Sage Dining Service

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 845 (N.L.R.B. 1993)

845
312 NLRB No. 132
SAGE DINING SERVICE
1 On March 4, 1993, Administrative Law Judge Richard H.
Beddow Jr. issued the attached decision. The General Counsel and
Petitioner/Charging Party each filed exceptions with supporting
briefs.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. 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.
3 All dates are 1992, unless otherwise stated.
4 Spitzer testified that he did not expressly refer to the Union in
his conversation with Turner. Absent any plausible alternative, how-
ever, Turner, as a leading union adherent, would reasonably have un-
derstood that Spitzer was warning him not to ‘‘disturb’’ other em-
ployees with talk about the Union.
Sage Dining Service, Inc. and Hotel Employees and
Restaurant Employees International Union,
Local 274. Cases 4–CA–20638 and 4–RC–17771
September 30, 1993
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues presented to the Board1 are whether the
judge correctly found no merit in allegations that the
Respondent unlawfully interfered with employee dis-
cussions about the Union; unlawfully threatened re-
prisal against and created the impression of surveil-
lance of employee Shawn Turner’s union activities;
interfered with employees’ free choice in a Board rep-
resentation election; and unlawfully reassigned Turner
because of his support for the Union.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.2
1. The Respondent operates food service facilities at
the Bell Atlantic Tower and One Parkway, two build-
ings located about a block apart in Philadelphia. On
December 13, 1991, the Union filed a petition to rep-
resent a unit of the Respondent’s employees at both fa-
cilities. A Board election took place on April 7, 1992.3
Ten employees voted for representation by the Union,
and 14 employees voted against it.
Shawn Turner was a key employee supporter of the
Union. He made the initial contact with the Union. He
spoke openly in its favor at union-conducted employee
meetings and in conversations with employees at work.
He was the only employee to accompany union rep-
resentatives in visits to employees’ homes during a 4–
5-day period about a week before the election. Turner
also served as the Union’s observer to the election.
Turner worked in the kitchen at One Parkway.
While working there on about April 3, another em-
ployee asked him a question about the Union. Before
he could respond, Facility Manager Victoria Hammes
told both employees that they should be working and
not talking about the Union on company time. Turner
testified that kitchen employees normally had personal
discussions while working.
Also on April 3, Turner and employee Tanika
Wright walked to the Bell Atlantic Tower to cash their
paychecks at a bank there and to have lunch in the Re-
spondent’s cafeteria. As Turner and Wright entered the
cafeteria, they were met by Food Service Director John
Spitzer, who had operational authority over both of the
Respondent’s facilities. Spitzer testified that he told
Turner not to ‘‘disturb my folks.’’ Earlier that day, an
argument between Bell Tower employees about the
Union had resulted in a customer complaint. Turner
was not involved in this incident. There is no evidence
that he knew about it when Spitzer spoke to him.
There also is no evidence that Turner had ever been
involved in any disruptive event at either One Parkway
or at the Bell Atlantic Tower.
Noting that Turner had discussions with employees
at work about the Union on other occasions, the judge
described the actions by Hammes and Spitzer as nar-
rowly drawn ‘‘managerial attempt[s] to maintain pro-
duction and decorum.’’ He found that neither of the in-
cidents involved unlawful interference with the em-
ployees’ protected right to discuss union matters.
We find that the actions of Hammes and Spitzer dis-
parately focused on discussions about the Union by its
principal employee advocate.4 Furthermore, we dis-
agree with the judge that the Respondent’s interests in
‘‘production and decorum’’ justified the statements in
dispute. There is no evidence that a response by Turn-
er to his kitchen coworker’s question about the Union
posed any threat to these interests. Indeed, Hammes’
sudden termination of the employees’ conversation
marked a departure from a working environment in
which One Parkway kitchen employees spoke freely
while working. In the instance of Spitzer’s admonition
to Turner, there is evidence that an argument by Bell
Atlantic Tower cafeteria employees about the Union
had triggered a customer complaint. Spitzer, however,
did not mention this incident to Turner, who had just
entered the cafeteria on his lunchbreak, did not work
in the Bell Atlantic Tower, was not involved in the
earlier incident, and was not aware of it.
It is of no consequence that Turner may have had
the opportunity to speak with fellow employees about
the Union at other times. The separate, comparable ef-
forts by two of the Respondent’s officials to limit dis-
cussion of the Union by its principal employee advo-
cate during the week before the election cannot be
viewed as isolated, noncoercive events. In sum,
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Compare Flexsteel Industries, 311 NLRB 257 (1993), finding un-
lawful impression of surveillance where manager on two separate
occasions told employee of hearing ‘‘rumors’’ of his union activities
and there was no indication, as in the present case, that such reports
were unsolicited comments by other employees.
Hammes and Spitzer disparately banned employee dis-
cussions about the Union in circumstances which
would reasonably tend to interfere with employees en-
gaging in protected union activity. Such conduct vio-
lated Section 8(a)(1) of the Act.
2. On April 6, Hammes called Turner to her office.
She told him that their conversation was personal and
that she was speaking to him as a friend. Hammes said
that employees from the Bell Atlantic Tower building
had seen Turner riding around with union representa-
tives. According to Turner, she then expressed ‘‘her
personal feelings, that the owners wouldn’t like that,
and my promotional future would be in jeopardy, and
I wouldn’t go anywhere in the Company any more.’’
Turner said that he just shrugged his shoulders, but
that, as he left, he felt Hammes was sympathetic to
employees.
The General Counsel alleged that Hammes violated
Section 8(a)(1) of the Act both by creating an impres-
sion of surveillance and by threatening Turner. The
judge recommended dismissal of these allegations. He
found that Turner openly engaged in union activities,
expected employees to tell management about his
house visits, and did not believe that he was under sur-
veillance. Under these circumstances, the judge charac-
terized Hammes’ statement about what employees had
observed and related to be ‘‘a recognition of the obvi-
ous,’’ rather than an unlawful implication of surveil-
lance. He further found that Hammes’ warning to
Turner about jeopardizing his future with the Respond-
ent was merely the friendly expression of a personal
opinion which Turner did not regard as a threat.
We find that the judge erroneously relied on Turn-
er’s subjective reaction to Hammes’ statements in ana-
lyzing their legality. It is well established that ‘‘the
Board does not consider subjective reactions, but rather
whether, under all the circumstances, a respondent’s
remarks reasonably tended to restrain, coerce, or inter-
fere with employees’ rights guaranteed under the Act.’’
Sunnyside Home Care Project, 308 NLRB 346 fn. 1
(1992). Using the appropriate objective test, we affirm
the judge’s finding that Hammes did not imply that the
Respondent had Turner’s union activities under sur-
veillance. Turner had undisputedly made no effort to
conceal his union activities. Hammes gave no indica-
tion that she or any other member of the Respondent’s
management solicited employees to observe such ac-
tivities and to report them to the Respondent. There is
no other objective evidence which would support a
reasonable belief that the Respondent had Turner under
surveillance. The General Counsel has therefore failed
to prove that an employee in Turner’s situation would
reasonably believe that such surveillance, rather than
voluntary disclosures by employees, brought his asso-
ciation with the Union’s representatives to the Re-
spondent’s attention.5
We disagree, however, with the judge’s finding that
Hammes did not unlawfully threaten Turner. As for the
alleged friendly nature of Hammes’ remarks, the Gen-
eral Counsel aptly refers to the observation in Coach
& Equipment Sales Corp., 228 NLRB 440 (1977), that
The Board has in the past noted that statements
spoken as a friend which convey a threat of se-
vere consequences are violative of Section 8(a)(1),
adopting the reasoning that the impact of such
statements, coming from a ‘‘friend’’ who is part
of management, is probably greater in view of the
authenticity and credibility of the source.
As for the alleged personal nature of Hammes’ re-
marks, we find that the context of her conversation
with Turner was far from personal and casual.
Hammes was the ranking supervisor at the facility
where Turner worked. During working hours, she sum-
moned him to her office for the sole apparent purpose
of discussing the dangers of his association with the
Union’s representatives. Under these objective cir-
cumstances, an employee would reasonably believe
that Hammes, as a Respondent representative, was
threatening adverse employment prospects for engag-
ing in union activity. Accordingly, we find that the Re-
spondent violated Section 8(a)(1) of the Act when
Hammes threatened Turner on April 6.
3. The unfair labor practices by Hammes and Spitzer
took place during the critical period prior to the Board
election on April 7. The Union timely filed objections
alleging that this unlawful conduct interfered with the
election. We find merit in these objections. Accord-
ingly, we shall set aside the results of the April 7 elec-
tion and direct the Regional Director for Region 4 to
conduct a second election.
4. There remains for our consideration one unfair
labor practice allegation relating to Turner’s work as-
signment after the election. The Respondent intially
hired Turner as a grill cook in August 1991. In Janu-
ary 1992, he was promoted to the position of head
cook at One Parkway. Turner received a $1-an-hour
wage increase at this time. On about April 1, Manager
Hammes told Turner that he would be assigned to
work temporarily as the grill cook at One Parkway.
Assistant Manager Marie McKenna would temporarily
fill the head cook role. According to Turner, Hammes
said the temporary assignment would end in about a
week when employee Kevin West transferred from the
847SAGE DINING SERVICE
6 Hammes did not testify. Factual findings with respect to her con-
versations with Turner are based on his uncontroverted testimony.
7 The cafeteria remained open.
8 We note that the General Counsel does not allege that the tem-
porary preelection assignment of Turner to the grill cook position
was unlawful.
grill cook position at the Bell Atlantic Tower to the
grill cook position at One Parkway.6
It is undisputed that financial losses motivated a de-
cision by the Respondent to close its restaurant at the
Bell Atlantic Tower7 and to lay off employees or to
transfer them to other facilities. Senior chef Norman
Bergeron, who served as the Respondent’s election ob-
server, was among those laid off. The Respondent
transferred grill cook West to One Parkway on April
9. This was Turner’s first day at work since the elec-
tion. When Turner arrived at work, Assistant Manager
McKenna directed him to work as the grill cook. West
was going to work as head cook. Turner protested
these work assignments. As a result, Food Service Di-
rector Spitzer reassigned Turner to the head cook posi-
tion for that day.
Later that day, Spitzer met with Hammes, McKenna,
Turner, and West. Spitzer announced that there were
two qualified employees for the position of head cook.
Consequently, Turner and West would be required to
take a written theory test to determine who would be-
come the head cook. Until that test, Turner and West
would alternate days in the head cook and grill cook
positions.
Hammes spoke privately to Turner after this meet-
ing. According to Turner, Hammes said that ‘‘she
didn’t think that what was going on was fair, that she
felt like Kevin should have taken a layoff or just took
the grill cook’s position, and she felt that John
[Spitzer] might have had a little animosity towards me
because of the way I voted.’’
The Respondent never administered a written head
cook theory test. Turner and West alternated head cook
and grill cook roles until June. Turner retained the
same wage rate that he had earned while working ex-
clusively as head cook. In June, the Respondent pro-
moted Turner to an assistant manager’s position at an-
other facility, which is about a 40-minute drive away
from the Philadelphia facilities involved in the Union’s
representation election campaign.
The judge found that the General Counsel failed to
establish a prima facie case of unlawful motivation for
West’s initial assignment as head cook and the subse-
quent assignment of West and Turner to share that po-
sition. He found that any suspicion arising from the
timing of Turner’s work reassignment immediately
after the election was outweighed by the absence of
evidence of union animus, the Respondent’s valid eco-
nomic reasons for reorganizing its work force, Turner’s
retention of the same wage rate after reassignment and
his subsequent promotion, and a comparison of his sit-
uation to the adverse consequences suffered by em-
ployees—including Respondent’s election observer
Bergeron—who were laid off during the reorganiza-
tion. We disagree with the judge’s analysis of the evi-
dence.
We find that the General Counsel presented a strong
prima facie showing of antiunion motivation for the re-
assignment of Turner from his prior position as sole
head cook.8 It is undisputed that the Respondent’s offi-
cials knew about Turner’s activities in support of the
Union. Furthermore, we have found that both Spitzer
and Hammes demonstrated Respondent’s animus by
unlawfully interfering with those activities. One day
before the election, Hammes specifically threatened
that Turner’s association with the Union could jeopard-
ize his future with the Respondent. Two days after the
election, this threat was realized when the Respondent
transferred grill cook West for the initial purpose of
supplanting Turner as head cook. Even after Turner
protested, Spitzer retained West as co-head cook and
an equal competitor with Turner for the permanent
head cook position. Hammes admitted to Turner that
his vote for the Union may have been a factor in
Spitzer’s handling of the head cook assignment.
We also find that the Respondent relied on the le-
gitimate, economically motivated reorganization as a
pretext to remove Turner from his permanent position
as sole head cook. While the reorganization may have
prompted West’s transfer to One Parkway, there is no
apparent legitimate reason why he would assume or
share the head cook’s role there. There is no evidence
that relative seniority was a factor. There also is no
evidence supporting Spitzer’s claim that both West and
Turner were qualified to work as a head cook. West
had only been a grill cook at the Bell Atlantic Tower,
while Turner had served as the head cook at One Park-
way from January to April. The written test which
Spitzer promised to resolve the head cook competition
never took place. Most significantly, Manager Hammes
had informed Turner on about April 1 that he would
work temporarily for a week as grill cook until West’s
transfer. It is apparent from this statement that, prior
to the election, the Respondent contemplated transfer-
ring West from the grill cook position at the Bell At-
lantic Tower to the same position at One Parkway and
returning Turner to his permanent position as head
cook. The Respondent has offered no explanation why
this plan changed after the election. Absent any such
explanation, and given the strong prima facie case, it
is reasonable to infer unlawful motivation.
We disagree with the judge that the Respondent’s
failure to treat Turner worse, that is, by reducing his
wage rate or laying him off, and its subsequent pro-
motion of Turner prove the absence of unlawful moti-
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 We find no need to pass on the General Counsel’s suggestion
that the Respondent promoted Turner in an effort to deter his partici-
pation in this proceeding. The General Counsel did not allege an
8(a)(4) violation, and such a violation would not materially add to
the substantive remedy.
10 Nothing in this Decision and Order shall be construed as requir-
ing or authorizing the Respondent to rescind its promotion of Shawn
Turner to the position of assistant manager.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
vation for the adverse treatment he received.9 These
matters have little relevance to the issue of why the
Respondent did not retain Turner in the permanent po-
sition of sole head cook at One Parkway after the elec-
tion. Where, as here, the evidence establishes that an
employer has taken a discriminatory action against an
employee, the mere fact that other discriminatory ac-
tions were not taken is hardly a refutation of the evi-
dence establishing the discriminatory action. For the
reasons stated above, we find that the General Counsel
has proved that the Respondent acted in retaliation
against Turner’s union activities. It thereby violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Sage Dining Service, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By disparately preventing employee discussion of
the Union, the Respondent has violated Section 8(a)(1)
of the Act and interfered with the results of the elec-
tion held on April 7, 1992, in Case 4–RC–17771.
4. By threatening an employee that association with
union representatives would jeopardize his future em-
ployment, the Respondent has violated Section 8(a)(1)
of the Act and interfered with the results of the elec-
tion held on April 7, 1992, in Case 4–RC–17771.
5. By reassigning Shawn Turner on April 9, 1992,
from the permanent position of sole head cook in retal-
iation against his union activities, the Respondent has
violated Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act. In particular, although the record does
not indicate whether Shawn Turner suffered any losses
from his unlawful reassignment, we shall order the Re-
spondent to make him whole for any such loss of earn-
ings or benefits, if any, that may be identified in com-
pliance proceedings. Any backpay owing shall be com-
puted in the manner set forth in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), with interest thereon to be
computed in the manner set forth in Florida Steel
Corp., 231 NLRB 651 (1977).10
ORDER
The Respondent, Sage Dining Service, Inc., Phila-
delphia, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unlawfully forbidding employees from discuss-
ing the Union.
(b) Unlawfully threatening employees that associa-
tion with union representatives could jeopardize their
future employment.
(c) Unlawfully reassigning employees because of
their union activities.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Shawn Turner whole, with interest, for any
loss of earnings or benefits suffered as the result of his
unlawful reassignment, in the manner set forth in the
remedy section of this decision.
(b) Remove from its files any reference to the un-
lawful reassignment of Shawn Turner and notify him
in writing that this has been done and that the reas-
signment will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay or
benefits owing under the terms of this Order.
(d) Post at its One Parkway and Bell Atlantic Tower
facilities in Philadelphia, Pennsylvania, copies of the
attached notice marked ‘‘Appendix.’’11 Copies of the
notice shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the representation elec-
tion held on April 7, 1992, in Case 4–RC–17771 be
849SAGE DINING SERVICE
1 All following dates will be in 1992 unless otherwise indicated.
set aside. Case 4–RC–17771 is hereby severed and re-
manded to the Regional Director for Region 4 for fur-
ther proceedings consistent with the following direc-
tion.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT forbid our employees from discussing
Hotel Employees and Restaurant Employees Inter-
national Union, Local 274, or any other union.
WE WILL NOT threaten our employees that associa-
tion with union representatives could jeopardize their
future employment.
WE WILL NOT reassign employees because of their
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Shawn Turner whole, with interest,
for any loss of earnings or benefits suffered as the re-
sult of his reassignment out of the permanent position
of head cook at our One Parkway cafeteria.
WE WILL notify Shawn Turner that we have re-
moved from our files any reference to his reassignment
and that the reassignment will not be used against him
in any way.
SAGE DINING SERVICE, INC.
Henry R. Protas, Esq., for the General Counsel.
Francisco and Christina J. Rodriguez, of Baltimore, Mary-
land, for the Respondent.
Adam H. Feinstein, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Philadelphia, Pennsylvania, on Novem-
ber 16, 1992. Briefs subsequently were filed by all parties.
The proceeding is based on a charge filed April 13, 1992,1
by Hotel Employees and Restaurant Employees International
Union, Local 274. The Regional Director’s complaint dated
May 29 alleges that Respondent, Sage Dining Service, Inc.,
of Baltimore, Maryland, violated Section 8(a)(1) and (3) of
the National Labor Relations Act by prohibiting employees’
union discussion, surveillance of employee union activity,
threats of reprisal, and reassignment of an employee.
The Regional Director issued the notice of hearing on ob-
jections to election on June 4, in Case 4–RC–17771 and, on
November 15, issued an order consolidating the cases.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in providing institu-
tional food services in Philadelphia, Pennsylvania, and other
locations. It annually purchases and receives goods and mate-
rials valued in excess of $50,000 directly from points outside
Pennsylvania and it admits that at all times material it is and
has been an employer engaged in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent provides cafeteria and restaurant services
to businesses and schools and, as pertinent, it provided these
services to Bell Atlantic at the Bell Atlantic Tower Building
and at One Parkway in Philadelphia, two buildings that are
about one block from each other.
Respondent employed five managers or supervisors at the
Bell locations: John Spitzer, Geri Barton, Victoria Hammes,
Marie McKenna, and Bruce Hodgdon, as well as approxi-
mately 24 hourly employees.
John Spitzer is Respondent’s senior food service director,
responsible for supervising Respondent’s operations at both
buildings. At relevant times, Respondent’s onsite manager at
One Parkway was Victoria Hammes and Marie McKenna
was assistant manager.
In December 1991, employees at the Bell locations spoke
with representatives of the Charging Party about a union.
Following a solicitation attempt and a showing of interest, a
petition was filed and a stipulated election agreement cover-
ing both locations was signed on March 9, which established
an election date of April 7.
Shawn Turner previously had been hired as a grill cook
at One Parkway on August 5, 1991. In January or February,
he was promoted to the position of head cook at One Park-
way and given a $1-an-hour raise.
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Turner had called Thurston Hyman, the organizer for the
Union, and expresssed interest in having the Union organize
the Respondent’s employees. Once the campaign started,
Turner assumed a prominent rule and spoke to fellow em-
ployees about the Union and attended union meetings. He
was the only employee who accompanied Union Organizers
Thurston Hyman and Michael Fagan when they visited em-
ployees at their homes over a period of 4 to 5 days about
a week before the election and he served as the Union’s ob-
server at the election on April 7.
During February and March, Company President Francisco
Rodriguez addressed all employees and explained what
would transpire during the election campaign. He used the
phrase ‘‘no coercion and no rewards’’ to explain that em-
ployees could not be punished for supporting the Union, nor
rewarded for opposing it, an understanding held by Turner.
It otherwise appears that throughout the course of the
union campaign, there was a substantial discussion about the
Union both on and off the worksite, and employees freely
discussed union issues while working, while on break, during
lunch, and on premises. There is no implication that the
Company systematically inhibited the employees’ free speech
nor interfered with solicitation efforts.
On one occasion, however, in March or April, employee
Turner was involved in a discussion with fellow employee
James Murray. Turner had stopped working in the middle of
his normal activity when he was questioned by Murray and
they were having a conversation in the production area. Man-
ager Victoria Hammes told both employees they should be
working and not talking about the Union on companytime.
Turner testified that he had an opportunity to talk to Murray
about the Union later that day and on other days.
On the morning of April 3, a group of employees from the
Bell Tower had a loud and heated discussion about the
Union during their work hours in the customer serving area
and one customer called the manager, John Spitzer, to com-
plain about the disturbance.
When Turner went there for lunch Spitzer spoke to him
as he and another employee approached. In response to ques-
tions asked by a Board agent and set forth in an affidavit,
Turner said Spitzer told him that he was not permitted to
speak to anyone about the Union and that he did not want
Turner promoting the Union.
Otherwise, Turner had difficulty remembering the occasion
when he was questioned on direct examination by the Gen-
eral Counsel. Spitzer testified that he spoke to the employees
at that location about avoiding loud disturbances and that
when Turner came over he asked him not to upset the em-
ployee or to cause an uproar and although he did not use the
word ‘‘union’’ he testified that he was relating his request
to the earlier loud union discussion that had occurred earlier.
On April 6, Hammes called Turner into her office and ad-
vised him that their conversation was personal and that she
was speaking to him as a friend. She told him that some of
the employees from the Tower Building had seen him riding
around with union representatives. She said that she felt that
the owners would not like that and that his future would be
in jeopardy and that he would not go anywhere in the Com-
pany. Turner did not respond. He testified that he thought
Hammes’ comments were an indication of sympathy for the
employees and it appears that Hammes reassured Turner that
she was giving her own opinion, not the Company’s position.
Throughout the election campaign, Turner was an out-
spoken advocate and supporter of the Union. He made no ef-
forts to keep his views a secret and in early April he openly
accompanied a union organizer on home visits to prounion
and antiunion employees alike to promote the Union.
The election was held on April 7, and, of 24 potential
votes, the Union received 10.
During the Spring of 1992, Respondent Sage’s financial
position at Bell Tower deteriorated. A restaurant operation on
the 50th floor which had opened in February saw a steady
decline in clientele. The cafeteria, which experienced very
strong business on its opening in February, was also experi-
encing sharply reduced sales.
I credit exhibits presented by Respondent showing that the
Company lost money at the Bell Tower cafeteria/restaurant
in both March and April. In March, the Company was budg-
eted to earn $4075 at the account; it loss $3482 instead. In
April, the budgeted profit was $4441; the loss was $7274.
Labor cost at the account was substantially over budget.
The March budget called for a $15,420 expenditure on labor;
actual cost was $26,169, or $10,749 in excess of plan. April
likewise saw actual labor cost exceed budget by $6243.
Labor cost as a percent of sales was 63.5 percent in March,
and 76.3 percent in April.
The Company decided to trim its labor force, moving em-
ployees, where possible, to the Bell Parkway location or to
other locations. The first person to be cut from the rolls was
Executive Chef Norman Bergeron; Bergeron was requested
by management to be its observer at the union election.
Bergeron was laid off because of his pay at $10.75 per hour,
was the highest of all employees.
A number of employees, including cooks, cashiers, and
waitresses were transferred among the various Bell oper-
ations to help reduce costs at the Bell Tower. Among the
next group of employees transferred was Kevin West. On
April 9, West was moved from cook at Bell Tower to either
a cook or grill cook position at Bell Parkway, where there
was an opening. West joined Turner, who was already in the
cook’s position. Previously on April 1, Turner had been
made temporary grill cook while Supervisor Marie McKenna
filled in as head cook. Turner and West then alternated be-
tween the cook’s job and the grill cook’s job from one day
to the next because in management’s opinion they were of
largely equal cooking ability. Respondent had planned to ad-
minister a cooking test to both Turner and West to determine
who would permanently occupy the cook’s position but it
was never administered because of the filing of unfair labor
practice charges and subsequent events.
In May 1992, Respondent won the contract for a new ac-
count, Sisters for the Blessed Sacrament, in Bensalem, Penn-
sylvania. Turner accepted a promotion to the position of as-
sistant manager of that facility and transferred there in June
1992.
III. DISCUSSION
On brief, the General Counsel argues that the conversa-
tions between Supervisors Spitzer and Hammes and em-
ployee Turner, respectively, improperly prohibited the em-
ployees from speaking about the Union and that Hammes’
conversation with Turner indicates improper surveillance and
a threat of reprisal. He also contends that Turner’s reassign-
ment in jobs was made for discriminatory reasons. On brief,
851SAGE DINING SERVICE
the Charging Party asks that the election be set aside and that
a rerun election be scheduled.
This proceeding arose over a few events surrounding an
unsuccessful union organizing campaign. During this cam-
paign, the Union sought to closely monitor the Employer’s
contacts with employees and it made frequent or daily re-
quest for reports from Turner about the Employer’s conduct.
Conversely, shortly before the hearing, the Respondent con-
sulted with employee Turner and he failed to meet with the
General Counsel an hour before the hearing, as had been ar-
ranged. Thereafter, Turner’s testimony reflected that he
couldn’t remember some things such as Spitzer’s possible
reference to ‘‘Unions,’’ that had been alluded to in his state-
ment to a Board agent.
Here, regardless of whether the word ‘‘union’’ was used
by Spitzer, it is clear that both supervisor and employee un-
derstood that the admonition to Turner to avoid an uproar or
disturbance in a public area related to an earlier ‘‘union’’
discussion. The Respondent’s conduct in this respect was in
response to a customer complaint after a prior disturbance,
and it was a measured request that conveyed a nonrepressive
statement that was designed to promote and maintain em-
ployee discipline in a public area. It was not taken by Turner
to be an infringement on his activities and, in fact, he there-
after freely pursued his organizing contacts with other em-
ployees.
In a similar vein, Hammes’ statement to, in effect, get
back to work and stop talking about the Union on company
time, was made in the conjunctive and clearly was tied to
an employee conversation that both interfered with work and
mentioned the Union. This was not a broad prohibition and
it did not inhibit Turner from subsequently continuing his
union conversations and solicitations. It appears that under
similar circumstances (where normal work had been stopped)
this admonition would have been given regardless of the sub-
ject of conversation and I find in both instances that the Em-
ployer’s actions were based on valid managerial attempts to
maintain production and decorum and that they did not have
a broad prohibative effect that could be considered to rise to
the level that would constitute a prohibited interference with
employee Section 7 rights. Under these circumstances, I find
that the evidence of record is insufficient to persuasively
show that the Respondent’s conduct violated Section 8(a)(1)
of the Act in these respects and, accordingly, I conclude that
these allegations should be dismissed.
Turner testified that he did not keep his organizing activi-
ties secret, that he expected employees to tell management
of his house visits on behalf of the Union, and that he never
believed or told the Union that he was under surveillance.
The fact that Supervisor Hammes acknowledged that other
employees had told her that they had seen Turner driving
around with a union representative, standing alone, merely
shows a recognition of the obvious. It was not accompanied
by other statements or factors that would impute coercion or
a repressive inteference on employee rights and I find that
the General Counsel has failed to show that it constitutes a
violation of Section 8(a)(1) of the Act, as alleged.
Hammes’ statement to Turner, which expressed her fear
that the company owners wouldn’t like his driving around
with a union representative and that it could jeopardize his
future with the Company, was accompanied by her assurance
that it was her personal opinion and that she was speaking
on her own, as a friend. Turner’s testimony indicates that he
accepted her assurance and that he considered her comment
to be sympathetic and not a threat or a statement of company
policy. This personal opinion is not shown to be related to
any other probative factor (including the alleged discrimina-
tory job reassignment, discussed immediately below) that
would tend to corroborate that the owners would be likely
to take retaliatory action against a union activist and there is
no substantial basis to support a conclusion that this was an
expression of management policy that should be attributed to
the Respondent. I find that this comment is in the nature of
an isolated, personal statement in casual conversation and
that the General Counsel has failed to show that it was a
threat by the Company that would interfere with employee
Section 7 rights, as alleged in the complaint. Accordingly, al-
legations in these respects also should be dismissed.
Turning to the matter of Turner’s job reassignment, appli-
cable law requires that the counsel meet an initial burden of
presenting sufficient evidence to support an inference that the
employee’s union or other protected concerted activities were
a motivating factor in the Employer’s decision. Here, the
record fails to show that the Respondent engaged in pro-
bative, improper antiunion conduct that would tend to impute
a climate of antiunion animus. The mere fact that Turner was
the leading union activist, standing alone, is of limited sig-
nificance and, in view of the nonpretextual reason dem-
onstrated by the Respondent as the basis for its action, I am
not persuaded that the General Counsel has met his burden
of showing improper motivation.
The principal showing relative to motivation is that a man-
agerial decision was made regarding its work assignment for
Turner at a time close to that of the union election. Here,
however, Turner is not shown to have suffered any reduction
in his rate of pay or other adverse effect and, it was part of
a reorganizing effort that affected a number of other employ-
ees (i.e., Bergeron, the senior chef who was the Company’s
election observer, was laid off) and several other people were
transferred in what is shown to have been a valid consolida-
tion of operation dictated by legitimate economic reasons.
Although Turner’s work reassignment may have raised a
valid ‘‘suspicion’’ that action had been related to Turner’s
involvement in the Union’s drive, this suspicion essentially
stands alone and, in view of all the circumstances, including
the Company’s showing of valid business reason, the absence
of other meaningful or probative illegal or coercive conduct
on the part of the Respondent, and the Company’s subse-
quent promotion of Turner to an assistant manager position,
leads to the conclusion that the assignment was not moti-
vated by any union or other protected activity, as asserted by
the General Counsel.
Under all the circumstances, I also find that Respondent
has shown that it would have taken the same actions, for
valid business reasons, regardless of Turner’s participation in
union or protected activities and, accordingly, I conclude that
the General Counsel has failed to prove that the Respondent
violated Section 8(a)(1) and (3) of the Act in this respect, as
alleged.
The Charging Party’s objections in the embraced RC pro-
ceeding are directly related to the matters discussed above
and, accordingly, I find the objections are lacking in merit
and that the election was held free of unfair practices that
might otherwise be sufficient grounds for invalidation of the
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
election. As Respondent is not shown to have engaged in
conduct which affected the result of the election, I find these
are not valid grounds for setting aside the election and, ac-
cordingly, the objections will be dismissed.
CONCLUSIONS OF LAW
1. Respondent Sage Dining Service, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent is not shown to have engaged in con-
duct violative of the Act as alleged in the complaint.
4. The Petitioner’s objections in Case 4–RC–17771 are
lacking in merit and their is no showing that improper con-
duct occurred which would constitute grounds for setting
aside the election.
[Recommended Order for dismissal omitted from publica-
tion.]