The Barnsider, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1972

195 N.L.R.B. 754 (N.L.R.B. 1972)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Barnsider , Inc.' and The Labor Committee of the
Barnsider , Inc. Case 1-CA-7634
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
March 8, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 23, 1971, Trial Examiner Arthur Leff
issued the attached Decision in this proceeding. There-
after, the Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in support
of the Trial Examiner's Decision.
Purusant 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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings.2 and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that The Barn-
sider, Inc., its officers, agents, successors, and assigns,
shall take the action forth in the Trial Examiner's
recommended Order.
The Respondent's name appears as amended at the hearing.
The Trial Examiner apparently made an inadvertent error with respect
to a certain date. It is hereby corrected as follows: In the first paragraph of
sec. III, E, 2(a) of the Trial Examiner's Decision, the date April 8 is changed
to April 28.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Trial Examiner: Upon a charge filed May
3, 1971, and an amended charge filed June 4, 1971, by The
Labor Committee of Barnsider, Inc., the General Counsel of
the National Labor Relations Board, by the Regional Direc-
tor of Region 1, issued a complaint, dated June 30, 1971,
against Barnsider, Inc., herein called the Respondent, alleg-
ing that the Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the National Labor Relations Act, as amended.
The Respondent filed an answer denying the commission of
the alleged unfair labor practices. A hearing was held at
Providence, Rhode Island, on various dates between August
11 and September 1, 1971. On October 7, 1971, the General
Counsel and the Respondent filed briefs.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
195 NLRB No. 140
The Respondent, a Rhode Island corporation, is engaged
in the operation of a restaurant and cocktail lounge at the
Midland Mall in Warwick, Rhode Island. The Respondent
annually receives foods, beverages, and restaurant supplies
having a value in excess of $50,000 directly and indirectly
from points outside the State of Rhode Island. The Respond-
ent, as it admits, is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Labor Committee of Barnsider , Inc., is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
The pleadings in this proceeding, as amended at the hear-
ing, present for determination two central issues:
(1) Did the Respondent, on April 27, 1971, in violation of
Section 8(a)(1) and (3) of the Act, discharge James P. Walsh
"because of his concerted activities in protesting Respond-
ent's policies relating to the requirement that waiters pay for
errors made in customers' checks and for protesting other
policies of Respondent relating to working conditions"?
(2) Did Respondent, in violation of the same sections of the
Act, discriminatorily lock out and refuse to reinstate some
18-named waiters and waitresses employed at its Warwick,
Rhode Island, restaurant, "for the reason that they joined or
assisted The Labor Committe or engaged in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid and protection"?'
B. Background
"The Barnsider," located at the Midland Mall in Warwick,
Rhode Island, is one of a chain of three commonly owned and
controlled restaurants and cocktail lounges of the same name.
The other "Barnsiders," neither of which is directly involved
in this proceeding, are located at Albany, New York, and at
Montreal, Canada. The principals of the Barnsider chain are
Bruce A. Grassfield, the Respondent's president, and Joseph
W. Brattain, its secretary-treasurer, each of whom owns 50
percent of the Respondent's common stock. Rich Martin
served as the manager of the Warwick Barnsider until some
time in January 1971, when he was replaced by Frank E.
Callander, who theretofore had been, and still is, the manager
of the Barnsider at Albany. Callander was brought in from
Albany to train William Churchman, previously a floor
manager at Albany, to assume the manager's position at War-
wick. Churchman worked under the general supervision of
Callander until April. He was delegated full managerial re-
sponsibility for the Respondent's operations at Warwick
' The complaint, as amended at the hearing, identifies the following em-
ployees as included in the group allegedly discriminated against : Dwight P.
Anderson, James A. Ackroyd, Leslie Brown, Theodore A. Brown, William
Barney, John Catley, Glenn P. McCusker, Drew J. Magee, Kevin P. McMa-
nus, Paul F. Mahoney, Theodore G. Pliakas, B. Alan Rossignol, Eric D.
Stein. William A. Thornton, Dennis R. Tully, Kenneth R. Levy, Christopher
M. Walsh, and Susan Pasquarelli. The original complaint also included the
name of Benjamin W. Miller, as bartender, but his name was eliminated from
the complaint by the General Counsel at the hearing. The Respondent
conceded at the hearing that none of the 18 waiters and waitresses named
above worked during the period in question, but, as will more fully appear
below, contended that their failure to work was a consequence of strike
rather than lockout action.
THE BARNSIDER , INC. 755
before the specific unfair labor practices here in issue oc-
curred. Callander, however, was present at Warwick at the
time some of the alleged unfair labor practices occurred. The
Respondent conceded at the hearing that, although Callander
was then no longer manager at Warwick , he was still a
managerial or supervisory employee for whose conduct it was
accountable.
The Barnsider at Warwick is divided generally into a din-
ing room , a separate cocktail lounge with bar and tables, and
a kitchen. The dining room is open from 5 p.m. to 10 p.m.
(11 p.m. on Saturdays), but waiters are normally required to
report at 3:30 p.m. for setup work. There are three sections
in the dining room, each with about 12 tables. One of these
sections, known as section 3, is enclosed off from the main
floor and is usually used only on Saturdays or when a special
party is scheduled. Each section is manned by a separate team
of three waiters-a lead waiter, a followup, and an aide, who,
although having separate primary duties, coordinate their
functions in serving diners in the section , and share equally
in all tips received. Although the dining room operations
require only six waiters during most days of the week, and
three more on the days when section 3 is being used, the
Barnsider employs a total of some 17 to 20 waiters, all of
whom work on a part-time basis, ranging from 2 to 4 days
a week. The Barnsider also employs in its dining room about
5 hostesses who work on a similar part-time basis. Apart from
the waiters and waitresses, who are the only employees in-
volved in the alleged unfair labor practices in this case, the
Respondent employs in other areas of its operations about
17-19 other employees, some also on a part-time basis.
Among these are some five bartenders, three cocktail wai-
tresses, two chefs, a meat cutter, about five dishwashers, and
a number of luncheon people.
Most of the dining room waiters and hostesses, and some
of the bartenders as well, are students at Rhode Island Uni-
versity, which is located about 30 miles from Warwick;
others, including James Walsh, are recently graduated stu-
dents who began their employment while still enrolled at the
University.
The events here in controversy occurred in April 1971. For
a full comprehension of what is involved, it is necessary,
however, to go back to the preceding January. On January 14,
1971, Rich Martin, the then manager of the Barnsider, dis-
charged Theodore Brown, a dining room waiter. Brown had
theretofore been openly critical of certain policies in effect at
the restaurant. The only reason given Brown for his discharge
was that he was "contributing to [Martin's] ulcers." Brown's
fellow employees reacted swiftly to his discharge. On January
15, all or most of the waiters attended a meeting at the
Memorial Union of Rhode Island University to discuss the
discharge of Brown, as well as other complaints the waiters
had about employment conditions at the restaurant. James
Walsh was designated to act as the spokesman for the waiters'
group. He was also selected to draw up a statement of the
waiters' complaints and to arrange a meeting with one of the
owners of the Barnsider, either Grassfield or Brattain, for the
purpose of discussing Brown's discharge and employment
conditions at the Barnsider. Walsh was unable to contact
Grassfield, but he did succeed in reaching Brattain who was
then in Florida. Walsh insisted that Brattain come at once to
Warwick where, as he told Brattain, "things were getting
rather out of hand at the Barnsider."
Brattain came to Warwick the following day, and, along
with Callander, met with the entire waiters' group.' The
meeting was held after the waiters had completed their setup
work and just before the restaurant was to be opened for
service . Walsh began the meeting by reading the statement he
had drafted . The statement complained , inter alia, of the
discharge of Brown without adequate reason , of the feeling of
insecurity that had been engendered by his discharge, of the
lack of effective communication between the waiters and
management that had existed in the restaurant , and of the
tensions that had been produced by the manner in which
Martin had dealt with waiters and had managed the restau-
rant . The statement concluded with a number of "recommen-
dations," really demands . One was that "Ted Brown be im-
mediately rehired ." Another read as follows:
3. That immediate steps be taken to fill the position of
manager so that the waiters will once more have an
independent representative at the management level,
and, so that effective communication can once more be
established between management and waiters.
Following the reading of the statement , there was a brief
discussion about the discharge of Brown and about the gen-
eral working conditions to which the waiters objected.
At 5 p.m., when the time came for the restaurant to open,
Brattain thanked the waiters for having called his attention
to the matters contained in the statement and asked them to
go to work . The waiters responded by declaring they were not
prepared to work that evening unless Brown was rehired.
Brattain at first demurred , but, when it became clear the
waiters would stand firm , he capitulated and informed
Brown , who was present at the meeting , that he was being
fully reinstated to his former position.
The next day a further meeting between management and
the waiters was held . At that time the waiters went into the
specifics of their grievances . The waiters pointed out the diffi-
culty they had had in communicating with management re-
garding working conditions at the restaurant and stressed the
desirability of having the Respondent appoint from among
their group a floor manager who could focus on the work and
problems of the waiters as a means of improving such com-
munications.
About a week later, the Respondent notified Walsh, the
spokesman for the waiters' group , that he was being ap-
pointed to the position of floor manager . At the same time,
the recently reinstated Brown was informed that he also was
being appointed as a floor manager position to serve in that
capacity on the days when Walsh was not on duty.' Walsh
testified without contradiction that when he accepted the job
as floor manager, he did so on the understanding , reached
with Callander , that it would be part of his job to present
waiters' grievances to the restaurant manager . About the time
Walsh and Brown were appointed floor managers , a typewrit-
ten copy of the statement which Walsh had prepared and
presented to the Respondent at the waiters' meeting on Janu-
ary 15 was posted in the restaurant manager 's office. It re-
mained posted there throughout the period involved in this
proceeding.
Walsh continued to occupy the position of floor manager
until his discharge in April . Brown was still a floor manager
at the time of the events here in controversy.
C. Walsh's Duties and Responsibilities as a Floor Manager;
The Question of his Supervisory Status
Walsh continued to occupy the position of floor manager
until his discharge the following April. Brown was still in that
position , during the period covered by this case . The nature
' Callander was brought in from Albany at that time to fill in for Martin
who had left on a vacation. Martin resigned while on vacation.
' Walsh worked on Tuesdays, Thursdays. and Saturdays and alternated
with Brown on Mondays; Brown, on Wednesdays, Fridays, and Saturdays
and on alternate Mondays.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Walsh's duties, responsibilities, and authority while serv-
ing as a floor manager is of relevance in this case because, as
one of its defenses to Walsh's alleged unlawful discharge, the
Respondent urges that, as a floor manager, Walsh occupied
a supervisory or managerial position, thus placing him out-
side the protection of the Act.' It is of interest to note, how-
ever, that the Respondent makes no similar claim with re-
spect to Brown.' Indeed, its witness, Callander, affirmatively
testified that, in contrast to Walsh, Brown did not occupy a
managerial position-and this although it appears from the
evidence I find credible that Brown's pay as floor manager
was the same as Walsh's, and that on the 2 or more days a
week when he served as floor manager he performed substan-
tially the same functions and had substantially the same re-
sponsibilities as Walsh.
The appointment of Walsh and Brown as cofloor managers
brought about no change in their prior work as waiters. They
remained hourly rated employees and continued to serve as
waiters during the same hours and in the same mannaer as
they had before.' Their hourly rate, however, was increased
from $1.10, the regular rate for waiters, to $2,' and they were
given certain added duties which normally consumed a very
small fraction of their total working time.
These added duties and responsibilities were not many.
Thus they were assigned primary responsibility for the train-
ing of new waiters. However, the training of new waiters was
a function which was not their's alone, since traditionally it
had been, and continued to be, the practice at the Barnsider
for all experienced waiters to aid in the breaking in of new
waiters. They were also required to conduct waiters' meetings
before the opening of the dining room. The main purpose of
these meetings was to transmit management's instructions to
the waiters. It appears, however, that at these meetings the
essential role of the floor manager was to act as a conduit for
the transmission of communications between the restaurant
manager and the waiter. Before the meetings were held,
Walsh or Brown, as the case might be, would meet with the
restaurant manager to determine from him what should be
covered at such meetings; they would then transmit the in-
structions received from him to the waiters at the meeting.
Walsh and Brown did not at these meetings give any instruc-
tions of their own.. More often than not, the restaurant
manager himself would be present at these meetings. Cal-
lander and Churchman testified that they attended most of
these meetings because they lacked confidence that Walsh
and Brown would explain properly to the waiters the matters
they wanted explained.
The most significant aspect, however, of their added job
duties as it relates to the specific issue at hand, was concerned
with the scheduling of waiters' work assignments. As has
been noted above, the dining room is divided into three sec-
tions, each of which, when open, is serviced by a team of three
waiters having different primary responsibilities. One of these
The Respondent concedes that the job title "floor manager" carries no
special significance in itself since the duties and responsibilities of individu-
als so classified vary substantially from place to place even within restau-
rants in the Respondent's chain, or, as has been true at the Warwick Barn-
sider, within the same restaurant at different times
' As noted above,Brown is one of the employees who is alleged in the
complaint to have been unlawfully locked out and denied reinstatement for
a period of time because of the employee concerted activity which followed
Walsh's discharge,
The person who had previously occupied the position of "floor
manager" at the Warwick Barnsider had been salaried and had done no
waiter's work
' This difference in pay does not loom quite as great as it may appear to
be on the surface, when it is borne in mind that waiters earn several times
their hourly rate in the form of tips
sections is open only on Saturdays, so that on most days of
the week there are only six working waiters, including the
floor manager. The scheduling of work assignments called for
the preparation of a list to be posted, showing the section
assignment of each waiter and the position on that section's
team-whether lead waiter, followup, or aid-that he was to
occupy.5
When Walsh and Brown first started out as floor managers
they were required to prepare work schedules daily, each of
them doing so for those days of the week that he'acted as floor
manager, Subsequently, the practice was , changed to have
Walsh alone prepare schedules covering several weeks in ad-
vance; in doing so, however, Walsh consulted with Brown as
to his plans for those days of the week that Brown served as
floor manager. The preparation of monthly schedules elimi-
nated any need for daily work assignments, except where
changes were necessitated by special circumstances, such as
a waiter calling in sick.
Assignments were made on the basis of a waiter's ability
best to perform a given job; thus the,most experienced and
able waiters would be assigned,to the lead waiter position on
a team, the least experienced to the position of aide. Walsh
received instructions from the restaurant manager as to the
general policies the latter wanted followed in the scheduling
of work assignments, such as, for example, the policy relating
to the rotation of waiters among the,various sections, but the
detailed implementation of such policies was left largely to
Walsh. The making of assignments did, to be sure, require the
exercise of some degree of initial judgment. But once a judg-
ment was made future applications of it became matters of
routine, since, most often,- the same assignments would
repetitively be made to the same waiters. Moreover, the
record shows that Walsh did not have the final word in
making the judgment. Walsh testified, I find credibly, that he
would often discuss his scheduling of assignments with the
restaurant manager and that all assignments made by him
were subject to change by the restaurant manager if he did
not like them. Callander's testimony also reflects that Walsh
was required to submit the schedules he prepared to the
restaurant manager before they were posted and that, while
such schedules were seldom changed by him, they were nev-
ertheless subject to his review before posting.
The scheduled assignments all involved work tasks that
were standardized, well understood by the waiters, and of a
repetitive nature that did not requite specific direction in their
performance Although Callander testified that he told
Walsh, when he appointed him floor manager, that he was to
be "completely in charge of the dining room" in supervising
the work of waiters, with authority to recommend hiring and
firing and responsibility for seeing to it that waiters main-
tained quality in their performance, Walsh denied that he was
so told, and I credit his denial.? Walsh's testimony that he was
not in a position to supervise other waiters in'the,performance
of their work because "I was working full time on the floor
every night and I couldn't step back and observe" impressed
me as reasonable. Moreover, it is not disputed that normally
the restaurant manager was present in the restaurant during
8 A waiter's specific place on a team could not affect his earnings, since
all on a team, whatever their position, were paid the same hourly rate and
shared equally in tips
' Callagder did not impress me favorably in giving this testimony Con-
sidering the events leading to Walsh's appointment as a floor manager, I
think it highly unlikely that the-Respondent would have delegated to Walsh
such broad authority Moreover, elsewhere in his testimony, Callander
conceded that he did not give similar authority to Brown, although, accord-
ing to his testimony, Brown was present with Walsh at the time, and both
were then being appointed to the same position which they were to fill on
different days of the week
THE BARNSIDER, INC.
the waiters ' working hours and thus in a position where he
could himself observe and pass judgment on the quality of the
waiters' work performance . Further , Churchman 's testimony
leaves little doubt that in point of fact the real responsibility
for the operation of the dining room , including the direction
of the waiters ' work , continued to be lodged in the restaurant
manager , and that the floor manager's role was viewed at
most as that of a leader."
On all the evidence I regard as credible, I am persuaded
that Walsh in his position as floor manager occupied at most
the position of a leader or straw boss . His duties-including
the preparation of work assignment schedules , which, as
found above , were subject to review by the restaurant
manager-did not , I find , encompass a sufficient degree of
responsible direction and control of waiters to constitute him
a supervisor for that reason , and he did not otherwise possess
any of the other indicia of supervisory authority as defined in
Section 2( 11) of the Act.
D. The Discharge of Walsh
The Respondent discharged Walsh on April 27, 1971.
Churchman , who notified Walsh of his discharge , told him
that he was being dismissed because he was not performing
his job , because of his attitude , and because he "was not a
good houseman ." When Walsh, according to his testimony
which I credit , asked Churchman whether his "attitude" and
asserted deficiency as a "houseman " were related to his objec-
tion to the Respondent 's "unders" policy, Churchman said
yes." Walsh then referred to the statement he had prepared
in January, a copy of which was then posted on the bulletin
board in Churchman 's office, and told Churchman that he
had accepted the job as floor manager with the understanding
that he was to represent waiters . He asked Churchman
whether he could step down from his position as floor
manager and remain as a waiter . Churchman said he could
not, but acceded to Walsh 's subsequent request that he be
permitted to remain in the Respondent 's employ until Satur-
day of that week.
Walsh 's mention of the Respondent 's "unders" policy had
reference to the Respondent 's long-time practice of requiring
its waiters to refund to the Respondent out of their tips any
undercharges to customers that were discovered . Such under-
charges most often occurred as a result of errors made by
waiters in adding up a check. Also included within the Re-
spondent 's classification of unders , however, for which wait-
ers were held responsible , were other situations , such as those
where a waiter could not account for a check or where a
customer walked out without paying his bill . When an under
occurred , it was charged to all members of a team , regardless
of the particular waiter on the team who might have been at
fault . To assure that it would not suffer losses as a result of
"unders," the Respondent maintained a number of controls.
Each evening before the dining room opened the lead and
'°' Churchman agreed while testifying that it was part of his job as restau-
rant manager to supervise the work of the waiters. Asked why it was neces-
sary also to have a floor manager oversee their work, he testified as follows:
It is easier to ask people to do something in a certain way. They have
to have an example to work against ... For example, if I say I do not
want waiters to carry a drink out of the bar without a tray ... [they
might] say, "Well, I have to do it, I was really behind" etc. I can stand
there and tell them they are never that far behind if I have a [floor]
manager who goes in without a tray, and shows them they can work
without cutting corners. It is easier for me to get what I want out of the
waiters on the floor.
Churchman's testimony that he could not "recall" being asked that
question appeared to me to lack conviction. The totality of events leading
to Walsh's discharge, as will appear from the findings below, lends credence
to Walsh's testimony.
757
followup waiters, but not the aide, were given books with
consecutively numbered checks. They were required to ac-
knowledge the receipt of such checks at the time and to
account for them after the dining room was closed. When a
waiter took a customer's order he would write out an original
and one or more duplicates on which he placed the number
of the original. The original would be retained in a slot under
the table while the customer was being served. The duplicate
would go to the chef or to the bar, and, after the order was
filled, it would be placed on a spindle by the chef or bartender.
The same procedure was followed when additional food or
drinks were ordered, separate duplicates being used. At the
end of the meal, the waiter added up the amount on the
original check and collected from the customer. The waiter
would then take the original check and cash to the cash
register where the original would be retained. At the end of
each day the originals would be collated with the duplicates,
and the items thereon were checked out to determine whether
the proper amounts had been charged and totaled and turned
over to the cashier. By checking the serial numbers on the
originals against the duplicates, it was possible to determine
whether any original check was missing and what the amount
of that check should have been. As an additional control, the
Respondent maintained on a daily basis a meat inventory
which enabled the Respondent to determine, as to each item
of meat on the menu, the number of ord_ rs that had been
filled that day and to balance out that figure against the
number of orders reflected on the customers' checks for that
day.
The Respondent's policy with respect to unders has always
been a sore spot with the waiters. The waiters complained
about it among themselves. Several spoke to Walsh about it
while he was floor manager, and Walsh, as appears from his
testimony, which I accept in this respect, communicated to
management the employees' attitude towards unders. How-
ever, prior to April 1971, the propriety of that policy was
never directly challenged by any of the waiters, or by Walsh
in their behalf. The waiters, while unhappy with the unders
policy, accepted it as an employment condition they had to
live with, and, when unders occurred, always complied with
the payment requirement, as one waiter witness, Kevin
McManus, put it, "with some protest but no strong resist-
ance."
In April 1971, Walsh became involved in an unders situa-
tion of a kind that had never before occurred at the Warwick
Barnsider. At the end of the work day, he was unable to
account for one of the numbered checks in the book he had
received that day, and no duplicate for the missing check
could be located when the original and duplicate checks were
matched up at the end of the day.'Z Callander, who was then
acting as manager, assessed the waiters' team assigned to the
section in which Walsh worked that day the sum of $25, to
be paid out of the tips received by that team. This was in
accord with the Barnsider policy relating to unders as it
appeared in the Albany Barnsider's waiters' manual, al-
though no such rule had theretofore been announced at the
Warwick Barnsider which had no waiters' manual."About a
" There had been occasions in the past-typically in a walkout situation
-where an original check was found missing, but the duplicates were
located. When that occurred, the waiters on the team with the missing check
were charged for the amount of the food and beverage items appearing on
the duplicates.
" The $25 assessed reflects the average bill at the table of four. The
Respondent justified this assessment for a missing check on the ground that
it is a necessary safeguard against waiter dishonesty, since it deters a waiter
from collecting on a check, destroying the duplicates, and pocketing the
amount of the charge, without leaving any traceable record, or from remov-
ing a blank original from the book for later use in the same improper way.
(Cont.)
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week later, Walsh's team was involved in a customer walkout
situation, for which it was assessed the amount of the charges
reflected by the duplicate checks. When Callander informed
Walsh that he would have to pay the $25 penalty for the
missing check, Walsh questioned the legality of the penalty.
He stated that before paying the penalty he wanted to take
the matter up with an attorney to find out whether he had to
pay. About a week later Walsh similarly declined to pay his
share of the unders assessment based on the walkout.
Shortly after the penalty was levied against his team, Walsh
anonymously contacted the Rhode Island Department of La-
bor to inquire about its legality. He did not limit his inquiry
to the $25 penalty, but extended it to cover the Respondent's
unders' policy in general. He did so, he testified, because of
the complaints on that subject that had been brought to his
attention by other waiters. The Department of Labor repre-
sentative to whom Walsh spoke informed him that it was
unlawful under Rhode Island law for the Respondent to re-
quire its employees to pay out of their earnings charges for
unders in any of its forms unless the employees agreed in
writing to it." The following day Walsh informed Callander
-who was then acting as manager of the Warwick Barnsider
(Churchman was absent on vacation)-that' he was not going
to pay the unders charges that had been levied against him
since he had found out that the Respondent's unders policy
was violative of Rhode Island law. Callander told Walsh that
he did not want to do anything against the law and asked
Walsh to give him time to take up the matter with Grassfield.
Although Callander requested Walsh not to tell the waiters
of the apparent conflict between Rhode Island law and the
Respondent's unders policy, Walsh nevertheless informed the
waiters of what he had learned.
With respect to the missing check here involved, the Respondent makes no
claim that Walsh, or some other member of his team, collected on that check
and retained the proceeds. To the contrary, the Respondent concedes that
investigation revealed no discrepancy that day between the meat inventory
and the orders accounted for, making this a highly unlikely possibility.
" Sec. 24, Chapt. 28-14 of the General Laws of Rhode Island, Revision
of 1956, pertaining to the payment and collection of wages, provides in
pertinent part:
Setofofmoneys owed by employee to employer. In any action for unpaid
wages brought under the provisions of this chapter, the employer-
debtor shall not deduct as a setoff or counterclaim (a) any moneys
allegedly due the employer as compensation for damages caused to the
employer's property by the negligence of the employee, or ... (c) any
moneys allegedly owed to the employer by the employee ... provided,
further, that nothing in this section shall be construed to limit or restrict
in any way any rights which the employer now has to recover, by a
separate legal action , any moneys owed said employer by said em-
ployee.
There are no court decisions construing the foregoing section, and no pub-
lished interpretations by the Rhode Island Department of Labor, except as
is set out in a bulletin summarizing the major provisions of the State's labor
laws that is issued by the Department for posting by employers subject to
such laws. Regarding the matter at hand, the bulletin summarizes the appli-
cable law as follows:
Deductions from wages except for federal and state taxes and social
security charges, are not permissable without written authorization of
employees.... Deductions for alleged damage to employer's property
or rent due employers are specifically prohibited. At the hearing, three
officials of the Rhode Island Department of Labor, including its attor-
ney, were called as witnesses-one by the General Counsel and two by
the Respondent-and questioned as to their agency's interpretation of
sec. 24, Chap. 28-14. As appears from their testimony, their agency
construes that section, notwithstanding its reference to "action," as a
prohibition rather than as a restriction applicable only to a lawsuit.
They were unanimous in their opinion that an employer in the position
of the Respondent, although free to ask employees voluntarily to pay
charges such as unders from their earnings , may not impose the require-
ment of such payment as a condition of employment without having it
viewed as an unlawful deduction.
For a period of time thereafter, the Respondent suspended
application of its unders policy. When Churchman returned
from his vacation on April 12, he made his own inquiry of
the Rhode Island Department of Labor. He was told, accord-
ing to his testimony, that although the Respondent could not
fire waiters for refusing to pay for unders, it could do so for
not having their money in order; that it could also ask the
waiters to pay for unders on a voluntary basis as long as it
did not itself take the money out of the waiters' earnings or
otherwise coerce payment from waiters' earnings. Church-
man, after discussing the subject with Walsh, challenged
Walsh to recommend some substitute system which would
protect the restaurant from being cheated. Walsh recom-
mended a system under which the waiters would no longer
themselves add up the checks before they were presented to
customers, but would have this addition done by the hostesses
on the Respondent's tabulating machine. That machine was
programmed to the menu items to provide a means for rapid
and accurate calculation." Churchman agreed to go along
with Walsh's proposed system. It was put into effect, and
remained in effect until April 24.
On April 24, Churchman announced at a meeting of wait-
ers that the Respondent's president, Grassfield, had rejected
the system Walsh had proposed. He informed the waiters that
the restaurant was reinstituting its previous procedures with
regard to customer checks, and that waiters would again be
held accountable for unders in the same manner as before.
Churchman told the waiters that if they did not like to subject
themselves to the restaurant's unders policies they did not
have to work for the Barnsider. To this Walsh voiced his
protest, declaring, "That's a hell of a choice, isn't it?"16
Brown also objected.
On the following Monday, April 26, Walsh had a further
meeting with Churchman, apparently at the invitation of the
latter, at which Respondent's unders policy was discussed.
Churchman criticized Walsh for his uncooperative attitude
toward company policy. Walsh, however, refused to retreat
from the stand he had taken, and reiterated his previously
expressed position that it was unfair to waiters to require
them to pay for unders. He also stated that he considered it
bad policy for the Respondent to go back to its former unders
practices, now that the waiters knew it was illegal, because it
would tend to encourage dishonesty by waiters who would
want to make up for money they were unlawfully forced to
pay out. The following day Walsh was discharged."
As earlier noted, the Respondent takes issue with the Gen-
eral Counsel's contention that it discharged Walsh because of
his activities in protesting the Respondent's unders' policy.
The Respondent's position, as asserted in its opening state-
ment, was that Walsh was discharged because he continu-
ously violated company rules, was discourteous to customers,
used improper language, was inefficient and uncooperative,
and was also a source of customers' complaints. In presenting
its evidence, however, the Respondent made no effort to sup-
port many of the components of that broadside defense; in-
deed, some of them are directly refuted by testimony of its
" By far the largest number of unders arose from waiters' errors in
addition. Walkouts were rare; the loss of a check where duplicates could not
be found had occurred only once-in the case of Walsh-at the Warwick
Barnsider.
1' Churchman's testimony that Walsh merely shook his head but said
nothing is not credited. Walsh's testimony concerning his protest at the
meeting was substantially corroborated by Brown.
" Although the other waiters on Walsh's team were, under the Respond-
ent's unders policy, equally liable with him for the unders charges levied
against Walsh, no disciplinary action was taken against them for nonpay-
ment. As will hereinafter appear, the Respondent does not contend that it
discharged Walsh because of his failure to pay such charges.
THE BARNSIDER, INC. 759
own witnesses. Thus, Churchman, who effected the dis-
charge, expressly conceded during his cross-examination that
he had no fault to find with the manner in which Walsh
performed his job on the floor; that Walsh got along well with
the waiters; and that Walsh had never been a cause of cus-
tomer complaints. And, except as it might be related to
Walsh's protest of the unders' policy, the Respondent ad-
duced no specific evidence to indicate that Walsh ever vi-
olated any company rule or was uncooperative in the per-
formance of his job duties.
Churchman and Grassfield both testified that the decision
to discharge Walsh, although approved by Grassfield before
it was effected, was Churchman's decision and Churchman's
alone . It was bottomed, according to them, on Churchman's
determination, arrived at on the basis of considerations hav-
ing nothing whatever to do with the unders policy, that
Walsh had become an undesireable employee.
To support the conclusion he says he reached, Churchman
referred in his testimony to two specific incidents. The first
involved a pantomined manifestation of displeasure by Walsh
with the size of a tip, which occurred in the hostess area of
the restaurant several weeks before the discharge, and which,
by Churchman's own account of the incident, was not visible
to the customers. So far as appears, it is the only incident of
that kind in which Walsh is claimed to have engaged. Clearly,
Churchman could not have regarded it as an offense serious
enough to warrant a reprimand, let alone more drastic disci-
plinary action. He admitted that he did not so much as speak
to Walsh about it, either on the day it occurred or any time
thereafter. Nor was it mentioned to Walsh as a reason for his
discharge. I am unable to believe that this incident played any
significant part in the discharge decision.
The second incident, which Churchman testified provided
his principal reason for firing Walsh, occurred on Tuesday,
April 22, 5 days before the discharge. Churchman character-
ized it as an act of insubordination. That evening, Church-
man, accompanied by Grassfield and Callander, left the res-
taurant during dining room hours to attend a lecture at
Rhode Island University, and did not return until or shortly
before the restaurant's closing time. There was a private party
in the restaurant that evening. Churchman did not inform
Walsh that he and the others were going out, nor did he
advise. Walsh of the financial arrangements that had been
agreed upon for the party. During Churchman's absence a
question arose as to whether there was to be a room change
for the party. Walsh, after unsuccessfully trying to locate
Churchman, was able to persuade the lady hosting the party
that a room change was due for a party of that size. No claim
is made that he acted improperly or discourteously in resolv-
ing the dispute in that manner. When Churchman returned
to the restaurant-all participants in the party were gone by
that time-Walsh angrily reproached Churchman for having
left the restaurant without telling him what arrangements
had been made for the party. He told Churchman that if this
should happen again Churchman should not expect him to do
anything about it)'
" There is a conflict in the testimony as to whether there were still
customers in the restaurant at the time who might have been within the
range of Walsh's voice, and whether Walsh in the course of his comments
used a four-letter expression in referring to the people in the private party.
The testimony of Churchman and Callander to that effect was disputed by
Walsh. On the basis of my appraisal of all the testimony relating to this
subject, as well as of the demeanor of the witnesses while giving it, I believe,
and find, that some customers were still in the restaurant at the time, but
that Walsh did not use the four-letter expression attributed to him. Consid-
ering the nature of the complaint he was voicing, Walsh's version of the
language he used in making the specific remark in dispute appears to me to
context to be the more plausible one.
I have no doubt that Churchman was offended by Walsh's
criticism of him in the presence of customers on this occasion.
The question, however, is not whether Walsh might have
been fired for that reason, but whether in truth he was. For
the reasons stated below, I reject as not credible the testimony
of Churchman and Grassfield that the April 22 incident actu-
ally sparked the discharge decision 5 days later. For one
thing, if that had been the actual reason for the discharge, I
think that Churchman would have specifically referred to it
when he notified Walsh of his termination; yet the evidence
shows that he did not. Further, as appears from the account
of the Respondent's witnesses, the April 22 incident was
promptly reported to Grassfield, the Barnsider head, who was
present in the restaurant that evening. I think it highly un-
likely that the Respondent's management officials would have
cogitated about the matter for 5 days before determining to
take action had they then considered this incident to be,
without more, a sufficient reason for discharge. The only
explanation they offered for the delay-that Churchman was
a new manager and that Grassfield wanted him to learn to
make his own decisions-impressed me as contrived.
The timing of the discharge action on April 27 is accounted
for on a more plausible basis by other events that had oc-
curred in the meantime. Thus, it will be recalled that on
Saturday, April 24, Churchman, at Grassfield's direction,
had announced that the unders policy, which had been sus-
pended, would again be made operative, and that employees
who objected to it could leave the Respondent's employ.
Walsh at that time had voiced his resentment at the Hobson's
choice being given the employees. Then, on Monday, April
26, Walsh, at his meeting with Churchman had clearly mani-
fested an intent to persist in his opposition to the Respond-
ent's unders policy.
The testimony of the Respondent's witnesses reveals that
Churchman, following his meeting with Walsh on April 26,
had a telephone conversation with Grassfield concerning
Walsh, and that it was not until then that the decision to
discharge Walsh was made. Both Grassfield and Churchman
would have it believed that in their telephone conversation
that evening, as well as in earlier conversations in which they
discussed the question of whether Walsh should be dis-
charged, no mention at all was made of Walsh's attitude
towards the unders policy and no consideration was given to
it. But their testimony in that respect appears to me to be
inherently implausible, particularly when one bears in mind
that the Barnsider management considered the maintenance
of its unders policy to be of great importance to the successful
operation of its business and was deeply concerned with
Walsh's efforts to challenge the validity of that policy. More-
over, the testimony in question of Grassfield and Churchman
is contradicted in substantial respects by that of Brattain, the
coowner with Grassfield of the Barnsider. Brattain's tes-
timony discloses that Grassfield consulted with him about
Walsh's discharge before it was effected, and that Walsh's
unwillingness to comply with the unders policy was specifi-
cally stated to him as one of the reasons why Walsh's dis-
charge was being recommended. Another stated reason, ac-
cording to Brattain, was that Walsh was not adequately
performing his job as floor manager. Brattain's testimony in
that respect, however, is at odds with that of Churchman
who, as earlier noted, expressly conceded that he had no fault
to find with the manner in which Walsh had performed his
job. Brattain did not in his testimony refer to the April 22
incident as the moving cause for the discharge.
Other evidence in the record serves to confirm that the
Respondent's enmity toward Walsh for protesting its unders
policy was a very substantial, though not necessarily the only,
reason underlying its discharge decision. Thus, Churchman
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at one point of his cross-examination conceded in effect that
his unhappiness with Walsh began when Walsh first ques-
tioned the right of the Respondent to require the payment of
unders. Thus, too, at least one of the reasons initially stated
to Walsh for his discharge-that he was "not a good house-
man"-appears to have no relevancy to the April 22 incident
which the Respondent now assigns as the principal reason for
that action; that reason becomes meaningful only when
related to Walsh's opposition to the Company's unders
policy." The same is true of another reason given by Church-
man for Walsh's discharge, namely, that Walsh was a "trou-
blemaker."20 The final item of evidence, capping all others,
and making reliance on inference alone unnecessary in this
case, has earlier been adverted to; the reference here is to
Churchman's affirmative response at the time of the dis-
charge to Walsh's inquiry as to whether he was being dis-
charged because of his objections to the Respondent's unders
policy. On all the evidence, I am satisfied, and find, that
Walsh's conduct in challenging the legality of the unders
policy, rather than his alleged "insubordination," was the
primary reason which lay at the root of the Respondent's
decision to discharge him.
The question remains whether Walsh, in protesting the
legality of the Respondent's unders policy, was engaged in
"concerted activities ... for mutual aid and protection"
within the meaning and protection of the Act. Actually, the
question comes down to whether Walsh's activity was "con-
certed." The Respondent does not question that the subject
matter of Walsh's protest concerned a term and condition of
employment. Nor does it appear to dispute that Walsh, in
challenging the validity of that term and condition of employ-
ment and in seeking to have it eliminated, was acting lawfully,
in good faith, and in the furtherance of legitimate employee
interests. It follows that the activity in question, if concerted,
was protected.
To support its contention that Walsh's activity was not
concerted, the Respondent in its brief to me argues, without
further elaboration, that "[w]hatever action Walsh undertook
was'done completely on behalf of his own personal interests
and; not on behalf of any other person." The record, quite
clearly, does not support that argument. The employment
condition at which Walsh's activity was directed was one that
was of direct concern to all waiters. It had long been a source
of employee dissatisfaction and was, subject of employee
complaints communicated to Walsh. Although the $25
"missing check" charge that had been levied against Walsh's
team provided the immediate stimulus for Walsh's looking
into the legality of the unders policy, Walsh did not confine
his inquiry to the specific matter involved in his personal
grievance , but extended his inquiry to cover all aspects of that
policy because of the"employee complaints that had come to
his attention . His protest that followed similarly went beyond
his individual situation' to reach specifically the most com-
mon application of the unders policy, and the one of greatest
concern to the waiters, namely, the practice of charging wait-
ers for errors in adding up customers' checks. Moreover, as
a clear manifestation that he was not ;acting solely in his own
" Churchman was evasive when questioned about what he meant by his
statement that Walsh was "not a good houseman " His testimony finally
came down to this that Walsh as a floor mananger was not setting a good
example for other employees. He was then asked whether Walsh's conduct
in protesting the payment of unders was one of the ways in which Walsh
was setting a poor example His response "I would say so "
" As appears from the undenied testimony of Mitchell S. Riffkm, the
attorney for the Charging Party, that was one of the reasons stated to him
by Churchman when he called on Churchman on the day after the discharge
to protest the action taken against Walsh The other reason stated by
Churchman was that he did not like Walsh's attitude
interests , Walsh , over the Respondent 's objection , took steps
to inform all waiters of what he had learned about the legality
of the unders policy , an action obviously also aimed at induc-
ing them to make common cause with him in protesting the
Respondent 's policy." The foregoing circumstances leave lit-
tle room for doubt that Walsh was acting , not only in his own
behalf and interest , but in that of all other waiters as well. Nor
can there be any real doubt that the Respondent knew this
to be so. Indeed , the Respondent in practical effect acknowl-
edged as much by its initial response to Walsh 's protest.
When, as a result of Walsh 's protest , it suspended the opera-
tion of the unders policy for a period of about a week, and
placed in effect the alternative system for assuring the ac-
curacy of checks that Walsh had proposed , it did so for all
the waiters , and not for Walsh alone.
Further, the evidence shows that Walsh was more than a
self-appointed spokesman in thus serving the interest of all
the waiters . There is substantial support in this record for
General Counsel 's basic position , that Walsh was acting for
the waiters in an employee representative capacity which had
its genesis in, and was in essence an extension of, the waiters'
concerted action several months before, at the time of
Brown's discharge , when the employees had banded together
for their mutual aid and protection and had demanded, inter
a1ia, the appointment of a floor manager who would serve as
"an independent representative [of the waiters] at the man-
agement level," a demand to which the Respondent had
yielded by its appointment of Walsh, who had been the desig-
nated spokesman for the informally organized employee
group.
The foregoing considerations in combination fully sustain,
I find , the General Counsel's contention that Walsh's activi-
ties in protesting the Respondent 's unders policy were of a
concerted character within the meaning of Section 7 of the
Act. Even if I had thought the evidence insufficient to support
a finding that Walsh was authorized for the waiters in a
representative capacity with respect to the grievance here
involved , I would still reach the same conclusion on the
strength of recent Board precedent , holding that
Even individual protests are protected as concerted ac-
tivity if the matter at issue is of moment to the group of
employees complaining and if the matter is brought to
the attention of management by a spokesman, voluntary
or appointed for that purpose so long as such person is
speaking for the interested group.22
I conclude and find, for the reasons stated above , that the
Respondent violated Section 8(a)(1) by discharging Walsh on
April 27, 1971, as alleged in the complaint , "because of, his
concerted activities in protesting Respondent 's policies relat-
ing to the requirement that waiters pay for errors in cus-
tomer's checks."23
2' This provides evidence in itself that Walsh was engaged in concerted
activity As stated in Corning Fibre Glass Corp v NL R.B, 407 F 2d 1357,
1365 (CA. 4)
The activity of a single employee in enlisting the support of his fellow
employees for their mutual aid and protection is as much "concerted
activity" as is ordinary group activity The one seldom exists without
the other
See also SaltR,verValley Users Association v N.L.R B, 206 F 2d 325 (C A
9). Hugh H Wilson Corp. v NL.R B., 414 F 2d 1345 (C A 3)
31 See Corbert Corporation, 191 NLRB No. 145, Hugh H. Wilson Com-
pany, 171 NLRB No 145, enfd 414 F 2d 1345 (CA 3)
33 The complaint also alleges that the discharge was violative of Sec
8(a)(3) But the General Counsel has apparently abandoned that claim by
making no reference to it in his brief In any event, I make no finding to that
effect
THE BARNSIDER, INC. 761
E. Events Following Walsh's Discharge; The Alleged
Unlawful Lockout
1. The relevant facts
Upon learning of Walsh 's discharge , Kevin McManus, a
waiter, summoned the Barnsider waiters and hostesses to a
meeting to discuss Walsh 's discharge. The meeting was held
on April 28 at the Memorial Union Hall of Rhode Island
University . It was attended by most of the waiters and hos-
tesses employed at the Barnsider. The employees agreed to
aid Walsh in his efforts to gain reinstatement and also to
demand that the Respondent negotiate an agreement with
them concerning matters relating to their working conditions
and employment security. In addition , they decided to retain
an attorney to represent them for such purposes . Fifteen of
the waiters and hostesses present at the meeting signed a
handwritten document authorizing Walsh and William
Thornton (a waiter) to act as their representatives "to negoti-
ate with Barnsider , Inc., regarding wages, hours and other
working conditions relating to our employment." While the
meeting was in progress , Walsh contacted Mitchell S . Riffkin,
a Providence attorney, who agreed to represent Walsh and
the other employees . Riffkin's name was subsequently added
to the authorization document with the notation that he was
to be the "legal representative" authorized to act for the
employees in "all negotiations."24
Following the meeting held on April 28, the six waiters and
two hostesses who were scheduled to work that day reported
for work at the Barnsider , arriving about 4 p.m. instead of at
3:30 p.m., their regular reporting time. The waiters proceeded
to perform their usual work in preparation for the opening of
the dining room at 5 p.m.
About 4 :45 p.m ., Riffkin , accompanied by Walsh, called on
Churchman at his office in the Barnsider . Riffkin informed
Churchman that he had been retained to represent Walsh and
the waiters for the purposes stated above. He asked Church-
man why Walsh had been discharged . Churchman stated that
Walsh was discharged because of his attitude and because he
was a "troublemaker." Riffkin took issue with this, asserting
that Walsh was really discharged because of his concerted
activities . He then read to Churchman from a pamphlet in his
possession containing a summary of Rhode Island statutes
which Riffkin declared made it unlawful for an employer to
discharge an employee for presenting a grievance on behalf
of fellow employees. Riffkin demanded that Walsh be "im-
mediately reinstated." He further demanded that the Re-
spondent enter into discussions with him , as a representative
of the Respondent's employees, concerning other employee
grievances, with a view toward reaching a negotiated agree-
ment . Riffkin added that he knew his demands placed
Churchman , in a difficult position , and he expressed his will-
ingness to step out of Churchman 's office to give Churchman
an opportunity to check with his superiors . Riffkin and Walsh
left Churchman's office and went into the pit area of the
restaurant to await the Respondent 's response to the de-
mands. The waiters on duty that day were then in the pit area
completing their set-up work. It was now close to 5 p . m., the
opening time for the dining room.25
30 The handwritten document was subsequently typed out with certain
language changes but no deviations in substance On April 29 and 30, it was
circulated to the waiters and hostesses for their signatures . The typewritten
form in evidence contains 20 signatures , including the signature of James
Walsh Neither the handwritten nor the typewritten document was pre-
sented to the Respondent during the period here in question
" The findings in the above paragraph are based on Riffkin 's credited
testimony, corroborated by Walsh. Churchman's testimony differs from that
of the General Counsel 's witnesses in only one substantial respect Accord-
After Riffkin and Walsh stepped out of his office, Church-
man unsuccessfully tried to reach Grassfield who was then in
Montreal . Churchman then conferred with Callander who
happended to be in the restaurant at the time. The two de-
cided to summon the waiters to a meeting then and there to
ascertain their attitude concerning Riffkm's demands and
whether or not they intended to work if such demands were
not met. Callander made an announcement over the loud
speaker requesting all waiters ' to go at once to Area 3, the
separately enclosed portion of the restaurant.
Riffkin and Walsh heard the announcement and also went
to Area 3, uninvited. There Riffkin gratuitously took charge
of the meeting . Riffkin began by reiterating for the benefit of
the assembled waiters what he had told Churchman shortly
before. After speaking for a while, Riffkin was interrupted by
Callander who said, "I know what you guys want. You want
a union." The waiters present denied that that was so.26 As
Riffkin resumed talking , he was again interrupted , this time
by Churchman who said, "Cut the bullshit. You've got my
back against the wall. Those of you who want to work tonight
can work and those of you who don't can leave." With these
words, Churchman began to leave Area 3. There was no
response by the waiters to Churchman 's comment , nor any
move by any of them to return to work. After Churchman
had left, Callander stated in substance , "If you don't work
tonight, I am going to go to Albany and I am going to bring
some of my own waiters back. The restaurant will be open
tomorrow night." There was still no move by the waiters to
return to work, and almost immediately thereafter Callander
declared, "All right, I've had enough of this. As far as I am
concerned you guys can get out. I'm going to go close the
restaurant tonight." At that point, Riffkin told the waiters,
"Well it appears that we have been locked out. In fact we'd
better get out before we are locked in." Shortly thereafter,
Riffkin, Walsh, and the waiters left the restaurant. None of
the waiters expressed to the Respondent's management offi-
cials any desire to work that evening , as Churchman had
earlier stated they might do if they wished.27
ing to his version , denied in this respect by both Riffkm and Walsh, Riffkin
coupled his demand for Walsh's immediate reinstatement with this express
threat "Well, if he [Walsh] is not reinstated , the waiters are prepared to walk
off the job and the restaurant won't be open tonight ." According to Church-
man, Riffkin also expressed a similar threat during the meeting of the waiters
with Churchman and Callander in Area 3, to be reported on shortly below.
But in that respect Churchman 's testimony is contradicted, not only by the
General Counsel's witnesses, but by Callander as well . On all the evidence,
I believe that Churchman reasonably could have inferred an implied strike
threat from Riffkm 's demand for Walsh's "immediate reinstatement," but
that Churchman was mistaken in his testimony that Riffkin uttered an
explicit threat to that effect
26 The employee witnesses testified that they interpreted Callander's ref-
erence to a "union" to mean an outside formally established labor organiza-
tion, such as one affiliated with the AFL-CIO.
" The findings made in the above paragraph are based on a synthesis, to
the extent credited , of the testimony of the General Counsel 's witnesses,
Walsh , Brown, McManus, and Riffkin , and of the Respondent 's witnesses,
Churchman and Callander. There is a substantial conflict in only two re-
spects (1) Churchman testified , and the General Counsel's witnesses de-
nied , that Riffkin in the course of his remarks expressly threatened to close
down the restaurant if Walsh was not allowed to work that night . Church-
man's testimony in that respect, however, is not supported by Callander,
who, on cross -examination , conceded that Riffkin made no such threat in
his presence Moreover , as Walsh was not scheduled to work that night, it
appears improbable that Riffkin would have made a threat in the form
testified to by Churchman. (2) According to the testimony of some of the
General Counsel's witnesses , Callander announced that he was closing the
restaurant for the night and ordered the waiters to leave before the waiters
had any opportunity to react to the option given them by Churchman to
work or leave , and in the same breath also announced that he had already
arranged to bring in waiters from Albany Callander 's version , which is
(Cont )
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before Walsh left the restaurant, Callander called him and
another waiter, Theodore Pliakas, into the pit area, where' he
berated Walsh for dragging the other waiters into his per-
sonal affair. He warned Walsh that, if Walsh went through
with what he was doing it would result in injury to the other
employees, and that the Respondent would also "blow the
whistle" on Walsh, to the Internal Revenue Service, presuma-
bly for not reporting the full, amount of his tips.
After the waiters left, the Respondent instructed the two
hostesses who had reported for duty that evening to punch
out. It also notified the few diners who had already been
seated but not yet served that the restaurant would not open.
The restaurant remained closed for the entire evening. The
bar and cocktail; lounge were left open, however.
On April 29, the Barnsider employees'met with Riffkin at
his office to discuss the events of the day before and to decide
upon their further course of action. As a result of their discus-
sion , Riffkin drafted a letter for presentation to the Respond-
ent reading as follows:
Barnsider, Inc.
April 29, 1971
Midland Mall Shopping Plaza
Warwick, Rhode Island
Gentlemen:
On behalf of the Labor Committee of the employees of
your establishment the Barnsider Restaurant, who are
presently engaged in a labor dispute with said Company
in protest over the firing of Mr. James Walsh as well as
other grievances concerning, working conditions, I am
authorized to inform you that said employees are pre-
pared to return to work forthwith upon the compliance
of the following conditions:
(1.) The immediate re-instatement of Mr., James
Walsh in his former capacity.
(2). The negotiation of all grievances concerning
working conditions.
If these conditions are not met, said employees are still
prepared to return to work forthwith, provided however,
that unfair labor charges will be filed against said Com-
pany.
Very truly yours,
The Labor Committee of the
Barnsider, Inc.,
By its attorney,
MITCHELL S. RIFFKIN
Arrangements were made for Riflkin to meet outside the
restaurant at the usual time for the commencement of work
with the six waiters and the two hostesses who were sched-
uled to work that day. The employees were to be prepared to
work that day.
In the meantime , Callander, following the incident of the
night before, had driven to Albany and had brought back
with him to Warwick four waiters and a hostess regularly
employed at the Albany Barnsider to fill in for Warwick
employees who normally would have been scheduled'to work
that day. These replacements began work at the usual starting
time.
Riffkin did not arrive at the Barnsider until about 4:45 p.m.
The Barnsider's regular waiters and hostesses were already
there. Riffkin went into the Barnsider alone to present the
reflected in the findings made above, impressed me, however, as more plaus-
ible Other testimony by the General Counsel's witnesses shows that
Churchman had already left Area 3, before Callander made his remarks,
thereby reflecting that an appreciable length of time must have elapsed
Moreover, I am satisfied by other evidence in the record that Callander did
not in fact communicate with Albany until after the events in question.
letter that had earlier been drafted, while the others remained
outside to await the results of his call.
Riffkin's undisputed account of what occurred inside the
restaurant follows:
I went to Mr. Churchman and f indicated to him that
I had a letter that I was going to' deliver to him which
spelled out clearly [the employees'] desire to return to
work and reinstituting the demands that had been made
the day before. He indicated to me rather vehemently, "I
refuse to recognize you as a lawyer, as their lawyer or
anyone you represent and I will refuse to accept the
letter that you are giving me."
I said, "Well, if you won't accept it, I will read it to
you!" He said, "I don't want to hear it. I won't accept
it. Don't bother. I am not going to take it. I don't recog-
nize you or'any letter that you ... I said to Mr. Church-
man "If you won't take it, I am going to leave it for you."
... I turned and left the letter in the pit area and walked
out.28
Upon leaving the restaurant, Riffkin reported to the em-
ployees waiting outside what had occurred. It appeared, he
told them, that the Respondent was not going to allow them
to work that'day, and he suggested that they leave the restau-
rant area to avoid any confrontation with the Respondent's
management.
Notwithstanding Riikin's admonition, a number of the
waiters and at least one hostess, Susan Pasquarelli, did not
leave at once. Several of them, including Pasquarelli and
Kenneth Levy, approached Churchman at the restaurant en-
trance to assure him that the position the employees had
taken and their desire for a negotiated agreement had nothing
to do with their feelings toward him as a person. They were
invited inside by Churchman to talk to him as "individuals"
and not as employees to employer. Although Churchman, as
he admitted, was in need of help that day, he did not ask any
of them to go to work. Nor did any of the employees expressly
request that they be allowed to return to work. While the
employees were talking to Churchman, they were joined by
Grassfield and Callander, and that group was later enlarged
by the appearance of some other waiters. There was a'general
discussion about what had occurred. Grassfield spoke of the
existing situation in terms of a walkout by the waiters, while
the waiters spoke of it in terms of a lockout by management.
To support his claim that the employees had been locked out,
Levy referred Grassfield to the letter Riffkin had delivered,
but Grassfield said he was not going to!, read it. In the course
of his remarks, Grassfield commented that the Barnsider was
a nice place to work, but then added, "It is too bad you people
aren't going to be here anymore." Contrary to the contention
of the Respondent, it is found that Grassfield did not'at this
informal gathering request' the employees who were there
present to return'to work 29 The informal gathering broke up
when Brown and McManus came into' the restaurant to ask
the employees to leave, reminding them of Riffkin' s admoni-
tion
28 The record is not entirely clear as to what happened to the letter.
However, certain testimony of Churchman makes it appear that the letter
was turned over that day to a lawyer friend of Callander who happened to
be in the restaurant that day
" Although Grassfieid, Churchman, and Callander testified that Grass-
field did make such a request, Grassfield at a later point of his testimony
contradicted himself and admitted that he did not The employee witnesses
denied that such a request was made and their testimony is credited Levy
in particular impressed me as a credible witness ,' indeed, Churchman at one
place in his testimony expressly conceded that Levy' s testimonial account
of what occurred on that occasion was an accurate one
THE BARNSIDER, INC. 763
Churchman testified that on a subsequent occasion, either
later that day or the following day, he asked four of the
regular waiters who had called for their pay when they would
be ready to return to work, and was told in reply, "We cannot
come back until everybody does." These four waiters-whom
Churchman identified as Glenn McCusker, Dwight Ander-
son, William Thornton, and Drew McGee-did not appear
as witnesses, and Churchman's testimony in this respect
stands undenied.
On April 30, a picket line was set up outside the restaurant.
The placards carried by the pickets declared, inter alia, that
the Respondent had locked out its employees and was engag-
ing in unfair labor practices. Two of the Respondent's five
hostesses-Susan Pasquarelli and Susan Brown joined in
the picketing. So far as appears neither of these hostesses had
been asked to return to work; they are named in the com-
plaint as discriminatees. A third hostess, Debra Burns, was
offered a raise and was called to work while the waiters were
still out; she is named as a discriminatee in the complaint."
Of the two remaining hostesses, one was then on leave having
a baby, and the other was then on vacation in California;
neither of them is named-as a discriminatee in the complaint.
The picketing continued from April 30 through May 4.
During that period the restaurant remained open, being ser-
viced mainly by the temporary employees brought in from
Albany. The Respondent concedes that during the period
from April 28 through May 5 no work was performed by any
of the regular waiters or the two hostesses who are identified
by name in footnote 1, above.
On April 30, 1971, Riffkin prepared and mailed to the
Board's Regional Office the original charge in this case. The
charge alleged statutory violations based on (1) the Respond-
ent's refusal to recognize for purposes of collective bargaining
the labor committee formed by the waiters; (2) the discharge
of Walsh; and (3) the Respondent's "lockout" of its em-
ployees. The charge fixed the date of the lockout as April 29,
1971, alleging more particularly:
On or about the 29th day of April, 1971, the above-
named employer ... discriminatorily locked out the said
employees engaged in concerted activities after an offer
to return to work was made. [Emphasis supplied]31
Following receipt of a copy of the charge, counsel for the
Respondent contacted a representative of the Board's Re-
gional Office and conferred with him, and later with Riffkin.
On May 5, 1971, as a result of their discussions, counsel for
the Charging Party and counsel for the Respondent agreed,
without prejudice to the asserted positions of either party,
that the Respondent's employees should return to work, and
that all questions concerning the character of the stoppage-
lockout or strike-as well as the Respondent's legal responsi-
bility therefor, were to be left for resolution in an appropriate
proceeding. That same day, Riffkin informed the waiters and
hostesses whose work had ceased that they had been "in-
vited" to return to work. The employees returned on May 6.
One further fact, though not in itself germane to the issues
in this case, completes the chronology of events. On August
5, 1971, as a result of a representation petition filed on June
4 by the Charging Party herein, a Board election was held in
a unit composed of the waiters and hostesses of the Warwick
Barnsider. The Labor Committee of the Barnsider, Inc., won
'° There is some evidence in the record suggesting that some of the
waiters, particularly Brown, sought to dissuade Debra Burns from breaking
up the solidarity of the group by returning to work alone.
" The amended charge in this case, filed on June 4, 1971, by Riffkin as
attorney for the Labor Committee of Barnsider, Inc., repeated this allegation
in precisely the same form. The amended charge varied from the original
charge by dropping the 8(a)(5) allegation.
collective bargaining rights by a vote of 16 to 2. As of the time
of the hearing herein, bargaining had not yet begun.
2. Analysis and concluding findings
For purposes of analysis, the complaint's 8(a)(1) and (3)
allegations based on the events following Walsh's discharge
are divisible into two separate though related counts. The first
is predicated on the Respondent's conduct, on April 28, 1971,
in directing its restaurant employees to leave the Barnsider
and in announcing an intention, thereafter carried out, to
replace them with employees brought in from Albany. The
complaint, in substance, alleges the Respondent 's conduct in
that respect to have been an unlawfully motivated lockout
imposed on the 18 employees named in the complaint because
they had "joined or assisted the Labor Committee or engaged
in concerted acitivites for the purpose of collective bargaining
or other mutual aid or protection." The second count is
predicated upon the Respondent's alleged failure or refusal,
on April 29, 1971 (and thereafter until May 6), to reinstate
the 18 employees allegedly locked out the previous day. The
latter count, it appears, is not necessarily dependent upon a
finding that the Respondent's April 8 conduct constituted a
lockout; the theory of this alleged violation would be the same
if the cessation of work had been initiated by the employees.
The Respondent's basic defense is that it never engaged in any
lockout at all, nor in any refusal to reinstate, and that the
employees' interruption of work during the entire period
from April 28 through May 5 was attributable solely to the
employees' voluntary strike action.
Contrary to the allegations of the first count, I find the
evidence insufficient to support a finding of an unlawful lock-
out as of April 28. I am satisfied that when the Respondent
directed the employees to leave the restaurant, and an-
nounced its intention to hire replacements, it genuinely be-
lieved, and with good reason, that the employees intended to
engage in a work stoppage at that time in furtherance of the
demands which Riffkin had presented on their behalf, par-
ticularly the demand for Walsh's reinstatement. The validity
of that finding, in my opinion, is not negated by the fact that
no intent to strike had been explicitly declared. Riffkin's in-
sistence at his meeting with Churchman that Walsh be "im-
mediately reinstated," coupled with his advice to Churchman
that he was speaking, not for Walsh alone but for all the
employees, carried with it a clear implication of imminent
strike action if the Respondent did not yield at once to the
employees' demand. The events of the preceding January,
which were still fresh in the Respondent's recollection, served
to add substance to that implicit threat. It will be recalled that
in January the same employees, after banding together under
comparable circumstances to protest Brown's discharge, had
refused to work unless Brown was reinstated. Against that
background, Riffkin's conduct in seizing control of the meet-
ing of waiters which the Respondent had called to ascertain
the waiters' intentions, his reiteration, with the waiters' ap-
parent approval, of the demand for Walsh's "immediate"
reinstatement, and the waiters' failure to give any indication
of their readiness to return to their work when first Church-
man and then Callander in effect asked them to do so, reason-
ably justified the Respondent in believing, when it announced
its decision to close its restaurant for that night and directed
its waiters to leave, that the waiters were then already en-
gaged in a work stoppage.
That this was actually the waiters' intent at the time is
buttressed by other evidence. Thus, the failure of the waiters,
after they were told to leave, to voice any protest that the
Respondent had misinterpreted their intentions, and the alac-
rity with which Riffkin, instead, seized the occasion to advise
the waiters that "we'd better get out before we are locked in,"
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflects a state of mind smacking more of a voluntary than an
involuntary stoppage of work. The same is true of Riffkin's
April 29 letter to the Respondent containing the employees
"offer to return to work," wherein, without mention of a
lockout, he characterized the then existing situation as one in
which the employees were "engaged in a labor dispute with
the [Barnsider] in protest over the firing of James Walsh as
well as other grievances concerning working condition." A
further, and clearer, acknowledgment by Riffkin that the
work stoppage which began on April 28 was, at its inception,
employee initiated rather than employer imposed is to be
found in the original and amended charges giving rise to this
proceeding that Riffkin prepared and signed. These docu-
ments refer to the lockout as having occurred on April 29,
"after an offer to return to work was made." That statement,
as I show below, reflects my own view of the record.J2
3. Offers to return
The situation was radically changed, however, on April 29,
when Riffkin presented to Churchman the Labor Commit-
tee's letter of that date containing the employees' offer to
return. Notwithstanding earlier language in the letter, its last
paragraph leaves no room for doubt that the offer to return
was an unconditional one. By reason of their unconditional
offer, the employees, as strikers, became entitled under the
law to immediate reinstatement. The fact that replacements
were then already occupying their positions did not affect
their right to reinstatement. For the replacements were tem-
porary and not permanent replacements and, besides, the
employees offering to return occupied the status of unfair
labor practice strikers since their strike was directed in sub-
stantial part at protesting Walsh's discharge, found herein to
have been violative of the Act.
The Respondent's refusal to accept the April 29 letter ten-
dered it by Riffkin cannot excuse its failure to honor the
employees' unconditional offer to return to work contained
therein. In the first place, the evidence shows that Church-
man was put on notice by Riffkin's introductory remarks that
the letter spelled out the employees' desire to return to work.
An employee Levy indicated substantially as much in the
course of his conversation with Grassfield later that day.
Moreover, the Respondent had no lawful reason for declining
to read the letter. As stated by the Eighth Circuit Court of
Appeals in N.L.R.B. v. Regal Aluminum, Inc., 436 F.2d 525,
527,
Under a statute requiring cooperative attitudes to
achieve industrial peace, common sense dictates that
artificial devices created by [an employer] to avoid
knowledge of [a] demand cannot succeed.
The Respondent here should not be permitted, any more than
in the cited case, to "hide behind its own self-constructed wall
of obstinance and thereby use its ignorance as a shield." In
" Even if I had not been persuaded that the waiters were already in a
strike situation when the Respondent directed them to leave , I would have
been reluctant to find in the particular circumstances of this case that the
Respondent 's action on April 28 in closing its restaurant and directing the
waiters to leave was alone enough to constitute an unlawful lockout. With
the overhanging uncertainty as to whether the waiters made any effort to
allay though given an opportunity to do so , and with the restaurant ready
to open for business , the Respondent, it seems to me, had a legitimate
business reason for taking protective measures to avoid the inconvenience
to its customers and embarassment to itself that would result from an open
restaurant , seated customers , and no waiters to serve them . See, Betts-
Cadillac Olds, Inc., 96 NLRB 293. Whether this also would have justified
the Respondent in bringing in replacements presents a different and more
difficult question . Cf. Inland Trucking Co. v. N.L.R.B.. 440 F.2d 562 (C.A.
1). But that is one which I need not reach in this case since I rest my decision
on another ground.
refusing to accept the letter, the Respondent acted at its own
peril. As was stated long ago by the Supreme Court in The
Lulu, 77 U.S. 192, 201,
[I]t is well settled law that a party to a transaction, when
his rights are liable to be injuriously affected by notice,
cannot willfully shut his eyes to the means of knowledge
which he knows are at hand, and thereby escape the
consequences which would flow from the notice if it had
actually been received.
Nor is the Respondent's position aided by the fact that
after the group offer to return was made, four of the waiters
told Churchman, when he asked them when they would be
ready to return to work, that they could not come back "until
everybody does." Even if that inquiry in the form in which
it was made could be viewed as an effective offer of reinstate-
ment, and I find it cannot, it could not affect the matured
reinstatement rights of the others; at most it might serve to
abate the backpay period for the four individuals to whom
Churchman's inquiry was addressed. The response made by
these four individuals evidences merely their own desire to
maintain group solidarity; it cannot reasonably be construed
as reflecting adversely on the bona fides of the group offer that
was earlier made.
I find that by refusing to honor the employees' uncondi-
tional offer to return to work, made on April 29, the Respond-
ent in substance converted the prior strike into an unlawful
lockout which it thereafter maintained in effect until the em-
ployees were returned to their jobs on May 6.1' By its afore-
said conduct, I further find, the Respondent infringed the
Section 7 rights of the employees involved," in violation of
Section 8(a)(1) of the Act, and also unlawfully discriminated
against them in violation of Section 8(a)(3)."
CONCLUSIONS OF LAW
1. By discharging James P. Walsh on April 27, 1971, be-
cause of his concerted activities in protesting certain policies
of the Respondent relating to working conditions, the Re-
spondent engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
2. By failing and refusing on April 29, 1971, and thereafter
until May 6, 1971, to honor the unconditional request of its
employees named in footnote 1, above, to return to work,
thereby locking out and discriminating against said em-
ployees because they had engaged in concerted activities for
the purpose of collective bargaining and other mutual aid and
protection, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
" The legitimate business reasons , adverted to above , which might have
justified as lawful a lockout on April 28 were , of course , no longer present
on April 29, having been eliminated by the expressed willingness of the
employees to "return to work forthwith " and to leave the resolution of their
differences with the Respondent to the unfair labor practices processes of
the Board.
" ° The employees involved are identified by name in fn . 1, supra.
" Since one of the objects of the employees ' concerted activities was to
obtain recognition of the Charging Party, the Respondent's discriminatory
conduct clearly tended to discourage employee membership in that labor
organization , and, moreover , was so inherently destructive of important
employee rights as to justify a finding of an 8(a)(3) violation without inde-
pendent proof of unlawful motive . Cf. N.L. R.B. v. Great Dane Trailers Inc.,
388 U.S. 26.
THE BARNSIDER, INC 765
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that the Respond-
ent be ordered to cease and desist from them, and from like
or related unfair labor practices, and to take certain affirma-
tive action which I find necessary to effectuate the policies of
the Act.
Having found that the Respondent unlawfully dis-
criminated against James P. Walsh, I shall recommend that
the Respondent be ordered to offer him immediate and full
reinstatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of money he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
from the date of the initial discrimination against him (April
27, 1971) to the date of the offer of reinstatement, less net
earnings, if any, during such period in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
It has been found that the Respondent unlawfully locked
out and discriminated against the employees named in foot-
note 1, above, during the period between April 29, 1971,
when the Respondent first failed and refused to honor their
unconditional request to return to work, until May 6, 1971,
when they were allowed to return to work. As appears from
the findings made above, the aforesaid unconditional request
made on April 29, 1971, was not presented to the Respondent
until after the starting time for work that day. When the
request was made temporary replacements were already at
work performing the job duties of the employees on strike. In
these circumstances, it is found, the Respondent was not
required to displace the replacements on April 29. However,
no reason appears in this record why the Respondent could
not have effected the required reinstatement on April 30,
1971, without disruption of its operations. Accordingly, it
will be recommended that each of the employees named in
footnote 1, above, be made whole for any loss of money he
or she may have suffered during the period from April 30,
1971, to May 6, 1971, by reason of the discrimination found,
by payment to each such employee of a sum of money equal
to that which that employee would have earned during that
period, less net earnings, if any, with interest thereon at the
rate of 6 percent per annum.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:76
ORDER
The Respondent, Barnsider, Inc., d/b/a Barnsider Sirloin
Pit and Tavern, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging, locking out, refusing to reinstate, or other-
wise discriminating against any of its employees for engaging
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
36 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.
(b) Discouraging membership in The Labor Committee of
Barnsider, Inc., or in any other labor organization, by dis-
criminating in regard to the hire and tenure of employment
of its employees, or by discriminating in any other manner in
regard to any term or condition of their employment, in order
to discourage membership or activities therein.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Offer James P. Walsh immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority or
other rights, and make him whole for any loss of pay he may
have suffered as a result of his discharge in the manner set
forth in "The Remedy" section herein.
(b) Make the employees listed below whole for any loss of
pay they may have suffered as a result of the discrimination
against them for the period stated and in the manner set forth
in "The Remedy" section herein:
Dwight P. Anderson Paul F. Mahoney
James H. Ackroyd Theodore G. Pliakas
Leslie Brown B. Allan Rossignol
Theodore H. Brown Eric D. Stein
William Barney William A. Thornton
John Catley Dennis R Tully
Glenn P. McCusker Kenneth R. Levy
Drew J. McGee Christopher M. Walsh
Kevin P. McManus Susan Pasquarelli
(c) Notify James P. Walsh if presently serving in the
Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its restaurant in Warwick, Rhode Island, copies
of the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for Re-
gion 1, after being duly signed by the Respondent's represent-
ative, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith 11
" 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 be changed to 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 1, in writing, within 20 days from
the date of this Order, what steps the Respondent has take to comply
herewith "
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 having found, after
a trial, that we violated Federal law, by discharging
James P. Walsh because of his concerted activities in
protesting certain of our policies relating to working
conditions, and by locking out and discriminating
against 18 of our employees because they engaged in
concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection:
WE WILL offer James P. Walsh full reinstatement, and
pay him for the earnings he lost as a result of his April
27, 1971, discharge.
WE WILL pay the employees listed below the earnings
they lost between-April 30 and May 6, 1971, as a result
of our not allowing them to work for reasons which were
found unlawful by the Board:
Dwight P. Anderson Paul F. Mahoney
James H. Ackroyd Theodore G. Pliakas
Leslie Brown
Theodore H. Brown
William Barney
John Catley
Glenn P. McCusker
Drew J. McGee
Kevin P. McManus
B. Allan Rossignol
Eric D. Stein
William A. Thornton
Dennis R. Tully
Kenneth R. Levy
Christopher M. Walsh
Susan Pasquarelli
WE WILL NOT unlawfully interfere with our em-
ployees' union activities or with their concerted activities
for the purpose of collective bargaining or other;-mutual
aid and protection.
BARNSIDER, INC. D/B/A
BARNSIDER SIRLOIN
PIT AND TAVERN
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately James P. Walsh, if pres-
ently serving in the Armed Forces of the United States,
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This is an official notice and must not be defaced by any-
one.
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, Bulfinch Building, 15 New Chardon
Street, Boston, Massachusetts 02114, Telephone 617-223-
3300.