Olive Garden

National Labor Relations Board - Board Decisions

Oct 30, 1998

327 N.L.R.B. 5 (N.L.R.B. 1998)

OLIVE GARDEN 5
Darden Restaurants, Inc., d/b/a the Olive Garden and
Kelly Sondeno. Case 27–CA–14737
October 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On December 9, 1997, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Darden
Restaurants, Inc., d/b/a the Olive Garden, Billings, Mon-
tana, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified below.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings.
In the absence of exceptions, we adopt the judge’s determination
that Koch’s instructions to supervisors to investigate and report union
activity did not violate the Act.
2 The Respondent has excepted, inter alia, to the portion of the
judge’s recommended Order directing the Respondent to post copies of
the notice at its Utah and Idaho restaurants, as well as at its Billings,
Montana restaurant. We find that the General Counsel has not pro-
duced sufficient evidence to show that the unfair labor practices at the
Billings facility were part of an established company policy or that
employees at others of the Respondent's facilities were likely to become
aware of them. Consequently, we find it unnecessary to require the
Respondent to post notices of its compliance with the Board’s Order at
any facility other than its Billings restaurant. Control Services, 314
NLRB 421, 421–422 (1994). Compare Beverly Enterprises, 310 NLRB
222 (1993), enf. denied in relevant part 17 F.3d 580 (2d Cir. 1994)
(corporatewide posting required where broad pattern of violations
directed by central management); Albertson's Inc., 307 NLRB 787,
788–889 (1992), enf. denied 8 F.3d 20 (5th Cir. 1993) (where similar
violations occurred during contemporaneous organizing drive of union
at two stores, posting of notice covering all violations ordered at both
stores given likelihood of employee awareness of all violations); Postal
Service, 303 NLRB 463 (1991), enfd. 969 F.2d 1064 (D.C. Cir. 1992)
(employerwide posting ordered in case finding unlawful policy en-
forced at one location because it was demonstrably an employerwide
policy). We shall also modify the judge’s recommended Order to con-
form with the violations found.
Member Hurtgen agrees that the Respondent's obligation to post a
notice should be limited to its Billings restaurant. He agrees that the
cases cited above are distinguishable. Accordingly, he does not pass on
the propriety of the order in those cases.
1. Substitute the following for paragraph 1(b):
“(b) Threatening employees that it was the Respon-
dent’s policy not to tolerate union activity in any of its
restaurants and that the Respondent will close any restau-
rant and fire all employees where union activity occurs.”
2. Delete paragraph 1(c) and reletter the subsequent
paragraph.
3. Substitute the following for paragraph 2(a):
“(a) Within 14 days after service by the Region, post at
its restaurant in Billings, Montana copies of the attached
notice marked ‘Appendix.’3 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since March 24, 1996. Excel Corp., 325 NLRB 17
(1997).”
4. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT interrogate our employees about their
union activities.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
327 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
WE WILL NOT threaten employees that we will not
tolerate any union activity and that we will close any
restaurant and fire all the employees where union activity
occurs.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

DARDEN RESTAURANTS, INC. D/B/A THE OLIVE
GARDEN

Andrea Kemp Floyd, Esq., for the General Counsel.
Keith A. Warren, Esq., for the Respondent.
DECISION
Introduction
ALBERT A. METZ, Administrative Law Judge. This case
was heard at Billings, Montana, on August 8, 1997.1 Kelly
Sondeno, an individual, has charged that Darden Restaurants,
Inc., d/b/a the Olive Garden (Respondent) violated Section
8(a)(1) of the National Labor Relations Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following findings of fact. The Respondent admits that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
I. BACKGROUND
The Respondent operates restaurants throughout the country.
One of Respondent’s divisions operates a restaurant in Billings,
Montana, one in Boise, Idaho, and five in Utah. At the relevant
time this division was headed by Director of Operations John
Koch. The Billings restaurant supervisory hierarchy consisted
of General Manager Myron Manthe and Assistant Managers
Jim Anderson, John Beckner, Vicki Damson, and Kathy Ywras.
II. MARCH 24 MANAGERS’ MEETINGS
On March 24 Koch held a managers’ meeting at the Billings
location. All managers except Ywras were in attendance. Ac-
cording to Koch he had a checklist of items that he went over
during the meeting. One topic of discussion concerned unions.
Koch told the managers that the AFL–CIO was commencing a
nationwide organizational drive that might include restaurants.
It was brought to Koch’s attention that Billings employee Kelly
Sondeno was an active union supporter for the Hotel and Res-
taurant Employees Union during an organizational campaign at
a Holiday Inn where she also worked. Koch told the managers
he would be interested in knowing the level of union activity in
Billings. He also cautioned them against discussing the matter
with Sondeno. Koch remembered a manager asking if the res-
taurant would close if a union organized the employees. Koch
testified he told the managers it would not.
Assistant Manager Jim Anderson testified Koch told the
group that he would close the restaurant if it was organized by a
union. Koch said they should investigate any union activity in
the restaurant and report anything they learned to General Man-
ager Manthe. Anderson denied that Koch had said not to speak
to anybody else about union activity.

1 All dates refer to 1996 unless otherwise stated.
Assistant Manager John Beckner recalled Koch asked if the
managers knew of anyone involved with a union and they told
him about Sondeno’s union activities. He recalled that Koch
was “dumbfounded” to learn of Sondeno’s union activism.
Koch said that they needed to know if there was any chance of
a union coming in the restaurant. Beckner testified the manag-
ers were instructed by Koch to report any findings to Manthe.
Beckner testified he asked what the management would do if a
union came into the restaurant. Koch replied that before they
would let a union come in they would close the store. The two
remaining managers in attendance at the meeting, Manthe and
Damson, did not testify at the hearing.
III. MANAGERS’ CONVERSATIONS WITH SONDENO
A. Anderson
On March 24, shortly after the managers’ meeting, Anderson
had a conversation with Sondeno. According to Sondeno, An-
derson asked her if she still had anything to do with unions in
Billings. She told him she was participating in a get out the vote
campaign and a minimum wage proposal. Anderson said that in
the managers’ meeting they had been told that the AFL–CIO’s
John Sweeney had an election year campaign to do more
organizing. Anderson said that it was the Respondent’s policy
not to tolerate any type of union activity in any of their restau-
rants. Anderson added that if a restaurant were organized or had
the threat of being organized, they would close it down and fire
the employees. He told Sondeno he did not want to lose his job.
Anderson testified that he asked Sondeno if she was still ac-
tive in organizing at the Holiday Inn. He also asked her if Koch
could close down the restaurant in the event of union organiz-
ing. Sondeno told him that he could not. Considering the de-
meanor of the witnesses and the greater detail of Sondeno’s
testimony, I credit her recollection of what was said in the con-
versation.
B. Beckner
Later on March 24 Beckner had a conversation with Son-
deno. Beckner inquired if Sondeno was still active in organiz-
ing at the Holiday Inn. She told him she was not but was work-
ing on a get out the vote campaign and minimum wage matters
on behalf of unions. According to Sondeno, Beckner asked her
if she thought there were any other of the Respondent's em-
ployees involved with union activity. She told him she did not
think so. Where there are discrepancies between Beckner and
Sondeno as to what was said during this conversation, I credit
Sondeno on demeanor grounds.
C. Discharge of Managers
A few days after the above conversations, Sondeno was in
Manthe’s office discussing an unrelated matter. At the meet-
ing’s conclusion she mentioned being interrogated by Anderson
and Beckner concerning her union activity. On April 4 Koch
and Manthe met separately with Anderson and Beckner. Koch
discharged both of them, allegedly for insubordination because
they had not followed his orders to refrain from questioning
Sondeno about her union activities.
In his meeting with Koch, Anderson admitted questioning
Sondeno but denied threatening closure of the restaurant. As
part of his Montana unemployment claim, Anderson filed a
statement which contained a reference to the restaurant closing
allegation. Anderson denied that he told an employee that Gen-
eral Mills (apparently Respondent’s parent company) would
OLIVE GARDEN 7
close the restaurant if it were organized by a union. “I had no
reason to tell this employee that General Mills would close
down the restaurant because we were told during the meeting
that General Mills would always remain open during a threat of
union organization.” (R. Exh. 1.) Considering the demeanor of
the witnesses, Anderson’s confused testimonial explanation of
his unemployment declaration, and the record as a whole, I do
not credit Anderson’s unemployment statement as being accu-
rate. Koch also testified that both Beckner and Anderson admit-
ted that he had said in the March 24 meeting they were not to
question Sondeno concerning union activity. Neither Anderson
nor Beckner conceded that Koch instructed them not to ques-
tion employees. Beckner reiterated to Koch that he had merely
told the managers to investigate union activity and report the
results to Manthe. Manthe, who was present during both the
Anderson and Beckner discharge interviews, did not testify.
IV. ANALYSIS
A. Threat to Close
In deciding whether Koch threatened to close the restaurant,
I find the demeanors of Anderson and Beckner were more per-
suasive than Koch’s I have already found above that shortly
after the meeting Anderson conveyed the closure threat to Son-
deno. In addition, Koch was not corroborated in his denial by
other of Respondent’s managers. Neither Manthe nor Damson,
both of whom were present at the March 24 meeting, were
called by the Respondent to testify as to what Koch said. Their
absence was not explained. Under the adverse inference rule
when a party has relevant evidence within its control which is
not produced, that failure may give rise to an inference that the
evidence is unfavorable to the party. Auto Workers v. NLRB,
459 F.2d 1329 (D.C. Cir. 1972). Such an inference is appropri-
ate in this case. I find that had Manthe and Damson testified
their testimony would have been contrary to Koch’s denial that
he threatened to close the Billings restaurant. International
Automated Machines, 285 NLRB 1122–1123 (1987). Consider-
ing the demeanor of the witnesses, the weight of the evidence
and the adverse inference, I find that Koch did threaten that if a
union came into a restaurant the Respondent would close that
location.
B. Instructions to Investigate Union Activity
The Government alleges that the Respondent violated the
Act when Koch instructed managers to investigate and report
union activity. No witness testified that more was said in this
regard. The managers did unlawfully implement those instruc-
tions by interrogating Sondeno and a remedy is provided below
for that action. However, an employer is not precluded from
gaining knowledge of union activity at its business. I find that
Koch’s general instructions to supervisors concerning investi-
gation of union activity did not violate the Act.
C. Statements to Sondeno
The Board has stated that the interrogation of an open and
active union supporter violates Section 8(a)(1) of the Act when,
under all the circumstances, the interrogation reasonably tends
to restrain, coerce, or interfere with employees’ rights guaran-
teed by the Act. Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. Hotel Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985).
While Sondeno was a union activist none of that activity in-
volved the Respondent. Anderson’s admitted interrogation of
Sondeno was accompanied by the threats that it was Respon-
dent’s policy not to tolerate union activity in any of their restau-
rants, the restaurant would be closed and the employees fired if
a union represented the employees. Such threats are clearly
coercive. Likewise, Beckner’s interrogation of Sondeno con-
cerning employees' union activities, particularly in the context
of the earlier Anderson interrogation and threats, is also coer-
cive. I find that the two interrogations and Anderson’s threaten-
ing statements are violations of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Darden Restaurants, Inc., d/b/a the Olive
Garden, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act.
3. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) of the Act, I recommend that it be required to cease and
desist therefrom and from in any like or related manner inter-
fering with, restraining, or coercing its employees in the exer-
cise of the rights guaranteed by Section 7 of the Act.
The Government seeks a notice posting at all seven of the
Respondent’s restaurants that were under Koch’s supervision.
Koch was the Respondent’s spokesman for his three state divi-
sion. The threat made by Anderson to Sondeno announced
Respondent’s zero tolerance for union organizing as well as the
consequence of closure of the restaurant if organizing occurred.
The publication of this policy regarding Koch’s division is a
serious threat to employees rights protected by the Act. In light
of the policy announcement by Koch that was conveyed to
Sondeno, I shall recommend the posting of notices in all seven
restaurants composing Koch’s division.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Darden Restaurants, Inc., d/b/a the Olive
Garden, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Threatening employees that the Respondent will not tol-
erate union activity, and will close any restaurant and fire all
employees where union activity occurs.
(c) Maintaining an announced policy of closing restaurants
where union activity occurs.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its di-
vision restaurants that were under the supervision of John Koch

2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommend
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
in Montana, Idaho, and Utah copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 27, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 24, 1996. Excel Corp., 325 NLRB 17
(1997).
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not specifi-
cally found.