The Ark and Dennis Keefe

National Labor Relations Board - Board Decisions

Aug 14, 1979

244 N.L.R.B. 198 (N.L.R.B. 1979)

I)' 'ISIONS OF NATIONAL. I.ABOR RELATIONS BOARD
Pier 29, d/b/a The Ark and Dennis Keefe. Case 32
CA 1333
August 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(, ANI) MEMBERS PENEI.A()
ANI) TRUESI)AI.E
On May 31. 1979, Administrative Law Judge Ber-
nard J. Seff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative aw Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
' Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Jdge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge mentioned in his Decision that Respon-
dent did not file a post-hearing brief Respondent asserts that a post-hearing
brief was mailed to the Administrative Law Judge but inadvertently failed to
reach his desk. Because of Respondent's allegation that the Administrative
Law Judge relied solely on the General Counsel's brief in making his find-
ings, we have scrutinized the record with particular care and find that the
Administrative Law Judge's findings are fully supported by the record.
The General Counsel has excepted to the Administrative Law Judge's
recommended remedy insofar as it recommends that interest on backpay be
computed at a rate other than the 9 percent requested by the General Coun-
sel. We find no merit in that exception. See Florida Steel Corporation. 231
NLRB 651 (1977).
2 In par. (b) of his recommended Order the Administrative Law Judge
provided that Respondent shall cease and desist from "in any manner" inter-
fering with, restraining, or coercing its employees in the exercise of their
rights guaranteed in Sec. 7 of the Act. However, it is the Board's policy that
such an order is warranted only when a respondent is shown to have a
proclivity to violate the Act or has engaged in such egregious, or widespread
misconduct as to demonstate a general disregard for the employees' funda-
mental statutory rights. See Hickmott Foods, Inc., 242 NLRB 1357 (1979).
With respect to the instant dispute, we find that the broad injunctive order
issued against Respondent is not warranted. Insofar as the record shows,
Respondent engaged in a single violation of Sec. 8(aX I) in discharging the
Charging Party. Therefore, only a narrow order is necessary at this time to
remedy the violation here. Accordingly. we will modify the Administrative
Law Judge's recommended Order and notice.
low, and hereby orders that the Respondent, Pier 29.
d/b/a The Ark, Oakland, California, its officers.
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Substitute the following for paragraph I(b):
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTI(CE To EMPLOYEES
POSTED BY ORDER OF IE
NAIIONAL LABOR REI.AIIONS BARI)
An Agency of the United States Government
WE WILL NOT discharge employees for assert-
ing their right to engage in concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section
7 of the Act.
WE WILL offer Dennis Keefe immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Dennis Keefe whole for any
loss of earnings he may have suffered due to the
discrimination practiced against him by paying
him a sum equal to what he would have earned,
less any net interim earnings, plus interest.
PIER 29, D/B/A THE ARK
DECISION
STATEMENT OF HE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me on March 7, 1979, in Oak-
land, California. It is based on a charge filed by Dennis
Keefe on October 27 and an amended charge filed on No-
vember 29, 1978. The complaint was issued on November
29, 1978, by the Regional Director for Region 32 and al-
leges that Respondent Pier 29, d/b/a The Ark, discharged
Dennis Keefe on October 271 because he engaged in pro-
tected concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection.
Upon the entire record in this case, from my observation
of the witnesses and their demeanor and after due consider-
ation of' the brief filed by the General Counsel (none was
filed by Respondent), I make the following:
All dates in this Decision refer to 1978 unless otherwise stated.
244 NLRB No. 17
198
shift who was on vacation at the time. On October 8 Keefe
asked Russ Pratt, Respondent's manager. if he should re-
sume his normal schedule the following day. Pratt told him
that he should, and accordingly Keefe worked from Octo-
ber 9 through 12. Because he had worked 7 straight days
Keefe expected to be paid overtime for the sixth and sev-
enth days. Upon receiving his paycheck he discovered that
he had not been paid overtime for those dabs. Keefe dis-
cussed this problem with Cuoco. who said that he would
look into the matter and let him know about the pay. Keefe
was in communication with Lam to ask his advise on how
we should proceed. Lam told him to discuss the matter with
his employer and if he was unsuccessful to mention to man-
agement that he would go to the Union or to the labor
commissioner to enforce his right to the overtime pay. On
Monday, October 23. when Cuoco was not present. Keefe
asked Pratt if Cuoco had looked into the matter as he had
said he would and whether he was going to get the overtime
pay. Pratt told him that there was no point in asking .r the
overtime pay because Cuoco was not going to give it to
him. Keefe explained to Pratt that he telt he had a right to
the overtime pay, and if he did not get it he would go to the
labor commissioner and to the Union to enforce this right.
On Thursday. October 26. Keefe was discharged. Harry
Shilling, a co-owner of the Respondent, told Keefe that
Cuoco had decided to terminate him, giving as the reason
Cuoco's belief that Keefe was "not a compan) man." Keefe
testified that Shilling further said he felt Keefe was a good
employee, and he did not understand the severe action
taken against him. Keefe then called the Union and told
Lam that he had been terminated.
One or 2 days after Keefe's discharge Lam spoke with
Cuoco. asking why he fired Keefe. Cuoco replied that he
had fired Keefe because Keefe had made a claim foir over-
time and concluded the conversation by saying: "Did you
know that S.O.B. went to the Labor Commissioner on me.
And that was the straw that broke the camel's back." Re-
spondent called Cuoco as a witness during the hearing, and
Cuoco did not deny making this statement.
Respondent contends that Keefe was discharged for
changing shifts without authorization. However, the facts of
record establish that Respondent's decision to terminate
Keefe was motivated by Keefe's threat to go to the Union
and to the labor commissioner to enforce his right. It should
be pointed out that owner Cuoco's uncontradicted state-
ment to Lam that Keefe's action in filing a claim with the
labor commissioner on him was the "straw that broke the
camel's back" is set forth by the General Counsel as direct
evidence establishing Respondent's illegal motivation. The
General Counsel points out that Keefe's efforts to enforce
the collective-bargaining agreement's provision for over-
time pay constitutes protected concerted activity, and his
termination for this reason violates Section 8(a)(1) of the
Act.
It is well settled in Board law, sustained by court affirm-
ance. that an employee is engaged in protected concerted
activity when he asserts the claim pursuant to the provi-
sions of an existing collective-bargaining agreement. The
General Counsel cites Marlvn Bunnev and Clarence Bunnev,
partners, dh/a Bunnev Bros. Construction Compan.pu 139
NLRB 1516 (1962); Interboro Contractors. Inc. 157 NLRB
FINDI)IN(;S FAC(IS
I. Iltt BUSINESS OF RESPONDENt
Respondent is a corporation organized and existing by
virtue of the laws of the State of California with an office
and principal place of business located in Oakland, Califor-
nia, where it is engaged in the operation of a restaurant and
bar.
During the past 12 months Respondent, in the course
and conduct of its business operations, derived gross rev-
enues in excess of $500,000.
During the past 12 months Respondent purchased and
received personal services valued in excess of $5.000 which
originated outside the State of California. I find that Re-
spondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ABOR ORGANIZATION INVOI V1)
Hotel and Restaurant Employees and Bartenders Union,
Local 28, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE Ait L.E(D UNFAIR I.ABOR PRAC II( S
A. The Issue
The only issue in this case is whether the Charging Party,
Keefe, was discharged because of his concerted activities.
B. The Facts
Dennis Keefe was employed by Respondent as a dinner
cook in Respondent's restaurant, The Ark. from August 16,
1977, through October 26, 1978, at which time he was ter-
minated. Keefe was initially interviewed and hired by Vince
Cuoco, who is the owner of the restaurant. The General
Counsel points out in her brief that during the course of his
interview Cuoco warned Keefe, "If you throw a wrench in
the works or rock the boat . . . you'll be gone real fast."
Respondent has had collective-bargaining agreements
with the Union for 35 years. The most recent such agree-
ment states in section 13 that employees had to be paid
overtime for any days worked in excess of 5 days out of a 7-
day period. Keefe has been a union member for 13 years.
When he was first employed he discovered that there was
no shop steward servicing the contract at The Ark. and he
informally assumed the task of advising many of the em-
ployees as to their rights arising out of the collective-bar-
gaining agreement and how to go about enforcing them.
Upon the appointment of a new business agent. Rick Lam.
Lam met with Cuoco to introduce himself. Cuoco men-
tioned during the course of their first meeting that although
Keefe was a good employee and did good work, he ex-
pressed his view that Keefe was a "rabble-rouser" and "not
too much of a company employee."
Under normal circumstances Keefe worked a 4-day
week, Monday through Thursday. Due to vacation schedul-
ing in October, however, Keefe worked October 6 through
October 8 (Friday through Sunday) to fill an employee's
THE ARK 199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1295, enfd. 388 F.2d 495 (2d Cir. 1967); ARO, Inc., 227
NLRB 243 (1976). The reason for the Board's finding such
conduct to be protected concerted activity derives from the
fact that "the implementation of such an agreement by an
employee is but an extension of the concerted activity giv-
ing rise to that agreement." See Bunnely Bros., supra at 1519.
The General Counsel points out in her brief that even if the
employee asserts his claim alone, since it is an attempt to
enforce the provisions of a collective-bargaining agreement,
it inevitably affects the rights of all employees in the unit. It
is further set forth in the brief that if the claim itself lacks
merit the employee's right to assert the claim is still pro-
tected by Section 7 of the Act.
It should be further pointed out that the timing of the
discharge, occurring as it did immediately upon Keefe's as-
sertion of his contractual right and threat to go to the
Union and to the labor commissioner, is strong evidence of
unlawful motivation. This action by Cuoco fits in with the
initial statement that at the time Keefe was hired Cuoco
warned him, "if you throw a wrench in the works or rock
the boat . . . you'll be gone real fast."
At the time of Keefe's discharge Respondent made no
mention of its statement made at the hearing that it was
because he changed shifts without authorization that he
was discharged. Shilling simply told Keefe that Cuoco had
decided he was not a "company employee." When Lam
asked Cuoco why he had discharged Keefe, Cuoco again
failed to mention as a reason that Keefe had changed shifts
without authorization. Cuoco told Lam that he discharged
Keefe because Keefe made a claim for overtime, that this
made Cuoco sick, and that Keefe had then gone to the
labor commissioner. Four months after the discharge Re-
spondent asserts that the reason for discharge was because
Keefe changed shifts without authorization. This is clearly
an afterthought seized upon by Respondent to justify a dis-
charge which was unlawfully motivated. The record also
shows that Keefe had changed shifts in the past without
authorization, and that no discipline had been meted out to
him. He was still considered a good employee by both Shil-
ling and Cuoco. It was only at the point where Keefe took
steps to implement the collective-bargaining agreement pro-
vision for overtime pay that Respondent decided to dis-
charge him. From all of the above it is conclusively shown
that the reason advanced at the hearing for Keefe's dis-
charge was pretextual. It therefore find that Keefe was dis-
charged in violation of Section 8(a)(I) of the Act.
CONCLUSIONS OF LAW
I. Respondent 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. Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)( ) of the Act, as
found above. which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent engaged in unfair
labor practices in violation of Section 8(a)( ) of the Act. it
will be recommended that Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent unlawfully discharged
Dennis Keefe. I will, therefore, recommend that Respon-
dent offer him his former job or, if that job no longer exists,
a substantially equivalent job, without prejudice to his se-
niority or other rights and privileges, and make him whole
for any loss of earnings suffered by reason of the discrimi-
nation against him by payment to him of a sum of money
equal to that which he normally would have earned, absent
the discrimination, less net earnings during such period,
with interest thereon to be computed in the manner pre-
scribed in F W. Woolworth Company, 90 NLRB 289 (1950).
and Florida Steel Corporation, 231 NI.RB 651 (1977).2
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER3
The Respondent, Pier 29, d/b/a The Ark. Oakland, Cali-
fornia, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees for asserting their right to en-
gage in concerted activities in violation of Section 8(a)( ) of
the Act.
(b) In any manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer Dennis Keefe immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed.
(b) Make Dennis Keefe whole for any loss of earnings he
may have suffered due to the discrimination practiced
against him by paying him a sum equal to what he would
have earned, less any net interim earnings, plus interest.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at Respondent's place of business in Oakland,
California, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the Re-
2 See, generally, Isis Plumbing & Hearing Co., 138 Nl.RB 716 (1962).
In the event no exceptions are filed as provided by e .-. 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.
I In the event that 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."
200
THE ARK
gional Director for Region 32. after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained b Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced.
or covered by any other material.
(e) Notify the Regional Director for Region 32. in writ-
201
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
The General Counsel has attached to her brief a request
that interest be added to Keefe's backpay at the rate of 9
percent per annum, pursuant to a lengthy brief which was
attached to the original brief. The question of the amount
of interest is a matter of policy for the Board to decide, and
it is not within the authority of the Administrative Law
Judge to grant this request. It is therefore denied.