Nicola'S

National Labor Relations Board - Board Decisions

Sep 26, 1990

299 N.L.R.B. 860 (N.L.R.B. 1990)

860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nicola's and Lawrence Leach. Case 32-CA-10373
September 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 26, 1990, Administrative Law Judge
Clifford H Anderson issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
opposition to the General Counsel's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record m light of the exceptions and briefs and has
decided to affirm the judge's rulings, findmgs, 1 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
' The General Counsel has excepted to some of the Judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law Judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
The judge stated that the meeting between Lawrence Leach and Rich-
ard Trot= occurred on March 18, 1989 The record is clear that the
meeting occurred in May This error, however, does not affect our deci-
sion
Georgae Velastequl, Esq , for the General Counsel
Thomas M Govacchuu, Esq , of Fresno, California, for
the Respondent
DECISION
,
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge I
heard this case in trial on October 2, 3, and 4, 1989, in
Fresno, California, pursuant to a complaint and notice of
hearing issued by the Regional Director for Region 32 of
the National Labor Relations Board (Board) on July 19,
1989, based on a charge docketed as Case 32-CA-10373
filed on June 1, 1989, by Lawrence Leach, an individual,
against Nicola's (Respondent or the Employer)
The complaint alleges that Respondent, on or about
May 18, 1989, issued a written disciplinary warning to
Leach and 5 days later discharged him because of his
protected concerted activities in seeking to change Re-
spondent's policy respecting cash shortages The General
Counsel alleges that this conduct violates Section 8(a)(1)
of the National Labor Relations Act (Act) Respondent
admits the disciplinary action as well as the discharge,
but contends the acts were predicated on reasons inde-
pendent of any activities of Leach protected under the
Act
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine and cross-examine witnesses, to argue orally, and
to file postheanng briefs
On the entire record, including helpful briefs from the
General Counsel and Respondent, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT'
I JURISDICTION
Respondent is a California corporation engaged in the
operation of a restaurant in Fresno, California Respond-
ent as part of its business operations annually enjoys rev-
enues in excess of $500,000 and annually purchases and
receives goods or services from outside the State of Cali-
fornia of a value in excess of $5000 The complaint al-
leges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent is a corporation wholly owned by Nicola
and Caroline Troiam—husband and wife Respondent
owns and operates Nicola's, a restaurant and bar, located
in Fresno, California The restaurant has been in business
for many years with Caroline Troiam remaining active m
its operation Richard Troiam (Troiam), son of the
owners, has been general manager since November 1,
1988 The supervisory staff at relevant times included
Assistant Managers Millie Ortiz, Dons Nicole, and Patti
Morgan
Respondent's employees are represented by a local of
the Culinary Workers and were covered by a collective-
bargaining agreement at relevant times This relationship
is not directly relevant to the issues in controversy, how-
ever, in as much as contract rights were not asserted by
any party, union membership was not mvolved, and the
Union was not contacted nor invoked by any party
Lawrence Leach was hired as a food server by Re-
spondent on or about March 7, 1989 2 His previous work
experience included restaurant and bar management
There is no dispute that in the first weeks of his employ-
ment Leach was an impressive employee On two occa-
sions up to mid-April, Richard Troia= discussed with
Leach the possibility of his promotion into management
with Nicola's Throughout his employment Leach was
concededly "a proficient waiter who knew his dunes and
was capable of training other employees" (R Br 35-36)
1 As a result of the pleadings and the stipulations of counsel at tnal,
there were few disputes of fact regarding collateral matters Where not
otherwise noted, the findings herein are based on the pleadings, the stipu-
lations of counsel, or unchallenged credible evidence
2 Unless otherwise specified, all dates are in 1989
299 NLRB No 137
NICOLA'S 861
B Leach's Activities Respecting Respondent's
"Shortage" Pohcies
At relevant times Respondent maintained a policy that
food servers make up from their own pockets cash short-
ages resulting from billing mistakes The shortages were
determined without consideration of overages on other
checks, if any The policy was apparently longstanding
having either originated with or been maintained and
supported by C Tromm In practice the shortages were
caught in the clencal process and referred back to the
server with the shortage and the amount owing noted on
the bill As perhaps might be anticipated, this policy was
not favored by employees, at least some of whom com-
plained of the policy and made it a practice not to pay
the shortages returned to them
Leach testified that he had been presented with "short-
ages" for payment and had generally complained of the
practice to other employees After Mother's Day—a
busy day in the restaurant—he was presented with sever-
al shortages and became more determined in his unhappi-
ness respectmg the policy Leach testified he spoke with
two other employees, Savage and MacChesney, over the
period of May 16 to 18, respectmg his mtention to raise
the shortage policy with Richard Tromm Tactics and
specific proposals were discussed among the employees,
a course of action was agreed on, and Leach was sent on
his way with good wishes
The critical conversation between Leach and Troiam
occurred on or about May 18 The versions of the con-
versation differ Leach testified that he approached
Tromm on the floor of the restaurant, away from the
customers, and asked to talk to him about Respondent's
rule that servers had to make up shortages on checks
Leach testified that he told Troll= he "had spoken with
a couple of the other wait staff and that we felt strongly
against the house policy" Leach then discussed alterna-
tives to the policy and gave his view that the policy was
an insult to the employees as well as being illegal Leach
testified that Tromm answered that the shortage walceup
policy was longstandmg, was his mother's policy, and
that he believed she would continue it Leach replied
that Troiam would have to talk to his mother about it
because the employees were "really upset" Leach re-
called that Troiam did not respond but rather became
visibly upset and walked away
Richard Tromm, who was present throughout the trial,
testified that the conversation descnbed by Leach in his
earlier testimony was more of an informal passing
remark than a conversation and did not stand out with
particulanty in his memory He testified that on a day
roughly in the period around May 18 on the restaurant
floor during lunch preparations, Leach approached him
with a comment, "I got a problem with your mother"
As the two continued walking, Troiam asked what the
problem was and Leach said that it was ridiculous that
he had a minuscule amount referred to him as a shortage
Troll= responded that Nicola's hoped to "account for
every penny and that's the way we do it here" Troiam
described the conversation as simply ending there and of
being of such minor consequence that he gave it little
thought at the time, discussed it with no one and recalled
it only durmg the Board proceedings Further, Tromm
testified that the Union had not challenged the shortage
rule so long as Respondent supplied employees with cal-
culators which, in fact, Respondent had done
C Other Events During Leach's Employment
with Respondent
Various events and circumstances mvolvmg Leach and
other employees were descnbed and characterized as rel-
evant to Leach's termination Some of these are de-
scribed below in chronological order
In mid-April, Leach and cocktail server Christine
Charters had a heated discussion at the restaurant after
the dinner hour in Richard Troiam's presence Charters
had not received what she perceived to be her proper al-
location of a table's gratuity from Leach Leach had
given her some 10 percent of the tip rather than the then
customary 15 percent because, in his view, her service
did not merit the full allocation The two were unable to
resolve their differences and the discussion took on some
heat Troiam intervened in the dispute telling the two
that employees should not talk to one another in that
fashion Later that day, Leach asked Tromm to modify
the tip allocation policy to reduce the cocktail server's
portion of the gratuity from 12 percent to 10 percent
Troiam agreed
In mid-April, Leach and cocktail server Charlene
Sharp argued heatedly over tip allocation Sharp sought
an accounting of Leach's transactions that evening which
request Leach refused Leach and perhaps Assistant
Manager Dons Noble brought the dispute to Troiam's
attention On May 6, Respondent held a mandatory
menu meeting for employees at which a new menu was
introduced and the new foods tasted and discussed Cer-
tain employees missed the meeting Troiam testified that
those employees who had obtained pnor permission to
miss the meeting were excused, but that two other em-
ployees missed the meeting without prior approval Mi-
chael Stafford and Lawrence Leach Troiam testified
that he prepared warning notices on May 8 for the two
employees suspending each for 2 weeks After preparing
the notices, however, Troiam determined to defer the de-
livery of the notices and the commencement of the sus-
pensions until the conclusion of the Mother's Day week-
end and the upcoming prom nights so that the restaurant
would not be shorthanded during those busy times Staf-
ford ultimately was issued the notice and served his sus-
pension Leach's notice was discarded as will be dis-
cussed, infra Leach testified that he had had pressing
personal business which prevented him from attendmg
the menu meeting and that he had discussed this fact
with Troiam prior to the meeting and had obtained
Tromm's permission to miss the meeting Tromm denied
this assertion
On May 13, after the dinner hour, Leach was using a
calculator in the wait station to tally his tickets During
this process, fellow server Louis Vargas arrived and
cleared Leach's entries in the calculator to use it himself
The result was that Leach's figures had to be reentered
Leach was upset by this and, apparently after Vargas
left, cursed him to fellow employee Jeff MacChesney
Vargas returned to the area and Leach, apparently un-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
aware of Vargas' return, again cursed Vargas to Mac-
Chesney using strong expletives MacChesney, while
complaining about Vargas and other servers' inadequate
spirit of cooperation, mentioned the Leach-Vargas events
to Troiam who later called Vargas at his home to con-
firm the facts including, pnmanly, the use of strong
Anglo Saxon epithets by Leach
Troiam testified that after learning of this final alterca-
tion, he tentatively decided to terminate Leach but that
he wanted to think on the decision and to consult with
Assistant Managers Noble and Ortiz Trounn then de-
stroyed the, as yet unissued, May 8 warning and suspen-
sion notice for Leach and prepared a new notice dated
May 18 This notice contained check box references to
(1) unexcused absence, (2) dissension with staff and cli-
ents, (3) verbal abuse, and (4) negative attitude The fol-
lowing entry appeared in the "explanation of offense"
Unexcused absence to mandatory meeting of new
menu, items, procedures and tasting (5/6/89) In-
creasingly negative attitude about customers, tips
and operations Also, run-ins with cocktail waitress-
es and complaint about tipping policies Due to the
fact that Larry [Leach] is still on his 90-day proba-
tionary period, we feel a week suspension and possi-
ble discharge are in order
Troiam testified he later discussed the matter with Ortiz
and Noble and they each agreed that Leach should be
fired Ortiz, however, told Tromm, in Troutm's recollec-
tion, to postpone any action until after the upcoming
prom night of May 20
Leach worked the evening of May 19, and had diffi-
culty with a table occupied by Richard Moorehouse and
his party Moorehouse complained to Troiam about
Leach's service Leach testified that Moorehouse was un-
reasonable and abusive Leach further testified that his
conduct was proper, if stiff, and that Moorehouse was
simply drunk and not to be pleased
On May 20, prom night, Leach entered tips on two
checks issued to student tables Leach testified he ob-
tamed permission to do so from Troiam and Noble
Without permission such an entry was against Respond-
ent's policy The next day two parents complained of the
tip entries on their children's bills Troiam testified he
was able to identify the waiter involved as Leach from
the descriptions given by the parents
Leach did not work on May 21 or 22 When Leach
came to work on May 23, he was brought to the office
and given the May 18 written warning and terminated
Leach complained of the severity of his punishment
given his lack of previous warnings No accommodation
was reached The conversation ended and Leach left
Leach has not been offered reinstatement
D Analysis and Conclusions
1 The position of the parties
The General Counsel argues that Leach was a promis-
ing employee until he complained on behalf of himself
and his fellow employees about Respondent's shortage
policy after which he was quickly discharged Thus, the
General Counsel compares and contrasts the praise and
encouragement given Leach initially with his—in the
General Counsel's view—precipitous fall from grace and
ultimate termination followmg hard upon his complaints
to Troiam about the shortage policy
The General Counsel also attacks Respondent's assert-
ed reasons for Leach's warning and discharge as pretext
designed to cloak Respondent's true illegal motive Thus,
the General Counsel offers the testimony of Leach chal-
lenging, inter aim, Troiam's versions of the May 18 con-
versation, the May 6 menu meeting circumstances, and
the events of May 19 and 20 The General Counsel fur-
ther urges that I draw adverse inferences from Respond-
ent's failure to call Assistant Managers Ortiz and Noble
as witnesses to corroborate the testimony of Troiam that
he discussed Leach's suspension and termination with
them Further, the General Counsel argues that Re-
spondent's defenses were shifting and inconsistent and
that Respondent's treatment of Leach was disparate com-
pared to its treatment of other employees in similar cir-
cumstances
Respondent argues that, even if Leach's complaints re-
specting Respondent's shortage policy were concerted
and hence protected activity, Troiam simply took little
note of Leach's inarticulate complaints They were of no
consequence to Troiam and certainly were not a factor
in Respondent's subsequent treatment of Leach Rather,
argues Respondent, while Leach was at all times a good
server with previous restaurant and bartendmg manage-
ment experience, over time it became apparent to Re-
spondent's management and Troiam in particular that
Leach could not get along with either staff or customers,
as evidenced by the events described above This simple
fact combined with the fact that Leach was a new em-
ployee in his probationary period led to management's
reappraisal of him and his ultimate discharge Thus,
counsel for Respondent argues on brief, it was not so
much a single event or even one or two events which
caused Troiam to come to believe that Leach should be
fired Rather, Troutin over the period observed that
Leach was having regular run-ms with staff and was reg-
ularly hostile to customers who were not satisfactory
from his perspective Trouun, in this analysis, did not so
much concern himself with the rights or wrongs of any
particular event but rather the growing sum of problems
Leach was experiencing with others
2 Leach's complaint as protected concerted activity
I credit Leach's uncontradicted testimony (1) that he
discussed Respondent's shortage policy with other em-
ployees, (2) that they discussed the problem with him,
and (3) that they wished him luck in his announced in-
tention to raise the matter with Troiam Such employee
consultation and planning rendered Leach's subsequent
complaints concerted as noted by General Counsel citing
on brief Adelphi Institute, 287 NLRB 1073 (1988), and
Daly Park Nursing Home, 287 NLRB 710 (1987)
Whether or not Leach's concerted conduct was pro-
tected turns on the question of whether or not Troiam
knew or reasonably should have known that Leach was
in fact acting concertedly New England Fish Co, 212
NICOLA'S fi63
NLRB 306 (1974) On the facts of this case, the question
turns on which version of the March 18 conversation be-
tween Leach and Troiam is credited If Leach told
Troiam he had talked to other employees and they
agreed with him on the policy, Respondent is charged
with the knowledge of the concertedness underlying
Leach's complaints If Troiam's version of the conversa-
tion is credited, there is no basis to charge Respondent
with knowledge of Leach's concerted activities
Turning to that narrow question, I credit Leach over
Troiam and find that Leach told Tromm that he "had
spoken with a couple of the other wait staff and that we
felt strongly against the house policy" I credit Leach
largely because Tromm admitted paying little attention
to Leach's remarks at the time and could not recall
either the date or the specifics of the conversation
Leach on the other hand recalled the conversation in
detail and with conviction Inasmuch as I do not believe
either individual deliberately nustestified regarding the
conversation, I credit Leach's clearer recollection
Having found that Leach told Troiam that other employ-
ees had been consulted on the matter, I find that Re-
spondent is at the very least charged with constructive
knowledge that Leach's activities were concerted
Therefore, I find Leach's conduct protected
3 Was Leach's protected activity responsible for his
suspension and/or discharge'?
The parties were well aware of the Board's standards
in discharge cases of this type, Respondent citing both
Wright Line, 251 NLRB 1083 (1980), and NLRB v
Transportation Management Corp, 462 U S 393 (1983),
on brief If the General Counsel meets his burden of
proof of establishing a prima facie case that an employee
was discharged because of protected activities, the
burden of proof shifts to the employer to demonstrate
that the employee would have been discharged in all
events irrespective of the protected activity
In the instant case, the General Counsel relies most
heavily on circumstantial evidence such as the timing of
events to establish his prima facie case The cases ably
marshalled by counsel for the General Counsel on brief,
as well as a host of other Board and court cases, find
such indirect and circumstantial evidence appropriate
and at least potentially sufficient to sustain the prosecu-
tion's burden of proof It is often impossible otherwise to
establish the subjective motivations of an employer
taking adverse action against an employee The General
Counsel also supports this case by attacking Respond-
ent's defense that misconduct was the basis for Respond-
ent's actions against Leach Thus, the General Counsel
argues Respondent's reasons for Leach's suspension and
discharge were either insufficient or pretext Further, the
General Counsel argues that many of the contentions of
R Troiam at the hearing were not corroborated by other
supervisors, who were available as witnesses but were
not called by Respondent
Against this argument, Respondent argues the credibil-
ity of R Troiam, who denied Leach's protected activity
was a factor in the actions against him and who de-
scribed a pattern of conduct by Leach, in the incidents
noted above, which over time convinced Troiatu that
Leach should be discharged Respondent further argues
the unlikelihood that Leach's complaints respecting the
shortage policy—even conceding arguendo Leach's ver-
sion of the March 18 conversation—would have logical-
ly been of any significance to Troiam at all, let alone of
much importance as to cause Leach's subsequent dis-
charge
I have considered the record as a whole on the ques-
tion with particular reference to the testimony of Leach
and Richard Troiam For the reasons set forth, infra, I
have determined that the General Counsel has failed to
sustain the allegations of the complaint that Leach was
discriminated against in any way because of his protected
activity of complaining about Respondent's shortage
policy In reaching this conclusion, I have assumed that
the General Counsel has established his prima facie case
and that the burden of proof has shifted to Respondent
Even in such a circumstance, I find no violation of the
Act as alleged
The primary aspects of this case which command the
result reached follow from my evaluation of the testimo-
ny of Richard Troll= First, I am unable to accept the
General Counsel's main contention that the May 18 com-
plaints of Leach would likely have generated the animus
in Troiam necessary to cause him to, in effect, turn
against and soon discharge the previously favored Leach
solely because of his complaints on May 18 The conver-
sation in either version was simply too low key and
Tromm's reaction, both then and after, too benign to
carry the load the General Counsel would place on it
Leach himself believed up until this conversation that
Tromm was not hostile to his suggestions and, indeed,
was willing to listen to and act upon his recommenda-
tions respecting policy changes The General Counsel
suggests on brief that the shortage policy involved Re-
spondent's revenues and, hence, was forbidden territory
for Leach I find the argument farfetched The sums in-
volved in Leach's example to Troiam were small and
there was no suggestion that large sums of money are in-
volved m the policy in any event I similarly reject any
contention that the reference to Troiam's mother would
have put Leach in jeopardy Having observed Troll=
through his substantial testimony and, in particular,
during his testimony concerning the March 18 conversa-
tion and its sigtuficance to him and his reaction to it, I
credit his testimony that Leach's remarks were not sig-
nificant to him and that he took no further note of them
I further credit Troy:miss testimony that the conversation
was simply not the basis of any animating hostility to
Leach
Second, the General Counsel's theory of the case re-
quires that I find that Troiatu engaged in a pattern of
deceit and falsification to generate a pretext to fire
Leach Thus, the General Counsel's theory that Leach
was perceived as being of star quality until March 18, re-
quires a rejection of all Respondent's contentions that
Leach's conduct before that time was becoming unsatis-
factory Under the General Counsel's theory, Troutm's
written warning and suspension of Leach—as testified to
by Troiam—prepared on May 8, as well as the unex-
cused absence on May 6 must have been concocted on
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or after May 18 and the events manipulated or misper-
ceived by Troiam in order to create an excuse for ad-
verse action against Leach Based in significant part on
my credibility resolutions including my favorable impres-
sion of the demeanor of Troiam, I credit his denials that
he engaged in such a pattern of conduct 3
Third, and finally, for similar reasons, I do not believe
that Troiam, if he had decided to take adverse action
against Leach because of the May 18 complaint, would
have gone to the lengths the General Counsel's theory
suggests to conceal his motive I credit Troiam that he
did not realize that Leach's conduct on May 18, was
protected The corollary of this finding is that Troiam
did not realize that he could not legally fire Leach for
his complaint Thus, Troiam ivould not have believed he
had a reason to conceal his niotives Therefore, if he had
in fact fired Leach for his complaint, he would likely
have told Leach so or at the very least would not have
attempted to conceal his actions by the manufacture of
pretexts as the General Counsel contends
The General Counsel's arguments and evidence are
not so much rejected as found insufficient The record
reflects, as the General Counsel points out on brief, in-
consistencies in Respondent's defense Tromm testified to
several important conversations with his fellow supervi-
sors which were not corroborated by those individuals,
even though no suggestion as to witness unavailability
was made Counsel for the General Counsel correctly
argues that I may make a variety of adverse inferences
and findings on indirect evidence in these regards I
agree with the General Counsel that the timing, incon-
sistencies, and inferences had the potential to carry the
3 Where necessary I discredit contrary, inconsistent testimony, such as
Leach's assertion that he got permission from Trolam to miss or be late
to the menu meeting Leach's demeanor simply did not match Troiam's
case for the General Counsel were I less taken with the
credibility of Tromm The inferences and findings ad-
vanced by the General Counsel, however, are permissive
rather than mandatory On this record, I simply decline
to draw them because of my conviction, described supra,
that Troiam had neither the animus to initiate adverse
action against Leach because of his March 18 protected
concerted activity, nor the scienter necessary to cause
him to attempt to conceal his motivation for that action
I have weighed the General Counsel's case against this
conviction and found it lacking Accordingly, I find the
General Counsel has failed to sustain the allegations of
the complaint and I shall recommend dismissal of the
complaint in its entirety
On the basis of the above findings of fact and on the
entire record, I make the following
CONCLUSION OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 Respondent did not violate the Act as alleged in the
complaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The complaint shall be dismissed
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses