Rooney's at the Mart

National Labor Relations Board - Board Decisions

Feb 12, 1980

247 N.L.R.B. 1004 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Rooney, David Hinman and Beverly Foster,
d/b/a Rooney's at the Mart and Hotel, Restaurant
Employees and Bartenders Union, Local 2, Hotel &
Restaurant Employees and Bartenders Internation-
al Union, AFL-CIO. Cases 20-CA-13915, 20-CA-
14231, and 20-RC-14633
February 12, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 17, 1979, Administrative Law Judge
Richard J. Boyce issued the attached Decision and
Report on Postelection Objections in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief; the General Counsel filed a cross-excep-
tion and a brief in support of its cross-exception and
answering Respondent's exceptions; and Respondent
filed an answer to the General Counsel's cross-excep-
tion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
' Member Jenkins finds it unnecessary to rely on the distinction between
"working hours" and "working time" discussed in fn. 20 of the Administra-
tive Law Judge's Decision. See his dissenting opinion in Essex International,
Inc.. 211 NLRB 749, 752 (1974).
In affirming the Administrative Law Judge, Member Truesdale notes that
Respondent's instructions to Brickley that she not solicit employees and
distribute union literature "on my time" would be unlawful under any of the
views expressed in Essex.
We disavow reliance on the Administrative Law Judge's factual finding that
antiunion petitions were circulated among the employees "at least in part
during working time," as the record lacks any evidence of such solicitation.
This disavowal, however, does not affect our finding that Respondent
unlawfully promulgated a no-solicitation rule by the May 17 letter to
Brickley. In this regard, the record supports the Administrative Law Judge's
finding that "in contrast to its interest in regulating Brickley's pro-union
activities, Respondent practiced a "see-no-evil aloofness" as concerns the anti-
union petitions circulated in June.
We find merit in Respondent's exception to the Administrative Law Judge's
finding that, during Rooney's May 17 conversation with Brickley, Rooney
asked her: "Why didn't you just get another job?" The record reveals that
Rooney asked: "Why didn't you just go and get another job?" However, we
agree with the Administrative Law Judge that this conversation, when viewed
in its totality, restrained and coerced Brickley in violation of Sec. 8(a)(l) of
the Act.
We disavow the gratuitous comments made by the Administrative Law
Judge in fn. 22 of his Decision.
In par. I(h) of his recommended Order, the Administrative Law Judge
included a broad cease-and-desist order against Respondent. We find it
unnecessary to impose such a broad order against Respondent. As the
General Counsel has not demonstrated that Respondent has a proclivity to
violate the Act, or that Respondent has engaged in such widespread or
247 NLRB No. 125
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, the National Labor Relations Board
adopts as its Order the recommended Order of the
Administrative Law Judge, as modified below, and
hereby orders that the Respondent, John Rooney,
David Hinman and Beverly Foster, d/b/a Rooney's at
the Mart, San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(h):
"(h) In any like or related manner interfering with,
restraining, or coercing employees in their exercise of
rights under the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Margaret Brickley immediate and full
reinstatement to her former job, without prejudice to
her seniority or other rights and privileges previously
enjoyed, and make her whole for any loss of earnings
or benefits suffered by reason of her unlawful layoffs,
with interest to be added to the loss of earnings, in the
manner set forth in the section of the Administrative
Law Judge's Decision entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
August 18, 1978, in Case 20-RC-14633 be, and it
egregious misconduct as to demonstrate a general disregard for employees'
fundamental statutory rights, a broad order is not warranted here. Hickmotr
Foods, Inc., 242 NLRB 1357 (1979). Accordingly, we will modify the
recommended Order by substituting narrow cease-and-desist language for the
broad language used by the Administrative Law Judge.
The General Counsel has excepted to the Administrative Law Judge's
recommendation that interest on backpay be computed at a rate other than
the 9 percent requested by the General Counsel. We find no merit in the
exception. See Florida Steel Corporation, 231 NLRB 651 (1977).
We adopt, inter alia, the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(a)(3) and (I) by discriminatorily warning and then
laying off Margaret Brickley in retaliation for her union organizational
activities. We emphasize that our agreement with this conclusion is based
upon our view that the Administrative Law Judge, after extensive discussion
and analysis of Respondent's alleged legitimate cause for disciplining and
laying off Brickley, has in fact found that cause to be only a pretext for its
unlawful discriminatory purpose.
' We have modified the recommended Order of the Administrative Law
Judge to conform with his discussion of the appropriate remedy for Brickley's
second layoff. In the section of his Decision entitled "The Remedy," the
Administrative Law Judge found that on January 15, 1979, Respondent
eliminated the entire evening shift for valid economic reasons. He found
further that the record lacks facts sufficient to determine whether Brickley
would have been permanently laid off upon elimination of the evening shift.
Consequently, the Administrative Law Judge stated that should it be
ascertained in the compliance stage that Brickley would have been permanent-
ly laid off on January 15, 1979, her right to reinstatement and backpay would
be limited to backpay for the period from November 27, 1978,. to January 15,
1979. We agree with the Administrative Law Judge's findings and conclusions
in this regard, and accordingly have modified his recommended Order to
reflect his finding.
1004
ROONEY'S AT THE MART
hereby is, set aside and that a new election be directed
therein as set forth below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we committed certain unfair
labor practices and has ordered us to post this notice.
Section 7 of the National Labor Relations Act
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
WE WILL NOT threaten employees, either
expressly or by implication, that they will be
reported to IRS for failing to declare all tips
should they persist in going to the Industrial
Welfare Commission concerning conditions of
employment.
WE WILL NOT promulgate or enforce any rule
prohibiting employees from engaging in union
solicitations during nonworking time in nonpub-
lic areas of our restaurant.
WE WILL NOT promulgate or enforce any no-
solicitation rule for the purpose of discouraging
union activities.
WE WILL NOT ask employees, with reference to
their union activities, what they are doing it for,
what they want out of it, if it is a crusade, and
why they do not get another job.
WE WILL NOT demand that employees remove
union buttons, and send them home from work
because they refuse to do so.
WE WILL NOT issue reprimand or warning
letters to employees because of their union or
other protected activities.
WE WILL NOT select employees for layoff
because of their union or other protected activi-
ties.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
their exercise of the rights guaranteed them under
the Act.
WE WILL offer to Margaret Brickley immedi-
ate and full reinstatement to her former job,
without prejudice to her seniority or other rights
and privileges previously enjoyed; and make her
whole for any loss of earnings or benefits suffered
by reason of her unlawful layoffs, if certain
conditions and requirements are found to exist.
WE WILL make Brickley whole for any loss of
earnings or benefits suffered by reason of her
unlawfully being sent home from work for
refusing to remove or alter her union button.
WE WILL remove from our personnel files and
all other records all originals and copies of the
reprimand or warning letters issued to Brickley
on May 17, August 25, and October 24, 1978, as
well as any references to those letters; and inform
Brickley in writing that this has been done.
JOHN ROONEY, DAVID HINMAN AND
BEVERLY FOSTER, D/B/A ROONEY'S AT
THE MART
DECISION AND REPORT
ON POSTELECTION OBJECTIONS
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in San Francisco,
California, on October 31 and November I and 6-9, 1978,
and February 9, 1979.
The charge in Case 20-CA-13915 was filed on June 26,
1978, by Hotel, Restaurant Employees and Bartenders
Union, Local No. 2, Hotel, Restaurant employees and
Bartenders International Union, AFL-CIO (herein called
the Union). The complaint in that matter issued on August
10, was amended on October 13 and during the hearing, and
alleges that John Rooney, David Hinman and Beverly
Foster d/b/a Rooney's at the Mart (herein called Respon-
dent) violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (herein called the Act).
An election in Case 20-RC-14633 was held on August 18,
1978, among the full-time and regular part-time employees
at Respondent's San Francisco restaurant. It derived from a
petition filed by the Union on June 9, 1978, and a Decision
and Direction of Election issued by the Regional Director
for Region 20 on July 19. The election tally was 5 votes for,
and 26 against, the Union, with 5 challenged ballots.
The Union filed objections to the conduct of the election
on August 24. On September 25 the Regional Director
issued a Supplemental Decision and Order Consolidating
Cases in which, concluding that certain of the objections
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"involve some of the same conduct alleged to constitute
unfair labor practices" in the complaint that had issued in
case 20-CA-13915, she ordered that the two matters be
"consolidated for purposes of a hearing before an adminis-
trative law judge." A consolidated hearing accordingly was
held before me on the October and November dates above
stated, closing on November 9.
On November 18 the charge was filed in Case 20-CA-
14231 by the Union against Respondent. The complaint in
that matter issued on December 28, was amended during the
hearing, and alleges further violations of Section 8(a)(1) and
(3). Also on December 28, the General Counsel moved that
the record be reopened in Cases 20-CA-13915 and 20-RC-
14633, and that they be consolidated with Case 20-CA-
14231. My order issued on January 10, 1979, granting the
motion to consolidate and reopening the record "for the
limited purpose of taking evidence on the issues raised by"
the new complaint. The hearing resumed and closed on
February 9.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a partnership consisting of John Rooney,
David Hinman, and Beverly Foster, engaged in the opera-
tion of a restaurant at 32 Ninth Street, San Francisco. Its
annual gross revenues exceed 500,000 and it annually
receives directly from outside California goods and materials
of a value exceeding $2,000.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within Section 2(5) of
the Act.
III. ISSUES
The complaint in Case 20-CA-13915 alleges that Respon-
dent violated Section 8(aXl) from May 15-17, 1978, by (1)
threatening to discharge or otherwise discipline an employee
for going to the State Industrial Welfare Commission, (2)
telling an employee that Respondent would go out of
business if its employees chose to have union representation,
(3) threatening to institute new work rules and to apply
them discriminatorily against an employee because of that
employee's union and protected, concerted activities, (4)
promulgating an unlawful no-solicitation rule, and (5)
interrogating an employee concerning that employee's union
activities.
The same complaint alleges that Respondent violated
Section 8(a)(3) and (1) by (1) issuing a warning letter to
Margaret (Peggy) Brickley and discriminatorily enforcing a
no-solicitation rule against her on May 17, 1978, (2) issuing
a second warning letter to Brickley on August 25, 1978, (3)
laying Brickley off in early September 1978, and (4) issuing a
' Rooney recalled this conversation as occurring the Friday before the onset
of union activity, which would have made it May 12. Brickley, on the other
hand, fixed the date as May 19. Rooney conveyed a greater sense of assurance
on the point than did Brickley, and is credited.
third warning letter to Brickley on her recall on October 24,
1978.
The complaint in Case 20-CA-14231 alleges that Respon-
dent violated Section 8(a)(1) on November 4, 1978, by
threatening to discharge employees for displaying prounion
buttons, and that it violated Section 8(a)(3) and (1) on
November 27, 1978, by again laying off Brickley.
As concerns the layoffs, the General Counsel concedes the
economic legitimacy of a layoff in both instances, but
quarrels with the grounds underlying Brickley's selection.
The objection matter raises the additional question wheth-
er Respondent's conduct during the pendency of the election
interfered with free voter choice, requiring that the election
be rerun.
IV. FACTS
It all began, seemingly, in April 1978, when Respondent
obtained new outfits for its waitresses and instructed the
waitresses to maintain them. Brickley, a split-shift waitress,
thereupon visited an office of the California Industrial
Welfare Commission, obtaining copies of a commission
order stating:
When uniforms are required by the employer to be
worn by the employee as a condition of employment,
such uniforms shall be provided and maintained by the
employer. [Emphasis supplied.]
Another provision of the order specifies that employees
working a split shift are to receive a daily pay premium of
$2.50, which Respondent had not been paying.
On or about May , one of the partners, Foster,
mentioned to Brickley that the new outfits were expensive
and looked "really nice," and urged Brickley to be "careful"
with hers. Foster added that when she was a waitress she
always bought her own uniforms. Brickley replied that
under the law the employer was required to furnish and
maintain uniforms, and mentioned the split-shift premium
requirement, as well. Brickley gave Foster a copy of the
order of the Industrial Welfare Commission, and Foster said
she would discuss it with another of the partners, Rooney,
who doubles as general manager.
On or about May 12, Rooney engaged Brickley in
conversation about uniform upkeep and the split-shift
situation.' He told her that the split shift was being
eliminated and ascertained from her that she would prefer
working the evening shift.2 Regarding uniform maintenance,
Biickley cited the state order and accused Respondent of
"breaking the law." Rooney responded that he ran "a nice,
loose, easy place" and got along fine without "a lot of rules
and regulations and laws," and that he did not like
Brickley's going to the Industrial Welfare Commission.
Rooney went on that the new outfits were too delicate to
withstand commercial laundering and that no one else had
complained about uniform upkeep. Brickley said that, if the
others "want to be fools, let them, "she was not going to be.
She mentioned that the employees in an adjacent bar-the
Buy-Ped Club-had union representation and received a
: The split shift soon after was dropped, and Brickley was assigned the
evening shift.
1006
ROONEY'S AT THE MART
uniform allowance. Rooney replied that Respondent was not
union, and Brickley proposed that the employees wash their
outfits at a nearby laundromat, with Respondent paying
them an hour's wage each time. Rooney rejected this, saying
he did not think it "too much to expect you to maintain
them."
Brickley repeated that Respondent was breaking the law.
Rooney countered that the law also requires employees to
declare all tips for tax purposes and requires employers to
report employees suspected of not doing so and that he
doubted that Brickley reported all of hers. Brickley asked if
he was demanding that she declare all of her tips. Rooney
replied that he was not-"of course not; if I did that, I
would have every waiter and waitress in this restaurant in
trouble "-but that he wanted her "to look at the analogy of
the two laws." Unappeased, Brickley proclaimed that she
would "take" Respondent to the Industrial Welfare Com-
mission. Rooney answered that he did not "give a damn"
what she did, and the conversation was over.'
On May 15 Brickley obtained literature and blank
authorization cards from the Union. On May 16 she began
distributing this material, in the restaurant, to her cowork-
ers.
At or about 11:30 a.m. on the 16th, shortly before the
lunch rush, the third partner, Hinman, saw her doing this
behind the cafeteria line. Hinman recalled that 6 to 8
employees were gathered around Brickley, as opposed to 2
or 3 that normally would be in that location at that time.
Hinman promptly telephoned Rooney, who was home,
reporting that Brickley had "a lot of union literature" and
was "running around all over the restaurant handing it out
and talking to people about it." Rooney told Hinman not to
worry about it.
At or about 2:15 the same day, after the lunch rush,
Hinman again saw Brickley promoting the Union, this time
to coworker Martin Spector. Not knowing "what [he] could
do about it," Hinman telephoned Rooney once more,
reporting that Brickley's activities were "creating a distur-
bance." Rooney instructed him to tell her "not to solicit on
our time." Hinman thereupon informed Brickley: "Peggy,
you will not solicit on my time." Brickley replied that she
had clocked out, prompting Himan to ascertain that Spector
had not.' Hinman then declared: "Peggy, you will not solicit
my employees on my time." Brickley responded to the effect
that Hinman was "harassing" her, and that she was
"taking" him to the NLRB. Hinman closed the conversation
by stating: "You can take me any place you like, honey, but
you're not going to solicit my employees on my time. Got
it?"
' For the most part, the conversation as set forth incorporates Rooney's
generally credible testimony. That Rooney said he did not like Brickley's
going to the Industrial Welfare Commission is based, however, on Brickley's
testimony, which was plausible in that particular instance and was not
expressly refuted by Rooney.
Brickley also testified that Rooney asserted variously that (I) "if this place
ever went union, we'd go broke and have to close down." (2) Respondent
"could make it pretty rough for you to work, even under union rules," and (3)
"we are going to be having some more rules; we're going to be cracking down;
that is something for you to think about." Rooney expressly denied raising the
possibility of closure and denied the other remarks by implication, giving what
purported to be the complete conversation without including anything
resembling them. Brickley is not credited. These elements of her recital did
On the morning of May 17, Rooney came upon Brickley
in a hallway adjacent to the restaurant, laden with union
literature. He informed her: "You are not to distribute that
literature or solicit employees on my time." ' Brickley, who
had discussed such matters with an agent of the NLRB the
day before, responded: "I know that now." A short while
later, Rooney was told that Brickley had just passed out
some literature, in the dining room, to coworker Pablo
Correa. The record is unclear whether Brickley was on duty,
but Correa definitely was. First checking whether Correa
was clocked in, Rooney stated to Brickley: "I told you ... a
little while ago not to do this." She did not reply.
With that, Rooney telephoned a labor relations consul-
tant, who suggested that Brickley be given a written
reprimand "to make sure that this girl understands the rule
about what she can and cannot do." The consultant dictated
a proposed reprimand to Rooney, which was transcribed and
presented to Brickley later on the 17th. It stated:
May 17, 1978
To: Peggy Brickly [sic]
The management has absolutely no objection to your
soliciting for the union or any other organization during
your free (punched out) time, as long as the other
employee is also punched out. You were observed
yesterday and this morning by management and em-
ployees soliciting during work time. Any further solici-
tations during your or another employee's work hours
will cause disciplinary action which may result in
discharge.
Sincerely,
John N. Rooney
In the conversation that accompanied tender of the
reprimand, Brickley stated: "This place is so poorly man-
aged and so poorly organized, John, that I am doing you a
great big favor and I am bringing the Union in here."
Rooney responded that he felt Respondent ran "a very nice
place" and treated the employees "fairly." Brickley said she
was glad that his conscience "was clear," and Rooney asked:
"What are you doing this for? Why don't you just get
another job?"
Brickley answered that she had been there "a long time,"
had friends there, and did not "like to see them unprotect-
ed." Rooney observed: "Oh, it's a crusade, huh?" Brickley
countered that union houses are "well run" and have "pretty
good rules," which make them easier places in which to
work. Rooney said he preferred "the kind of place where it's
loose," to which Brickley asserted that she was "kind of
tired of. . . having to fill in when other people were not
doing their work." Rooney observed: "Those are the same
not integrate logically with the overall tenor of the exchange, and her
demeanor was vastly less convincing than Rooney's. Rooney, moreover,
evinced no reluctance generally to testify damagingly to his cause.
' Although paid for time on break, the employees clock out at the start and
in at the end to enable Respondent to police abuse of breaks.
' This is Rooney's version of his remarks on this occasion. Brickley testified
that he stated: "You are not to organize on our premises; you are not to
organize on work time." Rooney's version is the more plausible and is
credited. Not only is there no evidence that Respondent at any other time
blanketly objected to such activities on the premises, but it would not have
made sense for Rooney to juxtapose an all-encompassing on-the-premises
prohibition with a ban against such activities on worktime.
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people you are trying to organize." Brickley in turn said: "I
know that. If the Union is so bad, with union rules and
regulations, how come all the work-horse waitresses in town
are working in union houses?" Rooney retorted: "Is that
what you want to be, an old work-horse waitress? What do
you want out of this?"
The conversation ended on that note.' Rooney admitted
that Brickley' s remark about poor management and poor
organization was "grossly humiliating and insulting"-a
"slap in the face" that he will never forget. He characterized
it as an "exit speech," explaining that he never would have
said such a thing "unless [he] intended to walk out the door
forever." Regarding the reprimand, Rooney testified that it
issued "because of the disturbance [Brickley] was creating"
and because she had been in "direct insubordination" by
doing "exactly what [he] had asked her not to do"; and that
the union character of the materials she had distributed was
beside the point.
On May 25, on the advice of a laborlaw attorney,
Respondent posted store-bought signs on the public en-
trances to the restaurant, which stated: "No Soliciting."
Rooney testified that their purpose "was formalizing the
solicitation policy we always had, I guess." He further
testified, however, that the attorney had told him the signs
would keep out vendors and union business agents; and
Hinman testified that the signs did not apply to employees
"because employees, if they wish, may solicit in the
restaurant when they're checked out." Rooney likewise
testified that the same rule did not apply to both outsiders
and employees, explaining:
The rule, as applied to employees, has never been
termed a no-solicitation rule. The rule is, when you
work, you work . . . There are no restaurants that
allow solicitation. There are also no restaurants that
allow people to steal. There are very few restaurants
that allow people to be absent from work. Those are
work rules that everybody understands. I don't have to
tell most of my employees those rules. .... I don't even
have to tell new hirees those rules, if they have had any
experience at all. .. . [U]nless they are idiots, nearly
everybody assumes that when they are clocked in they
are supposed to be working and not doing anything else.
There is no evidence that the employees, one or all, were told
of the new signs' inapplicability to them.'
Also on May 25, Respondent distributed this letter to the
employees:
Dear Fellow Employees:
We are writing you regarding a situation that is fast
becoming a nuisance.
As most of you know someone here is involved in an
apparent self-serving attempt to force unionism on all of
you.
The conversation as set forth is an amalgam of the testimony of Rooney
and Brickley. That Rooney asked what Brickley was doing this for and what
she wanted out of this is based on Brickley's credited testimony. Rooney did
not expressly deny those utterances, instead testifying in answer to a single
abstract question that he could not recall asking about her union activities.
Similarly, Betty Forquer, Respondent's bookkeeper and a witness to the
conversation, testified mechanically and unconvincingly in answer to a single
Your restaurant is not perfect-no restaurant is. We
have made mistakes in the past and will probably make
some in the future but, it is our sincere position that no
union could ever serve the best interest of anyone at
Rooney's. We are proud of the direct relationship we
have with each of you and feel that only negatives could
come from an "outside third party" speaking and
thinking for all of you on your wages, your benefits, your
hours, and your working conditions.
Since all of us have been burdened with the annoyance
of an inside organizer who, up until now, has been
telling mostly "half truths", you owe it to yourselves to
get the honest and straight forward answers to some
simple and basic questions:
1. Could there be something special ($) for the person
involved if this unionizing attempt is somehow success-
ful?
2. Why has this organizer and this union avoided
signing the leaflets being circulated?
3. Would this organizer and this union take their
"pie-in-the-sky" promises and put them in writing and
sign them as unconditional guarantees so that if they
did not deliver on their promises they would make it up
to you out of their treasury?
4. Why haven't you been told that signing a union
card is like giving the union a "blank check". (We will
be pleased to explain this to you if you would like us to.)
5. Would this union be willing to return a union card
to anyone if they changed their mind about signing it? If
not, why not?
6. Why has this organizer and this union avoided
telling you about things like their quorum rule and their
trial procedure? What else have they avoided telling you
about?
We will continue to keep you informed and encourage
you to come to any of us with whatever questions or
comments you may have.
While the letter does not identify the "inside organizer," nor
does the record otherwise explicitly do so, there can be little
doubt that the reference was to Brickley.
On June 9, as previously mentioned, the Union petitioned
for an NLRB election. Beginning on June 9 and again on the
14th, antiunion petitions were circulated among the employ-
ees, at least in part during working time, for them to sign.'
The petitions apparently were employee instigated. Both
Rooney and Hinman knew in a general sense of their
existence but, on legal advice, studiously avoided learning of
their precise details and of when, where, and how they were
being circulated. As Rooney put it: "I didn't want to know
anything about it and I didn't want to see it and I didn't
question by Respondent's counsel that Rooney did not ask Brickley why she
was organizing.
Indeed, one of the employees, James Martin, testified that the signs did
apply to employee solicitation.
' The second petition was meant to cure what was deemed a flaw in the
language of the first.
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ROONEY'S AT THE MART
really want to hear anything about it and I didn't want to
know who had signed it."'
On June 13 Respondent distributed another letter to the
employees. First referring to the petition and the pendency
of a hearing "to determine if and when a secret ballot
election will be held," the letter stated:
Many of you have already seen the divisiveness and
former friendships this unionizing attempt has created
and we feel it is a genuine shame that these outsiders
from Local #2 and their handful of inside unionists are
trying to use the "old divide and conquer" game in their
effort to take a monthly piece of your paycheck.
Again, there can be little doubt that the reference to "inside
unionists" contemplated Brickley.
The election, as earlier noted, was held August 18. That
same day the Industrial Welfare Commission ruled in
Respondent's favor on a complaint by Brickley that it was
violating the law by requiring the waitresses to maintain
their outfits.'0 Rooney promptly advised Brickley that she
thenceforth would be sent home unless her outfit were clean.
It then was "in bad shape," as he recalled. The next day,
according to Rooney, Brickley's outfit "didn't look much
better." He and Foster "scolded her about it- Rooney's
words-and sent her home as promised."
Shortly after the election, Rooney heard that Bickley "had
abused" a coworker, Pat Tobin, on the job. More specifical-
ly, Brickley reportedly had said "f- you" and "go home,
pig," to Tobin. Rooney testified that "there is a lot of foul
language in the restaurant," and that it had never been of
particular concern becaus; "it is not intended really person-
ally." Rooney professedly saw this incident differently,
however, testifying:
Pat Tobin is one of the most sentitive . . . vulnerable
people in the restaurant.... He is very vulnerable,
easily pushed around, so to speak.... It was my
personal opinion that she [Brickley] had grabbed Pat
and taken this out on him because she had figured out
that he hadn't voted for her.
On August 25, ostensibly because of Brickley's deficient
grooming and the Tobin incident, Rooney preseted her with
this letter:
Warning Letter -
As you know you have been criticized for some time
for wearing a dirty uniform and creating an improper
image for the restaurant. You were warned verbally and
then sent home once. Another violation will result in
discharge.
There have been instances recently of abuse and foul
language against other employees. This create an
unpleasant environment for other employees and can-
not be tolerated. Another violation will result in
discharge.
'This is not to imply that Rooney was indifferent to or displeased woth the
petitions. He "thought it sounded nice that employees were doing that."
About 22 people signed the first petition, and about 30 the second.
'" The commission's rationale was that the outfits worn by Respondent's
witresses were more in the nature of street clothes than of uniforms as
contemplated by its order. Brickley also complained to the commission about
Respondent's nonpayment of the split-shift premium, prevailing on that issue.
" The weight of evidence is persuasive that Brickley's grooming left
During the attendant conversation, Rooney remarked that
Brickley "must be aware" that management and other of the
employees did not care for her. Brickley replied that shd did
not "give a damn." Rooney conuntered that she was "a very
cold and insensitive person"; that the other employees had
complained about her; and that she "might be happier"
working elsewhere. Brickley said that she liked the job,
needed the money, and had no intention of leaving. Rooney
offered "a couple of weeks' severance pay" while she sought
other work, but she persisted that she would remain.
Rooney next commented that the Orpheum Theatre soon
"will be going dead"; and that, if there were needed for a
layoff as a consequence, Brickley probably would be cho-
sen.'' Citing the warning letter, he explained that she would
be chosen "for all of these reasons," and because the other
employees were "uncomfortable with her around." Brickley
responded, correctly, that she was more senior than the
others, to which Rooney stated that seniority governed only
in a "situation of equal abilities, or fairly equal abilities."
Rooney further noted that during the last previous layoff
Brickley had been retained, the implication being that the
hardship should be passed around.
Brickley was laid off on September 1, leaving one waitress,
Sharon Davis, and one waiter, Ferris Garcia, on the evening
shift. As earlier noted, the General Counsel does not dispute
the economic legitimacy of a layoff at that time, only
Brickley's being selected. Rooney testified that she was
chosen "because of all the problems that we had with her,
but primarily because of her attitude," which he described as
"cold, unrelenting, arrogant to other employees." Other
factors, he continued, were the warning letter of August 25
and the incidents behind it, and her having been the sole
survivor of the previous layoff. The "primary consider-
ation," Rooney summed up, "was to create a better working
atmosphere." He conceded that Brickley by then "had taken
care of the uniform problem."
Seeking further to explain Brickley's selection, Rooney
testified that Davis "was the better waitress" because "she is
always neat and friendly and attractive, . . . she smiles at
customers, . . she is friendly with other employees, ....
she moves through the dining room very gracefully and
smoothly, . . . [and she] is one of those girls who is
immaculate most of the time." Rooney testified that Garcia
was preferable to Brickley "because, again, he was very good
with the customers and he was pleasant and friendly with all
the people he worked with," beyond which "he was very
neat and clean." According to Rooney, Brickley had
survived the earlier layoff in part because both Davis and
Garcia had volunteered to be laid off to attend the personal
matters.
Brickley was recalled on October 24, replacing Garcia,
who had quit. She worked the one night, was off until
October 31 because of illness, then worked regularly until
she was again laid off on November 27.
something to be desired throughout her time with Respondent. Rooney
testified that she "had always been pretty had about maintaining her
appearance." elobarating that her uniform often was soiled and that she
frequently went without a brassiere.
" The Orpheum Theatre is a live theatre house near Respondent's
restaurant. Respondent's evening business benefits greatly when the theater is
in use.
1009
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coincident with her October 24 return, Brickley received
another warning letter from Rooney:
Final Warning-10/24/78
To M. Brickley
We received a customer complaint soon after you
were laid off. The customer told us that you had talked
to him in a rude manner when he asked for service. I
mention this now because you are returning to work
and I do not want this kind of incident to be repeated.
We are in a service business and cannot afford to turn
off customers.
I want you to understand that I think this is a
problem of attitude. You are intelligent and capable,
but you sometines do not seem to care about your
appearance, your fellow employees, or our customers.
We have spoken to you about two of these problems-
appearance and berating fellow employees-before your
layoff, and those problems were a major factor in that
decision. The customer complaint, which is more
serious, is part of the same package.
You are coming back with us now on a part-time
basis. If the Sound of Music is successful, we will be
asking you to help more frequently since our business
should pick up. But we do expect these deficiencies to
be corrected. For example, we expect the following:
I. You should come to work neatly groomed and
in a clean uniform.
2. You should not abuse other employees. If you
feel provoked, report the incident to me and I will
attempt to deal with it fairly.
3. You should be courteous and helpful to our
customers and should avoid snapping at them.
If you cannot correct these deficiencies, then there is
really no reason to come back. I think that these three
problems are serious and I do not expect this conduct,
or any similar misconduct, to be repeated. If it is, you
will be discharged and I will find some body who is
both capable and willing to do the job. Although I need
help, I frankly do not need help that turns off
customers.
Rooney testified that the customer complaint mentioned
in the letter came from the manager of the laundry used by
Respondent. The customer assertedly told Rooney that he
and his wife were having dinner in the restaurant before
going to the theater and became concerned about being
served in time for the show. They twice asked the waitress to
check on the order and the second time, "she whirled
around and screeched at them and said, 'Get off my back,
will you!"' The customer did not know the waitress by name,
but gave a physical description satisfying Rooney that it was
Brickle.
Explaining why he gave Brickley this latest letter, Rooney
testified:
" The button was 1-3/4 inches in diameter and was white with green
lettering. Brickley's outfit consisted of a white blouse and black skin.
" Rooney is credited that he said Brickley would be sent home, as against
Brickley's testimony that he said that, if she wore button again, he would
I had so many employees comment on what a relief it
was during the period of time that she wasn't there and
how much nicer everything was, and I looked through
her file and I looked at the other warnings and I
thought . . . I am really tired of this, I am really tired
of it. I wanted her to understand that if she continues to
work here, I don't want any more of these problems. I
wanted her to go back to behaving the way she did way
before all this started. I wanted her to go back to where
she is friendly with the other employees. I wanted her
uniform clean. I don't want any problems anymore.
[T]hat was the intent of this letter, to tell her that I have
had it. I just can't take this any longer. I know that she
is bitter. I know she was bitter about the election;
obviously that was part of the problem, but we have a
business to run and the night business needs building. It
goes up and down. I have a lot of problems and I don't
need this problem any longer.
On November 4 Brickley began wearing a button at work
which stated: "A Woman's Place is in her Union, AFL-
CIO." Rooney became aware of this on the 9th and
summoned Brickley to his office. Rooney conceded to her
that she "had the right to wear a union button. .. as long
[as] it was a proper button," but objected that she was
"cheap-looking plastic, "too large" and "expressed an
opinion . . . that the customers might find offensive."
Brickley said that she had been told by legal counsel that she
could wear it, and asked if Rooney was telling her "to take it
of." He replied that he was, and she said that she would not.
He said that she had three choices: remove the button, tape
over all but "AFL-CIO," or go home. With that, Brickley
clocked out.
A few minutes later Rooney and Brickley had a verbal
altercation in the Buy-Ped Club, during which Rooney told
her that she would be sent home again the next night if she
again wore the button. Brickley replied, in a seeming
reference to the present hearing, the first phase of which had
just ended: "Tell this to the judge."' 4
Brickley arrived for work the next evening wearing the
same button, with all but "AFL-CIO" taped over. Rooney
said to her: "Oh, come on, Peggy; that really looks
ridiculous. Let's take it off." Brickley argued that he had
told her the previous night that she could wear it as taped,
and he said that he meant only the one night. Brickley at
length removed the button. Rooney then urged her to "do a
good job and try not to cause any more problems." By
"problems," Rooney testified that he meant "gross disloyal-
ty and insubordination to me." Brickley replied: "Oh, poor
Mr. Rooney, there have been a lot of problems for you this
year, haven't there?"
Rooney characterized the button matter as "a serious
incident," Brickley's refusal to remove it as "most assured-
ly" insubordination, and her being sent home over it as
"disciplinary action" in lieu of a written reprimand. He
asserted that any jewelry the size of Brickley's button would
have been objectionable, even if it had said "I Love Snoopy."
On the day of the NLRB election, at least two employees
"consider that a direct instance of insubordination, and we will fire you," As
previously indicated, Rooney generally was the more credible of the two; and
he was in this instance.
1010
ROONEY'S AT THE MART
wore antiunion messages at work, and one more a prounion
message, without evoking comment from management; and
on the day of the general election in early November, one of
the employees wore a button stating his feelings on one of
the ballot propositions, again without word from manage-
ment."
Respondent has no formal rule concerning the wearing of
buttons. There is no evidence of customer complaints or loss
of business over Brickley's button.
On November 27 Brickley again was laid off, leaving only
Sharon Davis to wait tables on the evening shift. As before,
the General Counsel does not dispute the economic legitima-
cy of a layoff at that time, only the selection of Brickley.
Rooney testified that the button incident had a "bearing" on
her being chosen-"l weighed it equally with all the other
reasons." Other reasons, Rooney asserted, were her "insub-
ordination, her arrogance, her insulting manner with [him]";
her being "insulting and arrogant with her fellow employ-
ees"; and "because, in every aspect, Brickley's performance
does not compare with Davis'."
Regarding Brickley's relationship with the other employ-
ees, Rooney testified that, in addition to the Pat Tobin
matter previously described, another coworker, David Ben-
dell, had complained that he did not like to work with her
"because she was nasty, insulting, bossy, and that she called
him names"-to wit, Miss or Ms. Bendell. As for Brickley's
performance vis-a-vis Davis, Rooney's testimony largely
echoed that concerning Brickley's earlier layoff-i.e., Davis
"is a very attractive, genuine, friendly kind of person,"
whereas Brickley's work was "very mechanical and very
forced . .. [;] it is not warm, it is not friendly.""
Rooney testified that Brickley had been a satisfactory
employee "at one time," but that he felt she "had a personal
vendetta" toward him in the last few months. He admittedly
stated to one of the employees, after the NLRB election: "I
forgive everybody [who was for the Union] but Peg
[Brickley]." Hinman testified that he had been told by
Foster that Brickley was "a good waitress"-"she was
efficient. " Brickley had worked for Respondent since May
1976.
Respondent assertedly eliminated its evening shift alto-
gether in late January 1979 because of a lack of business, and
Sharon Davis was then terminated.
v. CONCLUSIONS
A. The Alleged Threats
The allegations: The complaint in Case 20-CA-13915
allegess that, on or about May 15, Rooney "threatened to
discharge or take other disciplinary action against" Brickley
because she went to the Industrial Welfare Commission; that
he told Brickley "that Respondent would close its business if
its employees voted for or otherwise supported a labor
organization"; that he "threatened to institute and discrimi-
natorily enforce work rules against" Brickley because of her
" Hinman was aware of one of the messages worn the day of the NLRB
election. Whether management knew of these instances otherwise is question-
able. In this regard, it is noteworthy that Brickley wore her button several
days before management responded.
'" The very day of Brickley's second layoff, however, Davis received a
union and protected concerted activities; and that Respon-
dent therefore violated Section 8(aX() in each instance.
Discussion: These allegations relate to the May 12 conver-
sation between Rooney and Brickley and are premised
mainly on Brickley's discredited testimony of what Rooney
said." To the extent that this is the premise, the allegations
necessarily are without merit.
It is further concluded, however, looking at the credited
evidence, that Rooney threatened Brickley in violation of
Section 8(a)(1) by the combination of his saying he did not
like her going to the Industrial Welfare Commission, his
mentioning the taxlaw requirements that employees declare
all their tips and that employers report those suspected of
not so doing, and his voicing doubt that Brickley declared all
of hers. Brickley's going to the Industrial Welfare Commis-'
sion plainly was an activity protected by the Act," and these
remarks by Rooney unavoidably conveyed the message that
she might well be turned in to IRS should she persist in that
activity. Rooney's comment, in response to Brickley's
question, that he was not demanding that she declare all her
tips, was not sufficient to dispel the threatening character of
these remarks.
B. The Restrictions on Solicitation
The allegations: The complaint in Case 20-CA-13915
alleges that Hinman "unlawfully promulgated an oral no-
solicitation rule" on May 16; that Rooney "unlawfully
promulgated a written no-solicitation rule" on May 17; and
that Respondent therefore violated Section 8(a)(1) in each
instance.
Discussion: It will be recalled that Hinman told Brickley
on May 16 that she was not to solicit "on my time"; and
that, on May 17, Rooney told her she was not to solicit "On
my time" and later gave her a written reprimand stating that
Respondent had no objection to her soliciting "during your
free (punched out) time, as long as the other employee is also
punched out,' but that "any further solicitations during
your or another employee's work hours will cause disciplin-
ary action ... ."
It generally is permissible in the restaurant industry to ban
solicitations in customer areas whenever those areas are
open to the public. Beth Israel Hospital v. N. L R.B., 437 U.S.
483, 493 (1978); The Times Publishing Company, 240 NLRB
1158 (1979); Marriott Corporation (Children's Inn), 223
NLRB 978 (1976). And, as in other industries, solicitations
may be banned in nonpublic areas during working time-
i.e., "time that is spent in the performance of actual job
duties, which would not include time allotted for lunch and
break periods." Essex International, Inc., 211 NLRB 749,
750 (1974).
Despite the breadth accorded restaurants in restricting
solicitations, it is concluded that Hinman's May 16 on-my-
time prohibition violated Section 8(aX1), in part for the
same reason that bans against solicitations "on company
time" are found to be improper. E.g., K. W. Norris Printing
Co., 232 NLRB 985, 988 (1977); Florida Steel Corporation,
written reprimand for reporting to work a day or two before both late and
unsuitably dressed.
" See fn. 3. supra.
" Air Surrey Corporation. 229 NLRB 1064 (1977); AIteluia Cushion. Inc..
221 NLRB 999 (1975).
1011
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
215 NLRB 97, 98-99 (1974). That is, Hinman's formulation
reasonably could have been construed to apply even during
breaks, for which the employees are paid although not
performing job duties. This would be acceptable, of course,
given the special latitude enjoyed by restaurants, were the
prohibition to apply only in customer areas, but Hinman's
did not contain that qualification, indicating that it was to
obtain throughout the premises."
Regarding the prohibition contained in Rooney's May 17
reprimand letter, it is concluded that it was not unlawful on
its face inasmuch as it specified that Respondent had no
objection to Brickley's soliciting during her "free (punched
out) time, as long as the other employee is also punched
out." Since the employees punched out for breaks, even
though paid for them, this served to confine the ban to times
when they were performing job duties. Moreover, the
reference to "free (punched out) time" overrode the ambigu-
ity of the interchangeable use, elsewhere in the letter, of
"work time" and "work hours." 0
But apart from the letter's facial legality, it is concluded
that its promulgation violated Section 8(a)(l), for the weight
of evidence indicates that it was intended more to impede
Brickley's union activities than to maintain production or
order in the restaurant. Its prohibition was addressed only to
the prime union adherent, promptly at the onset of her
organizational activities, rather than to the employees
generally; it would not have issued but for Brickley's
previous "noncompliance" with what has been determined
to have been an unlawful no-solicitation rule-Hinman's of
May 16, echoed by Rooney the morning of the 17th;
Respondent never before had what purported to be a no-
solicitation rule; and in contrast to its interest in regulating
Brickley's prounion activities, Respondent practiced a see-
no-evil aloofness as concerns the antiunion petitions circulat-
ed in June. See, generally, Roney Plaza Apartments, 232
NLRB 409, 411-412 (1977); Montgomery Ward & Co.,
Incorporated, 220 NLRB 373, 388 (1975); Alberts, Inc., 213
NLRB 686 (1974); State Chemical Company, 166 NLRB
455 (1967).
C. The Alleged Interrogation
The allegation: The complaint in Case 20-CA-13915
alleges that, on or about May 17, Rooney interrogated
Brickley about her union activities, thereby violating Section
8(a)(1).
Discussion: As previously found,"' Rooney and Brickley
had a conversation incidental to the presentation of the May
17 reprimand letter in which Rooney asked, in the context of
Brickley's organizational activities: (1) "What are you doing
this for?"; (2) "Why don't you just get another job?"; (3)
"Oh, it's a crusade, huh?"; and (4) "What do you want out
of this?"
While these questions seemingly were of a rhetorical
nature, not intended to elicit information, they nevertheless
conveyed deep antiunion feelings and were of such a
'- Although not alleged as a violation, Rooney's on-my-time prohibition to
Brickley the morning of the 17th likewise was improper.
:" As the Board notes in Essex International, Inc., 211 NLRB at 750, "there
is a clear distinction to be drawn between the terms 'working hours' and
'working time,"' the former connoting "the beginning to the end of the work-
shift" and the latter. as earlier stated, implying "time... in the performance
of actual job duties."
character in their totality, if not singly, as to restrain or
coerce within the meaning of Section 8(a)(l). It is concluded,
therefore, that Rooney violated the Act substantially as
alleged.
D. The Warning Letters
The allegations: The complaint in case 20-CA-13915
alleges that each of the three letters issued to Brickley-on
May 17, August 25, and October 24-was was motivated by
her union and protected concerted activities, thereby violat-
ing Section 8(a)(3) and (1).
Discussion: As previously concluded, the May 17 repri-
mand letter to Brickley was in reaction to her "noncompli-
ance" with the unlawful on-my-time no solicitation rule.
Therefore, apart from its being unlawful on the grounds
earlier stated, it violated Section 8(a)(3) and (1) because a
reprimand based on enforcement of an unlawful rule "is
itself unlawful." A.T. & S.F: Memorial Hospitals, Inc.,
NLRB 436 (1978).
It also is concluded that the August 25 letter was
motivated at least in part by Brickley's organizational and
protected, concerted activities (the complaints to the Indus-
trial Welfare Commission), and thus violated Section 8(a)(3)
and (1) as well. While the letter purported to be concerned
with her grooming and abuse of coworkers as exemplified by
the alleged Pat Tobin incident, Rooney's postelection confes-
sion that he forgave all of the prounion employees but
Brickley and his remarks while presenting the letter betrayed
an overriding motivation.
Indeed, by telling Brickley that management and her
coworkers did not like her; by suggesting that she "might be
happier" elsewhere and offering severance pay so she could
seek other work; and by indicating that she likely would be
laid off soon, partly because the other employees were
"uncomfortable with her around," Rooney delivered a
psychic blitz of considerable force. Plainly, the letter and
Rooney's remarks were a package meant to create so hostile
a climate that Brickley would leave of her own accord; and,
plainly, her grooming, which had been a problem through-
out her employment, and an incident such as that reported
involving Tobin, where profanity was common and Rooney
had boasted of running "a nice, loose, easy place," were not
the sole provocations. That leaves, as at least a factor behind
the August 25 letter and Rooney's remarks, Brickley's union
and other protected activities, which manifestly were an
enormous frustration to Respondent.2
It likewise is concluded that the October 24 letter was
prompted, to some extent, by improper considerations and
so also violated Section 8(a)(3) and (1). Rooney as much as
admitted, in his testimony, that he was influenced to write it
by the two earlier letters: "I looked through her file and I
looked at the other warnings and I thought ... I am really
tired of this." That being so, and those letters being
unlawful, this one acquired their stigma.
, See fn. 6, supra. and accompanying text.
" This is not to imply a total lack of sympathy for Respondent. Brickley
seemingly used her perceived statutory protections as instruments of tyranny
from time to time.
1012
ROONEY'S AT THE MART
Beyond that, Rooney gave as further reason for the
October 24 letter his desire that Brickley "go back to
behaving the way she did before all this started," adding that
he did not "want any problems anymore." The conclusion is
inescapable that he was alluding, again at least in part, to
Brickley's union and other protected activities.
E. The Button Matter
The allegation: The complaint in Case 20-CA-14231
alleges that, in November 1978, Rooney "threatened to
discharge employees for displaying buttons in support of
trade unions," thereby violating Section 8(a)(1).
Discussion: This allegation refers, of course, to the clashes
on November 9 and 10 between Rooney and Brickley's
wearing the button stating: "A Woman's Place is in Her
Union, AFL-CIO."
The Board stated in Floridan Hotel of Tampa. Inc.. 137
NLRB 1484, 1486(1962):
The right of employees to wear union insignia at
work has long been recognized as a protected activity.
The promulgation of a rule prohibiting the wearing of
such buttons constitutes a violation of Section 8(a)(l) in
the absence of evidence of "special circumstances"
showing that such a rule is necessary to maintain
production and discipline.... [T]hat the employees
involved come in contact with hotel customers does not
constitute such "special circumstances" as to deprive
them of their right . . . to wear union buttons at work.
Further on the subject of "special circumstances," the
Board stated in Eckerd's Market, Inc., 183 NLRB 337, 338
(1970):
Since mere contact with customers is not a basis for
barring employees from wearing union buttons, it
follows that Respondent's business or employee disci-
pline had to be affected by the display of union buttons
for it to justify the [prohibition]. [Emphasis supplied.]
Two subsequent cases indicate that the adverse impact on
business or discipline can be somewhat nebulous and still
satisfy the burden of justification. In United Parcel Service,
Inc., 195 NLRB 441 (1972), the Board did not consider the
specific effect on business or discipline of certain intraunion
campaign buttons in deciding that a ban on their being worn
by customer-delivery drives was permissible. Rather, the
Board noted "Respondent's history of presenting to the
customers and the general public its image of a neatly
uniformed driver and the fact that this is an important part
of Respondent's public image." Id. at 441, fn. 2. The buttons
in that case were 2-1/4 inches in diameter.
And, in Evergreen Nursing Home and Rehabilitation
Center, Inc., 198 NLRB 775 (1972), the Board upheld a ban
against the wearing of certain union buttons by nurses, citing
United Parcel Service, supra at 775, fn. . In so doing, it
adopted without comment this reasoning of the trial examin-
er:2'
' As administrative law judges then were called.
:' The trial examiner made the further point that many of the elderly
patients were "confused and disoriented," and that "their reactions to outside
stimuli of any sort . . . could cause severe agitation, upsetting Respondent's
operations and control." Ibid.
Such buttons are not inconspicuous, and their size did
detract from the dignity of the all-white uniform worn
by the employees. The neat and professional appearance
of the nurses is an important part of Respondent's
image both to its patients and the public. [198 NLRB at
779.]"
The buttons in that case were bright yellow and ranged in
size to a diameter of 2-1/4 inches.
Cases in this area obviously do not lend themselves to
mechanical resolution. Were the ban on Brickley's button an
issue in isolation, it perhaps would come within the
approving embrace of United Parcel Service and Evergreen
Nursing Home. The button, after all, was of a size (1-3 1/4")
and color (green lettering) to have detracted from the white-
blouse, black-skirt formality Respondent was seeking for its
evening shift, and the arguably feminist undertones of its
message might well have offended some of the customers.
On the other hand, Respondent by then had committed a
number of unfair labor practices, some of a severe character,
and all directed at Brickley.2 ' Moreover, the objections to the
election were then pending, raising the possibility of a rerun
election and foreclosing any intimation that Brickley did not
have an ongoing organizational-as opposed to frivolous or
purely mischievous-purpose in wearing the button.
Rooney is believed that he was genuinely concerned about
the effect of the button on Brickley's appearance when he
told her to remove it. It nevertheless is concluded in all the
circumstances, and especially in light of what had become a
major project to induce Brickley either to quit or change her
ways, prompted in significant part by her union and other
protected activities, that Rooney was acting in furtherance
of that project as well. Rooney's insistence that she remove
the button therefore violated Section 8(a)(1); and her being
sent home on November 9 for refusing to remove or alter it
with tape as decreed by Rooney violated Section 8(a)(3) and
(1).? Howard Johnson Co., 209 NLRB 1122, 1131 (1974);
Consolidated Casinos Corp., Sahara Division. 164 NLRB 950
(1967).
F. The Two Layoffs of Brickley
The allegations: The complaint in 20-CA-13915 alleges
that Respondent laid off Brickley on September 1, 1978,
because of her union and other protected activities, thereby
violating Section 8(a)(3) and (1). The complaint in Case 20-
CA-14231 makes the same allegation concerning Brickley's
layoff on November 27, 1978. To repeat, the General
Counsel does not dispute the business legitimacy of a layoff
at either time, only Brickley's being selected.
Discussion: It is concluded that Brickley's selection in both
instances was based in part, if not wholly, on improper
considerations and therefore was unlawful each time.
Regarding the September I layoff, Rooney testified that
the "primary consideration" in Brickley's selection "was to
create a better working atmosphere"; and that she was
chosen "because of all the problems that we had with her,
but primarily because of her attitude." Another factor,
" Including Brickley's having been selected for the September 1 layoff for
reasons found below to have been in part unlawful.
' Although Brickley's being sent home is not alleged as a violation, it is
sufficiently intertwined with the allegation concerning the button and was
sufficiently litigated as part of that situation to warrant a finding of violation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to Rooney, was the August 25 warning letter,
previously found to have violated Section 8(a)(3) and (1). It
will be recalled that, when presenting the August 25 letter to
Brickley, Rooney remarked on management's and the other
employees' dislike for her, suggested that she "might be
happier" working elsewhere, and offered her severance pay
to seek other work.
Since Brickley's selection derived to a degree from the
unlawful letter, it was perforce unlawful. Beyond that, as
previously mentioned," the August 25 letter and Rooney's
attendant remarks plainly were designed to induce Brickley
to quit, at least in part because of her union and other
protected activities. That, coupled with Rooney's admitted
inability to forgive only Brickley among the prounion
employees, and his explanation that she was chosen for the
September 1 layoff "because of her attitude," "because of all
the problems that we had with her," and "to create a better
working atmosphere," gives rise to an unavoidable inference
that her selection was prompted by those same improper
considerations.
Much the same analysis applies to the November 27
layoff. Some of the reasons advanced by Rooney for
Brickley's selection-"insubordination, her arrogance, her
insulting manner"-are but new labels for the reasons given
in connection with the earlier layoff and warning letters, and
are no more effective in concealing the unlawful motivation.
Rooney, in addition, admitted that the button incident had a
"bearing" on Brickley's being chosen in this instance.
Therefore, since Brickley's part in that incident was protect-
ed and Rooney's was improper, as previously found, this
alone tainted the layoff.
CONCLUSIONS OF LAW
As previously concluded, Respondent violated Section
8(a)(1) in each of these instances:
1. By implying to an employee, on May 12, 1978, that she
would be reported to IRS for failing to declare all her tips
should she persist in going to the Industrial Welfare
Commission concerning conditions of employment.
2. By promulgating and enforcing a rule on May 16, 1978,
prohibiting employees from engaging in union solicitations
during nonworking time in nonpublic areas of its restaurant.
3. By promulgating and enforcing a no-solicitation rule on
May 17, 1978, for the purpose of discouraging union
activities.
4. By asking an employee on May 17, 1978, with reference
to her organizational activities, what she was doing it for,
what she wanted out of it, if it were a crusade, and why she
did not get another job.
5. By demanding, on November 9 and 10, 1978, that
Margaret Brickley remove a union button, the purpose being
to discourage union activities.
Also as previously concluded, Respondent violated Sec-
tion 8(a)(3) and (1) in each of these instances:
I. By issuing reprimand or warning letters to Brickley on
May 17, August 25, and October 24, 1978, because of her
union and other protected activities.
2. By sending Brickley home from work on November 9,
1978, because she refused to remove or alter a union button.
3. By selecting Brickley for layoff on September I and
again on November 27, 1978, in part because of her union
and other protected activities.
THE REMEDY
The remedy in most respects needs no special comment.
As concerns the layoffs, however, elaboration is indicated.
There being no way of determining if, apart from
improper considerations, Brickley would have been laid off
on September I and November 27, Respondent shall be
ordered to make her whole as though she would not have
been, applying the familiar principle that the hardship of any
such uncertainty should be suffered by the party whose
misconduct created it.
Regarding Respondent's asserted elimination of the eve-
ning shift in January 1979 and the attendant termination of
that shift's remaining waitress, it is felt that the facts of the
situation were not sufficiently developed or litigated to
warrant a departure from the usual backpay/reinstatement
remedy. Should it be ascertained in the compliance stage,
however, that the shift indeed was eliminated and the
remaining waitress terminated, it would be reasonable to
suppose that Brickley, too, would have been terminated,
necessarily affecting her backpay accrual and reinstatement
rights. The conventionally couched backpay-reinstatement
remedy herein is meant only as a precautionary measure and
not to preclude tailoring to circumstances in the compliance
stage. See Mervyn's, 240 NLRB 54 (1979).
THE OBJECTIONS
Citing The Ideal Electric and Manufacturing Company,
134 NLRB 1275 (1961), Respondent argues that the election
should not be set aside because any misconduct occurred
outside the "critical period"-i.e., either before the June 9
filing of the petition or after the August 18 holding of the
election. The Union does not quarrel with the Ideal Electric
doctrine, but contends that Respondent's misconduct con-
cerning solicitations impinged on the critical period in a
manner interfering with free voter choice and requiring a
rerun electon.
An unlawful no-solicitation rule in effect during the
critical period is a proper ground for setting aside an
election, even though promulgated outside that period and
not enforced during it. The Dezurik Division General Signal
Corporation, 234 NLRB 914 (1978). It is concluded that the
rule unlawfully promulgated in Brickley's May 17 repri-
mand letter comes within this principle and that the election
of August 18 therefore should be set aside.
Respondent not only failed to cure that misconduct before
the petition was filed, but reinforced it on May 25 by posting
the "No Soliciting" signs without disclosing their supposed
inapplicability to the employees. The inhibiting effect on
Brickley and others' prounion activities necessarily carried
into the critical period. Then, further aggravating the
situation, the two antiunion petitions received broad circula-
" See texi accompanying fn. 22, supra.
1014
ROONEY'S AT THE MART
tion in the early days of the critical period, in part during
working time, while Respondent assiduously avoided in-
volvement, let alone any attempt to subject that activity to
the same strictures. See American Safely Equipment Corpo-
ration, 234 NLRB 501 (1978); Rockwell International
Corporation, 226 NLRB 870 (1976)."
ORDER'
The Respondent, John Rooney, David Hinman, and
Beverly Foster d/b/a Rooney's at the Mart, San Francisco,
Calfornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees, either expressly or by implica-
tion, that they will be reported to IRS for failing to declare
all tips should they persist in going to the Industrial Welfare
Commission concerning conditions of employment.
(b) Promulgating or enforcing any rule prohibiting em-
ployees from engaging in union solicitations during non-
working time in nonpublic areas of its restaurant.
(c) Promulgating or enforcing any no-solicitation rule for
the purpose of discouraging union activities.
(d) Asking employees, with reference to their union
activities, what they are doing it for, what they want out of
it, if it is a crusade, and why they do not get another job.
(e) Demanding that employees remove union buttons and
sending them home from work because they refuse to do so.
(f) Issuing reprimand or warning letters to employees
because of their union or other protected activities.
(g) Selecting employees for layoff because of their union or
other protected activities.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under the Act.
2. Take this affirmative action:
(a) Offer to Margaret Brickley immediate and full rein-
statement to her former job or, if that job no longer exists, to
' Respondent would distinguish between rules invalid on their face and
those invalid only because of the circumstances of promulgation, arguing that
a strict Ideal Electric cutoff should apply in the latter situation. "Otherwise,"
the argument goes. "it would be virtually impossible to ever cure such
invalidity"; an employer would be "forever forbidden from promulgating a
lawful rule by his initial transgression." lest he contaminate the election
process. This argument is rejected as being without support in the cases.
Moreover, it overstates the dilemma, ignoring the Board's ability to evaluate
cases on their peculiar facts and circumstances. Finally, as applied to the
present case. it fails to consider the improperly promulgated May 17 rule in
the context of the "No Soliciting" signs and Respondent's "benign neglect,"
during the critical period, while the antiunion petitions were abroad.
' All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
a substantially equivalent job, without prejudice to her
seniority or other rights and privileges; and make her whole
for any loss of earnings or benefits suffered by reason of her
unlawful layoffs, with interest to be added to lost earnings."'
(b) Make Brickley whole for any loss of earnings or
benefits suffered by reason of her unlawfully being sent
home from work for refusing to remove or alter her union
button, with interest to be added to lost earnings.
(c) Remove from its personnel files and all other records
all originals and copies of the reprimand or warning letters
issued to Brickley on May 17, August 25, and October 24,
1978, as well as any references to those letters; and inform
Brickley in writing that this has been done.
(d) Preserve and upon request, make available, to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay and benefits owing under the terms
of this Order.
(e) Post at its San Francisco restaurant copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 20,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election of
August 18, 1978, be set aside and a new election directed.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
- Backpay is to be computed in accordance with F. . oolworth
Company. 90 NLRB 289 (1950), with interest to be computed as set forth in
Florida Steel Corporation. 231 NLRB 651 (1977). See, generally. Isis
Plumbing & Heating Co.. 138 NLRB 716 (1962).
" In the event that this Order is enforced by a Judgment of the 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."
1015