Tan-Tar-A Resort

National Labor Relations Board - Board Decisions

Aug 28, 1972

198 N.L.R.B. 1104 (N.L.R.B. 1972)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tan-Tar-A Resort and Service Employees Internation-
al Union, Local 50, AFL-CIO. Case 17-CA-4917
August 28, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 5, 1972, Trial Examiner Eugene George
Goslee issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and Respon-
dent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, Tan-Tar-A Resort, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner' s recommended
Order.
1 The General Counsel has excepted to the Trial Examiner's failure to
provide a make-whole remedy for any loss that Homer D. Jeffries may have
sustained subsequent to December 17, 1971, when he began work in the
position to which he was transferred In our Decision and Order herein, we
are not foreclosing the General Counsel from proving during the
compliance phase that Jeffries has suffered any loss of pay or benefit for
which he may be entitled to compensation
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Trial Examiner: This case
came on to be heard before me at Lake Ozark, Missouri,
on February 16, 1972, upon a complaint' issued by the
General Counsel of the National Labor Relations Board
and an answer filed by Tan-Tar-A Resort, hereinafter
called the Respondent. The issued raised by the pleadings2
in this case relate to whether or not the Respondent
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by acts and conduct. hereinaf-
i The complaint in this case is predicated on a charge filed on November
18, 1971, and served on the Respondent on November 19, 1971.
2 On January 7, 1972, the Respondent filed a Motion for a Bill of
Particulars, and on January 12, 1972, the General Counsel filed a statement
in opposition thereto On January 18, 1972, Trial Examiner Arthur Leff
issued an order granting in part , and denying in part the Respondent's
Motion for a Bill of Particulars Thereafter, on January 21, 1972, the
ter detailed., At the conclusion of the hearing all parties
;waived oral argument, but briefs have been received from
the General Counsel and the Respondent, and have been
duly considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the
witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the operation of a resort
and recreational facility at Osage Beach, Missouri, and its
gross annual volume of business exceeds $500,000. In
addition, the Respondent annually purchases goods and
merchandise from sources situated outside the State of
,Missouri, in an amount valued in excess of $50,000. The
complaint alleges, the answer admits, and I find that the
Respondent is, and has been at all times material to this
case, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Service Employees International Union,
Local 50, AFL-CIO, is, as alleged and admitted in the
pleadings , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint , as amended at the hearing , alleges that
the Respondent violated Section 8(a)(1) and (3) of the Act
by demoting its employee Homer D. Jeffries from head
cook to second cook and by assigning him to cooking
duties in other portions of the Respondent's facility. The
complaint further alleges that Jeffries' alleged demotion
and transfer occurred on or before November 8, 1971,3 and
were caused by Jeffries ' activities and support on behalf of
the Union . By its answer the Respondent generally denies
that it has engaged in any violations of the National Labor
Relations Act. The Respondent's asserted reasons for the
demotion and transfer of Jeffries are considered in detail
below.
The Respondent's resort facility covers an area of
possibly 4 or 5 acres , and during the peak season of its
operations, which usually extends from mid-June to the
end of September, the Respondent employs 400 to 450
employees . Within the resort complex the Respondent
maintains and operates several dining facilities , and the
food for these facilities is prepared in four kitchens,
including the Happy House , the Ball Room, the DerKlug,
and the Wine Rose kitchens . A fifth kitchen is maintained
and operated for the preparation and service of food in the
employees' cafeteria . Particularly involved in this case are
General Counsel issued , and caused to be served on the Respondent, a
response to the Trial Examiner's order, and a notice of intent to amend
complaint At the opening of the hearing in this case , the General Counsel
amended the complaint to conform with Trial Examiner Leffs order, and in
accordance with the poor notice of intent to amend
3 All dates recited hereinafter are in 1971 , except as specified to the
contrary
198 NLRB No. 163
TAN-TAR-A RESORT
the operations of the Happy House kitchen, which
prepares breakfast and luncheon foods for service in the
Happy House and Cliff Room dining facilities.
Homer Jeffries was employed by the Respondent as a
breakfast cook in the Happy House kitchen in November
1969. In the spring of 1970, after approximately 6 months
in this classification, Jeffries was promoted to head
breakfast cook in the same kitchen. In this capacity Jeffries
had immediate responsibility, subject to the overall
supervisory authority of Chef Burkhart G. Wolf, for the
proper preparation and presentation of the breakfast and
luncheon meals prepared by himself and two other cooks.4
Jeffnes' employment as head breakfast cook continued
until about November 8, 1971,5 when he was removed
from this position and transferred, without any decrease in
his hourly rate of pay, to the Ball Room kitchen, which is
sometimes referred to in the record as the prep kitchen;
Simultaneously, the Respondent promoted Terry Berkbi-
gler to replace Jeffries as head breakfast cook.
The Respondent and the Union are signatories to a
collective-bargaining agreement, entered into on January
21, which specifies terms and conditions of employment
for a unit of 200 to 250 employees. The bargaining
agreement contains, inter alia, a two-step grievance
procedure and an arbitration provision. On January 27,
Jeffries was appointed as the Umon's chief steward, to
assist approximately seven other stewards in the investiga-
tion and processing of grievances. According to Jeffries'
testimony, about 20 to 25 grievances were filed during the
period from January 27 through November 8, and Jeffries
participated in processing about 15 of these grievances.
Jeffries' testimony in this respect was corroborated in
substantial part by the Respondent's general manager, Bill
Green, who testified that Jeffries participated in 10 to 15
grievances in the period after Green became general
manager on June 14. As the Respondent contends, I find
that Jeffries filed four, five, or more grievances on his own
behalf, but that he also participated in the processing of
grievances filed on behalf of other employees.
Jeffries testified that beginning in the latter part of
October, Chef Wolf began to short schedule him on hours,
and on some occasions sent Jeffries home before the
conclusion of his shift, while allowing the other breakfast
cooks, Berkbigler and Lindsey, to put in their full schedule
of hours. Jeffries complained to Wolf that he was being
shorted on hours and asked that his schedule be increased.
Wolf replied that he would see what he could do about
Jeffries' request.
On Sunday, October 31, a work schedule was posted for
the following week. According to the testimony of Jeffnes,
he commented to the chief, "Wolf, why are you short
scheduling me?" According to the further testimony of
Jeffries, as corroborated by Terry Berkbigler, Wolf replied:
Don't start that damn .. . . again, you son of a
bitch. If you don't like it, go on home. If I give you one
day off, you bitch, if I give you two days off, you bitch,
what the . . . . do you want.
4 At times only one second cook was assigned to the Happy House
kitchen
5 All the parties to this proceeding agree that Jeffnes' responsibility for
1105
Jeffries replied to Wolfs criticism with the terse
expletive, ". . . you," and Wolf walked out.
Within 10 minutes Wolf returned to the Happy House
kitchen and handed Jeffnes an employee action report,
reprimanding him for using foul language to his supervisor.
Wolf instructed Jeffries, "Sign it," and Jeffries refused,
assertedly because he felt that Wolf had provoked his use
of "profane" language. Wolf repeated, "I said sign it," and
when Jeffries reiterated his refusal, Wolf started to walk
out. During the 10-minute interval, Jeffries had prepared a
written grievance, complaining that he had been scheduled
for less work time than other newly hired cooks, and also
complaining that Wolf had cursed him and told him he
could quit when Jeffries complained about his hours.
Jeffries handed the grievance to Wolf with the comment,
"Here is one for you too." Wolf glanced at the grievance
and threw it in the trash can.
Following his confrontation with Wolf, Jeffries retrieved
the grievance from the trash can and presented it to Monte
Ake, the Respondent's vice president. In an ensuing
discussion, Ake informed Jeffries that he was sorry, but he
could not go against the judgment of the department head.
Ake agreed, however, that he would turn Jeffries' grievance
over to General Manager Bill Green.
In the interim, Jeffries had prepared a second grievance
in which he complained of Wolf's written reprimand and
requested that it be removed from his employment record.
On November 4, accompanied by the Union's representa-
tives and several stewards, Jeffries met with Green and
Wolf in an attempt to resolve the grievances. With respect
to Jeffries' grievance on short hours, Wolf maintained the
position that Jeffries was properly sent home early because
he was paid more than the other two breakfast cooks. As
concerns the reprimand, Green maintained the position
that he would not overrule Wolf, and on the following day
he formally advised Jeffries in writing that:
It is my opinion that the Chef had sufficient reasons for
issuing the reprimand mentioned in your grievance-
-cursing by you, or by Chef, or by anyone else for that
matter must be curtailed as, I am sure you realize.
On the following day, November 5, the Respondent
issued a memorandum to all its employees reminding them
of the rule prohibiting the use of profane language, and
establishing a four-step disciplinary procedure for infrac-
tions of the rule. A day or so later Green attempted to hold
an additional meeting with Wolf and Jeffnes to resolve the
dispute. As Green acknowledged, however, Jeffries insisted
that two stewards be present, and Green refused to proceed
with the meeting. According to Green, he also had some
additional short meetings with Jeffnes and the Union's
representatives pertaining to Jeffries' grievances and his
subsequent demotion and transfer. Although no resolution
was reached in the grievance proceedings, the Union did
not pursue arbitration, but on November 18 filed the
charge in the instant case.
On Sunday, November 7, a new work schedule was
posted for the forthcoming week. Without prior notice to
or consultation with Jeffries, the Respondent transferred
the other cooks did not entail supervisory authority within the meaning of
Sec 2(11) of the Act
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him out of the Happy House kitchen , demoted him, and
promoted Terry Berkbigler to the position of head
breakfast cook . Although the Respondent contends that
Jeffries was transferred to the Ball Room kitchen, his
testimony concerning the schedule posted on November 7
reflects that he was assigned to a different location for each
day of the workweek, including assignments to the Ball
Room , Happy House , and employees' cafeteria kitchens.
Jeffries also testified that he did not report to work under
the schedule for the week of November 7, because he was
ill and was subsequently treated by a physician . According
to Jeffries , he was nervous and upset over his confrontation
with Wolf and the reprimand that had been placed in his
employment record . Jeffnes remained out of work under a
physician 's care for about 6 weeks and was released by the
physician on December 13. He presented a doctor's
certificate to the Respondent and returned to work on
December 17. Following his return to work , Jeffries was
assigned to the Ball Room kitchen , but was also scheduled
from time -to-time to work in the Happy House and
employees ' cafeteria kitchens, Jeffries testified , without
contradiction , that since his return to work on December
17, his duties have consisted of peeling and scraping
vegetables , emptying pots and pans , running errands, and
heating and serving foods in the employees ' cafeteria.
Like Jeffries , Berkbigler was not given any advance
notice of the change of assignments in the Happy House
kitchen , and he first became aware of his promotion as a
result of the schedule posted on November 7. Subsequent-
ly, however, Wolf informed Berkbigler that he was being
promoted to head breakfast cook because Jeffries was
always off on union business and Wolf needed somebody
who could be found at all times . According to Berkbigler,
whose testimony I credit , he replied to the comments by
telling Wolf that he couldn 't just demote Jeffries like that,
and Wolf answered , "Well, it is not really a demotion
because he was never really promoted on paper ." Berkbi-
gler took over the duties of head breakfast cook on
November 8, with a raise in his hourly rate of 40 cents per
hour.
In addition to the evidence reviewed above , the record
contains testimony of other incidents and conversations,
both pre and post November 7, which reflect on the
Respondent's attitude toward the protected rights of its
employees , and which must be considered in determining
the motivation which caused the Respondent to demote
and transfer Homer Jeffries . The first of these incidents
concerns a conversation between Wolf and Jeffries which
occurred in May or June, some 4 to 5 months after Jeffries
was selected as the Union 's chief steward . According to
Jeffries ' testimony , Wolf asked him at that time if he would
discontinue acting as a union steward and "just be over the
Happy House kitchen."
A second incident, related in the testimony of Terry
Berkbigler , occurred during the period when Jeffries was
absent from work because of illness. According to
Berkbigler, Wolf approached him a couple of weeks after
November 8 and asked if he knew when Jeffries was
coming back to work . Wolf asked if Berkbigler had
Jeffries' telephone number , and also requested Berkbigler
to call and inquire when Jeffnes intended to return to
work. Berkbigler complied, and while Jeffries' telephone
was ringing he asked Wolf, "Do you want to talk to
Homer?" Wolf replied, "No, I don't want to talk to the son
of a bitch." Berkbigler talked to Jeffries and conveyed
Wolf's message that Jeffries would be put back on the
schedule as soon as the doctor released him to return to
work.
As to a further incident, Leonard D. Myers, an employee
in the Respondent's maintenance department , testified that
at a time he estimated to be possibly 1 month prior to the
hearing, he was repairing a stove in the Ball Room kitchen.
He approached the Respondent's sous chef, Gabriel Bigot,
to ask for the correct temperature for the oven setting when
he had completed the repair work. At this juncture Wolf
appeared in the kitchen and Bigot informed the chef that
there was some discrepancy in the way the help had been
scheduled, and that the employees were "pretty" unhappy.
According to Myers, Wolf replied:
... the Union. As far as I am concerned we don't
have one. If the God damned people don't like the way
I schedule them, they can always go out through the
gate.
As a final incident reflecting on the Respondent's
motivation in the transfer and demotion of Jeffries, the
General Counsel adduced evidence that after his return to
work on December 17, the Respondent offered Jeffries a
new job with an increase in pay. Jeffries testified that 2
weeks before the opening of the hearing in this case, Chef
Wolf offered him a promotion at a higher rate of pay to
become the Respondent's steward. Wolf admitted that he
offered Jeffries the steward's job, which, according to his
testimony, would have required Jeffries to assume respon-
sibility for the Respondent's utility personnel and the
functions of inventory, setting up buffets, and general
housekeeping and cleaning operations. The steward's job is
not included in the unit description of the bargaining
agreement and Jeffries' acceptance of the position would
have removed him from the bargaining unit. Jeffries
requested that Wolf agree in writing that if he could not
qualify as the steward, he would have the option to return
to his former job. Wolf refused and Jeffries rejected the
offer of a new job.
It is the Respondent's principal assertion that Jeffries
was removed from his position as head breakfast cook and
transferred to another job because his work was unsatisfac-
tory, and particularly because the food prepared and
presented from the Happy House kitchen had engendered
numerous complaints from the Respondent's management
and its customers. Alternatively, however, the Respondent
has injected other contentions in defense of the allegation
that it discriminated against Jeffnes in violation of Section
8(a)(1) and (3) of the Act. The Respondent asserts that
Jeffries was not short scheduled and was not deprived of
worktime as he contended in his complaints to Chef Wolf
and his grievance of October 31. The Respondent further
asserts that Jeffries' demotion and transfer were warranted
because he cursed Chef Wolf and Sous Chef Bigot and
referred to them in profane and disrespectful language.
Further, the Respondent asserts that Jeffries' exercise of
protected activities was minimal, and that all the griev-
ances in which Jeffries participated, save three, were on his
TAN-TAR-A RESORT
own behalf. In conjunction with the latter assertion, and
through the testimony of Wolf, the Respondent contends
that Jeffries spent worktime and tied up a telephone in his
conduct of union business when he should have been
attending to his assigned duties. Finally, the Respondent
asserts that no discrimination has been proved because
Jeffries' demotion did not deprave him of any pay, and his
transfer to the Ball Room or prep kitchen afforded him an
opportunity to learn the more complicated aspects of food
preparation and to improve his culinary skills.
Evidence in support of the Respondent's assertions was
adduced through the testimony of Chef Wolf and General
Manager Green, and the testimony of these witnesses was
corroborated to some extent by documentary evidence. In
most respects the testimony of Wolf and Green concerning
events , incidents , and conversations surrounding the
demotion and transfer of Jeffries conforms to the versions
related by the General Counsel' s witnesses . Where there is
a conflict in the testimony, however, and for reasons
related below, I credit the versions related by Jeffries,
Berkbigler, and Myers.
Wolf acknowledged his confrontation with Jeffnes over
the work schedule posted on October 31, acknowledged
that he gave Jeffnes a reprimand, and that Jeffries handed
him a folded piece of paper which Wolf threw in the trash
can without realizing it was a grievance. Wolf also
acknowledged that he used some colorful language in the
conversation, and admitted, inter a/a, that he called
Jeffries a "son of a bitch." Wolf testified, however, that his
use of that and other coarse language was only a response
to equally reprehensible terms interjected by Jeffries in
expressing his complaint about short scheduling.
I do not credit Wolf's testimony that Jeffnes first
resorted to profane and obscene language in the conversa-
tion between them on October 31. Wolf was obviously
incensed by Jeffries' complaint about scheduling, which
Wolf considered to be without merit and repetitive of
Jeffnes' prior unmeritorious complaints. The versions of
the conversation related in the testimony of Jeffries and
Berkbigler are in substantial conformance, and I find that
Wolf threw the first scatological epithet and followed with
an even more objectionable characterization of Jeffries and
his alleged progenitors. I also find, however, that Jeffries
replied in kind.
Neither do I credit Wolf's testimony that he threw the
paper handed to him by Jeffries into the trash can without
realizing that it was a written grievance. Wolf offered no
explanation in his testimony of what he thought the paper
might be, but acknowledged that as a department head he
should accept grievances from employees. Terry Berkbi-
gler, whom I have previously credited as a neutral and
dispassionate witness, described the paper handed to Wolf
as a standard grievance form, 9 by 12 inches in size,
bearing the caption "Grievance Form" and containing the
Union's seal in the left hand corner.
With respect to Jeffnes' testimony that in May or June
he was asked to discontinue his steward's duties and devote
full time to the Happy House kitchen, Wolf admitted that
such a conversation took place, but denied that he asked
Jeffries to give up his steward's position. According to
Wolf he did ask Jeffries to spend more time in the kitchen,
1107
and that his request was prompted by Jeffries' frequent and
prolonged use of the telephone in the Happy House
kitchen. Wolf acknowledged that he didn't know what
Jeffries was using the telephone for, but assumed for good
reasons that the telephone conversations did not concern
Jeffries ' work or the Respondent 's business . I credit
Jeffnes' version of Wolf's request. Wolf was aware that
Jeffries was the Union 's chief steward , and his concern
about the amount of time Jeffries spent on his steward's
activities , as expressed to Jeffries in May or June, fords
corroboration in Wolf's remarks to Berkbigler at the time
the latter was promoted to head breakfast cook.
As concerns the conversation with Berkbigler at the time
the latter was promoted to head breakfast cook, Wolf
testified that he asked Berkbigler if he thought he could
handle the job. Berkbigler replied that he thought he could.
In further response to a leading question, Wolf testified
that he did not tell Berkbigler that Jeffries had been
transferred "because he was doing union business." For
reasons explicated above , I credit Berkbigler's version of
Wolf's comments made at the time of the promotion, and I
find that Jeffries' activities on behalf of the Union were a
consideration in the Respondent 's decision to demote and
transfer him.
With respect to Myers' testimony of a conversation he
overheard sometime prior to the hearing in this case, Wolf
acknowledged that Myers could have "picked up some-
thing in the kitchen." Wolf recalled that Sous Chef Bigot
had informed him that the union employees would walk
out between Christmas and New Year's, and Wolf told
Bigot not to worry. Without specifically denying Myers'
testimony of the conversation, Wolf related that he
customarily speaks French to the sous chef. I credit Myers'
testimony.
General Manager Green testified on behalf of the
Respondent and acknowledged that the two grievances
filed by Jeffries came to his attention on the afternoon of
October 31. Green's version of the events and conversa-
tions which followed his receipt of the grievances conforms
in large part to Jeffries' testimony. Green admitted that he
scheduled a meeting with Wolf, Jeffries, and himself for
November 8, but canceled the meeting when Jeffries
appeared with two union stewards and insisted that the
stewards be present at the meeting. Green admitted that
the contemplated meeting was intended to explore the
confrontation between Jeffries and Wolf that had occurred
on October 31, but he insisted that the meeting was
intended to resolve a personality problem between Wolf
and Jeffnes , and was not intended as a further exploration
of Jeffries ' grievances. I find that Green 's testimony in the
latter respect is unreliable. Whether or not the clash
between Wolf and Jeffries was a result of a personality
conflict is immaterial . What is material is that Jeffries had
filed two grievances and had been disciplined by a
reprimand in his employment record and by a demotion
and transfer. Green admittedly continued to explore the
issues raised by the grievances and Jeffries demotion and
transfer with the Union's officials during the period after
November 8. Jeffries ' grievances were viable issues and,
regardless of Green 's alleged assessment of the issues as a
personality conflict, his refusal to allow Jeffries to have
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation from the Union is some evidence of the
Respondent 's disregard of the collective -bargaining proc-
ess in general , and Jeffries ' protected rights in particular.
As to the Respondent 's assertion about Jeffries' poor
work performance , the record reflects that as head
breakfast cook Jeffries was responsible for all food
prepared and presented from the Happy House kitchen. In
his testimony , Wolf described Jeffries' work as sloppy,
unworkmanlike ; and characterized by dirty dishes and
utensils, cold food , and eggs and bacon hanging off the
plate . Wolf related that in the spring of 1970, the
Respondent 's owner , Burton W . Duenke , complained to
him five or six times about the poor quality of the food
served from the Happy House kitchen , and directed Wolf
to take corrective action . Wolf also testified to numerous
written complaints from guests complaining of the food
served in the Happy House and Cliff Room dining
facilities . According to Wolf, he discussed both the
management and guest complaints with Jeffries, but no
improvement was shown and the guest complaints in-
creased during the 1971 season . Wolf admitted that he
never threatened Jeffries with discharge or discipline for
his poor work performance because his search for qualified
cooks, which included a recruiting trip to Europe , had been
largely unfruitful , and those cooks he had been able to hire
had generally proved to be unsatisfactory . Accordingly, as
Wolf testified , he waited until the off season in the fall of
1971 to transfer Jeffries and to test Berkbigler's abilities as
head breakfast cook . It was the testimony of Wolf,
corroborated by Green , that Berkbigler's promotion to
head cook in the Happy House kitchen resulted in a
substantial reduction in the number of guest complaints.
Green related that his dissatisfaction with Jeffries' work
began as soon as he took over as the Respondent 's general
manager on June 14, and that his dissatisfaction was
triggered by guest complaints which were brought to his
attention . Green admitted that he did not discuss the
complaints directly with Jeffries, but turned them over to
Wolf as the department head responsible for corrective
action.
As support for its contention that Jeffries ' demotion and
transfer was prompted by his poor work performance and
inability to properly direct the activities of the second
cooks in the Happy House kitchen , the Respondent
introduced some documentary evidence , consisting of
written complaints from guests . The complaints are on
standard forms, left in the guests' rooms, and which
request comments on various aspects of the Respondent's
facilities and services . Included on the forms are spaces for
rating and comments on good quality , selection and
preparation , and dining room service.
The guest complaints were introduced into evidence
through Green , who testified that the Respondent no
longer has all of the complaints received during Jeffries'
tenure as head breakfast cook , because such complaints
are kept only for a period of 4 to 6 months. Green did
identify 17 guest complaints , which he related were on
hand on the date the charge in this case was filed. On
cross-examination Green also estimated that the Respon-
dent received 150 guest complaints during the period after
he became general manager , and that the Respondent
found 18 complaints directed to the Happy House kitchen.
Green was unable to testify specifically that the 18
complaints concerning the Happy House kitchen related to
food prepared or presented when Jeffries was on duty, but,
on grounds that Jeffries worked 6 days each week, Green
estimated that six-sevenths of the guest complaints related
to food prepared and presented by Jeffries or the second
cooks for whom he was responsible.
The 17 guest complaints in the record cover a period
from May 23 to October 23, and most of them contain
adverse ratings or comments about the food in the Happy
House and Cliff Room dining facilities . Many of the
complaints , however , also contain adverse ratings of
service in the dining rooms, and complaints about slow
service and unfriendly waitresses . Other of the complaints,
moreover , contain critical comments about other aspects of
the Respondent's resort facility , including complaints
about trash , poor maintenance , poor housekeeping, and
charges made for food and services.
From the testimony of Wolf and Green , and considering
the documentary evidence in the record , I find that food
prepared and presented by Jeffries , or by those for whom
he was responsible , did engender some complaints from
guests . There is nothing in the record to warrant a finding
that Jeffries was a serious disciple of the fine arts of French
cooking, and undoubtedly his culinary endeavors on behalf
of the Respondent did not merit a cordon bleu. On the
whole of the record , however , I find that the Respondent's
case concerning Jeffries' poor performance and his
inadequacies as a breakfast cook is badly overstated.
Seventeen guest complaints over a period of 5 months,
most of which encompassed the peak season of the
Respondent 's operations , in a resort which accommodates
1,000 guests , is not inordinate . The Respondent's reliance
on the guest complaints as cause for Jeffries ' demotion and
transfer would be entitled to greater weight , moreover, if
the record contained any evidence that other employees
had been subjected to similar discipline when their job
performance induced guests to complain or criticize.
In arriving at the finding that Jeffries' work performance
and alleged inadequacies as a breakfast cook were not the
motivating reason for his demotion and transfer, I have
also considered other relevant evidence in the record.
Jeffries was hired as a second cook , but within 6 months he
was promoted to head breakfast cook . The promotion itself
warrants the inference that his job performance at that
time was at least satisfactory . Jeffries was retained in that
position , moreover , for an additional 18 months , without
any written reprimand or imposition of discipline because
of his alleged inadequacies . The Respondent's evidence
pertaining to the difficulties of hiring qualified cooks to the
contrary notwithstanding , I doubt that Jeffries would have
been promoted and retained if his job performance was as
unworkmanlike and inadequate as the Respondent con-
tends.
I have also considered the evidence relating to the
position to which Jeffries was transferred , as well as the
evidence pertaining to the job which he was offered 2
weeks before the hearing in this case. On paper , Jeffries'
transfer on November 7 was to the Ball Room kitchen. In
describing the functions of a cook in the Ball Room
TAN-TAR-A RESORT
kitchen, Wolf testified that this kitchen is where all of the
sauces are made, the meats are roasted, and all foods for
the gourmet menu are prepared. Wolf further testified that
he attempted to teach Jeffries the arts of stuffing baked
potatoes, preparing simple soups and sauce marienere, but
found that Jeffries had difficulty in learning the simple task
of dicing an onion. As to the offer of the steward's position,
Wolf related that the functions of the steward consist of the
responsibilities for utility personnel, inventory of china,
silver, and glassware, setting up buffets, and responsibility
for general cleaning.
In weighing the foregoing evidence, I find it implausible
that the Respondent would transfer a cook who couldn't
properly prepare and present bacon and eggs, to a position
where he could reasonably be expected to perform gourmet
cooking. I find it equally implausible that the Respondent
would offer Jeffries a position where he would be
responsible for supervising utility personnel in setting up
buffets and performing cleaning functions, when it is also
alleged that as head breakfast cook he used dirty dishes
and utensils, and was unable, or unwilling, to properly
direct the work of only two second cooks.
Similarly, I find little merit in the Respondent's assertion
that Jeffnes' use of foul and abusive language toward Wolf
and Bigot was any motivating reason for his demotion and
transfer. Jeffries did use objectionable language in his
confrontation with Wolf on October 31, and he undoubt-
edly did so on this and other occasions in contravention of
the Respondent's rule against the use of profanity on the
premises. Upon the whole of the record, however, resort to
such language was common in the Respondent's facility,
and used by both supervisors and supervised. As to the
Respondent's rule, Wolf's language on October 31, as well
as his subsequent conversations with Berkbigler and Bigot,
reflects that the rule was obeyed more in the breach than in
the observance. Jeffries' use of reprehensible language is
not condoned,6 but it has been considered in the light of
the circumstances which provoked it, and it has been
weighed in the balance with other contemporaneous
conduct indicative of a discriminatory motive.?
The Respondent has also asserted that the allegation that
it discriminated against Jeffnes fails of proof because his
activities as chief steward in the processing of grievances
were directed largely in his own behalf, that his complaints
and grievance of October 31 were unmeritonous and
contrived, and that Jeffries lost the protection afforded him
by the Act when he coupled his activities as chief steward
with misconduct and abuse of his supervisor.
The record does reflect that a large measure of Jeffries'
activities on behalf of the Union were directed to his own
complaints and grievances, and this is certainly apparent as
concerns his complaints to Wolf on October 31, and the
two grievances which followed. I am unaware, however, of
6 N L R B v. Soft Water Laundry, Inc, 342 F 2d 930, 934 (C A 5)
7 Hawthorn Company, A Division of Kellwood Company, 166 NLRB 251,
252, enfd in pertinent part 404 F 2d 1205, 1211 (C A 8), N L.R.B v
Southland Paint Co, 394 F 2d 717, 722 (C A 5), enfg in pertinent part 156
NLRB 22
8 Interboro Contractors, Inc and John Landers and William Landers, 157
NLRB 1295, 1298, enfd 388 F.2d 495,499 (C.A 2)
8 Interboro Contractors, Inc, supra, citing Mushroom Transportation Co,
Inc, 142 NLRB 1150, 1158, reversed on other grounds 330 F.2d 683 (CA
3) See also Socony Mobil Oil Company, 153 NLRB 1244, and New York
1109
any precedent to support the contention that a steward
loses the right to engage in protected concerted activities
because his activities are directed to his own welfare. On
the contrary, even if Jeffries had not been the chief
steward, his right to complain and grieve under the terms
of the existing collective-bargaining agreement was both
protected and concerted, and if the Respondent demoted
and transferred him for this reason it violated Section
8(a)(1) of the Act .8
As to the Respondent's assertion respecting the lack of
merit in Jeffries' complaints and grievance concerning
short hours, the evidence in the record reveals no great
discrepancy in the hours for which Jeffries was scheduled
and actually worked during the period from September 13
to November 1. Jeffries' complaints and grievances about
short hours were voiced, nevertheless, under the seniority
clause of the contract and his apparent belief that as the
senior employee in the Happy House kitchen he was
entitled to preference in worktime over Berkbigler and
Lindsey. In this light it cannot be said that Jeffries' claim
was without color of right, and there is no evidence in the
record to support a finding that Jeffries' complaints and
grievance were voiced for ulterior motives or dictated by
any intent to harass the Respondent. Whether Jeffries
would have ultimately prevailed in his theory of a contract
violation is not an issue before me for decision. Assuming,
however, that his complaints and grievance would have
ultimately been found to be absolutely without merit, this
fact would not detract from his right to voice them, for as
the Board has held: 9
... the right of employees to press complaints does
not depend on either the employer's or the Board's
appraisal of the merits of the employees complaint
[and] it is irrelevant to the question of whether
employees are engaged in protected concerted activity.
There is the further issue raised by the Respondent's
assertion that Jeffries lost the protection afforded by the
Act when he coupled his activities with reprehensible
language and abuse of his supervisor. The evidence
pertaining to Jeffries' confrontation with Wolf on 918,
October 31 is reviewed above, as is my finding that Jeffries'
remark to Wolf was not the motivating reason for his
discharge. Again, Jeffries' use of foul language on this, or
any other occasion, cannot be condoned, but considering
the circumstances that provoked Jeffries' outburst toward
Wolf, I find it insufficient to withhold the protection
afforded Jeffries by the Act.io
What has been said immediately above applies equally to
the Respondent's apparent contention that Jeffries lost the
protection of the Act because he used the Respondent's
time and facilities to conduct union business. I agree that
there is nothing in the record to warrant a conclusion that
Jeffries had permission, either direct or tacit, to handle
Trap Rock Corporation, Nytralete Aggregate Division, 148 NLRB 374
io I have considered the decisions in Charles Meyers & Company, 190
NLRB No 86, and Calmos Combining Co, 184 NLRB No 170, which the
Respondent relies on as dispositive of the issue of Jeffnes ' use of profanity
and abuse toward his supervisor In my view the Respondent 's reliance on
these cases is misplaced Both Charles Meyers and Calmos involved
misconduct of a nature beyond that in this case and, more important, they
did not involve evidence of provocation of the employee by the same kind
of conduct proffered by the employer as grounds to warrant discipline for
cause
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union business during working hours, or on the Company's
telephone. Worktime is for work. On the opposite side, the
record reveals only one instance when use of the
Respondent's time and telephone was brought to Jeffries'
attention, and in that instance in May or June the matter
was coupled with a request that he relinquish his steward's
job. The Respondent certainly had the prerogative, insofar
as this record reflects, to require Jeffries to conduct his
union or other protected concerted activities on his own
time , and to discipline him if he disobeyed those instruc-
tions. On the basis of this record, however, I find no
evidence that Jeffries' use of company time and its
telephone was a matter of such serious concern that he was
ever instructed to cease the practice, and he was certainly
never warned that a continuation of the practice would
result in discipline or discharge.
In summary I find and conclude that Jeffries was
demoted from head breakfast cook and transferred out of
the Happy House kitchen" because of his exercise of
protected concerted activities. The events leading to the
demotion and transfer began on October 31 when Jeffries
voiced, or revoiced, a complaint to Wolf about his hours of
work. As the record fully reflects, Wolf considered that
matter of scheduling to be his exclusive prerogative, and he
reacted to Wolf's complaint with vehemence. Jeffries
reacted in kind and was given a written reprimand by
Wolf. Jeffries had prepared a grievance, which he handed
to Wolf, and Wolf disposed of the grievance by relegating
it to the trash can. Jeffries followed the confrontation by
further recourse to the grievance procedure, and within I
week he demoted and transferred without any advance
notice or opportunity to confer. Green refused to meet
with Jeffries on November 8, solely because Jeffries
insisted on representation from two of the Union's
stewards.12
In arriving at the above finding and conclusion, I have
considered not only the events of October 31, and those
which immediately followed, but evidence of other events
as well. As early as 5 or 6 months before the demotion and
transfer, Wolf had expressed a preference that Jeffries give
up his steward's activities. Wolf's preference in that regard
may have been based on legitimate considerations, but his
several remarks made after Jeffries' demotion and transfer
reflect that he accomplished his preference by the
application of unlawful considerations. Wolf's remarks to
Berkbigler at the time of the latter's promotion to head
breakfast cook are clear expressions of his motive for
Jeffries' demotion and transfer. His remark to Berkbigler`
during Jeffries' absence for illness is a further demonstra-
tion of his animosity to an employee who complained and
grieved. Finally, Wolf's remarks to Bigot during the
Christmas holiday season are dispositive evidence of his
disdain for the process of collective bargaining and the
rights of the Respondent's employees to press complaints
and to resort to the, grievance procedure of the collective-
bargaining agreement.
11 1 find no merit in the Respondent's contention that Jeffries was not
discriminated against because he suffered no loss of pay and, allegedly, was
transferred to a position where he had an opportunity to improve his skills
Weyerhauser Company, 134 NLRB 1371, 1374-75
12 Wolf's disposition of Jeffries ' grievance via the trash can and Green's
refusal to allow Jeffries to have union representation were neither alleged
Accordingly, I find that by demoting and transferring
Homer Jeffries because of his exercise of the rights
guaranteed him by Section 7 of the Act, the Respondent
violated Section 8(a)(1) of the Act. I am aware that Jeffries'
demotion and transfer were also alleged by the General
Counsel as a violation of Section 8(a)(3), and there is
evidence in the record that, as chief steward, Jeffries, with
the knowledge of the Respondent, engaged in some
activities on behalf of the Union. The impelling and
immediate reason for his demotion and transfer, neverthe-
less, flowed from his complaints and grievances on his own
behalf, and discrimination against an employee for this
activity is a violation of Section 8(a)(1).13 In any event, the
finding of a violation of Section 8(a)(3) of the Act would
add nothing to the remedy recommended herein.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the foregoing findings and conclusions, I hereby
make the following:
CONCLUSIONS OF LAW
1. The Respondent, Tan-Tar-A Resort, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Service Employees International Union,
Local 50, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By demoting Homer D. Jeffries and transferring him
to duties in another portion of its facilities because Jeffries
engaged in protected concerted activities, the Respondent
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices I will recommend that it
cease and desist therefrom and take certain affirmative
actions to effectuate the policies of the Act.
Having found that the Respondent demoted Homer D.
Jeffries, and transferred him from the Happy House
kitchen to another kitchen in its facilities in violation of
Section 8(a)(1) of the Act, I will recommend that the
Respondent offer Jeffries immediate and full reinstatement
to his former job, with all duties, functions, seniority and
nor argued by the General Counsel as independent violations of the Act.
Accordingly, I have considered these incidents only as some evidence of the
Respondent 's hostility to the collective- bargaining process, and as evidence
of its particular hostility to Jeffries' exercise of his Sec 7 rights.
is Inrerboro Contractors, Inc, supra
TAN-TAR-A RESORT
other rights and privileges he enjoyed prior to the acts of
discrimination against him, or, if that job no longer exists,
to a substantially 'equivalent position. I will also recom-
mend that the Respondent preserve and make available to
the Board, upon request, all records necessary and useful
to determine the rights of reinstatement under the terms of
these recommendations.
In his brief the General Counsel contends that Jeffries
should be made whole for the time he was forced to miss
work as a result of the discrimination practiced against
him. As support for the contention the General Counsel
relies on the Board's decisions in Becton-Dickinson Compa-
ny, 189 NLRB No. 121 and M.F.A. Milling Company, 170
NLRB 1079. My review of the Board's decisions in the
cases relied on by the General Counsel reveals that they
are factually inapposite to this case.
In both Becton-Dickinson and M.F.A. Milling the Board
found a make-whole remedy appropriate where employees
were discriminatorily transferred and worked on jobs
which contributed to a preexisting physical malady. In
both cases the preexisting physical condition was known to
the employer at the time of the transfer. In Becton-
Dickinson the employee was unable to perform the job and
was found by the Board to have been constructively
discharged. In M.F.A. Milling the employee suffered an
additional injury, which contributed to his preexisting
ailment , and was forced to lose time from work.
In this case Jeffries testified that he didn't report to work
on his newly assignedjob because:
I was nervous, upset by the fact that I had been
reprimanded. I had no prior reprimands in my record.
My schedule had been changed to different hours, a
different kitchen every day, and it was stated on the
schedule that Terry Berkbigler would be assuming the
responsibility of head breakfast cook.
Jeffries, as he testified, may have been nervous and
upset, but it is clear that the work to which he was
transferred did not contribute to his illness, because he
never reported to the job until his illness had been cured
and he had been released by the doctor. There is no
evidence, moreover, that Jeffries' nervous ailment, if it
deserves that characterization, was a preexisting one, or if
so, whether his condition was known to the Respondent at
the time the demotion and transfer was ordered. In the
light of these facts, and all of the relevant evidence in the
record, I find insufficient proof to warrant the General
Counsel's request for a make-whole remedy.
I do find, however, that the unfair labor practices
committed by the Respondent are of such nature and
character as to strike at the basic rights of employees
safeguarded by the Act. In view of the discrimination
against Homer D. Jeffries, and considering all of the
evidence reflecting upon the Respondent's disdain for the
collective-bargaining process and the protected rights of its
employees, I shall recommend that the Respondent cease
and desist from infringing in any other manner upon the
rights of its employees guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended: 14
ORDER
The Respondent, Tan-Tar-A Resort , its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Demoting or transferring its employees because they
have engaged in protected concerted activities by com-
plaining or filing grievances pertaining to their hours of
work or other terms and conditions of their employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer employee Homer D. Jeffries immediate and full
reinstatement to his former job, with all duties, functions,
seniority and other rights and privileges he enjoyed prior to
the acts of discrimination against him, or, if that job no
longer exists , to a substantially equivalent position.
(b) Notify the above-named individual immediately if he
is serving in the Armed Forces of the United States, of his
right to full reinstatement upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
records necessary to determine the rights of reinstatement
specified under the terms of this recommended Order.
(d) Post at its place of business at Osage Beach, Missouri,
copies of the attached notice marked "Appendix." i5
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and shall be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of the Decision,
what steps have been taken to comply herewith.i6
14 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
is In the event that the Board 's 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."
16 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 17, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
Dated By
TAN-TAR-A RESORT
(Employer)
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT demote or transfer employees because
they have engaged in protected concerted activities by
complaining or filing grievances pertaining to their
hours of work or other terms and conditions of their
employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE WILL offer Homer D. Jeffries immediate and full
reinstatement to his former job, with all duties,
functions , seniority and rights and privileges he
enjoyed before we discriminated against him , or, if that
job no longer exists , to a substantially equivalent
position.
(Representative) (Title)
We will notify the above-named individual immediately if
he is serving in the Armed Forces of the United States, of
his right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 64106 , Telephone 816-374-5181.