Paper Moon Milano

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 64 (N.L.R.B. 1993)

64
313 NLRB No. 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We note that although the judge’s remedy provides that the
discriminatee, Federico, be made whole for any loss of earnings
‘‘from the time of his discharge’’ to the date of the Respondent’s
offer of reinstatement, it inadvertently fails to specify that Federico
is entitled to backpay for both the period following his first dis-
charge on January 20, 1992, and the period following his second dis-
charge on March 5, 1992. We modify the judge’s remedy accord-
ingly.
1 My order is included in the record as ALJ Exh. 1.
2 The General Counsel has moved to correct p. 116 of the tran-
script to indicate that Capocci testified that his employment ended
in March 1993. My notes indicate that he testified that his employ-
ment ended in March 1992. Accordingly, the General Counsel’s mo-
tion is denied.
Grande Mela Corp. d/b/a Paper Moon Milano and
Raffaele Federico. Case 2–CA–25616
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 12, 1993, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Grande Mela Corp. d/b/a
Paper Moon Milano, New York, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
Nancy Schneider and Larry Singer, Esqs., for the General
Counsel.
Robert Ferrari, Esq., of Astoria, New York, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City on March 24, 1993.
Upon a charge filed on March 10, 1992, a complaint was
issued on July 30, 1992, alleging that Grand Mela Corp.
d/b/a Paper Moon Milano (Respondent) violated Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practices. At the hearing the General
Counsel moved to keep the record open pending review of
the charge filed on March 23, 1993, in Case 2–CA–26465.
Respondent opposed the General Counsel’s motion. On April
20, 1993, after reviewing memorandum submitted by counsel
for the parties I denied the General Counsel’s motion and
closed the record.1
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the General
Counsel and by the Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice and place of business in New York City, operates a res-
taurant. It annually derives gross revenues in excess of
$500,000 and purchases and receives at its facility materials
and services valued in excess of $50,000 directly from sup-
pliers located outside the State of New York. Respondent ad-
mits, and I so find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. In addition, I find that Hotel Employees and Restaurant
Employees Local 100, AFL–CIO (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In September 1991, the Union commenced an organizing
campaign among Respondent’s employees. Emilio Capocci,2
a former waiter, appeared to me to be a credible witness. He
credibly testified that during October 1991 he distributed ap-
proximately 20 union authorization cards to the employees.
He testified that Raffaele Federico, another waiter, spoke to
the kitchen help and busboys concerning the Union. At the
same time the employees signed a statement requesting Re-
spondent to recognize the Union. Federico credibly testified
that he obtained approximately five to seven signatures on
this statement. On October 30, 1991, the Union filed a peti-
tion with the Board in Case 2–RC–21100 requesting that it
be certified as the collective-bargaining representative of Re-
spondent’s employees. A meeting was held in November be-
tween Franco Caselli, Repondent’s general manager, and the
employees. Capocci credibly testified that Caselli asked the
employees ‘‘why did we go to the union.’’ The employees
told Caselli that they were concerned about medical insur-
ance and other benefits. Capocci credibly testified that
Caselli said ‘‘he would do something about the medical in-
surance and everything else.’’ Federico corroborated the tes-
timony. Caselli conceded that he asked the employees at this
meeting ‘‘why did you go the Union and not come to me
first.’’ Caselli also testified that he told the employees ‘‘in-
65PAPER MOON MILANO
stead of going to the Union if you have any problems why
don’t you come to me first.’’ On January 2, 1992, a rep-
resentation election was conducted at which time Federico
acted as an observer on behalf of the Union. The Union lost
the election.
2. Discharge of Federico
Federico credibly testified that during October and No-
vember he received permission from Andrea Moore, the as-
sistant manager, to take a vacation beginning January 3,
1992. Federico further testified that in December he met with
Caselli and told him about the vacation. Caselli told Federico
‘‘I don’t know anything about your vacation.’’ Federico testi-
fied that he then asked Andrea about the vacation and she
replied ‘‘at this point things have changed because of the
union.’’ Federico’s testimony was not controverted. Caselli
conceded that he told Federico ‘‘if you want to go on vaca-
tion go on vacation.’’
Federico returned from vacation on January 18, 1992.
Upon his return he called Andrea to ask about his schedule
for the following week. Andrea told him to come to the res-
taurant and speak to Caselli on January 20. Federico came
to the restaurant on January 20 and he credibly testified that
Caselli told him ‘‘I told you not to go on vacation.’’ Re-
spondent has admitted that it discharged Federico on January
20. On January 21 Shayna Moore, the new assistant man-
ager, telephoned Federico and told him that he was sched-
uled to go back to work the following Monday, January 27.
This was confirmed by Caselli and Federico did, in fact, re-
turn to work on January 27.
3. Second discharge of Federico
Caselli testified that towards the end of February 1992 the
waiters complained that they wanted to work 5 days instead
of 4-1/2 days. Caselli had a meeting with the waiters and he
testified that he told them ‘‘if business does not improve and
you guys want to work five days or more days or more
hours, somebody has to go.’’ Caselli testified that business
did not improve during the next several weeks and he de-
cided that he had to fire one waiter. The waiter he decided
to discharge was Federico. He testified that he chose
Federico because he was the ‘‘worst’’ waiter.
B. Discussion and Conclusions
1. Interrogation and promise of benefits
The complaint alleges that during November Respondent
interrogated employees and promised them medical benefits
in order to persuade them not to select the Union as their
bargaining representative. The complaint also alleges that in
December Respondent interrogated employees concerning
their activities on behalf of the Union. I have credited
Capocci’s testimony that in November a general meeting was
held between Caselli and all of the employees. Caselli asked
the employees ‘‘why did we go to the union.’’ Some of the
employees replied that they were concerned about medical
insurance and other benefits. Caselli told the employees that
he would ‘‘do something about the medical insurance and
everything else.’’ A number of the employees at the meeting
were not known by management to be union supporters.
After reviewing all of the circumstances I believe that
Caselli’s question to the employees as to why they wanted
a union was an unlawful interrogation and violation of Sec-
tion 8(a)(1) of the Act. See Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employees
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In addi-
tion an employer violates Section 8(a)(1) of the Act when it
promises benefits to employees to dissuade them from seek-
ing union representation. See Sewell Allen Big Star, 294
NLRB 312, 315 (1989). I believe that Caselli’s response to
the employees that ‘‘he would do something about the medi-
cal insurance and everything else’’ constituted an unlawful
promise of benefits in violation of Section 8(a)(1) of the Act.
Federico also testified that in December Caselli ap-
proached him in the dining room during lunchtime and told
him ‘‘you want the Union don’t you and if you want the
Union you must be against the Employer.’’ Federico was an
open and active union supporter and the conversation took
place in the dining room during lunchtime with other em-
ployees passing by. Under the circumstances I do not believe
that Respondent engaged in an unlawful interrogation. See
Rossmore House, supra; Sunnyvale Medical Clinic, 277
NLRB 1217, 1218 (1985); Raytheon Co., 279 NLRB 245,
246 (1986).
2. Discharges of Federico
During the fall of 1991 during the organizing campaign
Federico spoke to the waiters and busboys concerning the
Union and he obtained approximately six signatures for the
petition requesting recognition. He was the observer on be-
half of the Union at the election held on January 2. On Janu-
ary 20 Federico was discharged. I believe that the General
Counsel has made a prima facie showing sufficient to sup-
port the inference that protected conduct was a motivating
factor in Respondent’s decision to discharge Federico on Jan-
uary 20.
Under Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), once a prima facie showing has been made, the bur-
den shifts to the employer to demonstrate that ‘‘the same ac-
tion would have taken place even in the absence of the pro-
tected conduct.’’ Respondent maintains that Federico was
discharged on February 20 because he took an unauthorized
vacation. I have credited Federico’s testimony that in the fall
of 1991 he received permission from Andrea, the assistant
manager, to take a vacation beginning January 3, 1992. In
addition, Caselli conceded that he told Federico ‘‘if you want
to go on vacation go on vacation.’’ I find that Respondent
has not sustained its burden under Wright Line, and accord-
ingly by discharging Federico on January 20 Respondent has
engaged in an unfair labor practice in violation of Section
8(a)(3) and (1) of the Act.
Federico returned to work on January 27 and Respondent
again discharged him on March 5. Respondent maintains that
during February it did not have sufficient business to be able
to keep the waiters on full-time and therefore it had to dis-
charge one waiter. Caselli testified that he chose Federico as
the waiter to be discharged because he was the ‘‘worst’’ of
all of the waiters. The record shows that for the weeks end-
ing February 16, 23, and 29, 1992, the waiters all worked
40 hours weekly plus overtime. While Caselli testified that
Federico was the ‘‘worst’’ waiter, he in fact rehired him after
his first discharge on January 20. While Caselli testified that
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended 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 purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
he disciplined Federico throughout his entire employment,
Federico, in fact, was not discharged until after he had
served as the observer on behalf of the Union and after the
union election. See Middle Earth Graphics, 283 NLRB 1049,
1058 (1987). In addition, Respondent’s answer alleges that
on March 5 Federico was ‘‘laid off’’ but not discharged. Yet
the record shows that several months after Federico’s termi-
nation an additional waiter was hired and Federico was not
recalled. For the above reasons, I find that Respondent has
not sustained its burden of showing that the ‘‘same action
would have taken place in the absence of the protected con-
duct.’’ Wright Line, supra at 1089. Accordingly, by discharg-
ing Federico on March 5 Respondent has engaged in an un-
fair labor practice in violation of Section 8(a)(3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating its employees about their union activi-
ties and by promising them benefits if they rejected the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discharging Raffaele Federico for his union activi-
ties, Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid 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 Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Raffaele Federico in viola-
tion of the Act, I find it necessary to order Respondent to
offer him full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent posi-
tion without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earnings that
he may have suffered from the time of his discharge to the
date of Respondent’s offer of reinstatement. Backpay shall be
computed in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).3
On the foregoing findings of fact, conclusions of law, and
on the entire record, I issue the following recommended4
ORDER
The Respondent, Grande Mela Corp. d/b/a Paper Moon
Milano, New York, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities and promising them benefits if they reject the Union.
(b) Discharging employees for activities protected by Sec-
tion 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Raffaele Federico full reinstatement to his former
position or, if such position no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any
loss of earnings, with interest, in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of Federico and notify him in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amounts owing under the terms of this Order.
(d) Post at its facility in New York, New York, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being duly signed by Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and be maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that those allegations of the com-
plaint to which no violations have been found are dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
67PAPER MOON MILANO
WE WILL NOT interrogate employees concerning their
union activities and promise them benefits if they reject the
Union.
WE WILL NOT discharge employees for activities protected
by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL offer Raffaele Federico full reinstatement to his
former position or, if such position no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges, and make him whole for
any loss of earnings, with interest.
WE WILL remove from our files any reference to the un-
lawful discharge of Federico and notify him in writing that
this has been done and that the discharge will not be used
against him in any way.
GRANDE MELA CORP. D/B/A PAPER MOON
MILANO