Narragansett Restaurant Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1979

243 N.L.R.B. 125 (N.L.R.B. 1979)

NARRA(iANSIII RSIAIRANI CO(RP
Narragansett Restaurant Corp. and Augusta Jacke
and Local 69, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, Part)
in Interest
Narragansett Restaurant Corp. and Margaret Werner
Local 69, Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO and Au-
gusta Jacke. Cases 29-CA 5417, 29 ('A 5925, and
29 CB 2765
June 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND Mi BIRS .II NKINS
ANI P NI I 0
On March 5. 1979, Administrative Law Judge Ir-
win Kaplan issued the attached Decision in this pro-
ceeding. Thereafter, Respondent Narragansett Res-
taurant Corp. 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
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 Respondent, Narrangansett Restaurant
Corp., Lindenhurst, New York, its officers, agents.
successors, and assigns, and Respondent Local 69,
Hotel and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, Lindenhurst, New
York, its officers, representatives, and agents, shall
take the action set forth in the said recommended
Order, except the attached notice, "Appendix A."
shall be substituted for that of the Administrative
Law Judge.
I In agreeing with his colleagues that employee Margaret Werner's griev-
ance should not be deferred to the arbitration process. Member Penello relies
solely on the fact that the Employer and Union are hostile to the employees'
interests. See Kansas Meal Packers. A Dison of 4risro Food. Inc. 198
NLRB 543 (1972)
We have modified the Administrative I.aw Judge's notlice. "Appendix
A," to conform with his recommended Order.
APPL-NDIX A
No II(+- I(o EMI' OYIoI:S
PosIIl:) BY ORI)iR ()t 1i
NAIIONAI. LABO)R RI All()NS BARI)
An Agency of the United States (;overnnlent
Wl \1 i.. NOI threaten to discharge employees
for joining Local 69. Hotel and Restaurant Em-
ployees and Bartenders International Union,
AFI ('IO attempt to inhibit shop stewards
from performing their union responsibilities or
coercively interrogate emploees for seeking the
assistance of the National I.abor Relations
Board.
WI: wVII.. NOI interfere with the administration
of Local 69, Hotel and Restaurant nEmployees
and Bartenders International Union., AFL C10.
by recognizing or dealing with any person as
shop steward or other agent of the nion while
that person is our supervisor.
Wl wirI NOl l favor union emplo',ees over
nonunion employees with regard to rates of pay.
vacation and welfare contributions. and emplo\-
ment opportunities.
WE \VI.L Not discharge or otherwise discrimi-
nate against our employees because of their e-
fors to attain union membership.
Wt w\I.l. NO permanently suspend, dis-
charge. or otherwise discriminate against our
employees for giving testimony under the Act.
Wi wni.i. Nt in ans other manner. interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed in Section 7 of
the Act.
W-I. iiL, with Local 69. Hotel and Restau-
rant Employees and Bartenders Union, AFL
CIO, make whole all nonunion employees for
any losses of pay anti benefits with interest by
reason of our discrimination predicated on their
nonmembership in the Union.
Wt! wii.i. make employee Robert Jacke whole
for lost earnings and benefits with interest.
Wi wit.i. offer Margaret Werner immediate
and full reinstatement to her former job or, if the
position no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges previously
enjoyed, and we Wit.i. make her whole by paying
her backpay with interest.
NARRAGANSEIr RESIAURAN I CORP.
DECISION
SI ATEMEN I 01 I 1Tl CASI
IRWIN KAPI&,N. Administrative Law Judge: This matter
was heard heflore me in Brooklyn. New York. originall on
243 NLRB No. 30
125
I)I:(ISI()NS OF NAIOINAL l.ABOR R.AIO()NS BOARI)
various dates in 1977 in consolidated (Cases 29 (A 5417
and 29 ('B 2765. Following the close of the hearing on the
aforenoted consolidated cases, additional charges were filed
by Margaret Werner, a terminated employee of' Respon-
dent Narragansett. in ase 29 CA 5925 and a complaint
thereon issed October 31, 1977. On the General Counsel's
motion. I reopened the record of' the previously litigated
cases and consolidated Case 29 CA 5925. The hearing on
the most recent consolidated cases closed on March 21,
1978, with the General Counsel and Respondent Narragan-
sett thereafter filing supplemental briefs.
The original consolidated complaint alleged, in essence.
that Respondent Narragansett violated Section 8(a)( I ), (2).
and (3) of' the National Labor Relations Act, as amended
(herein called the Act), and Respondent Union concomi-
tantly violated Section 8(hb)( I)(A) of the Act by maintaining
in force and effect an arrangement, understanding, and
practice whereby Respondent Narragansett provided union
employees higher pay rates and other benefits than non-
union employees. According to the General ('ounsel, Re-
spondent Narragansett and Respondent Union (collectively
referred to as Respondents) maintained a union quota.
thereby denying nonunion employees the opportunity lor
union membership and higher wages and other benefits
predicated on union membership. In addition, the General
Counsel asserts that Respondent Narragansett indepen-
dently violated Section 8(a)(l I of the Act by, ier lia.
threatening employees with discharge to dissuade them
from joining the Union. Further, the General Counsel al-
leged that Respondent Narragansett independently violated
Section 8(a)(3) of the Act by terminating Robert Jacke and
providing less employment for his mother, Augusta Jacke.
because of their efforts to secure union membership for
Robert Jacke. Still further, and with regard to the reopened
consolidated cases, the General Counsel alleged that Re-
spondent Narragansett suspended and thereafter termi-
nated Margaret Werner because she testified adversely to
Respondent Narragansett's interests at the original hearing.
Respondents filed timely answers (amended at the hearing)
denying the substantive allegations in the consolidated
cases. The supervisory and agency status of certain individ-
uals and jurisdiction are also in dispute.
Upon the entire record, including by observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FAC'I
I. JURISDICTION
Respondent Narragansett is a New York corporation en-
gaged in the operation of a retail catering establishment
called the Narragansett Inn (herein referred to as the Inn,
Restaurant, or Respondent Narragansett), which is located
in Lindenhurst, New York, and is its only facility involved
herein. In connection with the operation of the Inn, the
parties stipulated, the record reveals, and I find that, during
the year 1976 and at all other material times herein. Re-
spondent Narragansett derived gross revenue in excess of
$500,000. The record reveals that, during the same period
of time and in connection therewith. Respondent Narra-
gansett purchased from suppliers, food, wine and liquor,
and other goods and materials valued in excess of $50,000
of' which goods and materials in excess of $50,(00() origi-
nated outside the State of New York.' In addition, the par-
ties stipulated, and I find, that in 1976 Respondent Narra-
gansett purchased fruit salad valued at $10,803.63 directly
from Fruit Salad Incorporated of Lawrence, Massachusetts.
On the basis of the loregoing. and the entire record, I find
that the total operations oif Respondent Narragansett meet
the Board's statutory standards. 2 Accordingly I find that
Respondent Narragansett is an employer engaged in com-
merce within the meaning olf Section 2(2). 16). and (7) of the
.Act.
II. 1111 I AB(i)R t)R(iANIZAi/(iN IN\)tI V:D)
It is admitted. the record reflects, and I find that Local
69, Iotel and Restaurant l:mploy ees andi Bartenders Inter-
national Union, AFI. ('10. (herein Respondent Union) is a
labor organization within the mlcaning of Section 2(5) of the
Act.
11. 1 111: A I I:(;:l) INI AIR lABOR PRAM I ( I S
A. Bat Aground/tl
Respondent Union' has represented Respondent's Narra-
gansett's restaurant employees, including waiters, wait-
resses, bartenders, head waiters, and captains for many
years covering successive collective-bargaining agreements,
the most recent of which at the time of the hearing was
effective July 31. 1975, until July 30, 1978. 4
In July 1976, Gus Colletti, one of Respondent Narragan-
sett's managers.' addressed a group of approximately 20
employees in the Imperial Room at the Inn and urged them
to accept certain pay cuts and other changes in working
conditions to assist Philip Orlando. the owner of the restau-
rant, because he was experiencing financial difficulties.
Thus. (Colletti proposed, inter a/lia, that employees on the
permanent bartenders list take a $5-per-party cut in pay
when working as bartenders and all other employees take a
$10-per-party cut when serving in the same capacity. The
permanent bartenders list was comprised of 10 employees
(all union members), whereas the other employees, union or
nonunion, were asked to take the larger $10-pay cut. The
employees accepted Colletti's proposals immediately and
without having discussed the matter with union representa-
tives. In July 1976, over Gus Colletti's signature, a two-
column notice, one headed "Union" the other "Non-
Union" reflecting, inter alia, the bartenders pay cut and
' See G.C. Exhs. 4.4 A. 5 7. and 18 A D.
2 See Pick-Mi. Laurel Corporation, 239 NLRB No. 174 (1979): Front Porch
Holding Corp., and Front Porch 82, Inc., 214 NLRB 788. 789 (1974).
1 Respondent Union was initially known as Local 164, but became Local
69 after the two entities merged in October 1975 The parties stipulated and
I find that at all times material herein, Local 69 is the "successor" to Local
164 for collective-bargaining purposes.
I See G.C. Exh. 2.
5 The supervisory and agency status of Gus ('olletti. Joe Slo/ile, and Paul
LaBella are in dispute. For reasons discussed, infra, I find that these individ-
uals at all times material herein are statutory supervisors and agents whose
acts are chargeable to Respondent Narragansett. In addition, Paul LaBella
served as union shop steward from November 1975 to February 1977, and
his acts and conduct for that period are also chargeable to Respondent
Union.
126
NARRAGANSETT RESIAURANI CORP.
other differentials in pa between union and nonunion em-
ployees. was posted on the union bulletin board in the
kitchen at the Inn.6 On the same bulletin board from on or
about July 18. 1976. to around the end of the year. there
appeared in order of seniority a list of 32 employees, all
union members, and the names of three maitre d's (also
union members). which was posted b Paul .a Bella, union
shop steward.'
According to the General Counsel this group of 35 union
members represented a quota which was maintained by
both Respondent Narragansett and Respondent Union. All
other employees were assertedly denied membership until
someone in the select group of 35 either retired or was oth-
erwise terminated. The General Counsel contends that Re-
spondent Narragansett paid these nonunion employees a
lower rate per party than union employees and did not
make contributions to the union vacation and welfare funds
for these nonunion employees. In support thereof, the Gen-
eral Counsel produced payroll records and related docu-
ments and adduced testimony from several employees who
testified that Union Shop Steward Paul LaBella consis-
tently referred to the Union quota in rejecting union mem-
bership applications. Further, these witnesses testified that
they received certain fringe benefits, and their rate of pay
per party increased only after they became union members.
According to Respondent Narragansett's owner, Philip
Orlando, he maintained these differentials because the non-
union employees were "casuals" and not regular employees.
On the other hand. Respondent union business agent Carl
Coluzzi asserted that all employees, including "casuals,"
should have become union members and that he did not
learn that differentials were maintained or that employees
were denied membership until shop steward LaBella in-
formed him of this in February 1977. According to Coluzzi.
as LaBella was remiss in not reporting the above practices
to him sooner. he, Coluzzi. on learning of same. immedi-
ately removed LaBella as shop steward.
The General Counsel contends that. by maintaining the
above practices. Respondent Narragansett and Respondent
Union thereby violated Section 8(a)(3). (2). and (I) and Sec-
tion 8(b)( I )(A) and (2) of the Act. respectively. The General
Counsel also contends that Respondent Narragansett in-
dependently violated Section 8(a)( I) of the Act by: ( I )
threatening employees, inter alil with discharge to dissuade
them from joining the Union: (2) attempting to inhibit A u-
gusia Jacke, LaBella's successor as shop steward. in the per-
formance of her duties in that capacity: and (3) by coer-
cively interrogating Augusta Jacke in the presence of other
employees as to why employees sought assistance from the
National l.abor Relations Board. Further. the General
Counsel contends that Respondent Narragansett indepen-
dently violated Section 8(a)(3) of the Act by terminating
Robert Jacke in late November 1976. and providing less
employment for his mother, . uglla Jac( e lfor the month of'
December 1976 because they tried to restore Robert Jacke
his membership in the Uinion. Still further. the (;eneral
Counsel contends that because 11argaret II r,,er testified
6G(. Exh 10.
G.(C. Exh I . While he ehlhl des not listl CRe/hi as a nmalire d'. I find
on the basis of the crediled and uncontr;ldicted tsim nioln . ha! during this
period of line. he luncnrmed reglll.lrlr as a n re d'
adversely against Respondent Narragansett Kwith respect to
allegations in the earlier consolidated compliint. she was
discharged approximatelN I week later and Respondent
therehb violated Section 8(a)(4) of the Act.
As noted previously. Respondent Narr.gansett denies all
the substantive allegations. With regard to the 8(a)(4~ alle-
gation. Respondent contends that clrner as discharged
principall\ because she canceled an assignment the last
minute on a busy weekend. Moreover, said Respondent as-
serts that Werner's discharge is not properl, before the
Board at this time, but rather should be deferred under the
grie vance-arbitration machiner) in the collective-bargain-
ing agreement. In this connection, Respondent inion in its
answer contends that all the allegations in the earlier con-
solidated complaint should be stayed and deferred, pending
arbitration. Respondent ULnion did not file an, brief and
elected not to appear when the hearing ias reopened for
the purpose of litigating the 8(a)(4) allegation.
B. Slervi.o' andrd/or gen(yl Stoni o C l'I'i tti .
and LaBella
G(s (l/lli. The record reveals that on 1MondaIys
through Wednesday for the period Jul3 i, to I)ecember 31.
1976. and a all othee times material herein. Colletti booked
weddings. bar mitzvahs, and other banquets for the Inn. In
doing so. Colletti would. inter alia, arrange the floor plan
and explain the various prices for food, flowers and liquor
and sign the contract on behalf of the Inn. In addition, on
Saturday and Sundays during the above noted period he
worked for the Inn as an orchestra leader. I'he uncontro-
verted and credited testimony" also discloses that Colletti
hired employees and adjusted their work schedules. While
President Orlando testified that in his absence, his son-in-
law. Peter Ottavio, and his nephew. Carmine Dliattino. were
"in charge of everything" at the Inn, the record discloses
that their weekl, salarN was $375. whereas Colletti earned
$395 per week. I also find it significant (as noted previouslxy
that it was Collett in Jul 1976 who exhorted the emplox-
ees to help bail ()rlando out ofi inancial difficulties hby iltcr
ila. accepting a lower pa) rate for weekend parties and
who thereafter posted the ne,. rates on the bulletin hboard in
the kitchen over his signature. In these circulmstninees, and
on the basis of the entire record, the e idenlce is trong intd
convincing that at all times material herein Colletti was all
agent who acted on behalf of Respondent Narragansett alld
a supers isor within the meaning of Section 2( I ) of the Act.
Joe Sotlile: The uncontroerted and credited testimony
discloses that, at all timhes material herein, Sttile held him-
self out as a manaiger9 and in this capacit!. threatened em-
plo\.ees with suspension and other reprisals for refusing to
work as assigned. John Panico. uh, ho has worked t the Inn
as bartender. headwaiter and maitre d'. testified credibl,
and without contradiction that 75 per cent of the time he
served as maitre d' he wais assigned that position hb Sottile.
Orlando testified that Sottile's duties were sml;tar lo (ol-
R( , it/ . ,t. ind a llh ttid not tIt .al the hca.ril. and .no ris ll
wa;s advsanced lor the lailure 1to call hee Inlti lAII 1 al i llll I es
9 According tIo Respondent Narragmleit Presdl itti Orli()l ii ( ,o//, 11tl ,id
Sttle presurned the title "nllnlger" ;nd ";tt air ot ;lmtihlit hzcsltlt' Il1es
· lork[edl in the ront lftice"
127
I)i( 'ISIONS 01 NAI IONAL I.ABOR RI-lAIIO()NS B()ARI)
letti's (described above) in booking parties and scheduling
employees for work. According to Orlando, it was not until
sometime in 1977 that he (Orlando) "took Sottilel away
from hiring personnel.""' (Emphasis supplied.)
On the basis of the foregoing and the record as a whole. I
find that Respondent Narragansett is responsible for the
acts and conduct of Sottile as an agent' and supervisor
within the meaning of Section 2( I I) of the Act.
Paul LaBell. The (General Counsel asserts that the acts
and conduct of LaBella from the time he became a maitre
d' around November 1975 are chargeable to Respondent
Narragansett on an agency and supervisory basis and con-
comitantly chargeable to Respondent UnIion on an agency
basis until February 1977. at which time he was removed as
union shop steward.
As one of about five or six maitre d's. aBella served as
host in charge of a party or affair held in one of the party
rooms at the Inn. As such, he could select his favorite wa;lit-
ers. waitresses, and bartenders, and these employees. ap-
proximately 10 in number, were responsible to him for
party assignments. Thus, as maitre d'. he assigned waiters
and waitresses to the tables, which they were to set up and
service. Furthermore. he assigned a waitress to handle the
smorgasboard table at cocktail hour and other employees to
set up the wedding reception room. lHe was expected to
exercise his judgment in resolving problems as they arose at
the various table stations. Employees had to check with him
as maitre d' before they could be excused.
Other maitre d' responsibilities involved reporting em-
ployee misconduct. In this connection, the maitre d' gener-
ally would wait until the end of the party, at which time, he
would put in writing the misconduct and accompany the
employee involved to the office to see Orlando for further
disciplinary action. While the record is somewhat confusing
as to the precise amount of pay LaBella earned per party as
maitre d'. it is clear that he earned substantially more than
waiters, waitresses, or bartenders.
On the basis of' the foregoing. and the record as a whole.
I find that Paul LaBella, as maitre d' at all times material
herein, responsibly directed employees with regard to party
functions at the Inn and was a supervisor within the mean-
ing of Section 2(11) of the Act.
With regard to LaBell's agency status, it is noted that
Orlando considered maitre d's part of management. Thus,
he testified that "Colletti and Sottile] have attended meet-
ings between management which also consisted of all the
maitre d's because maitre d's are part (of tnaiageimet,l. too.
and we do have discussions on how to improve business, the
service to the people, and better relations between employer
and employees." (Emphasis supplied) In attempting to as-
certain whether Orlando specifically considered LaBella
part of management the following testimony was elicited:
"The only allegations of 8(a)Xl) conduct involving Siode occurred in
1976.
1 See N.L. R.B. v. The Brohill Companyv 514 F2d 655, 657, n. 5 (8lh (ir.
1975), wherein the court commented:
Assuming arguendo that McWilliams was not a supervisor wuihin the
meaning of the Act. it is clear from the evidence that other employees
felt that he was their "boss" and that the Company had placed him in a
position where employees could reasonably believe that he spoke and
acted on behalf of management.
Q. You consider Mr. LaBella a part of mana.ge-
men1t'
A. lie is maitre d'. lie would be at one lo those
meetings like the rest of the maitre d's.
Q. You consider him part of malnagetment'?
A. I ould consider him. all maitre d's, as part of
management. 12
In these circumstances, noting particularly that l.aBella
was considered part of' management and attended mnanage-
ment meetings wherein, intr alia. "relations between em-
ploser and employees" were discussed. I find that Respon-
dent Narragansett placed LaBella in a position whereby
employees could reasonably believe he spoke on manage-
ment's behalf. Accordingly, I find additionally that the
statements and conduct of L.aBella are chargeable to Re-
spondent Narragansett on an agency basis.'
With regard to lIaBella's agency status ,i.s-a-'s Resptn-
dent UInion, the record reveals that he was the union shop
steward from November I. 1975, to February 1977. UInion
business representative Carl ('oluzzi testified that L.aBiella's
responsibilities included handling grievances, accepting
union membership applications and initiation fees. collect-
ing union dues, and was charged with "knowfingl when a
so-called casual employee work[ed a sufficient amount of'
time to become a regular employee." In this regard. ('oluzzi
conceded that he did not provide ";any criteria"'' for LaBella
in determining when a casual employee converted to regu-
lar status.
While a shop steward's acts are not always attributable
to the Union, I find that Respondent !nion is responsible,
on an agency basis, for L.aBella's statements and conduct
wis-a-risthe allegations herein, given the real and apparent
scope of his authority.' 4
In sum, I find that Respondent Narragansett and Re-
spondent Union are responsible on an agency basis for La-
Bella's conduct while he served in the dual role as supervi-
sor and shop steward respectively.
('. I/ie Q)uo/a Svst'en
The Gieneral C(ounsel asserts in his brief that Respondent
Narragansett violated Section X(a) I),. (2), and (3) and con-
comitantly, Respondent Uniotn violated Section 8(b)( I)(A)
and (2)' by maintaining a practice whereby union members
received a higher pay rate than nonmembers and whereb
the Employer made contributions to the nion's vacation
and welfare funds only on behalf of union members.
12 Counsel for Respondent Narragansett objected at the hearing and again
in his brief on the basis that the question posed was mproper in frm and
called or a nebulous conclusion I disagree. I find that the testimony is
patently clear that Orlando considered L.aBella as part of management. In
any event. counsel for Respondent Narragansett had the opportunity to clear
up any asserted ambiguities and elected not to question further.
" See, e.g. Ian-Dee Pak. Inc. 232 NI.RB 454 (1977); Samuel l.e/er and
Ilar O.stericher. a ( partnership. d hb a Ri tr Manor Iealtlh Related - il-
n,. 224 NLRB 227. 235 (1976).
4 See. e.g.. Laborers and Id (Carr ers l.al Ao 341. aI zXrled Iih Lihbor
ers' Iniernaonil Union of Nor th 4.t neri,, AI . (10 (Barnn tuir JO -I -Luon
urdi. 223 NLRB 917. 919 (1976)1.
5 IThe consolidated complaint does nor, contain a conclusinary Xbh)(2)
allegation See n 26. infra.
128
NARRAGANSETT RESTAURANT CORP.
The record discloses that Respondents maintained a
union-seniority list comprising 35 names, all union mem-
bers.'" According to the General Counsel, this list represent-
ed a union quota whereby other employees not included
thereon were denied membership, a higher wage rate, and
other fringe benefits. Thus, waitress Joanne Sarno. who be-
gan working at the Inn in August 1975. testified credibly
and without contradiction that in December 1976 she asked
LaBella for a union application and was told by him that
there was a quota and that she would have to wait her
turn." She testified further that she received a $5-per-party
wage rate increase in March 1977 only after she was per-
mitted to become a union member.
John Panico, who began working at the Inn in June 1975
and was still employed therein at the time of the instant
hearing, also testified credibly and without contradiction
that his wage rate per party increased after he became a
union member. Panico. who was also an assistant shop
steward at the time of the hearing, testified that in October
or November 1976. he questioned aBella as to the reason
other employees could not become union members, to
which LaBella replied. "My hands are tied. Phil (Orlando)
would only allow a quota system in the Union." He told
Panico further that Orlando would only allow approxi-
mately 30 employees in the Union at any given time.
Still further credible testimony discloses that Margaret
Werner, a former waitress and bartender," was suspended
from the Union for nonpayment of dues from October 1975
to April 1976, and for that period she received the lower
nonunion pay scale, and the Company did not contribute to
the union vacation and welfare funds on her behalf.' Wer-
ner credibly testified without contradiction that her previ-
ous pay scale and other benefits were not restored until
after her union suspension ended and she once again be-
came a member in good standing. Evidence tending to sup-
port Werner's testimony is found in three letters from Re-
spondent Narragansett's payroll department to Augusta
Jacke. union shop steward, on March 10 and 28 and Ma 3.
1977, respectively, requesting a list of union members in
good standing so that the Company could make welfare
t G.C. Exh. It.
7 Sarno also testified without contradiction that on an earlier occasion in
July 1976. she mentioned to Manager Sorile that she had been trying to gel
into the Union and was told by Soitile that "if/she] were to plurur Ih ,,liitcr
Ishe] would be terminated." I find Sotlhe' threat a classic vlilall, n ol Sec
8(aXl) of the Act. In crediting Sarno's testimony. I rely not on[) on demea-
nor, but also on the fact that her testimony was largely uncontradicted.
Furthermore, it is noted that she was still in Respondent Narragansett's
employ at the time she testified. As such, she testified adversely to her pecu-
niary interest a matter not to be lightly disregarded. See. e.g.. Federal
Stainless Sink Div. of Unarco Industries. Inc. 197 NLRB 489. 491 11972):
Gateway ransportation Co., Inc.. 193 NLRB 47. 48 (1971); Georgia Rug
Mill, 131 NLRB 1304. 1305, fn. 2 (1961)
i' As previously noted, Werner was discharged approximately I week after
she testified. She filed an unfair labor practice charge alleging a discrimina-
tory discharge, which culminated in a complaint alleging a violation of Sec
8(aX4) of the Act in Case 29-CA 5925. Thereafter and pursuant to the
General Counsel's motion, Cases 29-CA 5417 and 29 CB-2765 were re-
opened and consolidated with Case 29-CA 5925 for the purpose of litigating
Werner's alleged discriminatory discharge This matter ill he treated sepa-
rately infra
iS As this occurred more than 6 months prior to the filing of the instant
charges and as the Company's actions relative to Warner's suspension are
not alleged independently as violative of the Act. I Aill not consider this as a
separate violation, hut rather as evidene of modus operanha.
and vacation fund payments. Thus. the letter dated March
10, 1977. which is similar in content to the other itio letters.
in its entiret' reads as follows::"
March 10. 1977
Augusta Jacke.
Union Shop Steward
44 Kane Street
Lindenhurst. New York 11757
Dear Mrs. Jacke:
Kindly supply me with a list of members in ood
standing as of February I. 1977.
Also kindly supply me with a list o members in
good standing tas of March I. 1977.
Since we do not have these above requested lists it is
impossible for us to complete the necessary union
forms to pay the welfare and vacation fund payments.
Please submit aIs soon as possible. Fhan k You.
Vers triul! ours.
PAYRO()li. )1DPT.
NARRA(iANSI I INN
While Respondent Narragansett's owner. Orlando. ac-
knowledged that he provided a higher pas riate ald other
fringe differentials to union members. he asserts that doing
so was not predicated on union membership. but rather
because union members were "regular emplovees" and all
other employees were "casuals." According to Orlando. the
first 35 names that appear on the Employer's pay roll
sheetsT' are regular employees. and b virtue thereof: are
union members and entitled to the union scale. The names
of employees numbered 36 through 70 represent "casual"
employees and are nonunion employees who assertedly
work only when regular when regular employees cancel out
or when there is a need for additional staffing for an affair.
These so called "casual" employees earn a lower rate of
pay. Thus. Orlando in referring to the payroll sheets for
Julv 19. 1976. testified that Dennis Harrington. a "regular"
waiter and number 8 on the list. received $26 for a Sunda
night aflair. whereas Joanne Sarno, a "casual" waitress and
number 61 on the list, received $25 for that Sunday night.
Orlando testified that Harrington received $26 because
"that is regular pay for a union person for Sunday night."
(Emphasis supplied) Orlando, when asked why Harrington
received a higher pay rate than Sarno, explained: "[Har-
rington] was probably a union member." I find Orlando's
distinction between "regular" and "casual" in the circum-
stances of this case nebulous and, in any event. not sup-
ported by the credible evidence.
According to Orlando's unsubstantiated testimony,. the
Union required regular employees to perform 75 per cent of
their assignments to maintain their status. However. his tes-
timony at a subsequent point tended to suggest that there
wasn't any such requirement. but that he would like to see
such a system established. Thus. he stated. "We (Company
2°See G C. Exhs 23 A. 23 B (March 28)., and 23 C (Mas 3)
' G.C. Exh. 20
129
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
and Union) should have a stipulation that if they (regulars)
do not work a certain amount of jobs per month they would
fall in the casual list." It is noted that there is no 75-per-cent
requirement contained in the collective-bargaining agree-
ment. The parties stipulated and the record reflects that
casuals perform the same work as regulars and share com-
mon supervision.
Further testimony by Orlando tending to show that there
is no real distinction between "regulars" and "casuals"
other than union membership is that a casual employee
may convert to regular status only when a regular employee
is terminated or retires. This is so even if the casual works
more often than the regular employee. In this regard. Or-
lando testified that "some of these casuals work more than
the regulars ... we still call him as casual because the other
people still hold their seniority line."
Not only does the foregoing tend to militate against a
finding of a legal basis fr distinguishing regulars from ca-
suals, but it also convincingly supports the General Coun-
sel's contention that Respondents maintained a quota Y.vs-
ternm. I find an exchange between Counsel for Respondent
Union and Orlando particularly' revealing insofar as deter-
mining whether union membership is the actual basis for
pay rate differentials and other benefits. This exchange was
as follows:
Q. Therefore I take it that the reason you distin-
guished in pay between worker A and worker B is be-
cause one of these persons was a casual worker?
A. Yes.
Q. And that it had nothing to do with the fact that
he may or may not be a union member?
A. All the regulars were union members.
Q. Were some of the casuals union members?
A. They might have, but if- i they ere casual und
were union members, thev got paid union scale. [Empha-
sis supplied.]
Still further evidence tending to show that nonunion em-
ployees were treated differently was the notice broken down
in union-nonunion categories which was posted by Man-
ager Colletti on the union bulletin board in the kitchen at
the Inn in July 1976 (G.C. Exh. 10) concerning, inter a/ia,
the bartenders' pay cuts.
With regard to Respondent's Union's complicity vis--vis
the union membership quota and wage and other differen-
tials for union members, the uncontroverted testimony dis-
closes that Shop Steward LaBella refused to accept and
process union applications to maintain said membership
quota, and that he told applicants that they would have to
wait their turn. I find union business representative Coluz-
zi's efforts to absolve himself and the Union from responsi-
bility for LaBella's acts and conduct unpersuasive. It is
noted that Coluzzi appointed LaBella shop steward with a
wide range of responsibilities, including accepting and pro-
cessing union membership applications. While LaBella also
was charged with maintaining the time worked by so-called
casuals for conversion to regular status, I find it significant
to note relative to the Union's responsibility that Coluzzi
admittedly did not provide criteria for LaBella in exercising
these duties. I further find incredible and reject Coluzzi's
assertion that he did not learn that Respondent Narragan-
sett paid lower rates to nonunion employees and failed to
make contributions to the union vacation and welfare funds
until LaBella informed him of these practices in February
1977. According to Coluzzi. LaBella informed him that the
aforenoted practices had been going on for approximately 8
months and he, Coluzzi, thereon removed L.aBella as shop
steward for not doing his job. As Coluzzi conceded that he
appeared frequently at the restaurant, sometimes once a
week. 1 find that his denial of previous knowledge that
union members received favored treatment does not smack
of candor.22
In sum. I find that the record establishes by a preponder-
ance of the credible evidence that since on or about July 19,
1976, Respondent Narragansett and Respondent Union
have maintained the union membership quota system de-
scribed above whereby. inter alia, union employees were
favored over nonunion employees with respect to rates of
pay, vacatio n and welfare benefits, and employment oppor-
tunities. The Board has long held that by providing such
preferential treatment for union members an employer vio-
lates Section 8(a)(1). (2). and (3) and concomitantly a union
violates Section 8(b I )(A) and (2) of the Act.
23 Accord-
ingly. I find that by maintaining the quota system, by other-
wise discriminating between union members and nonunion
employees. Respondent Narragansett thereby violated Sec-
tion 8(a)( I), (2). and (3)24 and further find that Respondent
Union in maintaining these practices thereby concomi-
tantly violated Section 8(b)(l )(A)2
" and (2) of the Act.2 1
I2 I was not impressed with Coluni as a witness. I found his estimony
largely disjointed, unresponsivr. equivocal. and inconsistent. For example, at
one poin ('oluui testified that he removed LaBella as shop steward immedi-
ately after the latter informed him hat Respondent Narragansett had been
paying union enmployee higher pa rates and other benefits than nonunion
employees lHowever, at another poin. he asserted that ater he learned from
I.aBella about the higher pa: rates or union employees. he discussed this
and other problems n a Imeeting at the Inn with a group of about 30 employ-
ees and later that da in ited Orlando to the same meeting to further discuss
the situation ('Cluti cstified that t tis meeting. Orlando sat on his left
and "Paul .;llBella, Ohiip welal ;it that time, sat on my right."'' (Emphasis
supplied I Coluzzi also equlisocalted as Io when L.aBella first informed him
about the difierentials based on UInion membership: at one point, he testified
that it was alfter the unflair ;lhabr practice charges were filed. whereas at a
subsequent point he asserted that he could not determine the temporal se-
quence.
21 See Newspaper and Mail Deliverers' L nion of' New York and Vicinity
IRockaway News Supply Company. Inc.]. 94 NL.RB 1056 (19511.
24 See, e.g., mpre.ssions. Inc., 221 NRB 389. 406 407 ( 1975); DJ. Eihomr
lteat Co.. Inc.. 208 NLRB 41, 43 (1973); Merrs Bros ol/ Missouri. I11(.. 151
NLRB 889. 901 ( 1965, wherein he Board ound. iter alra, that respondent,
by withholding welfare payments for nonunion employees. iolated Sec.
8(a)12) and (3) of the Act:; Rokanawr News Supplyv (npaunv, Inc., supra
" Respondent Union. in maintaining the quota system and related acts
and conduct. breached its obligation to represent all unit employees airly.
thereby violating Sec. 8h)( I ((A) of the Act. However, the record is devoid of
any probatire evidence tending to show that Respondent Union failed and
refused to process grievances. While there is some record testimony tending
to show that Augusta Jacke, a waitress, had a conversation with LaBella
about the large number of settings at each station, this by itself does not
establish that she intended to file a formal grievance, or that it' one was filed,
the Union would have refused to process it. Accordingly. I shall dismiss this
additional allegation of 8b)( I )(A) conduct.
26 While it is noted that the consolidated complaint does not allege a spe-
cific 8(b)(2) violation, par. 8 therein does allege the predicate basis fior con-
eluding that Sec. 8(b)(2) had been violated In these circumstances and as the
matter has been fully litigated, I ind that Respondent Union's acts and
conduct violated not only Sec 8(bt I )(A) but additionally Sec. 8(bX2). See.
e g., Cono Graphic.s, Inc., 217 N tRB 1061, In. 2 (1975).
130
N ARRA;ANS.TT RESARAN I' ('O()RP
I). IlaBella' Dual Role'
The General Counsel contends that Respondent Narra-
gansett additionally violated Section 8(a)(2) by virtue of
Supervisor LaBella serving as union shop steward. Appar-
ently the General Counsel is of the view that LaBella's su-
pervisory status per se is sufficient basis to hold Respondent
Narragansett responsible for the role played b LaBella in
union affairs. While I find that in the circumstances of this
case the statements and conduct of LaBella as shop steward
are chargeable to Respondent Narragansett, it is on the
basis of an actual conflict of interest and not merely on the
basis of supervisory status. In the area of employer liability
for its supervisors' participation in union affairs, the Board
has long rejected a per se approach. Rather, the Board
determines liability on a case-by-case basis, noting the na-
ture of supervisor participation, i.e.. whether the individual
is a member of a union negotiating committee, and whether
a high or low level supervisor is so involved.2?
In the instant case LaBella is clearly a low-level supervi-
sor. However, as shop steward, LaBella, inter alia, helped
maintain and perpetuate the unlawful quota system. It also
is undisputed that, as shop steward, LaBella could accept
and process applications for union membership and had the
authority to process grievances. As previously determined,
union membership carried benefits denied nonunion em-
ployees. The credited and uncontroverted testimony dis-
closes that LaBella, for his part, refused to accept and pro-
cess union applications until someone on the seniority list
(quota) either was terminated or retired. As noted previ-
ously, LaBella told employees that Respondent Narragan-
sett's owner, Orlando, would only permit approximately 30
employees in the Union at any given time. This, of course.
principally inured to Respondent Narragansett's benefit in-
sofar as it did not pay the higher union pay scale and make
contributions to the Union vacation and welfare funds for
these nonunion employees. Employee Margaret Werner
credibly testified that LaBella told employees at a meeting
to elect a new shop steward in February 1977 that Orlando
wanted him to continue to be the Union Shop steward.
Given the fruits of the unlawful quota system, it was surely
advantageous for Respondent Narragansett to maintain
LaBella in the dual role as supervisor and shop steward.9
In view of LaBella's instrumental role in limiting union
membership, the concomitant benefits to Respondent Nar-
ragansett, and the fact that LaBella had the authority to
process grievances, I find that as supervisor shop steward he
was engaged in an actual conflict of interest. As such, Re-
spondent Narragansett wrongly and unlawfully permitted
"? See Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174
(1951).
2s See, e.g.. Schwank Incorporated 229 NLRB 640. 641 (1977) (managerial
and high level supervisors); Allied Chemical Corp., 175 NLRB 974 (1969) (a
foreman who was at the same time the vice president of the Union) Beach
Electric Co., 174 NLRB 210 (1969) (low-level and intermittent supervisors).
29 Art. XV of the Union's constitution and bylaws (G.C. Exh. 9) declares
in pertinent part, "No captains, headwaiters or employees in a supervisory
job category may be designated as a Shop Steward." Thus, the appointment
of LaBella, a maitre d' and supervisor, is at odds with the spirit. if not the
letter, of the Union's constitutional provision. Cf. Nassau and Suffolk Con-
tractors' Association, Inc, supra at 179
I.aBella. as a supervisor, to serve as shop steward. Accord-
ingly. I find that Respondent Narragansett unlawfulls in-
terfered with the proper administration of the It nion,
thereby additionally iolating Section 8(a}(2) and (I ) of the
Act.'"
E. .4 tugu.l Jatcke and Robert Jack,
Augusta Jacke.: Augusta Jacke has been emplosed b Re-
spondent Narragansett since on or about January I. 1968.
first as a waitress and more recently as a bartender. On
several occasions in October and November 1976. Augusta
Jacke spoke to Paul l.aBella about getting her son, Robert.
back into the Union and was told by LaBella that the quota
was filled.
In early December 1976, Augusta asked Manager Sottile
why she was not scheduled to work a certain party the
following week and was told that another employee specif-
ically was requested. Later that month, she complained to
Sottile about an assignment to a second employee named
Bridgett Bjornsson who had less seniority than Jacke. Sot-
tile explained that Bjornsson also was requested specifi-
cally. While Augusta Jacke worked as a bartender at the
Inn during the month of December 1976.11 the General
Counsel contends that she should have been assigned more
work, (specifically, the jobs assigned to employees with less
seniority than Jacke). According to the (ieneral ounsel.
Augusta Jacke was bypassed because of her efforts to se-
cure reinstatement in the Union for her son, Robert. im io-
lation of Section 8(a)(3) and (1) of the Act. In support
thereof: the General Counsel notes the contractual provi-
sion which states inter alia that l[i]n the event of assignment
of work the most senior employee shall be the first hired.""
The General Counsel also relies on statement by Manager
Colletti to Margaret Werner in mid-December 1976 that
Robert Jacke will not be scheduled any more "because
Bobby (Robert Jacke) has a big mouth and his mother (Au-
gusta) will be next ....
The record discloses that it is not uncommon for employ-
ees junior in seniority to be assigned certain parties because
customers specifically have requested those employees.
Even Augusta Jacke conceded that she, too, has been as-
signed jobs by request. Gisen the history of junior employ-
ees working by request and noting the minimal time frame
involved (only several jobs during the month of December).
I am not persuaded that Colletti's threat was carried out
insofar as it related to Augusta Jacke.? In these circum-
stances, I find that the General Counsel has failed to estab-
lish by a preponderance of the credible evidence that Re-
spondent Narragansett discriminatorily denied Augusta
Jacke additional assignments for the month of December
1976. Accordingly. I shall dismiss this allegation.
The General Counsel also contends that Orlando made
statements in violation of Section 8(a)( l) to Augusta Jacke
on two occasions in February 1977. On one occasion.
shortly after Jacke became the shop steward. Orlando re-
"0 See IT7 Arc Serviu.s. In, . 238 NL.RB 116(1978: EE CE (. In, . 171
NLRB 982 (1968).
l See G.C Eh 20(f) for the weeks dated December 13. 20. and 27
G (;.C. Exh. 2
I find, however, for reasons stated hbelo,. that Colleis statlement is
significant since it related to Robert Jacke
131
I)(('ISIONS ()Of NA IONAL, ILABOR Rl.A IIONS BOARI)
marked. "Being you are the shop steward. I don't want you
bothering the people asking them to join the Union and
going around with your big mouth. That is not you job. It is
Mr. Caluccis's Isicl job." On the other occasion, Orlando
had a conversation with Jacke in the presence of employees
Werner and Hill wherein Orlando asked why the employees
went to the Labor Board. Jacke testified: "'I tried to explain
to him what had happened. why we felt forced to go to the
Labor Board." to which Orlando responded that he did not
think it was right. I find that, in both instances. Orlando's
remarks represented an unlawful intrusion with regard to
employees freely exercising their rights guaranteed by Sec-
tion 7 of the Act. Accordingly. I find that Respondent Nar-
ragansett thereby violated Section 8(a)( ) of the Act.4
Robert Jacke.' Robert Jacke began working as a waiter at
the Inn around February 1973. He joined the Union a few
months later. Sometime in 1974 he voluntarily left his em-
ployment at the Inn and withdrew his union membership.
The parties stipulated, and I find. that Jacke returned to
work in January 1976. and that he last worked during that
calendar year on November 22. The record discloses that
Jacke was reinstated either in February or March 1977. The
General Counsel contends that Respondent Narragansett
discriminatorily discharged Jacke and failed and refused to
employ him as a waiter from November 23. 1976. to March
1977 in violation of Section 8(a)(3).
As previously noted. Robert Jacke's mother. Augusta,
spoke with LaBella on several occasions in October and
November 1976 about getting her son back into the Union.
In addition. the credited and uncontroverted testimony dis-
closes that Robert Jacke also pressed LaBella on several
occasions about union membership during the same time.
On each occasion. Robert and his mother were told by La-
Bella that he could not do anything because the member-
ship quota was filled. Finally, in November, Robert, in the
presence of Margaret Werner. voiced displeasure with La-
Bella's inaction on his behalf and declared to him that he
would get someone else to be the shop steward or he would
even seek the job himself to represent employees and not
management." Werner substantially corroborates Jacke's
testimony regarding this encounter.
While the record discloses that Respondent Narragansett
treated Jacke as a so-called "casual" employee during 1976.
the record also reveals that, inconsistent with its asserted
policy of assigning "casuals" in order of seniority, Respon-
dent Narragansett assigned "casuals" with less seniority
than Jacke after November 22." Jacke testified credibly and
without contradiction that he called Manager Sottile on a
number of occasions in November and December and was
told each time that all the assignments had been made.
Margaret Werner credibly testified without contradiction
that she asked Manager Colletti in December why Robert
t4 While I was troubled by the nature of the leading questions relatle to
these allegations. I credit the remarks attributable to Orlando as substantially
accurate. on the basis of Jackes overall demeanor and noting that her testi-
mony in this area was not controverted.
3 It should be noted that I have previously found LaBella to be a statutory
supervisor and agent of Respondent Narragansett.
' For example. employees Curcio. McCabe. Angione. and Bjornsson were
assigned jobs in December 1976. although they were junior in niority to
Robert Jacke. See G.C. Exh. 12(a)(d).
Jacke was not working, and he replied (as noted previ-
ously), "llie will not he scheduled any more because [he]
has a big mouth .... " Manager ('olletti's statement is at
odds wiih the position taken in Respondent Narragansett's
brief that "Robert Jacke voluntarily left his employment."
Further testimony tending to show that Jacke wias dis-
charged was provided by Union Business Representative
('oluzzi. Coluzzi testified that the Union received a money
order from Robert Jacke for membership. and he checked
with LaBella to confirm that Jacke was employed al the
Inn. LaBella told ('oluzzi in December 1976 or January
1977 that Jacke was no longer employed and he. ('oluzzi.
therefore returned the money order to Robert's mother, Au-
gusta. ('oluzzi testified further that in February he asked
Orlando why Jacke was fired, and that Orlando told him
that Jacke was a poor bartender. According to ('oluzzi. he
(('oluzzi) was responsible for getting Jacke reinstated. al-
though he did explain the reasons lor his doing so.
In reviewing the key factors relative to Jacke's alleged
discharge it is noted. aiftr lia. that (I) Jacke activel, pur-
sued union membership which. inter walia challenged the
quota system; (2) Respondent had knowledge of Jacke's
efforts through the dual role of supervisor shop steward
LaBella; (3) employees with less seniority than Jacke were
assigned jobs when he was not: (4) no adequate explanation
was presented fir not providing work for Jacke during the
relevant timeframe and (5) Respondent Narragansett, by
its officers and agents, admitted to others that Jacke was
discharged. while contending in its brief that he voluntarily
quit. In these circumstances, and on the basis of the entire
record, I find that the General Counsel has established by a
preponderance credible evidence that Respondent Narra-
gansett discharged Robert Jacke on or about November 23.
1976. as alleged. 1?
F. Margarelt l'erner
Margaret Werncr had been employed by Respondent
Narragansett for approximately 9 years. principally as a
waitress and. more recently. as a bartender. On July 28.
1977. she testified adversely to the interests of Respondent
Narragansett and Respondent Union in connection with
the original consolidated complaint. She last worked at
the Inn on August 5. 1977. Werner was scheduled to work
from 4:30 to I I p.m. on August 6: however, she got ill and
had her husband call the restaurant at or about 11:30 a.m.
and canceled her assignment for that evening.
The next day, Victor Robinson, personnel director, in-
formed Augusta Jacke (LaBella's successor as shop stew-
ard) that Werner was suspended. A few days later Werner
received a copy of a letter dated August 10 sent by Robin-
son to the Union. the body of which reads as follows:
' In the circumstances of this case. noting particularly that Rherr Jake
wrongfully was denied union menmbership and that he had provided eidence
supporting the allegations against the Union. it does not appear likely that
Jaurek interests would be protected adequately by deferring to the arbitral
process. See Kansas Meat Packer.s, DiiAsilon of I Arito Food. In,.. 198
NLRB 543 (1972). See also fn 46, inira.
38 See fn. 18 above. In addition. Werner credibly testified that in D ecember
1976, she asked Manager Colletti why more employees could not join the
Union, and he replied. "If they want to join the Union. they would be fired
before they join." I find (olleti's threat to discharge employees In these
circumstances a lutiher vilation oi Sec. 8(a) I),
132
NARRA(GANSFI' RESTAURANT CORP.
The success of Narragansett Inn depends upon the
reliability of our employees. We are. therefore. sus-
pending the services of Marge Werner due to the fact
that she cancelled 80 per cent of the work that was
offered to her for the week ending August 7. 1977.'9
By a letter dated August 16, Werner wrote to Respon-
dent Narragansett as follows:
I have just received your letter informing me of my
suspension, which I feel is unjust.
All my cancellations have been approved by Victor
M. Robinson your Personnel Director except for Sat-
urday August 6 at which time I was suddenly' taken ill.
Realizing, I was unable to work I immediately called
the Narragansett Inn so a replacement could be found.
I am filing a grievance with my union for any loss of
pay incurred during the allege [sic] suspension.
The company never responded to the aforenoted letter
and elected to suspend Werner permanently. The General
Counsel contends that Werner was suspended on August 7
and thereafter terminated because she testified adversely
approximately I week earlier, and Respondent Narragan-
sett thereby violated Section 8(a)(4) and (1) of the Act. Re-
spondent Narragansett contends that Werner's termination
should be deferred to pending arbitration under the Board's
policy enunciated in Collyer.' With regard to the merits, it
contends that the decision to suspend Werner was made the
evening of August 6 and was based on "Orlando's pique,
anger and resentment at Werner's cancelling out at the last
minute and his inability to find a replacement and having to
draft a dishwasher from the kitchen to fill her spot." Ac-
cording to Respondent. Narragansett the suspension was
converted to a termination when Orlando assertedly discov-
ered on August 6 that Werner had another job,2 and on
August 8 Respondent learned that she had canceled 18 to
25 jobs offered to her the previous month. Thus, Respon-
dent Narragansett argues that Werner's cancellation on
August 6 and the aforenoted revelations were sufficient to
justify its actions. I disagree.
While a restaurant may experience difficulties in covering
assignments due to late cancellations, these occurrences do
not appear uncommon in the day-to-day operations of such
a business. Thus, the record discloses that Werner was
merely one of a number of employees at the Inn who have,
from time to time canceled assignments." It is significant to
note that there is not any evidence tending to show that any
"G.C. Exh. 34.
'eG.C. Exh. 35.
n" Collyer Insulated Wire, A Gulf and Western Svytemr Co.. 192 NLRB 837
(1971).
n2 In its brief, Respondent Narragansett acknowledges that Werner's other
job did not involve conflicting hours. It also is noted that a number of em-
ployees had other jobs or were students.
e G.C. Exhs. 39 (a)-(e). As noted earlier. Werner canceled at or about
11:30 a.m. Other late cancellations are as follows:
Duryea
Oddo
Woods
Rocco
Sarno
Montello
Cornelia
Hawthorne
7/3, at 11:30 a.m.
6/29. at I p.m.
6/25, at 1:45 p.m.
6/25, at 1:30 p.m.
6/16, at II a.m.
6/12, at I a.m.
6/12, at 10:50 a.m.
2/18, "I hour before"
of these other employees were suspended or otherwise disci-
plined. In these circumstances, noting particularl\ that
other employees were not similarly disciplined for late can-
cellations. I find Respondent Narragansett's stated reason
for suspending Werner is pretextual. Similarly I reject as
pretextual Respondent Narragansett's assertion. as stated in
its August 10 letter (G.C. Exh. 34). that the suspension was
"due to the fact that [Werner] cancelled 80 per cent of the
work that was offered to her bfor the week ending August 7.
1977." While the record discloses that some employees had
heard of a 75-per-cent or 80-per-cent rule. it appears that
these employees understood the rule to cover a 12-month
period and not merely any given week.s In any event. I
note that the contract is silent on the subject and find, on
the basis of the entire record, that there is no such firm 75-
per-cent or 80-per-cent cancellation rule leading to suspen-
sions or other disciplinary treatment. I further credit Wer-
ner's testimony that she had never been reprimanded re-
garding cancellations previous to her suspension on August
7. 1 find most revealing and significant however Orlando's
concession in July 1977 before the consolidated case was
reopened that since he was owned the restaurant froml 1960,
no waiter, waitress, or bartender had ever been fired. With
such a backdrop. I find that in selecting We'rner. an em-
ployee at the Inn for about 9 years, for suspension and
termination approximately I week after she testified ad-
versely to his interest, Orlando was motivated discrimina-
toril) .n
On the basis of the foregoing and the entire record. I find
that Respondent Narragansett would not have suspended
or terminated Werner except for the fact that she testified
adversely to its interests.', Accordingly I find that Respon-
dent Narragansett violated Section 8(a)(4) and (11 of the
Act.
IV. T EFFE('I OF IIIE UNFAIR I AB(R PRA('TIl(S IP()ON
('OMMERCt
The activities of Respondent Narragansett and Respon-
dent Union. as set forth in section III, above, occurring in
connection with the business operations of Respondent
Narragansett set forth in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
" In this regard Werner's record compares favorably with other emplo'-
ees. Thus. for the period August 1, 1977. through August 1, 1978. Werner
missed 67 parties, or 31 per cent of 219 possible parties, whereas employees
De Angeles and Hawthorne missed 41 per cent of 144 and 143 possible
parties. respectively. and employee Ganley missed 40 parties, or 30 per cent
of 132 possible parties.
" According to Respondent Narragansett Werner's purported illness on
August 6 was feigned. It is noted that Werner substantially obtained a doc-
tor's note for her visit on August 6. (G.C. Exh. 33) In any event, whether
Werner was actually ill on that occasion in the circumstances of this case I
do not deem material. This case turns on whether Respondent Narragansett
would have suspended or terminated Werner but for her adverse testimony.
' find Respondent Narragansett's alternative argument that 'erner's
charges be deferred to pending arbitration also without merit. Not only are
there findings herein that Respondent union has failed to represent unit
employees fairly. but more particularly rts-vs Werner. it is noted that she
had testified adversely to the interests of xboth Respondent Union and Re-
spondent Narragansett. Moreover, as an 8(a)(4 violation is in issue there is
an overriding policy to protect the Board's processes. See McKinley Trans-
port .irnited, 219 NLRB 1148. 1151 (1975)
133
I)t('ISIONS O() NATIONAl. LABOR R:I.ATIONS BOARI)
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CON I.L SIONS t()I LAW:
I. Respondent Narragansett is an employer within the
meaning of Section 2(2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Narragansett independently violated Sec-
tion 8(a)(1) of the Act by threatening to discharge employ-
ees for joining the Union, by attempting to inhibit the shop
steward from performing her union responsibilities, and by
coercively interrogating said shop steward in the presence
of other employees concerning the reasons said employees
sought assistance from the National abor Relations
Board.
4. Respondent Narragansett interfered with the adminis-
tration of the Union in violation of Section 8(a)(2) and (I)
of the Act by recognizing and dealing with Paul I.aBella as
a shop steward and agent of the Union while Paul LaBella
was a company supervisor.
5. Respondent Narragansett violated Section 8(a)(I). (2).
and (3) of the Act by favoring union-members over non-
union employees with regard to rates of' pay, vacation and
welfare contributions, and employment opportunities.
6. Respondent Narragansett violated Section 8(a)(3) and
(I) of the Act by terminating employee Robert Jacke on or
about November 23, 1976, because of his efforts to secure
union membership.
7. Respondent Narragansett violated Section 8(a)(4) and
(1) of the Act by permanently suspending employee Marga-
ret Werner because she gave testimony under the Act.
8. The General Counsel has not established by a prepon-
derance of the credible evidence that Respondent Narra-
gansett violated Section 8(a)(3) and (1I) of the Act by dis-
criminating against employee Augusta Jacke with regard to
job assignments for the month of December 1976 because
of her efforts to secure union membership for her son, Rob-
ert Jacke.
9. Except to the extent set forth in Conclusions of Law 3
through 7 above, Respondent Narragansett has not other-
wise committed unfair labor practices as alleged in these
consolidated cases.
10. Respondent Union violated Section 8(b)(2) and
(I)(A) of the Act by maintaining in force and effect an
arrangement, understanding, and practice with Respondent
Narragansett whereby Respondent Narragansett favors
union members over nonunion employees in the manner set
forth above in Conclusion of Law 5.
I1. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
Union violated Section 8(b)(1)(A) of the Act by failing and
refusing to process grievances.
12. Except to the extent set forth above in Conclusion of
Law 10. Respondent Union has not otherwise committed
unfair labor practices as alleged in these consolidated cases.
13. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Having found that Respondent Narragansett has er.-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)( ). (2), (3), and (4) of the Act, and that Respon-
dent Union has engaged in unfair labor practices within the
meaning of Section 8(hb)( )(A) and (2) of the Act, I shall
recommend that they be ordered to cease and desist there-
from and take certain affirmative action designed to effectu-
ate the policies of the Act.
Having fobund that Respondent Narragansett and Re-
spondent Union violated Section 8(a)(I), (2), and (3) and
Section 8(b)(1)(A) and (2)., respectively, by maintaining in
force and effect an arrangement, understanding, and prac-
tice favoring union employees over nonunion employees
with regard to pay rates, employer contributions to union
welfare and vacation funds, and employment opportunities,
I shall recommend that Respondent Narragansett and Re-
spondent Union (collectively Respondents) be ordered
jointly and severally to make these nonunion unit employ-
ees whole for any loss of earnings and benefits with interest
that they may have suffered by reason of Respondents' dis-
crimination against them since July 19. 1976 a date 6
months prior to the filing and service of charges herein and
consistent with Section 10(b) of the Act.47
In addition, having found that Respondent Narragansett
discharged employee Robert Jacke on or about November
23, 1976. in violation of Section 8(a)(3) and (I) of the Act, I
shall recommend that Respondent Narragansett be ordered
to make him whole for any' loss of earnings and other bene-
fits he may have suffered by reason of the unlawful dis-
crimination practiced against him from the date of dis-
charge until he was unconditionally offered reinstatement.4
Furthermore, having found that Respondent Narragan-
sett permanently suspended employee Margaret Werner on
or about August 6, 1977, in violation of Section 8(a)(4) and
(I ) of the Act, I shall recommend that Respondent Narra-
gansett be ordered to offer her full and immediate reinstate-
ment to her former job or. if this job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and to make her
whole for any loss of earnings she may have suffered from
the date she was discharged to the date of Respondent Nar-
ragansett's offer of reinstatement, Back pay is to be com-
puted according to the Board's policy set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950). Payroll and
other records in possession of Respondent Narragansett are
to be made available to the Board or its agents to assist in
such computation. Interest on backpay shall be computed
in accordance with Florida Steel Corporation 231 NLRB
651 (1977).49
The serious unfair labor practices found herein strike at
the heart of the rights guaranteed by the Act, and. accord-
"7 While it appears that Respondents removed restrictions on union mem-
bership and eliminated differentials predicated on union membership in ear-
ly 1977, the precise date these changes were made cannot be determined
conclusively from this record. Accordingly, it is recommended that this mat-
ter be deferred to te compliance stage of this proceeding.
" The record reveals, and I find that Robert Jaeke was reinstated as a
"regular" employee in late February or early March 1977.
' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
134
TIlm RImMII)N
NARRAGANSETT RESTAURANT CORP.
ingly a Board Order shall be recommended directing Re-
spondent Narragansett and Respondent Union to cease and
desist from in any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act. '. L. R.B. v. Entwistle
Mfg. Co.. 120 F.2d 532, 536 (4th Cir. 1941); P. R. Mallon &
Co., Inc., v. N.L.R.B., 400 F.2d 956. 959 960 (7th Cir. 1968)
cert. denied 394 U.S. 918 (1969): 177TT Aric Services. Inc.,
supra.
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER S0
A. Respondent Narragansett Restaurant Corp., its offi-
cers, agents. successors, and assigns. shall:
1. Cease and desist from:
(a) Threatening to discharge employees for joining the
Union, attempting to inhibit shop stewards from perform-
ing their union responsibilities; and from coercively interro-
gating employees with regard to the reasons they sought
assistance from the National Labor Relations Board.
(b) Interfering with the administration of Local 69, lo-
tel and Restaurant Employees and Bartenders International
Union, AFL CIO, by recognizing or dealing with ans per-
son as job steward of that union while that person is its
supervisor.
(c) Favoring union employees over nonunion employees
with regard to rates of pay, vacation and welfare contribu-
tions, and employment opportunities.
(d) Discharging or otherwise discriminating against em-
ployees because of their efforts to secure union member-
ship.
(e) Permanently suspending or otherwise discriminating
against employees because they gave testimony under the
Act.
(f) In any other 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 neces-
sary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Union Local
69, Hotel and Restaurant Employees and Bartenders
Union, AFL-CIO. make whole all nonunion employees for
any losses of pay and benefits with interest in the manner
set forth in the section of this Decision entitled "The Rem-
edy" by reason of the discrimination predicated on their
nonmembership in the Union from July 19, 1976.
(b) Make employee Robert Jacke whole for lost earnings
and benefits in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Offer employee Margaret Werner immediate and full
reinstatement to her former job or, if this position no longer
exists, to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and
" 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. e adopted by the Board and become its
findings. conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
make her whole for lost earnings and other benefits in the
manner set forth in the section of this Decision entitled
"The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents. for examination and copying. all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to ascertain the backpay due under the terms of this
Order.
(e) Post, at its place of business. copies of the attached
notice marked "Appendix A."" Copies of said notice, on
forms provided by the Regional Director tor Region 29.
shall be signed by an authorized representative of Respon-
dent Narragansett and posted immediately upon receipt
thereof: and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees customarily are posted. Reasonable
steps shall be taken b Respondent Narragansett to insure
that the notices are not altered. defaced. or covered hb an!
other material.
(f) Notify the Regional Director. in writing. within 20
dass from the date of this Order. what steps Respondent
Narragansett has taken to comply therewith.
B. The Respondent Local 69. Hotel and Restaurant Em-
plosees and Bartenders International Utnion, A.I'l, ('10. its
officers, agents. and representatives. shall:
i. ('ease and desist from:
(a) Maintaining in force and effect an arrangement. uln-
derstanding, and practice with Respondent Narragansett
whereby said Respondent Narragansett lavors union meil-
hers over nonunion enmploees with regard to pa rates.
vacation and waelf.re contributions, and emnplominent op-
portunities.
(b) In anv other manncer restraining or coercing emplo',-
ees in the exercise of the rights guaranteed them in Section
7 of the Act.
2. Take the follow ing atfirma ti,.e actiotn. which is neces-
sars to effectuate the policies of the Act:
(a) Jointl witih Respondent Narraganlsett Restaurant
Corp. make whole all inounion emploces; for any loss of
pas and benefits with interest in the manner set forth in the
section of this Decision entitled "l'he Remied3" b reason
of the discrimination predicated on their nonlembership in
the Union from July 19. 1976.
(b) Post at its business offices, hiring hall. and meeting
places copies of the attached notice marked "Appendix
B."52 Copies of said notice, on forms provided by the Re-
gional Director for Region 29. after being dul 5 signed bh its
authorized representative, shall be posted b\ it immedialtel
upon receipt thereof and be maintained hb it lfor 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to members customarils are posted.
Reasonable steps shall he taken by it to insure that said
notices are not altered. defaced, or covered b ann other
material.
(c) Deliver to the Regional Director for Region 29 signed
I In the event that this Order is entorced b a Judgment of a nited
States Court of Appeals, the words In the notice reading "Po.lted hE Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the UInited Stales Court o( Appeals [inircing an, Order of the Ni-
tional Labor Relatons Board"
"2 See fn. Sl abose
135
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
copies of said notice in sufficient numbers to be posted by
Respondent Narragansett Restaurant Corp. in all places
where notices to employees customarily are posted.
(d) Notify the Regional Director for Region 29. in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations in the con-
solidated cases as to which no violation has been found are
hereby dismissed.
APPENDIX B
N()TIF To MEMBERS
POS IlI) BY ORDER OF IIE
NAII()NAI LABOR REI.ATIONS BOARI)
An Agency of the United States (;overnment
WI: WII.L NOI maintain an arrangement. under-
standing, and practice with the Narragansett Restau-
rant Corp. whereby said Narragansett Restaurant
Corp. favors union members over nonunion employees
with regard to pay rates, vacation and welfare contri-
butions, and employment opportunities.
WE WILl. NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
Wti WlI.L, jointly with the Narragansett Restaurant
Corp., make whole all nonunion employees for any
losses of pay and benefits with interest by reason of our
discrimination predicated on union membership.
I.O)(AI. 69. Holl AND) RESIAURANI EMPIOYI+s
AND BARTENDERS INTERNAIIONAI. UNION. AFL
('10
136