Original Oyster House

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 87 (N.L.R.B. 1984)

ORIGINAL OYSTER HOUSE
Louton, Inc. t/a The Original Oyster House and
Dolores DeGeer. Case 6-CA-15962
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 29 September 1983 Administrative Law
Judge James T. Youngblood issued the attached
decision. The Respondent filed exceptions and a
supporting brief on 24 October 1983 and the Gen-
eral Counsel filed cross-exceptions and an answer-
ing brief on 17 November 1983.
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 in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found violations of Section 8(aX1) of
the Act by the Respondent's reduction of hours of
three employees' and by its discharge of two em-
ployees.2 The judge also found that an interview of
one employee by the Respondent and the Respond-
ent's attorney immediately prior to the employee's
giving testimony at a Board hearing violated Sec-
tion 8(aXl) of the Act because the Respondent
failed to give adequate assurances to the employee
that no reprisals would take place.3 The judge dis-
missed complaint allegations that the Respondent
had instructed its employees to refrain from dis-
cussing matters of mutual aid and protection and
that the Respondent had imposed more onerous
working conditions on Dolores DeGeer. The Re-
spondent has excepted to the judge's findings of
8(a)(1) violations and the General Counsel has ex-
cepted to the recommended dismissal of the two
complaint allegations.
We agree with the judge's findings of 8(aXl) vio-
lations and his conclusion that the evidence was in-
sufficient to establish that the Respondent had in-
' The judge's finding of reduction of hours s supported by the Re-
spondent's exhibits of employee payroll records. The "gross fluctuations"
referred to by the Respondent are in fact minimal and the judge's conclu-
sions regsrding hours worked specifically cite the Respondent's payroll
records and do not rely on the recollections of employees
' The judge found inter liah that the Respondent violated Sec. 8(aXI)
by discharging or constructively discharging Dolores DeOeer. We find
in the circumstances here that the Respondent's cancellation of DeOeer's
schedule in its entirety constituted a discharge. Hence we do not adopt
his alternative finding that DeOeer was constructively discharged.
a In adopting the finding of this violation we rely on the fact that
statements of a clearly coercive nature were made to the employee by
the Respondent during the interview and therefore we find it unnecessary
to rely on the judge's rationale under Johnnle's bultry Co., 146 NLRB
770 (1964).
270 NLRB No. 9
structed its employees to refrain from discussing
matters of mutual aid and protection.
We disagree with the judge's finding that the
record evidence fails to establish that the Respond-
ent imposed more onerous working conditions on
Dolores DeGeer. Witnesses for both the Respond-
ent and the General Counsel testified that in late
October 1982 new work rules were imposed requir-
ing that work stations be assigned by supervisors
and be rotated among waitresses. Undisputed testi-
mony also establishes that Dolores DeGeer was as-
signed only the least desirable work station,
number 3, and that she alone among the waitresses
was not rotated. There is no evidence or assertion
that Dolores DeGeer was less capable of handling
the other work stations (in fact the opposite was
established). We find that the assignment of Dolo-
res DeGeer to work only station 3 and the failure
to rotate her to the more favorable work stations in
the circumstances here constitute the imposition of
more onerous working conditions in violation of
Section 8(aX1) of the Act.
Accordingly we shall adopt the judge's recom-
mended Order to the extent it finds violations of
Section 8(aXl) of the Act except that we shall
modify it to reflect the finding that the Respondent
imposed more onerous working conditions on Do-
lores DeGeer in violation of Section 8(aXI) of the
Act and to include narrow rather than broad cease-
and-desist language.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Louton, Inc. t/a The Original Oyster
House, Monroeville, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
I. Substitute the following for paragraph 1(c).
"(c) Discharging its employees, removing its em-
ployees from its work schedule, or otherwise alter-
ing its employees' working conditions because they
engaged in protected concerted activity."
2. Insert the following as paragraph l(d) and re-
letter the subsequent paragraph.
"(d) Imposing more onerous working conditions
on its employees because of their protected con-
certed activities."
3. Substitute the following for paragraph l(e).
"(e) In any like or related manner interfering
with, retraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act."
4. Substitute the attached notice for that of the
administrative law judge.
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their protected concerted activities guaran-
teed them by Section 7 of the Act.
WE WILL NOT reduce the working hours of our
employees because of their protected concerted ac-
tivities guaranteed them by Section 7 of the Act.
WE WILL NOT impose more onerous working
conditions on our employees because of their pro-
tected concerted activities.
WE WILL NOT discharge our employees, remove
our employees from our work schedules, or other-
wise change the working conditions of our employ-
ees because of their protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Dolores DeGeer and Doreen
DeGeer Dunmire immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any net in-
terim earnings, plus interest.
WE WILL make whole, with interest, Dolores
DeGeer, Doreen DeGeer Dunmire, and Denise
DeGeer Churchel for any loss of earnings they
may have suffered as a result of our reduction of
their hours.
LOUTON, INC. T/A THE ORIGINAL
OYSTER HOUSE
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
The complaint which issued on February 1, 1983, and
was amended at the hearing, alleges that Louton, Inc. t/a
The Original Oyster House (herein the Respondent) re-
taliated against its employees because its employees en-
gaged in concerted activities with each other and other
employees for the purpose of mutual aid and protection,
in violation of Section 8(aXl) of the Act. The Respond-
ent filed an answer admitting certain allegations of the
complaint but denying the commission of any unfair
labor practices. This matter was tried before me on May
3, 24, and 25, 1983, in Pittsburgh, Pennsylvania. Follow-
ing the hearing the parties submitted posttrial briefs
which have been duly considered.
On the entire record, from my observation of the de-
meanor of each witness while testifying, and having con-
sidered the briefs filed herein, I make the following
FINDINGS AND CONCLUSIONS'
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation en-
gaged in the operation of public restaurants selling food
and beverages. The Respondent admits, and I find, that it
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
Only the Respondent's restaurant facility located in
Monroeville, Pennsylvania, is involved in this proceed-
ing. The employees at the Respondent's Monroeville fa-
cility are not represented by any labor organization and
no labor organization is involved in this proceeding.
The record clearly shows that the most senior waitress
at the Respondent's Monroeville facility is Charging
Party Dolores DeGeer (herein DeGeer) who was hired
on May 10, 1976. DeGeer has five daughters who,
during the course of the Charging Party's employment
with the Respondent, were employed by the Respond-
ent. The five daughers are Debbie DeGeer, Dana
DeGeer, Diane DeGeer Hill, Denise DeGeer Churchel,
and Doreen DeGeer Dunmire. The record also adequate-
ly demonstrates that DeGeer, the Charging Party, was
considered by the daughters as well as other employees
at the Monroeville facility to be the natural leader and
the person to whom they brought their problems and
complaints so that she could intercede on their behalf
with management. There is little doubt that there existed
a special relationship between Charging Party DeGeer
and the management of the Respondent evidenced by the
fact that the Respondent employed all five of her daugh-
ters at its Monroeville facility.
Diane DeGeer Hill was employed by the Respondent
as a waitress at the Monroeville facility from November
13, 1980, until she resigned on October 16, 1982. Hill
credibly testified that on April 9, 1982,2 Good Friday,
she arrived at work between 3:30 and 4 p.m., approxi-
mately an hour or so prior to her 5 p.m. scheduled start-
ing time. Hill had arrived early so that she might obtain
something to eat prior to her shift, as Good Friday was a
very busy day and she knew she would not get a break.
While sitting at a table in the rear of the restaurant she
1 The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and inherent probability. Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant. Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired I will set forth specific credibility findings.
I Unless otherwise specified, all dates refer to 1982.
88
ORIGINAL OYSTER HOUSE
ordered a fish sandwich from waitress Tiana Leyland
which was paid for by Hill. While she was eating Benny
Pettica, the Respondent's manager, who is entrusted with
the responsibility of supervising and operating all the Re-
spondent's restaurants, approached Hill in the crowded
restaurant and using profanity told her to go to some
other restaurant, he did not want her business. Hill said
she was sorry, that she did not realize she was not al-
lowed to eat in the restaurant. Hill stood up and left the
restaurant as Pettica had ordered her to do. According
to Hill, she immediately came back because she had for-
gotten her purse and told Pettica that he could "shove it
up his ass" because she did not need this job. Hill left the
restaurant and did not work either April 9 or April 10.
On April 10, Hill received a telephone call from Supervi-
sor-Manager s Donald Loporfito, who asked her if she
had quit her job and, when she responded that she had,
Loporfito asked her if she was coming back. Hill reluc-
tantly agreed to return to work, explaining that her hus-
band was laid off and she needed the money. She report-
ed to work the following Monday, April 12. It is uncon-
troverted that other than the conversation of Loporfito
asking Hill to return to work no member of management
ever spoke with Hill about the incident nor was she ever
disciplined in any way as a result of the confrontation.
During the week following her return to work, Hill
discussed the incident among the employees, including
her mother and her sisters, and following these discus-
sions arrangements were made with management for a
meeting where they could sit down and discuss the em-
ployees' problems.
On April 21, a meeting was held at the Monroeville
facility as requested by the employees. The management
representatives at the meeting included President Louis
J. Grippo, Pettica, Loporfito, and Assistant Manager Pat
Parme. The employees present at the meeting included
DeGeer, Churchel, Dunmire, Hill, Sue Rohrbaugh, Lor-
raine Kalbaugh, and Tiana Leyland.
At this meeting the employees were assured by Presi-
dent Grippo that they could speak freely without fear of
reprisals. DeGeer, the primary spokesperson for the em-
ployees, advised Grippo that they were there to talk
about Bennie Pettica's foul mouth in the restaurant and
his treatment of waitresses while they were on duty, es-
pecially in front of customers. Diane Hill related to
Grippo the incident which had occurred with Pettica on
Good Friday. Pettica called Hill a liar and stated that
she had used profanity with him first, either calling him
a "mother fucker" or telling him to "get fucked." The
waitresses jumped up and responded that Pettica was
lying. DeGeer, Hill, Rohrbaugh, Churchel, and Dunmire
each spoke out concerning incidents between themselves
and Pettica. All of the witnesses agreed that employee
Tiana Leyland did not speak out at this meeting. Grippo
informed the employees that he did not want this type of
conduct in his restaurant from the employees or from
Pettica. He emphasized that Pettica was their boss and it
was important for them all to get along. The employees
I Although the Respondent denies Loporfito's agency status, this
record adequately demonstrates that Loporfito is a supervisor and agent
of the Respondent.
then brought to Grippo's attention certain other matters
concerning the operation of the restaurant which they
felt were deficient such as the quality and quantity of the
food and problems with service. The meeting lasted
about an hour and a half. It appears that, prior to April,
meetings between the employees and management were
held on a regular basis several times a year. However, no
meetings were held between management and the em-
ployees thereafter.
The complaint alleges that, in April, the Respondent's
employees began to concertedly complain to the Re-
spondent about wages, hours, and working conditions;
that, since April, these employees engaged in other forms
of concerted activities in that they requested the Re-
spondent to meet with the employees concerning wages,
hours, and working conditions; and that, in late October
or early November, they requested the Respondent to
meet and complained to the Respondent concerning the
reduction of hours of employees. The complaint further
alleges that, as a result of the continued complaints and
other concerted activities on behalf of the Respondent's
employees, the Respondent reduced the hours of em-
ployees Delores DeGeer, Doreen Dunmire, and Denise
Churchel; that in mid-October the Respondent instructed
employees to refrain from discussing matters of mutual
aid and protection; that in late October the Respondent
imposed more onerous working conditions on Dolores
DeGeer; that thereafter on October 19 the Respondent
removed Doreen Dunmire from its work schedule; and
that on November 19 the Respondent removed Dolores
DeGeer from its work schedule.
In support of these charges the General Counsel called
Dolores DeGeer and her daughters to testify along with
certain other employees of the Respondent.
The record reflects that, around June 1, the Monroe-
ville facility began offering breakfast for the first time.
This resulted in an extension of the operating hours of
the restaurant and changes in the schedules of certain
employees. Prior to the institution of breakfast on June 1,
Dolores DeGeer had worked throughout the course of
her employment a regular schedule from 10:30 a.m. until
5 p.m., Monday, Tuesday, Wednesday, Friday, and Sat-
urday. During that time she performed all of the setup
work for the restaurant. According to the uncontradicted
and well-corroborated testimony of DeGeer, following
the institution of breakfast she began to work a regular
schedule from 11:30 a.m. until 5 p.m. Two other employ-
ees worked from 8:30 a.m. until 3:30 p.m. and 9 a.m.
until 4 p.m. Thus, DeGeer's schedule was reduced I
hour per day. The complaint does not allege this reduc-
tion in work as a violation. On July 26, DeGeer entered
a hospital for repair work on a disc in her back. She was
discharged from the hospital on August 4, and was not
to return to work for 30 days. Thereafter, sometime
prior to September 4, DeGeer went to the restaurant and
spoke with Benny Pettica. She informed him she was
able to return to work and requested that he put her on
the schedule. She explained she wanted to start out
working only a couple of days a week until she saw how
she was feeling and could determine whether she could
handle the work or not. Pettica agreed. The first week
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back DeGeer worked a Friday and a Saturday and the
next week she was scheduled to work Monday, Friday,
and Saturday. According to the uncontradicted testimo-
ny of DeGeer, that is the schedule she continued to
work until she was removed from the schedule in No-
vember. She testified that after working the reduced
schedule for several weeks she complained to Pettica and
told him that she was feeling good and could handle a
full 5-day schedule. Pettica said he could not take care of
this for her and told her she would have to speak to
Grippo. She explained that she had already called
Grippo to speak with him and that he had never re-
turned her calls. Pettica suggested that she call Margaret
Jean Faust, the secretary and Grippo's sister. DeGeer
did so and Faust responded that she should have a doc-
tor's certificate stating that it was all right for her to
return to her regular schedule. DeGeer complied with
this request. She obtained a doctor's certificate which
certified that she had recovered sufficiently to return to
her regular duties on September 21.
In the latter part of September or early October,
DeGeer approached Loporfito and requested a meeting
with management. The reason for this request was be-
cause of the alleged reduction in hours and scheduled
days suffered by DeGeer and others, and because the in-
dividual requests for an explanation to Loporfito had
been unsuccessful. As indicated earlier no meeting was
held.
After the restaurant began serving breakfast in June,
DeGeer would have breakfast in the restaurant each
morning before she began to work. One day in mid-Oc-
tober DeGeer was having breakfast prior to the start of
her shift while employees Kalbaugh and Leyland were
on duty. They were not busy and they were talking to
DeGeer. They were discussing DeGeer's cut in hours
and the fact that she was unable to make a living because
she was not given a 5-day schedule as she had before her
illness. DeGeer testified that she and the other waitresses
frequently discussed matters such as schedules, hours,
and other matters of mutual concern while she was
having breakfast and as she spoke very loudly she was
certain that Loporfito had heard their discussions many
times. On this particular occasion in mid-October, Lo-
porfito overheard their conversation as he approached
the table where DeGeer was sitting and speaking to Kal-
baugh and Leyland. According to the uncontradicted
testimony of DeGeer, Loporfito addressed Leyland and
Kalbaugh stating, "I do not want you talking to Dolly;
stay away from her here; don't go near her." After the
waitresses walked away, Loporfito told DeGeer, "I don't
want you talking to the waitresses anymore; don't talk to
anyone."
Following this occurrence in mid-October, manage-
ment announced new rules which prohibited employees
from eating any meals at the facility; prohibited them
from being in the facility more than 5 minutes before
scheduled to punch in; and required them to leave the fa-
cility immediately after their schedule was completed.
The rule provided for 3 days' suspension for violation.
In late October, DeGeer checked the work schedule
and observed that her daughter Doreen Dunmire was
not scheduled to work the same number of days that she
had been working in the past. Her schedule had been cut
down to 2 days a week. DeGeer was upset because her
daughter Doreen was scheduled to be married on No-
vember 13 and, as DeGeer's hours had been cut, she
would be unable to assist her daughter Doreen in paying
for the wedding." She approached Loporfito and stated,
"Don, why are you cutting everybody's hours; what is
going on? ... Why would you do this to Doreen?" Lo-
porfito shrugged his shoulders. On October 19, Doreen
Dunmire worked her last day as she was removed from
the schedule by the Respondent.
According to the concensus of the General Counsel's
witnesses, prior to late October or early November the
Respondent had no policy with regard to the assignment
of work stations for the waitresses. It appears that this
was worked out among the waitresses and throughout
the course of her employment, prior to September, Dolo-
res DeGeer worked station I in the front of the restau-
rant. This station was preferred by DeGeer and her
daughter Denise Churchel because it was the busiest sta-
tion and provided the best opportunity for tips. This
record clearly shows that from the time DeGeer re-
turned to work after her illness she worked the back sta-
tion and was never returned to work in the stations in
the front of the restaurant. While initially there may
have been some reason for this because DeGeer had re-
quested light duty, certainly after she presented her doc-
tor's certificate on September 21, indicating that she
could return to full duty, there was no reason the Re-
spondent could not have returned her to the front station
as she requested.
The testimony of the General Counsel's witnesses indi-
cates that, in the latter part of October, Manager Lopor-
fito announced to the waitresses that they could no
longer pick their own stations. He informed them that he
would designate each morning the station where each
waitress was to work. From that time forward Loporfito
would designate each morning at 9 a.m. where the wait-
resses were to work. Unlike the other waitresses whose
stations were in fact rotated on a daily basis, DeGeer's
station was never rotated and she remained at the back
station throughout the last day of her employment. She
requested to be off on Saturday, November 13, to attend
the wedding of her daughter Doreen Dunmire. The next
week she was not scheduled to work her Saturday, No-
vember 20, and was thereafter reduced to 2 days per
week. On November 19, DeGeer reported to work at
noon as scheduled. The restaurant was very busy at that
time and DeGeer asked her daughter Denise Churchel
which station she was assigned to work. Her daughter
told her to work station 2. DeGeer worked station 2 and
as time passed she realized there must be a problem be-
cause Loporfito was pacing the floor and watching
every move she made. It was not until she took a break
at 3 p.m. that she learned from employee Lorraine Kal-
baugh that she was supposed to work station 3 in the
back and not station 2. At 3:30 p.m. Mary Wakefield ar-
rived to relieve Tiana Leyland and at this point Lopor-
fito instructed Wakefield to take station 2 from DeGeer
and instructed DeGeer to take station 3 in the back.
There is no question but that November 19 was the last
90
ORIGINAL OYSTER HOUSE
day that DeGeer worked at the Respondent's facility.
There is also nothing in this record to indicate that man-
agement ever reprimanded DeGeer or informed her that
she was being suspended or that she had been taken off
the schedule as a result of this incident on November 19.
On November 21, DeGeer went into the kitchen of
the Respondent's facility where the schedules are posted
in order to see the schedule for the following week.
DeGeer stopped by on Sunday because she was no
longer working Saturdays and she wanted to check the
work schedule. She said that she and her daughter
Denise Churchel were not scheduled for work that
week. Once her name was removed from the schedule
she did not contact the Respondent any further.
Doreen DeGeer Dunmire was first employed by the
Respondent as a waitress on July 26, 1978, and worked
for the Respondent until October 19. Dunmire is one of
the daughters of Dolores DeGeer and was one of the
employees present at the Good Friday meeting on April
9. Prior to September, Dunmire worked 4 to 5 nights per
week from 5 until 11 p.m. and always worked on the
weekends. Beginning in September, she observed that
her hours and her days were cut back progressively
until, after October 19, she was no longer on the sched-
ule. In September, Dunmire approached Loporfito and
asked him why her days and hours were being cut. He
told her that there were some new girls and that he had
to give them some hours. Dunmire testified that no su-
pervisor or member of management had ever told her
that she was being taken off the schedule or why she
was taken off the schedule. She testified that, on the
Sunday following October 19, she called in to get her
schedule and was told that she was only working on Sat-
urday. She relayed this to her mother, Dolores DeGeer,
who told her that she had checked the schedule and she
was not on the schedule at all. Because Dunmire had re-
ceived conflicting information she went to the Monroe-
ville facility herself and checked the schedule. She con-
firmed that she was in fact not on the schedule at all for
the following week. Dunmire testified that approximately
2 weeks before October 19 she overheard Pettica and
Loporfito talking at the bar approximately 4 feet away
from where she was getting her drinks. She testified cre-
dibly that Benny Pettica told Don Loporfito, "I want
Doreen DeGeer out of here, out of the Oyster House,
within 2 weeks."
Employee Susan Rohrbaugh testified that she had been
employed by the Respondent since October 1979. She
testified credibly that 2 days prior to the hearing in this
matter on May 1, 1983, she received a telephone call at
her home from Andrew Schifino, the Respondent's coun-
sel in this matter. She testified that Schifino stated that
he understood that she had been subpoenaed for this
hearing on Tuesday. She stated that was correct and he
asked her if she knew why she was being subpoenaed.
When she said she had a general idea Schifino asked if
she would meet with him. She agreed to meet with him
at 3 p.m. at the Oyster House in Monroeville as pro-
posed by Schifino. At no time during this telephone con-
versation did Schifino explain to her the purpose of the
proposed meeting or why he wanted to speak with her.
He gave her no assurances that her attendance was vol-
untary and no assurances that there would be no repris-
als or that her job was not in jeopardy. He did not
inform her that any other person would be present at the
meeting nor did he explain that he wanted to speak with
her in order to prepare for the unfair labor practice hear-
ing.
Rohrbaugh met Schifino at the Oyster House at 3 p.m.
Also present were Respondent President Grippo and
Manager Pettica. According to Rohrbaugh, the meeting
lasted about 3 hours. Rohrbaugh credibly testified that
during this interrogation Grippo told her that, if her tes-
timony should be favorable to him, he could not promise
her either her job back as it had been before or more
hours. He also stated that he wanted to let her know
"that he thought that Denise Churchel was very much
mistaken, that she could come here and give testimony
because her job was protected and that he, in turn, could
fire her tomorrow if he wanted to but, in fact, she was a
very good waitress and he had no reason to let her go
but, if he wanted to he certainly could and that he felt
that she would not be there after this trial was over, that
she would quit." Rohrbaugh testified that during this
time Grippo took a small tape recorder out of his pocket,
placed it on a table, and pointed out to her that it was
not on.
Discussion and Conclusions
This record adequately demonstrates that, as early as
April at the Good Friday employee-employer meeting,
the employees aired their grievances and complaints to
the Respondent. They complained about Manager Pet-
tica and his foul mouth to Respondent President Grippo,
who reprimanded Pettica and the waitress involved.
Throughout the period from April until November, the
waitresses at the Monroeville facility continued to dis-
cuss their problems and complaints of the Monroeville
restaurant among themselves and in the presence of the
Respondent's supervisors, Loporfito and Pettica. The
record reflects that during this period complaints were
made to management about working conditions and
meetings were requested but none was ever held. The
complaint alleges that, because of these concerted activi-
ties among the employees for their mutual aid and com-
fort, the Respondent began to retaliate in violation of
Section 8(aX)() of the Act. As I have indicated, there is
no doubt that these employees had engaged in protected
concerted activities within the meaning of the Act, and I
so find.
The record reflects that following the April meeting
with management the restaurant started serving break-
fast, which it had not done before. As a result of this in-
stitution of breakfast, new employees were hired and
hours were changed, which resulted in some of the em-
ployees working less hours. There is no allegation in the
complaint alleging any violations of the Act with regard
to any of these reductions in hours up until at least Sep-
tember.
The record reflects that, in the latter part of July, Do-
lores DeGeer was hospitalized for an operation and did
not return to work until mid-September. On returning to
work in mid-September she requested that she only work
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a couple of days a week. She was given this number of
days to work, and assigned to work in the back of the
restaurant, the least busy part of the restaurant.
After working the reduced schedule for 2 weeks,
DeGeer approached Pettica, told him that she was feel-
ing fine, and requested to work 5 days a week. Pettica
said he could not arrange this, that she would have to
talk to Grippo. DeGeer explained that she had tried to
call Grippo but he did not return her calls. Pettica then
suggested she talk to Grippo's sister, the secretary. This
resulted in the Respondent's requesting DeGeer to
produce a doctor's certificate indicating that she was
able to work full time. A doctor's certificate was ob-
tained and presented to the Respondent on September
21, but DeGeer's hours did not change. She continued to
work Monday, Friday, and Saturday, until she was re-
moved from the schedule on November 19, 1982.
Because she could not get her schedule changed and
because she had heard complaints of other employees re-
lating to their reductions in hours, DeGeer approached
Loporfito in late September or early October and re-
quested a meeting with management. No meeting was
ever held. It was shortly after these requests for a meet-
ing, and after Loporfito obviously heard DeGeer's con-
versations with other employees in the restaurant, that
Loporfito informed employees Leyland and Kalbaugh
that he did not want them talking to Dolly DeGeer and
to stay away from her. At the same time Loporfito told
DeGeer that he did not want her to talk to the other
waitresses anymore.
The Respondent argues that these conversations be-
tween DeGeer and the employees were taking place on
company time and that the Respondent's only gripe was
that DeGeer was bothering the employees while they
were working. I do not believe that this was the reason
that Loporfito was angry. It is my conclusion and find-
ing that Loporfito was angry at DeGeer not because she
was talking to the employees on company time but be-
cause of the things that she was talking about, the reduc-
tion in hours and their other complaints relating to their
work. Loporfito was angry and did not want DeGeer to
discuss these problems with these employees. At no time
did he complain about the employees talking on compa-
ny time; his gripe was that they were talking to DeGeer.
In any event, within a week after this occurrence new
rules were announced which prohibited the employees
from eating any meals at the facility, and required them
to be in the restaurant only 5 minutes before scheduled
to punch in and to leave the facility immediately after
the schedule was completed.
It is my conclusion that the Respondent, knowing that
Dolores DeGeer was the ringleader and spokesperson
for the employees, looked for an opportunity to rid itself
of her. Therefore, when DeGeer, on returning to work,
requested that she work only a short number of hours,
the Respondent was more than glad to comply with this
request. However, once the Respondent had put DeGeer
on light duty it absolutely refused to give her back her
old schedule of 5 days per week. The Respondent knew
that DeGeer could not live on this amount of money,
and, when DeGeer continued working the short sched-
ule, the Respondent canceled her schedule entirely.
I do not accept the varying reasons that the Respond-
ent assigns as to why DeGeer was no longer on the pay-
roll. It appears to me and I find that the Respondent re-
taliated against DeGeer by reducing her working hours
in September, and by failing to provide her with a full
schedule and ultimately removing her from this schedule,
thereby discharging her or constructively discharging
her because of her protected concerted activities on her
own behalf and on behalf of her fellow employees in vio-
lation of Section 8(a)(l) of the Act.
Doreen DeGeer Dunmire was first employed as a
waitress by the Respondent on July 6, 1978, and held
that position until October 19, at which time she was
taken off the schedule and was not thereafter requested
to work by the Respondent. Prior to September, Dun-
mire worked four to five nights per week from 5 to 11
p.m. and always worked weekends. Beginning in Sep-
tember about the time her mother returned to work fol-
lowing her illness, her hours and days were cut back
progressively until about October 19, when she no
longer appeared at all on the schedule. In September
Dunmire approached Loporfito and asked him why her
days and hours were being cut. He informed her that
there were some new girls and that he had to give them
work. The records submitted by the Respondent indicate
that, for the payroll period ending August 28, Dunmire4
had 59.25 hours for that period. The next pay period
being the one in which her mother, Dolores DeGeer, re-
turned to work after her sick leave, her hours dropped to
37.50. For the payroll period ending September 25, she
had 36 hours; for the payroll period ending October 9,
she had 35.75 hours; and, for the payroll period ending
October 23, she had a total of 19 hours, having been
taken off the schedule entirely on October 19.
The Respondent would have us believe that this de-
crease in hours had no relation to the fact that Delores
DeGeer and her daughters, along with several other em-
ployees, had been making protests beginning in April
with regard to Pettica and Loporfito or the fact that
these employees had sought to have their grievances re-
solved by the Respondent, and on a number of occasions
had asked employer representatives to have further meet-
ings which were never held. It goes without saying that
the simplest way to solve problems is to get rid of the
people who create the problems. This, it appears to me,
is exactly the course taken by the Respondent. I find that
the Respondent did in fact cut the hours of Doreen
DeGeer Dunmire as alleged in the complaint and that,
on October 19, the Respondent totally removed Dunmire
from its schedule, thereby terminating her employment. I
further find that the reason for this was because of the
concerted activities on behalf of the employees, which
activities were protected by Section 7 of the Act. There-
fore, I conclude that the cutting of the hours of Dunmire
as well as the removing her from the schedule were vio-
lations of Section 8(a)(1) of the Act.
The complaint also alleges that, since on or about No-
vember 21, the Respondent reduced the hours of work
for Denise DeGeer Churchel.
4 The Respondent's records are in the name of Doreen DeGeer.
92
ORIGINAL OYSTER HOUSE
The record is clear that Denise Churchel, until the
payroll period ending November 6, was receiving a sub-
stantial number of hours which, with two exceptions,
averaged more than 40 hours for the payroll period.
However, beginning with the payroll period ending No-
vember 20, her hours were cut to 28.5 and, for the
period December 4, her hours were reduced to a paltry
16.25. There is no doubt that she had been removed from
the schedule as alleged by the complaint. She was re-
moved for approximately I week. The Respondent has
offered no explanation for her removal from the schedule
and her own records indicate that she was in fact not
working during that period. In view of the background
of this proceeding and the fact that I do not credit the
denial of the Respondent's witnesses that they acted in
total good faith and were not in any way attempting to
injure their employees because of their protected con-
certed activities, I find that the Respondent did in fact
reduce the hours of work of Denise DeGeer Churchel
on or about November 21, and that this reduction in
hours was because of the employees' protected concerted
activities guaranteed by Section 7, in violation of Section
8(a)(1) of the Act.
Because I find the evidence insufficient to establish
that the Respondent instructed its employees to refrain
from discussing matters of mutual aid and protection and
that the Respondent imposed more onerous working
conditions on Dolores DeGeer, I shall recommend that
these allegations of the complaint be dismissed.
As indicated, at the hearing the General Counsel
amended the complaint to allege that on or about May 1,
1983, the Respondent, acting through Louis Grippo and
Benny Pettica at its Monroeville facility, interrogated its
employees with regard to their protected activities and
the protected activities of their fellow employees. In sup-
port of this allegation of the complaint the General
Counsel offered the testimony of employee Rohrbaugh,
who testified to her conversations with President
Grippo.
Without elaborating on the testimony offered to prove
this allegation and the testimony of the Respondent in
this respect, it is my conclusion that, although the em-
ployer had a legitimate right to interrogate its employees
on matters involving their Section 7 rights without
8(a)(l) liabilities, the Respondent did not properly com-
municate to the employee involved the purpose of the
questioning or ensure her that no reprisals would take
place. Therefore, I conclude that the Respondent here
transgressed the boundary of the safeguards which have
been set up by the Board and that the Respondent lost its
privilege of the benefit of interrogating employee Rohr-
baugh. Therefore, it is my conclusion that the Respond-
ent illegally interrogated employee Rohrbaugh on May
1, in violation of Section 8(aXl) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with the Respondent's operations,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
As I have found that the Respondent reduced the
hours of work of Dolores DeGeer, Doreen DeGeer
Dunmire, and Denise DeGeer Churchel because of their
concerted activities, I shall recommend that the Re-
spondent make them whole for any loss of earnings they
may have suffered as a result of the Respondent's con-
duct, with interest.
As I have found that on or about October 19, 1982,
the Respondent removed Doreen DeGeer Dunmire from
its work schedule and on or about November 19, 1982,
removed Dolores DeGeer from its work schedule be-
cause of their concerted activities in violation of Section
8(a)(l) of the Act, I shall recommend that the Respond-
ent be ordered to offer them immediate and full reinstate-
ment, unless reinstatement has already been offered, to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered as
a result of the Respondent's conduct, until such time as
the Respondent makes them a valid offer of reinstate-
ment, with interest. See F. W Woolworth Co., 90 NLRB
289 (1950); Florida Steel Corp., 231 NLRB 651 (1977).
On the foregoing findings of fact and the entire
record, I make the following
CONCLUSIONS OF LAW
1. Louton, Inc. t/a The Original Oyster House, the
Respondent, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By interrogating employee Rohrbaugh without
communicating to her the proper safeguards, the Re-
spondent has violated Section 8(aX1) of the Act.
3. By reducing the hours of work of Dolores DeGeer,
Doreen DeGeer Dunmire, and Denise DeGeer Churchel
because of their protected concerted activities, the Re-
spondent has engaged in conduct violative of Section
8(a)(l) of the Act.
4. By discharging, constructively discharging, by re-
moving Doreen DeGeer Dunmire and Dolores DeGeer
from its work schedule because of their protected con-
certed activities, the Respondent has engaged in conduct
violative of Section 8(aX1) of the Act.
The above-described unfair labor practices affect com-
mere within the meaning of Section 2(6) and (7) of the
Act.
On the basis of the entire record, the findings of fact
and the conclusions of law, I issue the following recom-
mended5
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Continued
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Louton, Inc. t/a The Original Oyster
House, Monroeville, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their protected
concerted activites guaranteed them by Section 7 of the
Act.
(b) Reducing the working hours of its employees be-
cause of their protected concerted activities.
(c) Discharging, constructively discharging, removing
its employees from its work schedule, or otherwise alter-
ing its employees working conditions because they en-
gaged in protected concerted activities guaranteed them
by Section 7 of the Act.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Dolores
DeGeer and Doreen DeOeer Dunmire, unless reinstate-
ment has already been offered, to their former jobs or, if
those jobs no longer exist, to a substantially equivalent
position, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board ad all objections to them shall be deemed waived for all pur-
poNae
of earnings they may have suffered as a result of the Re-
spondent's conduct against them.
(b) Make whole Dolores DeGeer, Doreen DeGeer
Dunmire, and Denise DeOeer Churchel for any loss of
earnings they may have suffered as a result of the reduc-
tion of hours, with interest.
(c) Post at its Monroeville facility, and at all of its
other restaurant facilities, copies of the attached notice
marked "Appendix." Copies of the notice, on forms
provided oy the Regional Director for Region 6, after
being duly signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt be 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 materi-
al.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
5 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
94