had responded, "I do
this for your own good until the things calm down." Vil-
lani denied having seen the March I grievance prior to
Aguilar's discharge, but he did not deny having made
the remarks, attributed to him by Aguilar, about the
reason for having changed the latter's work station.
Villani agreed that he had asked, "Why would you
ever be unhappy? You have your problems. We could
resolve this problem between us without going that far."
According to Villani, Aguilar had replied, "I'm sorry. I
made a mistake. I started. I can't stop it." In direct ex-
amination, Villani claimed that he had been referring to
the "transaction . . . crossing out the tips that belong
. ..to the captain." Pressed on cross-examination for a
more complete explanation, he claimed that Aguilar had
also had problems with service and with his attitude
toward other employees. Yet, he then conceded that
such things "Can happen at any minute to anybody, you
8 Both in a pretrial affidavit and when he testified initially, Aguilar
claimed that the customer had provided only a $1 tip for the waiter.
whereas, in fact, the customer had written $2 as the tip for the waiter and
$1 as the tip for the captain. Despite this discrepancy, it still was not il-
logical for Aguilar to have felt that he had een undertipped, and for
I.awenda to hae agreed. considering that the amount of the check had
been $28.57.
MR. AS RESTAURANT
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know. A good day, a bad day." In short, Villani conced-
ed that these were no more than normal, common occur-
rences. Indeed, Alessio testified that he would, in the
normal course of affairs, have learned of any complaints
about employees, but acknowledged that he could not
recall having heard any about Aguilar's performance as a
waiter. In the end, Villani testified that the deletion had
been the sole reason for the termination. Thus, Villani's
own description of his conversation with Aguilar makes
no sense unless Villani had been referring to the griev-
ances. In referring to a problem that could be resolved
"between us without going this far," Villani could hardly
have been referring to a single instance of deletion of the
word captain from a single charge slip. Certainly, Agui-
lar's response, as described by Villani ("I started. I can't
stop it."), could hardly have pertained to a lone incident.
Consequently, Villani's own testimony tends to confirm
that Respondent's motive in terminating Aguilar had
been to retaliate against him for having filed a second
grievance.
Fourth, Villani's account of how the deletion had
come to his attention is uncorroborated and is at odds
with other evidence in this case. Villani claimed that he
had overheard Lawenda complaining to other waiters
about the loss of the dollar. Yet, neither Lawenda nor
any waiter was called to corroborate this testimony by
Villani. Moreover, Alessio testified that the food checker
would have caught the deletion, but had not called it to
his attention. Seemingly, therefore, there would have
been no impropriety inasmuch as it was not called to
Alessio's attention. This tends to corroborate Aguilar's
testimony that Lawenda had specifically consented to
the change when the slip had been rejected initially.
That being the fact, it hardly makes sense for Lawenda,
as Villani claimed, to later have been complaining about
the change on the slip.
Nor was Alessio's testimony supported by corrobora-
tive evidence. He claimed that on the morning of March
2 he had found a slip and certain other documents on his
desk. He testified that he had then called the captain-
either Lawenda or King-to ascertain the identity of the
waiter involved. Yet, not even King was called to testify
whether or not he had been the captain with whom
Alessio had purportedly spoken that morning and, if so,
to corroborate Alessio regarding the substance of their
conversation. Moreover, Alessio conceded that the food
checker would have known of the deletion. Yet, she was
not called as a witness by Respondent and no explana-
tion was advanced for failing to call her. Thus, unex-
plained is why she had not called the deletion to Ales-
sio's attention if she had thought that an impropriety had
occurred.
IV. ANALYSIS
In the final analysis, this case permits no conclusion
other than that the transfer and subsequent discharge of
Aguilar had been motivated by an intent to retaliate
against him for spoiling Respondent's record with the
Union by having filed grievances. Within, at most, 2
working days of his insistence that his first grievance be
included in his personnel file to become a matter of
record in the event of future adverse action against him
Aguilar had been tranferred from a station at which he
had been working for over 2 years to one which is used
for novice waiters, thereby causing him to lose a presti-
gious station and impressing upon him the adverse conse-
quences which could flow from filing grievances against
Respondent. Whether or not his tips were diminished as
a result of this transfer is not the point. "An unlawfully
motivated transfer does not shed its discriminatory
nature merely because the transferee is not disadvantaged
thereby." (Occidental Paper Corporation, 227 NLRB 719,
722, fn. 7 (1977).) The transfer to the bar and grill station
was abrupt. It was unprecedented, so far as the record
discloses, for an experienced waiter to have been trans-
ferred to a station in the bar and grill. It is undisputed
that Villani had admitted that it had been made "until
things calm down." So far as the record discloses, the
only upsetting event to which Villani could have re-
ferred was Aguilar's insistence on the inclusion of his
grievance in his personnel file. That being the fact, Vil-
lani's statement constituted "an outright confession of un-
lawful discrimination [which] eliminated any question
concerning the intrinsic merits . . . or other causes sug-
gested as the basis for the [transfer]." N.L.R.B. v. L.C.
Ferguson, and E. F. Von Seggern d/b/a Shovel Supply
Company, 257 F.2d 88, 92 (5th Cir. 1958); see also
N.L.R.B. v. John Langenbacher Co., Inc., 398 F.2d 459,
463 (2d Cir. 1968), cert. denied 393 U.S. 1049 (1969). In
any event, the defense advanced by Respondent was
vague, unsupported, and cannot be credited.
I further conclude that a preponderance of the evi-
dence establishes that Aguilar had filed his grievance on
March 1. While it is true that he was not precise con-
cerning specific dates when he testified, it was my im-
pression that this was no more than "confusion as to de-
tails." See N.L.R.B. v. International Longshoremen's &
Warehousemen's Union, Local 10, et al. (Pacific Maritime
Assn.), 283 F.2d 558, 563 (9th Cir. 1960). As discussed
above, the circumstances of the grievance and its sub-
stance tend to support his testimony that he had filed it
on March . Walden credibly corroborated Aguilar's ac-
count that the grievance had been filed on March 1. So
far as the record discloses, Cutri's hostile remarks on the
following morning could only have referred to that
grievance and, accordingly, constitute a threat in viola-
tion of Section 8(a)(1) of the Act. Finally, Villani's own
account of his remarks, during his post-discharge conver-
sation with Aguilar, could only have referred to the
grievances filed by Aguilar and thus tend to corroborate
the latter's account that Villani had referred specifically
to the grievance during their conversation. Therefore, I
find that a preponderance of the evidence supports the
conclusion that Aguilar had filed his second grievance
on March 1.
Finally, a preponderance of the evidence supports the
allegation that Aguilar had been terminated in retaliation
for having filed a second grievance so shortly after
having filed the initial grievance against Respondent.
Villani's remarks following the discharge, as credibly re-
lated by Aguilar, constitute an admission to that effect.
Cutri's comments demonstrate Respondent's hostility
toward Aguilar for his grievance. The discharge fol-
lowed abruptly after the grievance had been filed. Re-
- ------
MR. A'S RESTAURANT 995
spondent's defense in this regard, as in other regards, was
not corroborated by Lawenda nor by the food checker.
See Colorflo Decorator Products, Inc., 228 NLRB 408, 410
(1977). That it was a common practice for waiters to lay
claim to the captain's share of the tip whenever a tip was
meager is undisputed. That Aguilar had secured Lawen-
da's consent to transfer the $1 to Aguilar was not chal-
lenged. Therefore, I find that Respondent seized upon a
perfectly normal practice and has attempted to use it to
cloak its true motive for terminating Aguilar: that it was
dissatisfied with the grievances which he had filed and
had decided to terminate the possibility of his filing
future grievances by terminating Aguilar.
v. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Mr. A's Restaurant, set forth above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the sever-
al States, and tend to lead, and have led, to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
I. Mr. A's Restaurant is an employer within the mean-
ing of Section 2(2) of the Act, engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartenders
Union of San Diego, Local 30, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening reprisals of physical force against
employees for filing grievances Mr. A's Restaurant has
violated Section 8(a)(l) of the Act.
4. By transferring an employee's work station and then
discharging him for having filed grievances Mr. A's Res-
taurant violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Mr. A's Restaurant engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
Mr. A's Restaurant will be required to offer Mario
Aguilar immediate reinstatement to his former position of
employment as a waiter assigned to the rotunda station
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, dismissing, if necessary,
anyone who may have been assigned or hired to perform
the work that he had been performing prior to his Feb-
ruary 1979 transfer to the bar and grill station. Addition-
ally, Mr. A's Restaurant will be required to make Agui-
lar whole for any loss of earnings he may have suffered
by reason of his unlawful transfer to the bar and grill sta-
tion and subsequent termination, with backpay to be
computed on a quarterly basis, making deductions for in-
terim earnings, as prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), plus interest as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), enforce-
ment denied on different grounds 322 F.2d 913 (9th Cir.
1963), and Florida Steel Corporation, 231 NLRB 651
(1977).9
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '0
The Respondent, Mr. A's Restaurant, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to exercise physical force against em-
ployees because they file grievances.
(b) Transferring and discharging or otherwise discri-
minating against employees with regard to hire or tenure
of employment or any term or condition of employment
for engaging in activities on behalf of a labor organiza-
tion or for engaging in activity protected by Section 7 of
the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Mario Aguilar immediate and full reinstate-
ment to his former position as a waiter assigned to the
rotunda station, dismissing, if necessary, anyone who
may have been hired or assigned to perform the work
that he had been performing prior to his February 1979,
transfer to the bar and grill station or, if his former posi-
tion no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges, and make Aguilar whole for any loss of
pay he may have suffered as a result of his discrimina-
tory transfer and discharge, in the manner set forth
above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its San Diego, California, restaurant, copies
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 21, after being duly signed by its authorized
I General Counsel's request for a remedial interest rate of 9 percent on
the backpay is denied. See Southern California Edison Company, 243
NLRB No. 62, fn. 1 (1979).
'o 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
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
MR. AS RESTAURANT
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by Mr. A's Restaurant im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Mr.
A's Restaurant to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps the Respondent taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT threaten you with retaliation by
physical force nor by other means because you file
grievances.
WE WILL NOT transfer, discharge, or otherwise
discriminate against you because you file griev-
ances.
WE WILl. NOT in any like or related manner in-
terfere with any of your rights set forth above
which are guaranteed by the National Labor Rela-
tions Act.
WE WILL offer Mario Aguilar immediate and full
reinstatement to his former position as a waiter as-
signed to the rotunda station, dismissing, if neces-
sary, anyone who may have been hired or assigned
to perform the work which he had been performing
prior to the time that he was transferred to the bar
and grill station or, if his position no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may
have suffered as a result of our discrimination.
MR. A's RESTAURANT