Saddle West Restaurant

National Labor Relations Board - Board Decisions

Apr 16, 1984

269 N.L.R.B. 1027 (N.L.R.B. 1984)

SADDLE WEST RESTAURANT
Pareco, Inc. d/b/a Saddle West Restaurant and
Casino and Diana Jean Schultz. Case 31-CA-
11415
16 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 2 September 1983 Administrative Law Judge
Maurice M. Miller issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
TheBoard has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pareco, Inc.
d/b/a Saddle West Restaurant and Casino, Pah-
rump, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 Member Hunter, in adopting the judge's decision, finds it unneces-
sary to rely on all of the judge's reasoning.
s The judge correctly included in his recommended Order a require-
ment that the Respondent expunge from its files any references to
Schultz' termination and notify her that this has been done and that the
discharge will not be used against her in any way. He failed to include a
corresponding provision in his notice, however. Accordingly, we shall
substitute the attached notice which conforms with the recommended
Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or lay off employees, or
discriminate in any manner with regard to their
hire or tenure of employment, or their terms and
conditions of employment, because of their partici-
pation in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Diana Jean Schultz immediate
and full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL notify her that we have removed from
our files any reference to her discharge and that
the discharge will not be used against her in any
way.
PARECO, INC. D/B/A SADDLE WEST
RESTAURANT AND CASINO
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge.
Upon a charge filed on August 11, 1981, by Diana Jean
Schultz, designated as complainant herein, and duly
served, the General Counsel of the National Labor Rela-
tions Board (the General Counsel) caused a complaint
and notice of hearing, dated October 19, 1981, to be
issued and served on Pareco, Inc. d/b/a Saddle West
Restaurant and Casino, designated as Respondent within
this decision. Therein, Respondent was charged with the
commission of unfair labor practices within the meaning
of Section 8(a)(1) of the National Labor Relations Act.
Respondent's answer and amended answer, duly filed,
concedes certain factual allegations within the General
Counsel's complaint, but denies the commission of unfair
labor practices.
Pursuant to notice, a hearing with respect to this
matter was conducted on July 27 and 28, 1982, in Las
Vegas, Nevada, before me. The General Counsel and
Respondent were represented by counsel. Each party
was afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence
with respect to pertinent matters. Following the hear-
ing's close, the General Counsel's representative and Re-
spondent's counsel filed comprehensive and well-drafted
briefs; these briefs have been duly considered.
On the complete testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following
269 NLRB No. 177
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no questions, herein, with respect to
the General Counsel's present jurisdictional claims. On
the complaint's relevant factual declarations-more par-
ticularly, those set forth in detail within the second para-
graph therein-which Respondent's counsel concedes to
be correct, and on which I rely, I conclude that Re-
spondent herein was, throughout the period with which
this case is concerned, and remains, an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and business activities affecting commerce within
the meaning of Section 2(6) and (7) of the statute. Fur-
ther, with due regard for presently applicable jurisdic-
tional standards, I find assertion of the Board's jurisdic-
tion in this case warranted and necessary to effectuate
statutory objectives.
11. PROTECTED CONCERTED ACTIVITY
Considered in totality, the present record warrants a
determination, which I make, that Diana Jean Schultz,
complainant herein, was-prior to her discharge-par-
ticipating in concerted activity qualified for statutory
protection. The General Counsel's record presentation,
in this connection-together with Respondent's defensive
presentation-will be considered, subsequently, within
this decision.
III. THE UNFAIR LABOR PRACTICE CHARGED
A. Issues
This case presents a limited number of questions, gen-
erated by complainant's August 1981 discharge. Within
his brief, Respondent's representative fairly summarizes
these questions:
(1) Did complainant participate in concerted com-
plaints to Respondent's management, protesting manage-
ment's decision to cease providing employees with meal
tickets, and did she further encourage her fellow employ-
ees to boycott the restaurant facility on Respondent's
premises, in support of their protest?
(2) If she did, should her conduct be considered con-
certed activity protected by the statute?
(3) If so, did Respondent's management have any
knowledge regarding her participation in such concerted
activity?
(4) Assuming Respondent's knowledge with respect to
complainant's course of conduct, did Respondent's man-
agement have "animus" toward her, because of her con-
certed activities?
(5) Assuming Respondent's demonstrable "animus"
toward complainant, would the firm's management, nev-
ertheless, have terminated her, for some nonproscribable
reason, even absent some suspect motivation?
The General Counsel contends, herein, that complain-
ant was engaged in protected concerted activity, that
Respondent was cognizant with respect thereto; that
management's decision to discharge her derived from re-
sentments generated by her participation in such protect-
ed concerted activities, and that she would not have
been terminated absent Respondent's statutorily pro-
scribed motivation.
B. Facts
1. Background
a. Respondent's business
(1) Physical facilities
When the particular situation with which this case is
concerned developed, Respondent maintained and con-
ducted a combined restaurant and gaming casino business
in Pahrump, Nevada; Pahrump is a small community,
with slightly less than 4000 population, located some 60
miles northwest of Las Vegas, near the California state
line.
There, Respondent's business was conducted within a
single two-story building which-solely within its first
floor space-compassed a restaurant and related kitchen
facility; a small pinball/video game area; a gaming casino
which, inter alia, held three "21" tables, a poker table,
and some slot machines; a bar; and a dance floor. The
property is owned by a business enterprise known as
Pareco Limited Partnership; functioning as a separate
legal entity, Pareco, Inc., Respondent herein, operated-
and, when this case was heard, still operated-the
gaming casino. Before July 1981, the restaurant was op-
erated by a closely related, but legally separate partr.er-
ship called Saddle West Company Restaurant. The com-
plete facility is open for business 24 hours per day; Fri-
days, Saturdays, and weekday evening hours are normal-
ly the busiest periods, particularly for Respondent's
casino operations.
(2) Management
Throughout the period with which this case is con-
cerned, Robert Huffman, concededly a principal part
"owner" within the tripartite web of partnership and
corporate enterprises herein noted, served as Respond-
ent's managerial overseer, generally. Philip Garwood
has, however, functioned throughout as Respondent's
designated general manager. When the situation which
gave rise to this case developed, Garwood was consid-
ered generally responsible for Respondent's casino oper-
ations, though subject, of course, to Part Owner Huff-
man's proprietary oversight. However, Valita Huffman,
Robert Huffman's sister, supervised Respondent's restau-
rant operations, particularly.
(3) Employees
Throughout the period with which this case is con-
cerned, Respondent employed some 30-plus workers,
serving on various shifts. This number compassed some
12 casino "21" dealers, 4 or 5 concededly supervisory
casino pit bosses, 4 or 5 restaurant waitresses, 3 or 4 bar-
tenders, 3 or 4 "cage" cashier personnel, 2 or 3 cooks, 2
cocktail waitresses, I or 2 dishwashers, and I or 2 office
workers.
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SADDLE WEST RESTAURANT
(4) Respondent's meal ticket policy
Before July 17, 1981, Respondent maintained a so-
called "meal ticket" policy, pursuant to which casino and
restaurant employees were, each, permitted to sign for
one meal, taken in Respondent's restaurant, during what-
ever shift they worked. The restaurant waitresses would
write regular checks for whatever meals Respondent's
employees took, pursuant to this policy. Such checks,
however, were not rung up, in full, on Respondent's res-
taurant cash register. Whenever the particular employ-
ee's meal cost $3.50 or less, that employee would simply
sign the check, and pay nothing further. Should the
check call for more than a $3.50 payment, the worker
concerned was required to pay the difference, between
$3.50 and the check's stated total.
Respondent's casino pit bosses-herein stipulated to be
supervisors within the meaning of the statute-were
beneficiaries of a more liberal "meal ticket" privilege.
They could sign restaurant checks for the cost of their
meals-without being required to pay for them-even
when such checks called for more than a $3.50 payment.
Further, they could sign for all meals taken; they were
not limited to one meal per shift.
This so-called meal ticket privilege constituted the sole
fringe benefit which Respondent's employees received,
apart from their wages, though casino employees might
further receive gratuities ("tokes") sometimes, from
casino customers. The record warrants a determination,
which I make, that most of Respondent's employees,
during this period, claimed meal ticket benefits on their
respective work shifts.
b. Diana Jean Schultz
Complainant was hired by Respondent's restaurant
manager, Valita Huffman, on January 10, 1981; she start-
ed work as a restaurant waitress, cocktail waitress, and
bartender, working various shifts. Schultz was told,
when she was hired, that she would be paid $3.25 per
hour and would receive a single "meal ticket" for what-
ever shifts she worked.
When hired, complainant had declared her desire to
become a casino "21" dealer, should some opening for
such a position become available. While serving as Re-
spondent's restaurant waitress and bartender, therefore,
she sought, and received, training for service as a casino
dealer.
Sometime in March, complainant became a full-time
casino "21" dealer; she retained this position until she
was terminated, under circumstances which will be noted
hereinafter.
While so employed, Schultz normally worked Friday
and Saturday evenings, from 9 o'clock to 5 in the morn-
ing, and Mondays from 4 in the morning until noon. She
would, then, return on Monday evening, starting at 8
o'clock, and work until 4 on Tuesday morning. These
four shifts provided her, regularly, with 32 hours of
work, per week. Additionally, she was subject to call for
further work, whenever Respondent's pit boss, then on
duty, might require an extra dealer. Such extra shifts,
normally, provided complainant with an average total of
40 hours work, per week.
While working as a dealer, Schultz was, however, per-
mitted a 15-minute "break" within each hour; during
such "break" periods she was provided with free coffee
or tea refreshment, but was required to remain within the
casino's pit area.
c. Respondent's restaurant lease
For some time prior to July 1981, Huffman, Respond-
ent's proprietor, had been, so his testimony shows, deter-
mined to lease his facility's restaurant. While a witness,
Huffman declared, without challenge or contradiction,
that he had not considered himself sufficiently knowl-
edgeable to maintain a restaurant operation profitably; he
had not, however, been able to locate a surrogate manag-
er qualified to take over that responsibility. Respondent's
proprietor had, therefore, determined, so he testified, that
someone with a defined "vested interest" in the restau-
rant's success would have to be found, to make it profita-
ble; he had discussed a restaurant lease with several po-
tential lessees.
In July 1981, Huffman decided, finally, to lease his res-
taurant facility to one Alberto Merel; that prospective
lessee, so Respondent's proprietor understood, had previ-
ously established numerous pizza parlors, and had, at one
time, managed an Italian restaurant.
The lease negotiated by Huffman and Merel, so the
record shows, provided for a flat monthly rental pay-
ment; Merel was, further, committed to purchase Re-
spondent's restaurant inventory. Initially, the lessee had
planned to finance his required inventory purchase, and
essential "starting" costs, with funds derived from the
sale of his house, plus a loan. When these arrangements
fell through, however, Huffman had agreed preliminarily
that Merel could, nevertheless, take over Respondent's
restaurant facility forthwith, though he would be re-
quired to provide further monthly payments earmarked
for the purchase of the restaurant's inventory, which
were to be spread over some period of time.
Respondent's lease arrangement, then, was to become
effective, pursuant to a negotiated consensus, following
Merel's procurement of certain equipment required for
his projected restaurant operation. He completed his ar-
rangements more quickly than Respondent's proprietor
had expected, and requested Huffman's consent to take
over Respondent's restaurant facility forthwith. A quick
"abbreviated" restaurant inventory, thereupon, was
taken; on Friday, July 17, Merel became Respondent's
lessee.
2. The suspension of Respondent's meal ticket
policy
a. The suspension
Prior to July 17, during his lease negotiations with
Merel, Huffman had-so his testimony, proffered with-
out challenge or contradiction, shows-tried to negotiate
provisions concerning both his personal meal privileges,
and continued meal privileges for Respondent's employ-
ees. Merel had conceded that he would "handle" his les-
sor's personal meals; the negotiator could reach no con-
sensus, however, with regard to possible special arrange-
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments for regular employees' working shift meals. (Merel
contended that his working capital funds were limited,
and that his anticipated profit margin would not be suffi-
cient to cover his prospective costs, for regular employ-
ee meal allowances.)
Huffman had suggested his readiness to pay for restau-
rant meals which Respondent's lessee might provide for
Respondent's employees, if Merel would simply bill him,
at month's end, for the costs involved. The restaurant
lessee however had rejected the suggestion, contending
that he would not have free funds sufficient to replenish
his required supplies before receiving Huffman's month-
end payments. While a witness, Huffman declared-for
the present record-that, when confronted with Merel's
dilemma:
[T]here was no way that I [Huffman] could just
give them [Respondent's employees] the money to
go in and buy their own meals at this point in time.
[Interpolations supplied to provide clarity.]
With matters in this posture, then, the lease negotiators
set aside their problem for later resolution. They reached
a sidebar consensus, merely, that they would eventually
try to work out "some kind of a cut-rate price" payable
by Respondent, or chargeable to Respondent's employ-
ees, for their working shift meals, plus some sort of ar-
rangement whereby Respondent's management could-
whenever it desired-request, and pay for, meals provid-
ed to favored casino customers.
On Friday, July 17, concurrently with Merel's restau-
rant takeover, Respondent's casino employees learned
that their "meal ticket" benefit had been suspended.
Most of them were notified by restaurant personnel, or
heard about their meal privilege's cancellation by word
of mouth from fellow workers.
Respondent's management had provided no advance
notice, with regard to this change; neither Huffman nor
General Manager Garwood had drafted, or even consid-
ered, any sort of general announcement beforehand that
Respondent's previously maintained meal ticket system
would no longer be operative. (Conceivably, their failure
to prepare such a general announcement may have been
due to the fact that Merel's readiness to take over Re-
spondent's restaurant facility, so soon, had not been an-
ticipated.)
Prior to Merel's takeover as Respondent's restaurant
lessee, General Manager Garwood had been planning a
short vacation, scheduled to begin on Friday, July 17.
When Respondent's lessee proclaimed himself ready to
take over restaurant operations, forthwith, on that date,
his declared determination had concededly found both
Huffman and Garwood unprepared. Nevertheless, fol-
lowing their "quick" consummation of required prelimi-
nary arrangements, Respondent's principal part owner,
so Garwood's testimony shows, had directed the general
manager to proceed with his vacation plans; Garwood
was told that they could "let [the problem of meal privi-
leges for Respondent's employees] go" until his return.
Thus advised, Garwood, so he testified, may have told
"some" employees-though, concededly, not all-that,
with a lessee providing restaurant service, their working
shift meal benefit would no longer be available. Despite
this, some July 17 night-shift casino workers were, so the
record shows, caught without pocket money sufficient to
pay for their midshift meals, particularly on that date;
presumably, they received no food.
b. Employee reactions
Throughout the 10-day period which followed, prior
to General Manager Garwood's July 27 return, their loss
of previously granted "meal ticket" benefits generated
considerable discussion, reflective of manifest resentment,
within Respondent's employee complement. According
to complainant herein-whose testimony, within my
view, generally merits credence-many casino employ-
ees, restaurant waitresses, cashier "cage" employees, and
bar workers openly proclaimed their displeasure over the
sudden loss of their sole work-related fringe benefit, and
frequently voiced their resentment, directed particularly
toward Respondent's general manager, who had depart-
ed, on vacation, without answering that their "meal
ticket" privilege had been suspended. (Mary Jo Rotra-
mel, General Counsel's witness, who had been a pit boss
in Respondent's casino, at the time, testified herein that
"the whole place was in an uproar" because their meal
ticket benefit had been terminated. There were general
"understandings" expressed that Respondent's meal
ticket privilege had, therefore, been designated a part of
the wage package, which employees had been "offered"
when they were hired; some felt that Respondent's em-
ployees should be "compensated" somehow, for its loss.)
During numerous discussions, many of Respondent's
employees proclaimed their determination to refrain from
patronizing the newly leased restaurant facility. They be-
lieved-so several witnesses recalled-that they had not
been fairly treated. Complainant's testimony herein-
which Theresa Stanton, former casino dealer summoned
as Respondent's witness, confirmed-warrants a determi-
nation, which I make, that "everyone kind of agreed"
they would bring sack lunches, rather than eat restaurant
food. Jill Holmes, Respondent's former pit boss-whose
proffered recollections, in their particular connection,
match that of several witnesses herein-testified, credi-
bly, that many employees felt they could not afford res-
taurant meals; she recalled that all of Respondent's con-
cerned employees had discussed "not eating in the res-
taurant" until they were vouchsafed some "answers"
with regard to Respondent's suspension of their meal
ticket privileges.
Subsequent to July 17, many of Respondent's employ-
ees did, indeed, bring lunches in paper bags, when they
reported for work. They did not purchase restaurant
meals. Some few employees, reportedly, brought their
"brown bag" lunches into Merel's newly leased facility,
and consumed them while seated at restaurant tables; the
prevalence of this practice, however, cannot be deter-
mined precisely from the testimonial record herein.
Respondent's management representatives were fully
cognizant, so the record shows, regarding the nature and
scope of this employee distress. While a witness, Part
Owner Huffman conceeded that, during General Manag-
er Garwood's absence:
1030
SADDLE WEST RESTAURANT
[T]here was quite a lot of dissension starting in the
place. There was a lot of upset amongst the em-
ployees about loss of meals, which I could under-
stand. It is something they had had for quite some
time and we had had to cut out. ... It was cir-
cumstances that nobody could really help at this
point in time with the present manager we brought
in.
Though Merel tried to compensate employees, for their
meal ticket loss, by providing them with "nacho" snacks
and pizzas, for consumption at Respondent's bar and
within the facility's casino area, during break periods,
Huffman noted, so he testified, that there was still "quite
a lot of dissatisfaction and dissension" within Respond-
ent's employee complement. Respondent's part owner
was "dissatisfied" with those continued manifestations of
disaffection; he thought they were destroying his "close-
knit . . . family-type" business operation. Huffman, so
his testimony shows, queried his lessee again with re-
spect to whether he had considered some way to provide
"some type of meal" for Respondent's employees; Merel
reported, however, that he had "enough problems"
trying to handle his current volume of business, and
could not undertake further obligations.
c. Management's response
Despite Huffman's purported concern he took no
action, looking toward a possible solution, prior to Gen-
eral Manager Garwood's return. When Garwood report-
ed back from his vacation-some time on Monday, July
27, presumably-he was told, by Respondent's part
owner, that there was considerable dissension, resulting
in low morale, amongst Respondent's employees, bot-
tomed upon dissatisfaction regarding their meals. With
respect thereto, Huffman testified:
I said, "I understand they have got a legitimate
beef there-that we need to try to make some kind
of compensation. We must get this straightened out,
with this dissension and stuff. So get a meeting with
the employees. See if you can calm them down."
When summoned as Respondent's witness, Garwood
conceded, consistently with Huffman's testimony, that
directly following his return he had been told, by every-
body, but primarily by Respondent's part owner, that
there was a great deal of "turmoil [and] unhappiness"
within Respondent's employee complement. Previously
herein, when summoned, initially, as the General Coun-
sel's witness, Respondent's general manager had specifi-
cally conceded his "knowledge" also that some of Re-
spondent's employees were refraining from patronizing
their employer's leased restaurant facility, in protest of
their "meal ticket" loss. (Likewise, when subsequently
cross-examined by the General Counsel's representative,
Garwood reiterated his concession that Respondent's em-
ployees had been "upset" over their meal ticket losses.)
He conceded, further, that this knowledge, particularly,
had prompted him to call a July 29 meeting, to "smooth
over" things, to "calm down" protests, and to "satisfy"
Respondent's employees.
However, while testifying in Respondent's behalf, Gar-
wood nevertheless claimed-purporting, to present a dif-
ferent explanation for his decision to meet with Respond-
ent's employees-that Huffman had, further, told him
about employees who had brought their sack lunches, or
food purchased from a nearby sandwich shop, into Re-
spondent's restaurant facility; that Respondent's part
owner had, further, reported comments and suspicious
queries, proffered by restaurant customers who had ob-
served Respondent's personnel eating food purchased
elsewhere, and sack lunches there; that Huffman had de-
scribed the relationship between Respondent's employees
and the restaurant's new management as marred by con-
siderable "animosity" and reciprocated "ill feelings" run-
ning in both directions; and that Respondent's part
owner had reported himself distressed, because Respond-
ent's employees had been allegedly "bad-mouthing" the
restaurant, because their derogatory public comments
about the restaurant were being heard by restaurant cus-
tomers, and because their statements and conduct were
"embarassing" both Merel's restaurant and Respondent's
casino operation. With this testimony, so the General
Counsel's representative cogently notes, Garwood clear-
ly sought to suggest, while a witness, that he had decid-
ed to call a July 29 meeting of Respondent's personnel
primarily because he was concerned about "snow-ball-
ing" deliberate attempts, by Respondent's employees' to
embarrass the restaurant operators, and because he was
further concerned regarding the possible effects which a
continued "meal ticket" contretemps might have on both
Respondent's casino customers, and prospective restau-
rant patrons.
The general manager's broadly phrased, self-serving
suggestions with regard to his purported motivation,
however, lack persuasive record support. They stand
belied, first of all, by his initial testimonial concesssion,
reiterated during his subsequent cross-examination, that
he knew Respondent's employees were, basically, protest-
ing their "meal ticket" loss; that loss, of course, clearly
represented a fringe benefit deprivation with respect to
which they patently considered their direct employer,
not the restaurant facility's new management, responsible.
They stand belied, further, by Huffman's testimonial con-
cession that he was primarily dissatisfied because dissen-
sion within Respondent's personnel complement had appar-
ently destroyed the "close-knit ... family-type" rela-
tionship which Respondent's part-owner had been con-
cerned to maintain. (As previously noted, Huffman testi-
fied, herein, that Garwood was told Respondent's em-
ployees, within his view, had a legitimate grievance,
with respect to which "we [Respondent] need to try to
make some kind of compensation" for lost meal ticket
privileges. While a witness, Garwood conceded, like-
wise, that shortly following his return from vacation Re-
spondent's management had, again, sought some arrange-
ment whereby casino employees could purchase "spe-
cial" meals, or purchase regular meals at reduced prices,
particularly because Huffman and he felt that "even
though we had no control over the meals at that time,
we did want to do something" which would benefit Re-
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's employees, in that regard, thereby making
them feel better.)
Finally, they stand belied by Garwood's testimonial
concession; when cross-examined by the General Coun-
sel's representative, that Huffman had never mentioned
"bunches of people" who had, functioning in concert,
brought bag lunches, or purchased food elsewhere,
which they then consumed openly while seated in Re-
spondent's leased facility. Huffman, so Garwood testi-
fied, had merely reported such incidents which would
"now . . . and . . . again" happen. And Respondent's
general manager declared his personal belief, while a
witness herein, that such incidents had constituted noth-
ing more than "isolated" situations involving particular
employees; further, he conceded his lack of knowledge
regarding any significant "interaction or discussions" be-
tween Respondent's employees and the restaurant's new
management.
Upon this record, I find determinations warranted that
Respondent's management representatives knew Re-
spondent's employees were highly disturbed and dis-
tressed over their sudden, never foreseen, loss of meal
ticket privileges; that Huffman and Garwood both under-
stood Respondent's employees were concertedly or con-
jointly pursuing courses of action calculated to make
their distress manifest; that Huffman directed Garwood
to repair the situation, rather than merely request em-
ployees not to embarrass the restaurant's management or
disconcert customers; and that, mindful of these consid-
erations, General Manager Garwood, pursuant to Huff-
man's suggestion, determined to summon Respondent's
personnel, hoping that they could be placated.
3. Respondent's July 29 meeting
a. The meeting
Respondent's general manager held his planned meet-
ing-which some 12 of the casino's "pit" personnel, deal-
ers, and pit bosses attended-on July 29, during morning
hours. The meeting was held on Respondent's dance
floor, next to the bar. The General Counsel's witnesses-
whose synthesized, mutually corroborative testimony,
with respect to what Garwood said, merits credence,
within my view-recalled that Respondent's general
manager confirmed the restaurant facility's lease; and
that he further confirmed Respondent's termination of
their previously maintained "meal ticket" privileges,
adding that he did not want to hear any more complaints
regarding the situation. Garwood stated so I find that
Respondent's management wanted to see their restaurant
lessee succeed; that, should Respondent's employees
"bad-mouth" the restaurant, such statements would not
help; and that Huffman had declared he did not want
anyone "bad-mouthing" the restaurant. Respondent's
general manager further stated forcefully that, should
there be any more "trouble" regarding their lost meal
ticket privileges, he would terminate "anybody or every-
body" within the casino pit complement and hire a new
crew if he considered such action required. He asked, fi-
nally, whether anyone had any comments; receiving no
immediate response, he left the dance floor directing his
steps toward Respondent's restaurant facility.
With their meeting concluded, several dealers and pit
bosses drifted back to Respondent's casino "pit" nearby;
there, split into several conversational groups, they
began to discuss Garwood's message. Several comments
were made that their meeting had been quite "short and
sweet"; some employees declared their shock and dis-
tress over the fact that they had been given no opportu-
nity to report how unhappy they were. Some group
members further opined that Garwood had not been fair;
they complained that Respondent's management had
never notified them beforehand regarding the restau-
rant's lease, or their consequent loss of meal ticket privi-
leges, and that no expressions of regret had, even, been
vouchsafed them.
At this point, Respondent's general manager rejoined
the group. He notified those present that they could
bring sack lunches if they wished; that he could not
force anyone to patronize the casino's restaurant; but that
those who brought sack lunches should comsume them
in Respondent's dance floor section. He repeated his
threat that, should he hear anymore complaints about
their lost meal ticket privileges, Respondent's pit em-
ployees would all be discharged.
The record, considered in totality, warrants a determi-
nation, which I make, that complainant then spoke up;
she repeated, I find, comments which in substance she
had previously made, that she could not afford to pa-
tronize the restaurant as a full paying customer, that she
had considered Respondent's meal ticket benefit part of
her wages, and that loss of that benefit represented a pay
cut. Several of those present-Pit Bosses Rotramel and
Beth Wright, Jill Holmes, who was then a dealer and
part-time pit boss, and Bea Thurber, then a casino
dealer-proffered comparable statements; they declared,
likewise, that they could not afford restaurant meals.
Wright, so I find, commented further that most of Re-
spondent's dealers were not working 40 hours weekly,
and thus were not "making enough money" to afford
restaurant meals. At this point, Garwood repeated his
prior comments that he could not "force" them to pa-
tronize Respondent's restaurant; he declared further,
however, that he did not want to hear "another word"
regarding a restaurant boycott; I so find. (While a wit-
ness, Respondent's general manager claimed that he
knew "some" employees were boycotting the restaurant,
but that he did not really care about such boycotting.
His protestations of indifference, within my view, merit
no credence. Within a perhearing statement, given to a
Board representative 3 weeks subsequent to his confron-
tation with Respondent's pit personnel, Garwood con-
ceded that Wright had been told Respondent's casino
dealers were the highest paid in town; she had-so Re-
spondent's general manager reported-been told, further,
that those dealers could eat wherever they desired, but
that they should neither "boycott" nor "bad-mouth" Re-
spondent's restaurant.)
Respondent's general manager reiterated his comment
that their restaurant had changed hands; he reported, so
I find, that neither Huffman nor Respondent's lessee was
in a position to do "anything" at that time, which might
compensate Respondent's employees, completely or par-
1032
SADDLE WEST RESTAURANT
tially, for their lost meal ticket privileges. Finally, Gar-
wood declared that the termination of Respondent's meal
ticket policy meant hardships for him and his family,
likewise, since they, too, now had to pay for their restau-
rant meals. On this note, so I find, Respondent's general
manager concluded his remarks and the gathering dis-
persed.
b. The meeting's aftermath
Within a day or two thereafter, complainant, Rotra-
mel, and Holmes, during a discussion of their dissatisfac-
tion with Garwood's presumptive disregard for their
concerns, consensually determined to investigate some
other forms of recourse. Complainant suggested possible
union representation; shortly thereafter, Holmes spoke,
by telephone, with a Teamsters union representative. He
suggested that they determine how many of Respond-
ent's employees would be interested, and whether a ma-
jority would be willing to sign union designation cards.
Between July 30 and August 3, therefore, complainant
discussed possible union representation with "just about
all" of Respondent's employees, suggesting that they
might thereby recover their meal ticket privileges, and
press for medical benefits. (According to Rotramel,
she-together with complainant herein-likewise spoke
with "one or two" employees during this period.)
Most of those contacted, so complainant's testimony
shows, expressed interest. On August 4, complainant and
Rotramel visited the Teamsters union hall; they procured
a supply of union designation cards.
By then, however, Rotramel had been terminated by
Respondent's general manager; the circumstances of her
August 2 termination-which, conceivably may have
some relevance herein-will be noted, subsequently,
within this decision.
4. Complainant's restaurant conversation
Meanwhile, sometime between Wednesday, July 29
and Monday, August 3, possibly while she was working
a scheduled shift, and taking a permitted 15-minute
hourly break, complainant had a conversation with two
fellow dealers, Trudi Deleo and Nancy Neimer, who
were then patronizing Respondent's restaurant facility.
(While a witness, complainant could not remember pre-
cisely the date on which this conversation occurred. Nor
could she recall definitely whether it took place between
shifts while she was off work, or during a break period
while she was working a scheduled shift. She testified,
merely, that it occurred during daytime hours. The
record, considered in totality, warrants a determination,
which I make, that complainant's conversation, with
which we are now concerned, took place during a late
morning or early afternoon period, subsequent to Gar-
wood's July 29 confrontation with Respondent's casino
"pit" personnel, but several days before complainant's
August 2-3 working shift, noted hereinafter.)
According to complainant, Neimer and Deleo were
seated within a booth; they were, then, eating restaurant
food. The restaurant was not busy; complainant testified
that "there might have been two or three customers"
seated at the facility's breakfast counter. Her witness
chair recollections with regard to what happened-prof-
fered repetitively during her direct examination and sub-
sequent rebuttal, but consolidated for consideration
herein-read, in material part, as follows:
Well, I remember seeing them sitting in there, and I
walked in there, and I said-made the comment
that, "[Hey] I thought we [you guys] weren't going
to eat in the restaurant [anymore]." And I do not
exactly remember what the reply was. And I sat
down [with the girls], and we started talking about
something else. [And we chatted for a few minutes,
and I left.]
Complainant denied that her voice had been raised;
while a witness, herein, she contended, consistently, that
she had spoken normally, but nevertheless conceded that,
while maintaining normal volume, her voice "carries" or
"projects" well.
Thomas Turner, a local Pahrump real estate salesman,
testified that he was playing a pinball machine in Re-
spondent's arcade section-which directly adjoins the
building's restaurant facility-when he overheard the
conversation with which we are now concerned. The
salesman, while a witness, called it a "discussion" suffi-
ciently "loud" to draw his attention. His proffered recol-
lection with respect to what he heard complainant say-
which he did not, however, recapitulate until cross-ex-
amined-substantially matches hers; he recalled further
hearing Nancy Neimer respond, "I will [eat in the restau-
rant] if I want to" or say something of similar import.
According to Turner, that was all he heard; the discus-
sion, he recalled, did not last long. He then resumed and
finished his pinball game.
Turner testified further, that within a day or 2 days
thereafter he "mentioned" the incident to Huffman,
whom he encountered in Respondent's restaurant, while
drinking coffee. When requested by Respondent's coun-
sel to recall as closely as he could precisely what Huff-
man was told, Turner reported, merely, that:
It would just have to be the fact that he had a-you
know, a couple of people [employees] out of line in
the restaurant, and they did not need that stuff.
Respondent's part owner, however, was told, further,
who the discussion participants were; the real estate
salesman reportedly suggested that Huffman would
"need to do something" about the people concerned.
Turner's testimony would warrant a determination,
which I make, that Huffman merely "registered" his
report, thanked him, and then asked whether he would
be willing to recapitulate the incident for Garwood's in-
formation, should the latter inquire; the salesman prom-
ised that he would.
Within a day or 2 days after Turner's conversation
with Huffman-presumably on July 31 or August I pos-
sibly-Respondent's general manager telephoned him.
Turner told Garwood, so his testimony shows, merely
that Respondent had some employees who had been
"making a scene" and behaving "out of line" while in
Respondent's restaurant. The salesman reported their
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names. Respondent's general manager, so Turner re-
called, thanked him for his report, but proffered no fur-
ther comment.
Garwood, when queried herein with regard to what
Turner had reported, proffered further details. Accord-
ing to Respondent's general manager, the real estate
salesman had declared:
That he had heard a loud argument, words to the
effect that he was embarrassed, that Diane Schultz
was the one that perpetrated the argument, or the
one that was the aggressor in the argument, so to
speak. She was the one that-whose voice was
above everybody else's that caught his attention
.... [He told Garwood] .... Something to the
effect that she was . . . telling two employees that
they should not be eating in the restaurant, that-or
they had all agreed to, or she-at any rate that she
was not eating in the restaurant and they should not
eat in the restaurant.
Respondent's general manager recalled, further, that
Turner reported he was most impressed with complain-
ant's loud mouth; that he called complainant's conduct
"out of line" but declared that Nancy Neimer, also, was
"beginning to get louder" as their discussion progressed.
Shortly after hearing Turner's report, Garwood com-
municated, so he testified, with both Neimer and Deleo,
seeking their versions of the restaurant discussion now
under consideration. So far as the present record shows,
however, he took no further action; specifically, he made
no effort, contemporaneously, to query complainant with
respect thereto.
5. Complainant allegedlly questions her supervisor's
qualifications
When Respondent's pit boss, Mary Jo Rotramel, re-
ported for work at 7:45 p.m. on Sunday, August 2, for a
scheduled 8 p.m. to 4 a.m. shift, General Manager Gar-
wood called her into his office; she was notified that she
was being terminated. Summoned as the General Coun-
sel's witness, Rotramel testimonially recalled merely that
Respondent's general manager told her she was being
dismissed because her "attitude" had supposedly
changed.
When subsequently queried, while testifying in Re-
spondent's behalf, regarding his decision relative to Ro-
tramel's discharge, Garwood purportedly could not ini-
tially remember his reasons. He conceded, however, that
within a sworn prehearing statement given a Regional
Office representative less than 3 weeks following her ter-
mination he had, inter alia, described it thusly:
On the date of her termination, I called Rotramel
into my office and told her that I discovered that
she was the one who was instigating employees
against the restaurant, and told her that I expected
all pit bosses to be supportive of management.
The general manager's sworn statement, further, con-
tained references to some comment, on his part, that Ro-
tramel's purportedly "poor attitude" concerning her
work, not otherwise specified, had indeed rendered her
"less valuable as a supervisor" within Respondent's
casino. However, while a witness, Garwood was finally
asked, point blank, whether his purported discovery that
Rotramel was the responsible "instigator" of employee
disaffection was the reason for her termination; he re-
plied, "Yes, sir, it was" without qualification. Upon being
given her notice, Rotramel promptly left Respondent's
casino; Joe Ogden, then a casino dealer-who had, some-
time previously, served, for a brief period, as Respond-
ent's general manager-immediately took over Rotra-
mel's casino "pit boss" position, for Respondent's late
evening-early morning shift.
Complainant reported for work, likewise, on Respond-
ent's August 2-3 swing shift. Schultz discovered, when
she reported, that Rotramel had been replaced; Ogden
was, she learned, her new first-line supervisor. At some
point thereafter, during their shared shift, complainant
and her new pit boss, Ogden, concededly had a brief
conversation. Their respective testimonial recapitulations
with respect thereto however reflect categorical conflict.
For present purposes, that conflict requires a finder of
fact's resolution.
a. Ogden's version
Summoned as Respondent's first witness, Ogden pur-
portedly recalled a "little bit" of conversation with com-
plainant regarding his "altercations" [N.B.: Did he really
mean qualifications?] while functioning as her pit boss.
Testifying in direct and cross-examination, with respect
thereto, Ogden reported, in relevant part, that:
She said I was not as qualified [to do the job] as the
person was who I replaced . . . I cannot recall
them but there was a few digs and some things that
made me uncomfortable, and this was done in front
of [probably about three or four] customers as she
was dealing the game . . . I was behind her watch-
ing the game . . . I told her that it was not up to
her to make any kind of decision on my qualifica-
tions, that it was up to the people that owned the
casino or the casino manager, and that, if she
wanted to take it any farther, we could discuss it
with him. [Interpolations supplied from Ogden's tes-
timony in cross-examination.]
When queried, further, by the General Counsel's repre-
sentative, Ogden conceded that he had not "really" been
upset, personally, by complainant's purported coment re-
garding his qualifications; he declared, however, that he
had been disturbed because Schultz had made her com-
ment in front of customers. She had, so Respondent's
former pit boss recalled, continued nevertheless to deal
cards; she had neither turned around to address him, nor
done "anything wrong" while maintaining game play.
According to Ogden, she had however spoken loudly
enough for him to hear; therefore, he was "sure" that the
players at complainant's table had, likewise, heard what
she said. Respondent's former pit boss, nevertheless, con-
tinued to work with Schultz for the balance of their
shift; complainant, so he testified, made no further com-
ments.
1034
SADDLE WEST RESTAURANT
At some time during this August 2-3 shift-so Ogden
recalled-he reported his purported verbal exchange,
with complainant, to Respondent's general manager; the
pit boss conceded, however, that Garwood and he did
not have "much of a conversation" regarding the matter.
Garwood, according to Ogden, merely said "something
to the effect" that he would talk to Schultz; he did not,
however, communicate with her forthwith. She was nei-
ther censored nor removed from service on Respondent's
swing shift.
b. Complainant's version
Summoned in rebuttal, complainant denied, categori-
cally, that any August 2-3 swing-shift conversation, con-
sistent with Ogden's witness chair recital, had taken
place. Rather, she recalled a brief exchange-concerned
with a completely different subject-which she recapitu-
lated. Her tesimony, with respect thereto, reads as fol-
lows:
Joe Ogden had taken me off a table. It was time for
my break. And we had four, I believe, customers at
the table at the time, and he told me to go grab a
cup of coffee. So I went, grabbed a cup of coffee at
the bar, which we have a coffee pot sitting behind
the bar for the dealers. .... And I proceeded to go
back in the pit area and sit down in a chair next-
the table over that was not being played on. And
when I came back, there was markers up there that
had [not] been there, and I just asked him about
them. Just my own curiosity coming back. They
were not there when I left, and when I came back
they were there. And he looked at me and wanted
to know if I was questioning his authority. And I
says, "No I am not. I was just curious." And that is
all that was said.
Complainant reports, herein, that she has never heard
any comments, whatsoever, from Respondent's manage-
ment representatives, regarding this particular conversa-
tion relative to so-called markers since it took place.
(N.B.: Markers are small button-like disks, with declared
dollar values, which-when requested by casino customers
and provided by pit bosses -signify that credit has been,
temporarily, granted such playing customers; customers
granted such credit may, then, continue to play, using
chips provided by the house, with declared values
which, in toto, match the face value of their markers.)
Respondent's counsel has, likewise, conceded by stipu-
lation that the purported "incident" described in com-
plainant's testimony, with respect to Pit Boss Ogden's re-
sponsibility for "marker" grants, has never been dis-
cussed.
When queried, then, with respect to Ogden's witness
chair report, herein, regarding their purported confronta-
tion, complainant testified: That, prior to her discharge
which will be discussed hereinafter Garwood had never
communicated with, or questioned, her regarding the
matter; that it was neither discussed nor mentioned when
she was terminated; that she heard about Ogden's pur-
ported complaint, for the first time, when Respondent's
general manager, subsequently, reported her supposed
conversational exchange with the pit boss during a pre-
sumptively nonformal "investigatory" hearing, conduct-
ed by a Nevada Equal Rights Commission representa-
tive, following her postdischarge decision to file a State
of Nevada sex discrimination charge against Respondent
herein; and that, during that stage agency conference,
she had forthwith challenged the correctness of Gar-
wood's report, relative to Ogden's purported complaint.
c. Conclusions
With regard to Respondent's claim, bottomed on
Ogden's testimony, that complainant had been grossly
"insubordinate" toward her newly designated supervisor,
the General Counsel's representative within his brief sub-
mits that Schultz' version of their purported confronta-
tion should be considered more "accurate, logical and
reasonable" than her newly designated pit poss' com-
pletely different testimonial proffers. On balance, I
concur. Though provided without corroboration, and
therefore hardly "clear and convincing" beyond perad-
venture of doubt, complainant's proffered recollections-
when evaluated with due regard for the record consid-
ered in totality, her generally candid, forthcoming, and
somewhat ingenuous witness chair demeanor, and the
natural logic of probability-struck me as more worthy
of credence than Ogden's seemingly spare, but neverthe-
less somewhat overblown, narrative.
Respondent's former pit boss has, herein, detailed no
circumstantial background which, conceivably, might
have prompted complainant's purportedly critical com-
ment; as reported by Ogden, that comment stands-
within the record-devoid of any concomitant reference
to prior developments which might, arguably, have led
Schultz to volunteer a presumptively derogatory remark,
directed to her superior. (Respondent's speculative sug-
gestion that complainant may have proffered her pur-
ported observation, gratuitously, because at that time she
shared residential quarters with Rotramel because they
were presumably friends, and because she was therefore
conceivably distressed by Rotramel's unexpected termi-
nation, carries no persuasion. Assuming, arguendo, that
Schultz was indeed distressed over Garwood's dismissal
of Rotramel, derogatory remarks about Ogden's capabili-
ties would seemingly have been, not merely a gratuitous
affront, but pointless as well.)
Further, while a witness, Ogden provided no details
calculated to suggest Complainant's conceivable factual
basis for challenging his qualifications. Even within a
written memorandum, prepared by the pit boss subse-
quently pursuant to Garwood's request, his recapitulation
of their purported conversation had been limited; it had
compared, merely, a summary report regarding com-
plainant's single, allegedly critical remark, coupled with
vague references to her "persistence in this line of talk"
thereafter, which he had followed with nothing more
than a capsulized summary of his responses. (Ogden's
memorandum, herein noted, designated August 17 as its
preparation date; this was 14 days subsequent to com-
plainant's purportedly "hostile" remark, 6 days after her
August 11 Board charge had been filed, and 5 days sub-
sequent to her August 12 sex discrimination charge filed
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Nevada Equal Rights Commission, previously
noted.)
The pit boss' failure to provide circumstantial details,
reasonably calculated to define the situational context
within which Schultz' purportedly "hostile" and "insub-
ordinate" comment was allegedly made, leaves her sup-
posed statement standing alone, without a persuasively
relevant circumstantial background, which had it been
provided might conceivably have "lent verisimilitude to
an otherwise bald and unconvincing narrative" herein.
(Gilbert and Sullivan, The Mikado, Act II, Pooh-Bah's
plea.) For this reason, among others, I find Ogden's nar-
rative unpersuasive.
Respondent did produce a casino customer, Leslie
Mankins, who, while a witness, reported that during play
at complainant's table he had heard the conversational
exchange between complainant and her newly designated
superior. His proffered recollections with respect thereto,
which track Ogden's so closely as to suggest rote memo-
rization, compass merely a single reported remark, rather
than some "persistent line of talk" purportedly chargea-
ble to complainant herein, supposedly followed by the
pit boss' curt response. Yet despite his narrowly circum-
scribed recapitulation of their presumably brief "discus-
sion" conducted in conversational tones, Respondent's
witness claimed that they were "arguing" together; that
he concluded complainant and Pit Boss Ogden were
having "internal" problems; that contact with their
"trouble" had generated a tense "atmosphere" which
made him uncomfortable; and that, after playing another
hand or two, he therefore left. Proffered as corrobora-
tive of Pit Boss Ogden's testimony, Mankins' witness
chair recitals, within my view, carry no persuasion. In
material respects, they reflect off-putting hyperbole, cou-
pled with a seeming disposition, willy-nilly, to see a
mountain where most people-present during a brief
"conversation" such as he reported-would find little
more than a molehill.
As the General Counsel's representative notes, within
his brief the fact that Ogden had, theretofore, accumulat-
ed years of gaming experience in various capacities and
had once been Respondent's general manager was
common knowledge within the local community. Com-
plainant, concededly with limited experience-function-
ing solely as a casino "21" dealer-would hardly have
been likely to have told Ogden that he was not qualified
to hold a pit boss position, or that he was not as well
qualified as his predecessor.
For these several reasons, I conclude that Ogden's ver-
sion of their supposed "altercation" merits no credence.
He may, very well, have bristled at some remark com-
plainant made-but, if he did, his reaction most likely de-
rived from her clearly innocuous query about the credit
"marker" which he had, while she was absent, provided
for a casino player. I so find.
6. Subsequent developments
Following the conclusion of her August 2-3 shift,
complainant was off work for 2 or 3 days. The record
reveals that she "left town" briefly; within this decision,
her trip to Las Vegas with Rotramel has, heretofore,
been noted. She did not return until late Thursday,
August 6, or during August 7's early morning hours.
In the meantime, shortly before noon on Tuesday,
August 4, Respondent's general manager had "pulled"
Jill Holmes aside, when she reported for work, and had
spoken with her privately. According to Holmes, Gar-
wood had reported Rotramel's August 2 discharge, de-
clared that he had made "another change" in Respond-
ent's pit, and stated that he was going to make "as many
changes as necessary" until he got the pit situation ad-
justed the way he wanted.
Respondent has, herein, challenged Holmes' credibil-
ity. The record reveals that-shortly before her July 27,
1982 witness chair appearance pursuant to the General
Counsel's subpoena-she had been discharged by Re-
spondent's general manager for, allegedly, dislodging and
pocketing coins stuck in Respondent's slot machine
"payoff" tubes, which various departed players had, pre-
sumably, failed to notice and which they had, therefore,
neglected to collect. Respondent's counsel suggests that
such recently discovered conduct should cast doubt on
Holmes' personal "honesty and integrity" generally; he
contends therefore that her reported behavior, in this re-
spect, impugns her general "truthfulness and veracity"
sufficiently to warrant rejection of her present testimony
regarding a year-old situation. I have not been persuad-
ed. It should be noted first that Holmes' testimony, now
under consideration, comports fully with her recitals
within a prior sworn statement, given to a Board repre-
sentative on August 14, 1981, shortly after the develop-
ments with which we are, herein, concerned; conceded-
ly, she was in Respondent's employ-with her personal
integrity not yet challenged-when that statement was
given. Secondly, Holmes' purportedly improper conduct,
recently, was-so the record shows-discovered some 11
months subsequent to her sworn statement; Respondent
has not, persuasively, demonstrated that her "truthfulness
and veracity" which had not yet been challenged when
her prior, consistent, sworn statement was given should
be considered impugned, retrospectively, thereby. Third-
ly, specific instances of conduct chargeable to a wit-
ness-when proffered for the purpose of challenging that
witness' credibility-may properly be considered a legiti-
mate subject of inquiry only when, within the discretion
of the trier of fact, they are probative of truthfulness or
untruthfulness. See Federal Rules of Evidence, Rule
608(b), in this connection. On this record, I have not
been satisfied that Holmes' purported conduct, for which
she was allegedly discharged-assuming, arguendo, that
it really took place-persuasively reflects a longstanding
disposition, on her part to be untruthful, generally.
Garwood had, further, reiterated his determination to
"straighten up" Respondent's casino pit, getting rid of
"problems" or "contention" therein, no matter what it
took. Holmes was then notified that she would be given
complainant's swing-shift assignment that night, and
would be given a 5-day, rather than a 4-day schedule. As
Holmes understood it, this meant that she would be
working complainant's extra shift.
Further, on Wednesday, August 5, Beth Wright was,
so I find, terminated; she had worked for Respondent for
1036
SADDLE WEST RESTAURANT
2 years-first as a cook, then as a casino dealer, and fi-
nally as a shift pit boss. Before notifying her that she was
being dismissed, Garwood had queried Wright-so her
credible testimony shows-with respect to whether she
was "involved" with the group which included com-
plainant and Gail Demeny, another casino "21" dealer.
Wright had, concededly, discussed Respondent's sus-
pension of meal ticket privileges with "everyone" con-
cerned, both dealers and fellow pit bosses. She had
shared their unhappiness, and had participated in their
concerted "decision" to bring sack lunches and refrain
from eating in Respondent's newly leased restaurant.
During the July 29 postmeeting gathering in Respond-
ent's casino area, previously noted herein, Wright had
seconded the several protests which complainant and
Holmes had voiced.
The pit boss had denied "involvement" with the deal-
ers mentioned. Garwood had, then, asked Wright wheth-
er her attitude had changed, since their July 29 meeting.
She declared that it had not, commenting that she did
not know she had said anything wrong. Respondent's
general manager had then told her he did not "need" her
pit boss services further.
When subsequently queried, during the General Coun-
sel's cross-examination, with respect to Wright's termina-
tion, Garwood denied that she had been dismissed. He
conceded, however, that Wright had been told her
proper role as Respondent's shift boss required her to
support management's position whenever situations de-
veloped between management and labor-like the meal
ticket dispute-"opposing viewpoints" were being pre-
sented; that the shift boss had, thereupon, proclaimed her
determination to "confront" him whenever she consid-
ered his position wrong; and that Garwood had then
suggested or invited her resignation. Considered with
due regard for its situational context, Garwood's conced-
ed suggestion that she resign, within my view, conveyed
a clear message that Wright's proclaimed willingness to
back casino employee protests with regard to Respond-
ent's suspension of their meal ticket benefits, and her
continued employment, would not be considered com-
patible. Cf. L. A. Baker Electric, 265 NLRB 1579 (1983),
and cases therein cited.
On this record, I credit Wright's version of her con-
versation with Respondent's general manager. However,
should a determination be considered warranted, consist-
ently with Respondent's testimonial proffers, that her
"resignation" was suggested, I would find in any event
that her termination derived, not from her own, but from
Garwood's decision. Realistically, she was dismissed.
7. Schultz is discharged
When Schultz visited Respondent's casino, on Friday
morning, August 7, she was told by Bea Thurber that
she had been removed from Respondent's work sched-
ule. Complainant so I find promptly sought Garwood,
who confirmed that she had been "taken off" 2 days pre-
viously, and suggested that they repair to his office,
where they could discuss the matter. With regard to
their discussion, Schultz and Respondent's general man-
ager have proffered significantly divergent testimonial
recitals.
a. Complainant's version
According to Schultz, she reiterated her query with
regard to why she had been taken off Respondent's work
schedule. Her testimony, during direct examination, re-
garding the conversation which ensued, reads as follows:
[He] said he took me off because of my attitude.
And I says, "Well, would you explain?" And he
said, "Over the meal tickets and the restaurant."
And he said that I had made a comment to a couple
of the employees in the restaurant . . . that they
could not eat in the restaurant. And I denied that.
That is not what I said to them. I told him that I
had said to the employees that I thought we were
not going to eat in the restaurant. And that was the
end. And he came back and stated that-that that is
not what they told him. And I says, "Well, then, is
that the reason for firing me, or what is the
reason-official reason for firing me?" And he
stated my change of attitude. And I left.
Complainant denied, categorically, that she had been
given "any other reason" for her discharge. She declared
that "insubordination" had not been mentioned, claim-
ing-in that connection-that Garwood had made no
reference to Joe Ogden, whatsoever.
b. Garwood's version
When summoned by the General Counsel's representa-
tive-shortly after the hearing, herein, convened-Gar-
wood declared, initially, that Schultz, had been terminat-
ed for a number of reason: First, because she had been
"very insubordinate" to Joe Ogden, her shift boss;
second, because she had been "very loud and very bois-
terous" toward a fellow employee, while in Respondent's
newly leased restaurant, with customers present. Re-
spondent's general manager testified that, before his
August 7 confrontation with complainant, he had "con-
sidered" her termination, but had not yet reached a deci-
sion with respect thereto. Garwood reported his witness
chair "thought" that he had spoken to Schultz, regarding
her restaurant confrontation, during their August 7 con-
versation; he could not, however, remember his exact
words. He recalled, merely, that he had mentioned mat-
ters with respect to which he had considered her con-
duct "out of line" and that she had been told her services
would no longer be needed.
Subsequently, when summoned as Respondent's wit-
ness, Garwood revealed a somewhat amplified memory.
He testified during direct examination that, sometime on
August 7, he had telephoned complainant, requesting
that she visit his office. With respect to their conversa-
tion, there, Garwood reported that:
I do not remember the exact words that I told her,
but I let her know the circumstances that I was
aware of, while she denied none. .... Well, the
circumstances with the shift boss, the circumstances
with the scene that was made in the restaurant, and
that, you know, this-this type of attitude just
cannot be condoned.
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Respondent's general manager, complain-
ant's attitude "at that particular time" did not appear to
be different; she did not feel that she had done anything
wrong. During their talk, he concluded, so he testified,
that he could no longer tolerate complainant's attitude.
Queried further, by Respondent's counsel, Garwood
denied that complainant's behavior during the July 29
meeting, particularly, had motivated his discharge deci-
sion. Further, while conceding knowledge that employee
sentiment opposed to patronizing the casino's newly
leased restaurant had been widespread, and would have to
be curbed, he denied having been motivated by any
thought that Schultz had been a more responsible "insti-
gator" than anyone else, with respect to:
. . .boycotting the restaurant, or hassling the res-
taurant, or trying to make things uncomfortable for
the restaurant.
Respondent's general manager, while a witness, reiterat-
ed his position that complainant's determination to re-
frain from patronizing the restaurant did not "matter" so
far as he was concerned. He testified, however, that he
had been "bothered" when he discovered that some em-
ployees-never named for the record-had been consum-
ing bag lunches while in Respondent's restaurant; Gar-
wood considered such conduct-so he testimonially de-
clared-an "obvious, deliberate attempt to embarrass" his
firm's newly designated restaurant lessee.
When cross-examined, subsequently, by the General
Counsel's representative, Respondent's general manager
purportedly recalled still further details, regarding his
final conversation with Schultz. He testified, finally, that:
I told her that-that-you know, I told her the
complaints that I had, of the-the reasons that I had
her in there. And I told her that she was . . . I told
her that I would not need her services. ... I told
her that I-that I had the complaint from Tommy
Turner, and we went through that, and that I had
already talked to the two dealers that were in-
volved, and we went through that. And I told her
about the part with Joe Ogden, and we went
through that. And I told her under the circum-
stances that I did not need her anymore.
Garwood subsequently conceded, however, that he had
not mentioned Turner's name, during his discussion with
Schultz regarding her restaurant conversation with two
fellow dealers. Nor had Turner's name been mentioned,
in that connection, when Respondent's general manager
gave his sworn prehearing statement.
c. Conclusions
On this record, complainant's testimonial recapitulation
with regard to her termination interview merits cre-
dence, within my view. Garwood's shifting versions with
respect to complainant's purportedly objectionable con-
duct, and the sequence of purportedly relevant events,
render his testimony less than reliable.
When he provided his sworn preheating statement,
Respondent's general manager had reported receiving re-
ports that Schultz had "complained to customers" regard-
ing the employees' loss of meal ticket privileges; he had
declared, further, that during their final conversation she
had been taxed, specifically, with making "continued
complaints" directed to customers, as well as her "en-
couragement of two dealers" with customers present, to
refrain from patronizing the restaurant. While a witness,
however, Garwood referred solely to complainant's sup-
posed verbal confrontation with Niemer and Deleo,
within Respondent's restaurant. Regarding complainant's
purported swing-shift conversation with Pit Boss Ogden,
Garwood's testimony further reflects confusion and lack
of certainty. His witness chair recitals suggest, confusing-
ly, that their conversation could have taken place on Re-
spondent's August 2-3 swing shift or Respondent's
August 3-4 shift. Within his sworn prehearing statement,
further, Respondent's general manager had reported that
Ogden described complainant's challenge, with respect
to his qualifications, before Garwood learned about the
dealer's purported complaints to customers regarding lost
meal ticket privileges. While a witness, however, he
claimed that Ogden's report, which had followed Turner's
description of complainant's supposed restaurant contre-
temps, triggered his determination with respect to her
dismissal.
With matters in this posture, I conclude that Respond-
ent's reliance, herein, on Ogden's purported complaint,
to justify Schultz' termination, derives from afterthought;
that-despite his reiterated, progressively more detailed,
testimony with respect thereto-Garwood made no ref-
erence to Ogden's purported complaint during his
August 7 conversation with Schultz; and that-whatever
Ogden's supposed tiff with complainant may have con-
cerned-their brief encounter played no motivating part,
when Respondent's general manager declared that her
services were no longer required.
Though complainant may have spoken with some of
Respondent's employees, subsequent to her termination,
regarding their possible unionization, no such discussions
took place on Respondent's premises. And, so far as the
record shows, they sparked no sustained self-organization
campaign.
8. Subsequent developments
Shortly after Respondent's lessee, Alberto Merel, took
over casino restaurant operations, Huffman was contact-
ed by potential buyers, who proposed to purchase Re-
spondent's complete casino and conjoined restaurant en-
terprise. The prospective purchasers concurrently pro-
duced S20,000 in earnest money, which so Huffman testi-
fied was placed in escrow. When this case was heard, ar-
rangements looking toward a consummation of the pur-
chase and sale of Respondent's business were, however,
still pending; Nevada's Gaming Commission had not, yet,
completed requiring action with regard to the prospec-
tive purchaser's state gaming license application.
According to Huffman, whose testimony in this re-
spect stands without challenge or contradiction, Re-
spondent's lessee-confronted with some uncertainty
with respect to whether the prospective buyers would
"keep him on" running the casino's restaurant facility-
refused to discuss or consider some "credit system"
1038
SADDLE WEST RESTAURANT
whereby Respondent would, meanwhile, handle employ-
ee meals. Further, so Huffman testified, Merel started
"letting the restaurant go downhill" noticeably. Within 6
months, sometime around the Christmas season, Re-
spondent's part owner therefore terminated Merel's lease.
Respondent, thereupon, resumed direct responsibility for
the restaurant's operation.
When queried, then, with respect to whether Respond-
ent's former restaurant meal ticket policy, for employees,
was thereafter reinstituted, Huffman testified that:
I could not reinstitute them because the buy-sell
agreement that I had with the buyers [provided]
that we would try to maintain or run the place
[without change] until they were approved for a
gaming license. . . I had agreed to leave things as
[they were] until they came in ... or [were] denied
their gaming license. [Interpolations in brackets sup-
plied to promote clarity.]
Respondent's employees had, sometime subsequent to
complainant's termination, been notified so Huffman re-
called that the casino's prospective purchasers planned to
continue operations without change, retaining the facili-
ty's "whole force" intact. Nothing had been said, howev-
er, with respect to whether Respondent's prospective
sale would, or would not, affect management's capacity
to do "anything" regarding work shift meal privileges. In
fact, since Respondent's resumption of direct responsibil-
ity for restaurant operations-management's former
"meal ticket" policy has never been reinstituted. I so
find.
C. Conclusions
On this record, the General Counsel's representative
seeks determinations that complainant was participating
in genuinely concerted activity; that her course of con-
duct, throughout, merits characterization-for present
purposes-as concerted activity qualified for statutory
protection; that Respondent's management was cognizant
with respect to complainant's participation in protected
conduct; that Respondent's general manager, particular-
ly, displayed legally cognizable "animus" directed
toward her, primarily because of her participation in
such concerted, statutorily protected activity; that com-
plainant's discharge derived therefrom; and that Re-
spondent's presently proffered double rationale, for her
August 7 termination, lacks persuasive record support.
Should this Board conclude, nevertheless, that Respond-
ent's claimed double motivation for complainant's dismis-
sal merits acceptance, the General Counsel would pre-
sumably seek a determination, further, that management's
purported motivation provides no legally cognizable ex-
culpation for the casino dealer's summary termination.
The General Counsel's several contentions, within my
view, merit Board concurrence. My reasons for reaching
that conclusion herein follow.
1. Protected concerted activity
Within his brief, Respondent's counsel suggests, first,
that complainant's course of conduct, revealed within the
present record, should not be considered "concerted" ac-
tivity, pursued in conjunction with her fellow casino
workers, for mutual aid or protection. Should her course
of conduct, within its situational context, be considered
conduct nevertheless pursued conjointly with others, di-
rected toward their mutual realization of some shared
objective, Respondent contends that the particular
"manner and means" which, finally, characterized com-
plainant's personal participation therein removed her
conduct, otherwise conceivably protected, from the stat-
ute's coverage, and left her vulnerable to privileged dis-
cipline, presumably including discharge.
Within my view, Respondent's present contentions,
however, lack record support. In totality, therefore, they
carry no persuasion.
There can be no doubt, on this record, that "every-
body [within Respondent's employee complement] was
complaining" with regard to their lost meal ticket privi-
leges; that they were seriously "upset" because of their
fringe benefit's suspension; that "just about everybody"
was not merely complaining, but likewise protesting be-
cause of their loss; that vocal "arguments" with respect
thereto had come to management's notice; and that there
was "an agreement [which lasted for several weeks]
among the employees" not to patronize the casino's res-
taurant, motivated "primarily" or "partially" by their
loss of meal ticket privileges.
(Contrary to Respondent's present contention, these
findings do not derive exclusively from testimony prof-
fered by Rotramel, Wright, and Holmes, former casino
supervisors. Summoned as Respondent's witnesses, two
former casino dealers-Theresa Skaggs and Theresa
Stanton-likewise so testified. The quoted phrases,
herein above set forth, derive from their witness chair
concessions. When cross-examined, Skaggs further con-
ceded monosyllabically that she had been "part" of the
restaurant "boycott" noted, because she could not afford
to eat there, without meal ticket allowances.)
With matters in this posture, the patently "concerted"
nature of the particular protests with which we have,
herein, been concerned would seem clear beyond cavil.
Respondent's employees, obviously, were not merely
seeking relief for purely personal grievances; they were
clearly marking common cause, concededly for the pur-
pose of bringing their shared complaint to management's
notice. Compare Ontario Knife Co. v. NLRB, 637 F.2d
840, 845-846 (2d Cir. 1980); NLRB v. Bighorn Beverage
Co., 614 F.2d 1238, 1242 (9th Cir. 1980); NLRB v. C & I
Air Conditioning, 486 F.2d 977, 978 (9th Cir. 1973); these
cases, which define the requirement that statutorily pro-
tected conduct must be concerted, may clearly be distin-
guished herein.
And, since the employees' shared complaint, obvious-
ly, concerned a common term or condition of their em-
ployment-specifically, Respondent's suspension or ter-
mination of their meal ticket benefit, without prior
notice-their conjoint protests with respect thereto clear-
ly merit characterization as group action for mutual aid
or protection.
Complainant's participation in such group action gen-
erally has not, herein, been seriously questioned. The
record, within my view, fully warrants a determination,
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which I make that, like other employees, she voiced her
protest with respect to Respondent's withdrawal of meal
ticket privileges; that she, like many of her fellows-their
total number never specified-refrained from patronizing
the casino restaurant; and that she discussed a possible
restaurant "boycott" with other casino workers, encour-
aging them to participate. Whether some, or most, of Re-
spondent'semployees reached specific "agreements" with
respect to withholding their restaurant patronage matters
not; whether they subjectively considered their concur-
rent withdrawals of patronage sufficient to constitute a
literal "boycott" likewise matters not. In practice,
through general discussions, there developed, so the
record shows, a consensual understanding, clearly shared
by some substantial number of Respondent's casino per-
sonnel, that they would, for the time being, refrain from
purchasing restaurant meals, while on their scheduled
work shifts, since Respondent's compensatory "meal
ticket" policy had been discontinued. See NLRB v. Lloyd
A. Fry Roofing Co., 651 F.2d 442, 445 (6th Cir. 1981),
and cases therein cited, in this connection. Complainant
may not have been a formally designated spokesperson
for Respondent's employees who were so disposed; she
may not, even, have been a leading "boycott" protago-
nist. There can be no doubt, however, that some of Pare-
co's casino personnel had seemingly spontaneously de-
veloped a consensually "concerted" determination to
withhold their restaurant patronage pending a satisfac-
tory resolution of their "meal ticket" grievance, and that
complainant, among others, shared that determination. I
so find.
Within his brief, Respondent's counsel suggests, how-
ever, that such a consensually maintained restaurant boy-
cott should not be considered concerted activity for the
purpose of collective bargaining or other mutual aid or
protection since it was clearly "devoid of any objective"
capable of realization.
That suggestion, within my view, misses the mark.
The fact that Respondent's employees may not have con-
ceived of some specifically articulated, concrete objec-
tive, which their withdrawal of restaurant patronage, per
se, might help them realize, will not deprive their con-
certed protest of statutorily protected coverage. This
Board has consistently held, with judicial concurrence,
that group action-when undertaken to protest generally
applicable changes in wages, hours, or particular em-
ployment terms and conditions-will be considered statu-
torily protected conduct, even though such concerted
action viewed by some disinterested observer might be
deemed misdirected, or conceivably bottomed on mistak-
en premises. Further, such concerted action will be con-
sidered protected, even though its presumptive purpose
may never have been specifically formulated, or publicly
proclaimed, by consensually designated or self-appointed
spokesmen.
It may be true-as Respondent's counsel notes, tangen-
tially, within his brief-that Respondent's suspension of
fringe benefit meal ticket privileges, which the firm's
casino workers had previously enjoyed, derived from
management's recognition that their required continu-
ation, without some concomitant arrangement whereby
Merel might be compensated, promptly, for costs in-
curred, or potential sales "income" lost thereby, would
significantly burden casino restaurant operations, and
might conceivably strain the limited financial resources
of Respondent's restaurant lessee. Arguably, therefore,
concerted refusals by Respondent's casino workers to pa-
tronize their facility's "in house" restaurant-which,
clearly, would not directly discommode Respondent's man-
agement, but which might conceivably do so, indirectly,
since Respondent's lessee would be denied some hoped
for, possibly anticipated, revenue, thereby compromising
his chances for success-could, herein, be considered
misdirected.
Upon this record, however, there can be no doubt that
Huffman, nevertheless, recognized the basic purpose
which had motivated Respondent's casino employees to
withdraw shift meal patronage from their employer's
newly leased restaurant facility. Clearly, Respondent's
part owner could and did deduce, properly, that a situa-
tion had developed with which his firm, rather than the
restaurant's new management, would be required to cope.
Though none of Respondent's casino personnel had
brought shared "complaints" or "problems" directly to
him, Huffman was concededly cognizant that, as a
group, they were "dissatisfied" and significantly "upset"
regarding their lost meal benefit.
Huffman's testimony, indeed, warrants a determina-
tion-which I make-that he was, likewise, fully aware
that many of Respondent's employees were manifesting
their disaffection by withholding patronage from the ca-
sino's restaurant. He may not have been chargeable with
notice that consensual understandings had developed-
between some, or perhaps most of Respondent's casino
personnel-regarding such a withdrawal of patronage.
Nevertheless, he clearly knew enough about the situation
to notify Garwood, when Respondent's general manager
returned from his vacation, that employee "dissension"
had generated a boycott which would require curbing. I
so find.
With his general manager gone, Huffman had there-
fore sought some resolution for Respondent's perceived
problem by soliciting his restaurant lessee's cooperation.
When notified, however, that because of his limited
working capital resources the latter could not help Re-
spondent handle the meal ticket problem, Huffman had
deferred further action pending Garwood's return,
hoping, so he testified, that "maybe we could work out
some type of solution" for it. (Emphasis added.)
Realistically, therefore, the concerted employee pro-
test with which we have, herein, been concerned could
not, really, be considered misdirected. Though Respond-
ent's employees may not have been consciously and de-
liberately pressing for their Employer's concurrence with
respect to some specifically formulated program-calcu-
lated to replace their suspended meal ticket benefit-they
were clearly seeking a definitive "objective" known to
their superiors, which they could, legitimately, hope to
achieve. Consensually maintained common action, look-
ing toward some mutually desired goal-such as the
record, herein, clearly reveals-certainly merits charac-
terization as something more than mere personal "grip-
ing" denied the statute's protective reach. Properly
1040
SADDLE WEST RESTAURANT
viewed, I find it therefore qualified for Section 7's cover-
age.
Complainant's restaurant conversation with her fellow
dealers, Neimer and Deleo, clearly involved statements
and conduct, on her part, whereby she sought to solicit
their support for a consensually maintained program,
pursuant to which some casino employees-their number
presently unknown-were withholding patronage from
Respondent's newly leased restaurant facility. In short,
she was seeking to promote and further "concerted ac-
tivity" which-within my view, previously noted
herein-concerned employees were, then, pursuing for
mutual aid and protection. Concerted activity may prop-
erly be found present, even where "one person is seeking
to induce action" from a group. See Salt River Valley
Assn. v. NLRB, 206 F.2d 325, 328 (9th Cir. 1953); com-
pare Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 342-
343 (9th Cir. 1968); Root-Carlin, Inc., 92 NLRB 1313
(1951), in this connection.
Within his brief, for present purposes, Respondent's
counsel substantially concedes these propositions; he sug-
gests, nevertheless, that complainant's statements and
conduct should not be considered statutorily protected.
Specifically, Respondent's counsel contends that:
The manner in which the Charging Party addressed
the other employees removed her comments from
any arguably protected arena. Her comments were
made in front of ten to twelve customers, were loud
enough to attract the attention of a customer en-
gaged in playing an arcade machine fifteen to
twenty feet away, were loud and boisterous enough
to cause that customer to feel embarrassed for the
other customers, the restaurant and himself, and to
report the incident to the owner of the facility, and,
finally, were said in such a way as to cause the
other employees to feel she was trying to impose
her will upon them.
This Board has, upon occasion, held, with judicial con-
currence, that, given certain conditions, the manner and
means employed, when concerned workers pursue a
course of conduct statutorily privileged under normal
circumstances, may remove their conduct from Section
7's protective reach. Consistently with this line of Board
decisions, Respondent's counsel seeks a determination,
herein, that complainant's restaurant conversation with
her fellow dealers should be deemed flagrantly disruptive
of good order, sufficiently so to render her, properly,
vulnerable to discharge.
On this record, however, Respondent's proposition,
merits rejection, within my view, for several reasons.
First: It stands predicated on purported factual under-
pinnings which lack persuasive record support. Com-
plainant's encounter with Neimer and Deleo may have
taken place while some disinterested restaurant patrons
were present, presumptively within hearing distance. The
record in that connection however can hardly be consid-
ered clear; certainly, no definitive conclusion, that "ten
to twelve" customers heard the conversational exchange
with which we are concerned, would be warranted.
While a witness, Turner could not recall their number;
he cited no reactions, noted, on their part. Complainant's
presumptively challenging comment, directed to her
fellow dealers, may well have "carried" sufficiently, or
been sufficiently loud, to attract real estate salesman
Turner's attention, some 15 feet distant; upon this record,
however, Garwood's presently proclaimed conclusion
that she had been notably "loud and boisterous" merits
characterization as overblown, within my view. (Turner,
while a witness, merely reported herein that complain-
ant's first remark had been sufficiently loud to attract his
attention; he further recalled Neimer's reply but prof-
fered no testimonial opinion himself regarding its tone,
pitch, or volume. Since the real estate salesman's witness
chair recollections, herein, reflect no further "discussion"
exchanges which he purportedly overhead, determina-
tions would seem warranted, either, that he gratuitously
embellished his report, after the fact, when queried re-
garding the incident by Respondent's general manager,
or that Garwood subsequently drew inferences from their
discussion, relative to the restaurant incident, which
Turner's reported recapitulation, with respect thereto,
could not really have justified.)
While a witness, Turner reported that he had, merely,
notified Huffman that some of Respondent's employees-
whom he named-had been "out of line" within his
view, during a conversational exchange within the casi-
no's restaurant facility; he testified further that Garwood
had, subsequently, been told they had "made a scene"
there. His proffered recollections with respect thereto,
however, reflect nothing more than complainant's com-
ment, previously noted, followed by Neimer's single ri-
poste; thereafter, Turner concededly resumed, and com-
pleted, the pinball game with which he had previously
been preoccupied. With matters in this posture, Respond-
ent's present claim, herein-that complainant's conduct
had been sufficiently disruptive to cause Turner some
personal embarrassment, purportedly coupled with some
parallel, but presumably empathetic, discomfiture, merely,
for those casino restaurant customers and Lessee Merel's
representatives, never specified, who might, likewise,
have overheard her-carries no persuasion. It suggests,
within my view, fanciful exaggeration, rather than objec-
tively based reportage, calculated to embellish a some-
what bald, less than convincing, narrative. Finally, Gar-
wood's present witness chair claim-that Neimer and
Deleo had told him they subjectively "felt" Schultz had
been trying to impose her will on them-provides no re-
liable, substantial, or persuasive justification for his pur-
ported belief that complainant's manner had, really, been
peremptory or domineering. Schultz' testimony that she
had seated herself, without further ado, and that her fur-
ther conversation with Neimer and Deleo, thereafter,
had concerned different subjects-which I credit-
stands, herein, without challenge or contradiction.
Second: Should a factual finding be considered war-
ranted, nevertheless, that complainant's comment was
indeed proffered within the hearing of some restaurant
customers, and that it was indeed proffered stridently,
vehemently, or boisterously, determinations would, nev-
ertheless, be justified, within my view, Schultz' conduct
did not really transgress reasonable limits, within which
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity should be deemed statutorily protect-
ed.
When the specific conduct which the General Coun-
sel's representative would characterize as statutorily pro-
tected-herein complainant's vocal solicitation of her
fellow dealers-has, likewise, been cited by a concerned
employer as constituting his purportedly legitimate busi-
ness reason for imposing discipline-or effectuating a dis-
charge-this Board normally determines that concerned
employer's statutory culpability, or nonculpability, by
applying a so-called balancing test. NLRB v. Prescott In-
dustrial Products Co., 500 F.2d 6, 10 (8th Cir. 1974). It
weighs the statutorily validated rights of concerned em-
ployees to engage in concerted activity, putatively
within Section 7's protective reach, against their employ-
er's likewise undisputed right to maintain discipline, and
promote efficient, profitable business operations.
Specifically, this Board determines whether the em-
ployer's proffered business reason for a challenged disci-
plinary reaction, or discharge, should be considered suffi-
cient to override the concerned employer's presumptive-
ly protected right to participate in concerted activity for
mutual aid and protection. See NLRB v. Washington Alu-
minum Co., 370 U.S. 9, 16-17 (1962); cf. Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793, 797-798 (1945), in this
connection. In short, statutory protection will not be ex-
tended to all concerted activity; the statute's reach,
within a given case, will be dependent on circumstances.
Thus: Concerted activity will not be deemed protected
when conducted in some presumptively "unlawful"
manner. Restaurant Horikawa, 260 NLRB 197 (1982);
Mal Landfill Corp., 210 NLRB 167 (1974). And language
closely related to putatively protected conduct will, nev-
ertheless, be considered unprotected when "so offensive,
defamatory or opprobrious" as to warrant its exclusion-
within this Board's judgment-from the statute's protec-
tive ambit. See Ben Pekin Corp., 181 NLRB 1025 (1970).
Other decisional formulations, descriptive of various situ-
ations within which statutory protection will be deemed
lost, purport to deal with conduct or language, found to
reveal "malice or deliberate intention to falsify," Westing-
house Electric Corp., 77 NLRB 1058, 1060 (1948); "fla-
grant, violent, serious or extreme misconduct," Bruehler
Corp., 156 NLRB 397, 400 (1965); "malicious opposition
to the exercise . . . of a right" by the particular employ-
er concerned, ibid; "offensive, obscene or obnoxious"
conduct, Southwestern Bell Telephone Co., 200 NLRB
667, 670 (1972); "the most flagrant, violent, or egre-
gious" cases, American Telephone & Telegraph Co., 211
NLRB 782, 783 (1979); cf. Dries & Krump Mfg., Inc., 221
NLRB 309, 315 (1975); sufficiently "oppobrious, profane,
defamatory, or malicious" language, American Hospital
Assn., 230 NLRB 54, 56 (1977); or patently "injurious or
disruptive" conduct, cf. Ford Motor Co., 246 NLRB 671
(1979); Postal Service, 252 NLRB 624, 625 (1980). In
cases with respect to which this decisional rubric may,
logically and reasonably, be deemed dispositive, this
Board has essentially found that a concerned employee's
particular conduct fell beyond "acceptable bounds" and
thereby lost whatever protection the statute might, oth-
erwise, have provided.
Further, this Board has traditionally recognized that
special rules, differentiated from those considered appli-
cable within manufacturing plants, should define employ-
ee rights to participate in union-related or concerted ac-
tivity within retail business establishments. See, e.g., May
Department Stores Co., 59 NLRB 976, 981 (1944); Mar-
shall Field & Co., 98 NLRB 88, 92 (1951), enfd. as modi-
fied 200 F.2d 375 (7th Cir. 1952). Specifically, the Board
has noted its determination that-within retail establish-
ments, including restaurants-general atmospheres
should be maintained wherein customers may be effec-
tively served, and that consequently broadly preemptive
proscriptions of union-related or concerted activity,
within those particular "areas" where patrons of the con-
curred establishment may be present, should not be con-
sidered statutorily forbidden. See, e.g., S. E. Nichols Co.,
156 NLRB 1201, 1207 (1966); Zayre Corp., 154 NLRB
1372, 1379 (1965). Consistently with this determination,
the Board has sanctioned the promulgation and enforce-
ment of properly drafted "no solicitation" rules applica-
ble within retail enterprises, calculated to preclude solici-
tation, within locales, therein, frequented by the con-
curred enterprise's customers. May Department Stores
Co., supra; Goldblatt Bros Inc., 77 NLRB 1262 (1948);
Marshall Field & Co., supra; Montgomery Ward & Co.,
145 NLRB 846 (1964). Even absent a specific "no solici-
tation" rule, this Board has similarly found grossly "dis-
ruptive" conduct, deemed reasonably likely to disturb a
retail customer-salesperson relationship, beyond the stat-
ute's protective reach. See Restaurant Horikawa, supra, in
this connection.
None of the Board's decisional principle, noted, would
however, warrant a determination-within my view-
that complainant's purported restaurant "confrontation"
with her fellow dealers, revealed within the present
record, was sufficiently disruptive to remove her from
the statute's protective compass. For present purposes,
her conduct, as previously noted, may properly be char-
acterized as concerted activity for mutual aid or protec-
tion. And upon this record no determination would be
warranted, within my view, that her "engagement"
therein occurred under such circumstances as to warrant
her loss of Section 7's protection.
First: I noted that, while some patrons may, indeed,
have been present-within the newly leased casino res-
taurant facility-the record, herein, provides no persua-
sive warrant for a finding that those restaurant patrons
particularly, regardless of their number or location
within the facility, had heard complainant's conversation
with her fellow dealers. Certainly, none of them had
complained. Real Estate Salesman Turner, Huffman's
coffeetime companion and Garwood's conceded business
contact-had, alone, provided Respondent's management
representatives with reports regarding the purported "in-
cident" which he-though not a restaurant patron-had,
fortuitously, overhead. Second: Nothing within the
record would warrant a determination that complainant's
conduct had been genuinely disruptive of good order.
Previously, within this decision I have noted the lack of
substantial, reliable, or persuasive testimony that com-
plainant's single confrontational remark had actually
1042
SADDLE WEST RESTAURANT
been sufficiently "loud and boisterous" to constitute or
generate a disturbance. Further, I have noted that com-
plainant's purportedly loud "discussion" with Neimer
had clearly been notably brief; it had compassed little
more than complainant's supposedly challenging com-
ment, which Neimer, one of the two dealers addressed,
had promptly countered-so Turner testified-with a
firm, but nonabusive rejection. (This Board has consist-
ently held that a concerned employer's professed "belief"
regarding a particular employer's suspected misconduct
cannot be relied on to justify a discharge-motivated,
prima facie, by statutorily proscribed considerations-
without some proof that the employer's claimed belief
had some reasonably well-grounded factual basis. No
such showing, with respect to Garwood's professed
"belief" regarding complainant's conduct, has, within my
view, been made herein.)
Third: I noted that Respondent seeks to justify com-
plainant's discharge, herein, for conduct which facially at
least did not take place within her place of employment,
Respondent's casino facility. Thus, even assuming-for
the sake of argument-that the particular conversational
exchange now in question may have involved some bick-
ering and dissension, nothing within the record would
suggest that it had, or could have, interfered with Re-
spondent's casino operations. Compare Stuart F. Cooper
Co., 136 NLRB 142, 144-145 (1962). Wherein this Board
found that "Persistent" bickering and dissension for
which particular employees were clearly responsible had
interfered with the concerned employer's production. Nor
could any determination be considered warranted that a
Schultz-Neimer confrontation would have been "inher-
ently" likely to disturb the "efficient operation" of Re-
spondent's casino business. Compare Caterpillar Tractor
Co. v. NLRB, 230 F.2d 357 (7th Cir. 1956). If anyone
could have been considered entitled to take responsive
action, designed to curb complainant's conduct, it would
have presumably been Respondent's newly designated
restaurant lessee, who was, then, maintaining a separate,
legally distinguishable, business enterprise. And his
remedy would necessarily have been bottomed on sepa-
rate charges of trespass, assuming that complainant had
been requested to leave, but had refused.
In short, without proof of genuinely disruptive con-
duct, chargeable to Schultz, which took place within Re-
spondent's defined casino premises, or, which interfered
proximately within casino operations, no determination
would be warranted that she had conducted herself in
such an offensive or flagrantly obnoxious manner as to
"depart from the res gestae of concerted activity and
expose [herself] in an area beyond" Section 7's protective
reach. Thor Power Tool Co., 148 NLRB 1379, 1380
(1964), enfd. 351 F.2d 585 (7th Cir. 1965). See further
Union Carbide Corp., 171 NLRB 1651 fn. 1 (1968). This
Board held, therein, that:
Where, as here, the conduct in issue [herein, com-
plainant's purported restaurant confrontation, with
two fellow casino dealers] is closely intertwined with
protected activity, the protection is not lost unless
the impropriety is egregious. [Interpolation added
for clarity. Emphasis added.]
Complainant's purportedly improper conduct, herein,
was clearly directly related to her prior concerted activi-
ties, with respect to which Respondent's management
concededly proffers no present challenge. Upon this
record, that conduct cannot legitimately be considered
flagrantly disruptive. I find it qualified for characteriza-
tion as statutorily protected.
2. Respondent's knowledge
Within his brief, Respondent's counsel suggests that,
nevertheless, "even assuming there was some agreement
among the employees not to eat in the restaurant and
that the agreement was designed for mutual aid or pro-
tection" no evidence has been proffered showing knowl-
edge of such an agreement on the part of Respondent's
management. Counsel contends that, without evidence of
such knowledge, specifically, the General Counsel's case
should fail. For several reasons, however, I find Re-
spondent's present contention lacking in persuasive
thrust.
First: The record, considered in totality, will support a
determination-within my view-that, while Huffman
may not have been particularly cognizant of some con-
sciously formulated "agreement" reached by Respond-
ent's employees, pursuant to which some of them-at
least-withheld their patronage from his casino's newly
leased-out restaurant, Respondent's management repre-
sentatives were, nevertheless, fully aware that "dissen-
sion" regarding lost meal ticket privileges, manifested by
many within their personnel complement, had sparked a
consensual determination that some adjustment remedial
or corrective in character, should be sought, which de-
termination complainant shared. Compare Signal Oil &
Gas Co. v. NLRB, supra, 390 F.2d at 342. Garwood's ref-
erences to some "clique" or "group" chargeable with
fostering employee protests-the group which, within his
view, included complainant herein-suggests, persuasive-
ly, Respondent's knowledge or belief that complainant
was participating in concerted action.
Second: Garwood has, while a witness herein, conced-
ed that complainant was not discharged for, inter alia,
manifesting her dissatisfaction, or for protesting Re-
spondent's suspension of meal ticket benefits, personally
or through her participation in group discussions. Fur-
ther, she was not terminated-so Respondent's general
manager presently concedes-for supposedly "instigat-
ing" refusals, generally, to patronize the casino's newly
leased-out restaurant. (Since Respondent has eschewed
such contentions, determinations that Huffman and Gar-
wood were vicariously cognizant of complainant's state-
ments and conduct-bottomed on the knowledge of Re-
spondent's pit bosses, Rotramel, Holmes, Wright, and
Gus Lindholme, with respect thereto, legally imputable
to their superiors-will presumably not be required.)
Respondent contends, rather, that Schultz was dis-
missed specifically because she had-supposedly under
egregious circumstances-taxed two fellow dealers with
failures to withhold their patronage, consistently with a
consensual understanding which she believed Respond-
ent's casino personnel had, theretofore, reached. In that
connection, Garwood's direct knowledge, regarding
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complainant's tacit solicitation of Neimer's and Deleo's
cooperation, can hardly be gainsaid. Real Estate Sales-
man Turner had notified Huffman-and later Respond-
ent's general manager-with respect thereto; both
Neimer and Deleo had, so Garwood testified, subse-
quently confirmed Turner's report. Within his brief, Re-
spondent's counsel concedes that Pareco's management
representatives were, indeed, cognizant of complainant's
restaurant "discussion" with her fellow dealers; certainly
Huffman and Garwood could infer-based on what they
already knew-that Schultz was soliciting Neimer's and
Deleo's cooperation, in connection with a concerted pro-
test regarding Respondent's suspension of employee meal
ticket privileges. I so find.
3. Respondent's motivation for complainant's
discharge
Upon this record, there can be no doubt that both
Huffman, Respondent's proprietor, and General Manager
Garwood were seriously disturbed when confronted
with clear cut evidence of widespread employee com-
plaints, sparked by Respondent's decision to suspend
their meal ticket benefits. Both were determined-so the
record shows-that overtly manifested "dissension"
prompted by Respondent's decision would have to be
curbed, somehow. (Clearly, Huffman felt that Respond-
ent's employees had a legitimate grievance, and would
have to be mollified; he sought some arrangement
whereby Respondent's restaurant lessee might provide
fixed-price specials, or discounted meal service for Re-
spondent's casino personnel, for which requisite compen-
sation-from Respondent specifically-would, subse-
quently, be provided. Respondent's lessee had, however,
considered himself constrained, for business reasons to
reject Huffman's several suggestions. With matters in this
posture, Garwood had, concededly, tried to "calm
[things] down" pending Respondent's further efforts to
resolve matters, by directing Respondent's casino person-
nel forcefully, to refrain from "bad mouthing" his firm's
newly leased-out restaurant facility. Respondent's general
manager was clearly determined to curb-without fur-
ther ado-what he considered employees' plans to "boy-
cott, hassle, or make things uncomfortable" for Alberto
Merel's restaurant management.)
Within his brief, the General Counsel's representative
suggests that Garwood revealed "tremendous hostility"
toward Respondent's employees, because of their "con-
certed" complaints and consequent conduct. That sug-
gestion may conceivably overstate the case. Clearly,
however, Respondent's management representatives had
been noticeably taken aback when the casino employees
reacted, as strongly as they did, following their meal
ticket benefit's loss. Management's concern, with respect
thereto, was indeed freely manifested. Huffman was con-
cededly distressed; he may well have felt frustrated, dis-
comfitted, and worried. Presumably for the moment nei-
ther he nor Garwood could, so they claimed, conceive a
workable solution for Respondent's presumptive dilem-
ma. (While a witness, Huffman reported, simply, that he
could not have replaced Respondent's previously main-
tained "meal ticket" subvention system, then and there,
with straight cash meal money allowances, payable di-
rectly to Pareco's casino workers. However, his testi-
monially claimed lack of capacity to do so-directly fol-
lowing his restaurant lease's execution-has not, herein,
been explained.)
With matters in this posture, Garwood's reaction-
when confronted with reports that, despite his efforts to
"curb" demonstrations of dissatisfaction, complainant
was still soliciting cooperation from her fellow workers,
with respect to withholding patronage from Respond-
ent's leased-out restaurant facility-may not, reasonably,
be considered derived from genuinely virulent hostility.
Clearly, however, the general manager's reflexive re-
sponse constituted another manifestation of Respondent's
basically negative "nothing-can-be-done" posture; fur-
ther, it reflected his conceded determination to quell,
forthwith, concerted employee behavior calculated to
pressure Respondent's management-either into restoring
"meal ticket" privileges, or providing, alternatively,
some substantially equivalent replacement benefit. (Gar-
wood had, prior to complainant's discharge, terminated
Rotramel for "instigating" employees against the restau-
rant. He had notified Holmes that he was determined to
"straighten [matters] up" by getting rid of "problems"
and "contention" within Respondent's casino pit comple-
ment, making whatever "changes" the situation required.
Pit Boss Wright had been terminated because she had,
forthrightly, proclaimed her continued support for casino
employee protests regarding their meal benefit loss.
Though Respondent's general manager had-in this con-
nection-been dealing with conceded supervisors, his
statements and conduct clearly reflect his mind set.)
Herein, therefore, Garwood's final decision, with re-
spect to complainant's replacement and discharge, clearly
manifested Respondent's cognizable "animus" statutorily
proscribed; I so find.
Respondent's further contention-that complainant
was dismissed, without "animus" statutorily proscribed,
for flouting Garwood's purportedly "no discussion-no
complaint" dictate, calculated to prevent public com-
ments, particularly within the casino's leased-out restau-
rant facility, which might be overheard by casino pa-
trons or restaurant customers-likewise merits rejection,
for several reasons.
First: Garwood's reported command, sparked by the
situation which Respondent's management confronted,
was clearly overly broad. He did not, so I have found,
purport to proscribe-merely-discussions or vocal com-
plaints by Respondent's personnel, within their working
time, or within public areas, which casino or restaurant
patrons might overhear; previously, within this decision,
determinations have been made that Respondent's gener-
al manager, rather, declared that he did not want to hear
any more reports regarding employee complaints relative to
the casino's meal ticket situation. The record, further,
warrants a determination-which I have made-that he
threatened Respondent's casino personnel with wholesale
discharges if he heard "anything more" regarding em-
ployees who were reportedly "badmouthing" or "boy-
cotting" the restaurant. In so doing, he gave no indica-
tion that proscribed talk would be considered banned
within particular time periods or particular areas, merely.
1044
SADDLE WEST RESTAURANT
Since Pareco's casino workers were, realistically, con-
fronted, thereby, with a broadly phrased gag rule-one
which, on its face, clearly did more than proscribe
"working time" or "public" comments, relative to their
meal ticket grievances, which casino restaurant custom-
ers might conceivably hear-their statutorily guaranteed
right to discuss their shared grievance and consider
measures for some "mutual aid or protection" was, nec-
essarily, limited. This Board has consistently held that
such overly broad "no solicitation" rules, when promul-
gated, cannot be enforced, legitimately, even when relied
on to justify discharges or discipline which some proper-
ly circumscribed, less restrictive, rule might have validat-
ed. Compare Essex International, 211 NLRB 749 (1974),
in this connection.
Second: While the record will, preponderantly, warrant
a determination that Garwood did indeed direct Re-
spondent's pit personnel specifically to refrain from con-
suming their "brown bag" lunches within Alberto
Merel's newly leased restaurant facility, complainant was
not concededly discharged for flouting that restriction.
Nor does Respondent claim, herein, that she had even
suggested or solicited violations of Garwood's concur-
rent suggestion or directive, that employees' personal
"sack" lunches might be consumed within the confines of
Respondent's casino dance hall. This Board could con-
clude, on the record, that-with respect to this particular
matter-Respondent's general manager did indeed pro-
mulgate a properly restricted rule, calculated to insulate
Merel's leased restaurant facility from whatever "embar-
rassment" the firm's lessee might conceivably suffer,
should casino employees consume food-there-which
they had personally purchased or prepared elsewhere.
Clearly, however, no violation of that presumptively
privileged directive, chargeable to complainant, had been
demonstrated herein.
With matters in this posture, then, counsel's present
contention, that Schultz was effectively terminated for
violating some properly promulgated rule, carried no
persuasion.
The present record, rather, provides several persuasive
"indications" beyond those previously noted that com-
plainant's termination derived from a statutorily pro-
scribed motive. She was dismissed within a week subse-
quent to Garwood's July 29 confrontation with Respond-
ent's casino personnel, during a period which had been
worked-despite his purported efforts to curb dissen-
sion-with continued manifestations of employee discon-
tent. Her purportedly "official" termination date, August
5, coincided with Beth Wright's forced departure, and
followed Rotramel's dismissal by 3 days, merely. (All
three separations clearly derived from comparable cir-
cumstances. Rotramel had been told, by Garwood, that
he had learned she was "instigating" casino workers
against Merel's restaurant operation. Wright had been
queried regarding her relationship with the "group"
which had supposedly been spearheading employee pro-
tests against Respondent's decision to discontinue their
meal ticket privileges. Consistently with the General
Counsel's contention, I note that Garwood's formulations
regarding the reason for both discharges, purportedly
bottomed on their suspected disloyalty as managerial em-
ployees, reflect the concern with which Respondent's
general manager viewed his pit crew's discontent, and
confirm the seriousness of his threat to clear the casino's
personnel complement of "troublemakers" so-called.
While a witness, Garwood conceded that he had consid-
ered complainant, likewise, a member of the dissatisfied
"clique" with which Rotramel and Wright had, presum-
ably, been associated. He was clearly determined to iden-
tify and terminate all the "instigators" and "perpetrators"
within the group which Huffman and he considered di-
rectly responsible for meal ticket protests.)
Respondent general manager's course of conduct, in
short, patently reveals his concern regarding a potential
for continued "dissension" difficulties, should complain-
ant's demonstrated disposition to press for solidarity
within Respondent's casino crew-with regard to their
meal benefit's loss-remain unchecked. Within his sworn
prehearing statement, Garwood claimed that-during
discussions with various dealers, individually, subsequent
to their July 29 conference-he had been able to "satis-
fy" them regarding their benefit's suspension, but that
Schultz' purported "complaints to customers" had con-
tinued. While a witness, however, Respondent's general
manager conceded that the only such "customers" he
had been told about were those-never specified as to
number-who might have overheard complainant's brief
restaurant conversation with her fellow dealers.
This Board may, properly, note further that-presum-
ably because of his particular concern-Garwood treated
complainant differently from several other casino work-
ers whom he had previously been given cause to disci-
pline. One dealer, Bob Tuttle, whom Garwood eventual-
ly terminated, had previously been sent home several
times, because he had reported for work drunk. On one
such occasion he had publicly castigated Respondent's
general manager. His drunkenness, late reporting, and ar-
gumentative behavior had, however, clearly been tolerat-
ed, at least for a time. Theresa Lawson, another dealer,
had been publicly criticized by Garwood-while some
casino patrons were present within hearing distance-for
reportedly rude behavior toward customers; she had not,
however, been further disciplined. Within this context,
Garwood's determination to discharge complainant with-
out first seeking her version of the restaurant incident,
clearly bottomed upon her demonstrated "concerted ac-
tivity" calculated to promote mutual aid and protection,
reflects disparate treatment which-within my view-
should call for statutorily warranted proscription. Com-
pare Ranger Baker, Inc., 222 NLRB 828, 832 fn. 18
(1976); Baker Hotel of Dallas, 134 NLRB 524, 537 fn. 23
(1961), and related text, enfd. 311 F.2d 528 (5th Cir.
1963), in this connection.
4. Respondent's contention that Schultz was
dismissed for unprotected conduct
Respondent contends, nevertheless, that-without
regard for "whatever illegal motives" management rep-
resentatives may have harbored-Garwood would have
terminated complainant, in any event, because of her "in-
subordinate" remarks to Joe Ogden, her newly designat-
ed supervisor, alone.
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Board has held, with Supreme Court concur-
rence, that, when discharges are challenged as violative
of the statute, the General Counsel must show, minimal-
ly, that the purported discriminatee's protected conduct
was a "substantial" or a "motivating" factor for a con-
cerned employer's questioned action. When that showing
has been made, the designated employer can still avoid
being held in violation of Section 8(a)(3)'s and/or Sec-
tion 8(a)(1)'s proscriptions, but only by showing that his
challenged course of conduct likewise rested on the par-
ticular employee's unprotected conduct, and that his dis-
charge decision or disciplinary action would have been
taken, on that ground, in any event. Wright Line, 251
NLRB 1083 (1980), enfd 662 F.2d 899 (Ist Cir. 1981)
cert. denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 103 S.Ct. 2496, 97 LC ¶ 10,164
(1983). Consistently with this decisional rubric-clear-
ly-contentions that a challenged discharge, or some
other disciplinary action, would have been effectuated
"in any event.and for valid reasons" constitute an affirm-
ative defense, with respect to which concerned employ-
ers carry the burden of proof, which they must satisfy by
a preponderance of the evidence. See NLRB v. Transpor-
tation Management Corp., supra, in this connection.
Herein, Respondent seeks an exculpatory determina-
tion, consistently with Wright Line's requirements, that
complainant was "grossly insubordinate" when she pur-
portedly told her newly designated pit boss that he was
not competent to perform his supervisory functions, and
less competent than his predecessor. With this for his
predicate, Respondent's counsel would contend that-
when a worker challenges his supervisor's qualifica-
tions-his conduct provides a privileged basis for termi-
nation. Further, counsel would have this Board find
complainant's purported criticism of Ogden's qualifica-
tions "particularly aggravated" because it had-so
Ogden testified-been volunteered with casino patrons
present; such discourtesy manifested "in front of" cus-
tomers, counsel contends, likewise provides a valid justi-
fication for dismissal. In substance, therefore, Respondent
claims herein that complainant's purported "discourtesy
and bad attitude" displayed during her supposedly con-
frontational conversation with Pit Boss Ogden reflects
statutorily "unprotected" conduct, sufficiently gross to
provide a privileged rationale for her discharge, whether
or not she was concurrently involved in concerted activ-
ity for mutual aid or protection.
I have not been persuaded. Within my view, Respond-
ent has failed to demonstrate, preponderantly, that-
without complainant's participation in concerted activity
herein found statutorily protected-she would have, in
any event, been terminated. My reasons follow.
First: Determinations have been reached, previously
within this decision, that Pit Boss Ogden's testimonial
version of their August 2-3 late shift conversation merits
no credence. Complainant's contrary testimony-which
reflects some quite innocuous query, completely devoid
of purportedly disparaging references to her newly des-
ignated supervisor's qualifications-has, rather, been
found more worthy of belief. On this record, therefore,
Respondent's quintessential predicate for some conten-
tion that Garwood really had a privileged justification
for effectuating complainant's termination clearly has not
been preponderantly established.
Second: Should a determination be considered warrant-
ed nevertheless that complainant had, indeed, questioned
Ogden's qualifications, Respondent's defensive presenta-
tion, within my view, fails to demonstrate, persuasively,
that her conduct, dispassionately considered, provided
some "valid reason" for dismissal, or that Respondent's
general manager would really have terminated her for
such conduct, alone, absent her contemporaneous partici-
pation in protected concerted activity, herein found.
While a witness, Garwood described Schultz' behavior
as "very insubordinate" toward her superior, sufficiently
so that, had he been present, he would have discharged
her forthwith. His witness chair characterization, howev-
er, may reasonably be considered, within my view, over-
blown. (In dictionaries, insubordination has been defined
as a refusal to submit to authority-disobedience involving
some neglect or refusal to follow positive orders, violation
of some prohibition, or some rule infraction reflected in
particular instances, or habitual. Clearly, complainant's
purported remarks-if she made them-never reached
the level of disobedience. Assuming, for the sake of argu-
ment, that she did make the comments alleged, determi-
nations might be considered warranted, at most, that she
had been presumptuous-that she had taken liberties, or
overstepped bounds-but hardly that she had been insub-
ordinate.)
Previously, within this decision, note has been taken of
Ogden's testimony that he had not "really" been "upset"
personally; that Schultz' purported comments had alleg-
edly been proffered more or less offhandedly; that their
purported conversational exchange had not interfered
with, interrupted, or affected complainant's work per-
formance; and that-when he reported the matter to Re-
spondent's general manager-they had not had "much of
a conversation" regarding the situation. Though Schultz'
purported remarks-if made-presumably had been prof-
fered within the hearing of some casino patrons, her con-
versational exchange with Ogden had concededly been
brief; further, neither complainant, nor her superior
had-so far as the record shows-been contentious. Re-
spondent's purportedly corroborative testimonial prof-
fers, calculated to suggest that their conversation had,
nevertheless, generated some "tension" which had, alleg-
edly, distressed or disturbed casino patrons, have, herein,
been found exaggerated. And Garwood-despite his
readiness, on other occasions, to reprimand dealers for
discourtesy shown directly to patrons, and despite his
present contention that he would have dismissed com-
plainant, immediately, had he been present-took no
action whatsoever directly following Ogden's supposed
report. Schultz was neither censured, nor temporarily re-
moved from shift service. With matters in this posture,
Respondent has not-within my view-demonstrated,
preponderantly, that complainant's purported miscon-
duct, if it did occur, would-reasonably and dispassion-
ately considered-should be deemed a genuinely "valid
reason" for her termination.
Further, on this record, I remain satisfied that she was
not, in fact, discharged for such misconduct and, indeed,
1046
SADDLE WEST RESTAURANT
would not have been discharged because of her purport-
ed insubordination-had it really occurred-absent her
involvement in statutorily protected conduct. As previ-
ously noted, complainant's testimony, that her supposed
"insubordination" was not mentioned during her August
7 termination interview, has herein been credited. But,
assuming arguendo that her purported misconduct may
have been mentioned, and that Garwood may have pur-
ported to rely on it to justify complainant's termination, I
would conclude, as previously noted, that the general
manager's possible references thereto as derived from
afterthought. In short, I would find his purported present
reliance thereon purely pretextual-or, if not pretextual,
then "blown up out of proportion" herein, because of his
desire, thereby, to "veil" Respondent's statutorily pro-
scribed motivation.
As noted, the General Counsel has, so I find, made out
his prima facie case. And Respondent has not, within my
view, sustained its burden of persuasion that complainant
would have been terminated-purportedly because of
her supposedly "insubordinate" confrontation with a su-
perior-absent her participation in statutorily protected
conduct. Contrary to Respondent's contention, therefore,
I find Wright Line's several requirements, for a finding of
violation, herein, satisfied.
IV. THE EFFECT OF UNFAIR LABOR PRACTICE ON
COMMERCE
The unfair labor practice described in section III,
above, and herein found to have been committed by Re-
spondent's management-since it occurred in connection
with Respondent's business operations noted within sec-
tion I of this decision-had, and continue to have, a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States. Absent cor-
rection it would tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
In view of the findings of fact and conclusions set
forth, previously, within this decision, and on the entire
record in this case, I find the following conclusions of
law warranted.
1. Respondent herein, Pareco, Inc. d/b/a Saddle West
Restaurant and Casino, is an employer within the mean-
ing of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Diana Jean Schultz was, throughout the period with
which this case is concerned, Respondent's employee,
engaged in concerted activity statutorily protected
within the meaning of Section 7 of the Act.
3. Philip Garwood, Respondent's general manager-
when he terminated the employment of Diana Jean
Schultz under the circumstances described within this
decision-interfered with, restrained, and coerced Re-
spondent's employees, generally, with respect to their ex-
ercise of rights statutorily guaranteed. Thereby, Re-
spondent engaged, and continues to engage, in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Since I have found that Respondent committed, and
has thus far failed to remedy, a specific unfair labor prac-
tice which affects commerce, I shall recommend that it
be ordered to cease and desist therefrom, and to take
certain affirmative action, including the posting of appro-
priate notices, designed to effectuate the policies of the
Act.
Specifically, I have found that Section 8(a)(1) of the
statute was violated when Respondent's general manager
dismissed Diana Jean Schultz for statutorily forbidden
reasons. I shall, therefore, recommend that Respondent
be required to offer complainant herein immediate and
full reinstatement to her former position, dismissing if
necessary any replacements hired for that position subse-
quent to her termination. Should that position no longer
exist, complainant should be reinstated to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges. (When this case was heard,
Respondent's principal part owner, Robert Huffman, re-
ported that negotiations for the sale of Respondent's
Pahrump facility to third parties had generated a con-
tract of sale, with respect to which a substantial sum,
provided by the prospective purchasers, had been placed
in escrow. The close of escrow was-so Huffman report-
ed-dependent on the Nevada Gaming Commission's ap-
proval of a license for the purchasers. Should the sale
have been consummated prior to this decision's issuance,
or prior to whatever Board decision further proceedings
herein might produce, the purchaser's responsibility for
effectuation of the remedy recommended herein should
be determined in compliance negotiations, or formal pro-
ceedings related thereto.)
Respondent should be further required to make Diana
Jean Schultz whole for any pay losses which she may
have suffered, or may suffer, by reason of her statutorily
proscribed termination, by the payment to her of what-
ever sums of money she would normally have earned as
wages, from the date of her termination, herein found, to
the date on which Respondent offers her reinstatement,
less her net earnings during the period designated. What-
ever backpay complainant may be entitled to claim
should be computed by calendar quarters, pursuant to
the formula which the Board currently uses. F. W. Wool-
worth Co., 90 NLRB 289, 291-296 (1950). Interest there-
on should likewise be paid, computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977); see
generally Isis Plumbing Co., 138 NLRB 716 (1962), in
this connection.
Since Respondent's course of conduct, herein found
violative of the law, reveals no pervasive proclivity to
violate the statute, and reflects no egregious or wide-
spread misconduct demonstrating a general disregard for
employees' fundamental statutory Tights, no broadly
phrased cease-and-desist order would seem warranted.
See Hickmott Foods, 242 NLRB 1357 (1979). Respondent
will, therefore, be required merely to cease and desist
from repetitions of the specific unfair labor practice
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found, and from violations of the statute, in any like or
related manner, hereafter.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Pareco, Inc. d/b/a Saddle West Res-
taurant and Casino, Pahrump, Nevada, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or laying off employees, or discrimi-
nating in any manner with regard to their hire or tenure
of employment, or their terms and conditions of employ-
ment, because of their participation in concerted activi-
ties for the purposes of collective bargaining or other
mutual aid or protection, which involve their exercise of
rights statutorily guaranteed.
(b) Interfering with, restraining, or coercing employees
in any like or related manner with respect to their exer-
cise of rights which Section 7 of the statute guarantees.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Offer Diana Jean Schultz immediate and full rein-
statement to her former position or, should that position
no longer exist, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any pay losses which
she may have suffered, or may suffer, because of her
statutorily proscribed termination, plus interest, in the
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
manner and to the extent set forth within the remedy
section of this decision.
(b) Preserve, until compliance with any order for
backpay promulgated by the Board in this proceeding
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 relevant and necessary
to reach a determination with respect to the amount of
backpay due, pursuant to this Order.
(c) Expunge from its files any references to Diana Jean
Schultz' August 1981 termination, and notify her, in
writing, that this has been done, and that evidence of her
termination will not be used as a basis for future person-
nel actions affecting her.
(d) Post, within Respondent's Pahrump, Nevada place
of business copies of the attached notice marked "Appen-
dix." 2 Copies of the notice, on forms provided by the
Regional Director for Region 31, shall be posted imme-
diately upon receipt after being signed by Respondent's
authorized representative. The notice shall remain posted
for 60 consecutive days in conspicuous places including
all places where notices to Respondent's employees have
customarily been posted. Reasonable steps shall be taken
by Respondent to ensure that these notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director within 20 days from
the date of this Order what steps Respondent has taken
to comply.
I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1048