"The Loft" (Showcase, Inc.)

National Labor Relations Board - Board Decisions

Jan 7, 1986

277 N.L.R.B. 1444 (N.L.R.B. 1986)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"The Loft" (Showcase , Inc.) and Mary Alice Tidd.
Case 17-CA-11169
7 January 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 5 December 1984 Administrative Law Judge
Jesse Kleiman issued the attached decision. The
Respondent filed exceptions and a supporting brief
and the General Counsel filed an answering brief .1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, "The Loft"
(Showcase, Inc.), Topeka, Kansas, its officers,
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully_ examined the record and find no basis for reversing
the findings
2 The judge found that the Respondent violated Sec 8(a)(1) of the Act
by discharging employee Mary Tidd ffor'litr 3 August 1982 activity of
protesting the Respondent 's tipping policy . We agree We find that
Tidd's conduct was a continuation of the earlier concerted activity of the
23 and-25 July employee meetings at which the employees formulated
strategy against and protested the Respondent's tipping policy Tldd was
very outspoken at those meetings and 'was viewed by the Respondent as
an employee spokesperson. Tidd's 3 August conduct was in response to
Managing Supervisor Dee Eilert 's and Owner-Manager Robert Zibell's
confronting her because they overheard her making comments to other
employees about the tipping policy, or perceived her as making such
comments In the exchange which resulted in Tidd's discharge, her com-
ments to Zibell directly related and referred to the earlier concerted ac-
tivity. Thus, according to Zibell's own testimony, Tidd specifically men-
tioned the tipping system which was the principal subject of the employ-
ee meetings As Tidd's 3 August conduct was clearly a continuation of
the earlier conduct with her fellow employees in pursuit of their common
concern, the objective test, required by Myers Industries, 268 NLRB 493
(1984), remanded sub nom Prill v NLRB, 755 F 2d 941 (D C Cir 1985),
cert denied 120 LRRM 3392 (1985), has been met In so concluding,
however, Chairman Dotson and Member Babson find it unnecessary to
rule on the judge's additional finding that Tidd was engaged in concerted
activity by attempting to intervene on behalf of employee Cathy Car-
others
In finding that Tidd was, engaged in concerted activity, Member
Dennis additionally relies on the judge's rationale , including his citation
of pre-Alleluta Cushion Co, 221 NLRB 999 (1975), cases
Finally, in adopting the judge's conclusion that the Respondent violat-
ed Sec 8(a)(1) by discharging Tidd, we rely on his finding that Tidd did
not, as contended by the Respondent, use profanity in her conversation
with Zibell. We, therefore, find it unnecessary to pass on his alternative
finding that, even assuming that Tidd engaged in the alleged profanity,
such conduct would not have deprived her of the protection of the Act
agents, successors , and assigns, shall take the action
set forth in the Order.
Deborah A. Ford, Esq., for the General Counsel.
K. Gary Sebelius, Esq. (Eidson, Lewis, Porter & Haynes,
Esqs.), of Topeka, Kansas, for the Respondent.
Richard D. Anderson, Esq. (Colmery, McClure, Funk, Le-
tourneau & Entz, Esq.), of Topeka, Kansas, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN , Administrative Law Judge. On a
charge filed on August 25, 1982, and an amended charge
filed on September 29, 1982, in Case 17-CA-11169, by
Mary Alice Tidd, an individual , the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 17 , Kansas City, Kansas, duly issued a
complaint and notice of hearing on October 8, 1982,
against "The Loft" (Showcase Inc.) (the Respondent), al-
leging that the Respondent engaged in certain unfair
labor practices within the meaning of Section 8(a)(1) of
the National Labor Relations Act. On November 19,
1982, the Respondent , by counsel , duly filed an answer
denying the material allegations in the complaint.
A hearing was duly held before me in Topeka , Kansas,
on February 10 and 11, 1983. All parties were afforded
full opportunity to appear , to introduce evidence, to ex-
amine and cross-examine witnesses , to argue orally on
the record , and to file briefs. At the conclusion of the
General Counsel 's case and again at the close of the
hearing the Respondent moved to. dismiss the allegations
made in paragraphs 5(a) and (b) of the complaint.I I
denied these motions. Thereafter, the General Counsel
and the Respondent filed briefs . In its brief the Respond-
ent submits that "the General Counsel has failed to sus-
tain its ultimate burden of proof and the complaint
should be dismissed in its entirety ." For the reasons ap-
pearing hereinafter , I deny the Respondent 's request to
dismiss the complaint in its entirety.
On the entire record and the briefs of the parties, and
on my observation of the witnesses , I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, has been a cor-
poration engaged in the operation of a restaurant at a fa-
cility located at 417 West 37th Street, Topeka, Kansas.
In the course and conduct of the Respondent's business
operations during the preceding 12 months, these oper-
ations being representative of its operations at all times
i Par . 5(a) of the complaint alleges that the Respondent , acting
through its supervisor and agent Dee Eilert, "On or about July 23, by
telephone, interrogated its employees regarding its employees ' protected
concerted activities " Par. 5(b) of the complaint alleges that the Respond-
ent, acting through its supervisor and agent Dee Eilert , "on or about
August 3 , at the facility , directed its employees to refrain from engaging
in protected, concerted activity of discussing wages and working condi-
tions with other employees "
277 NLRB No. 170
"THE LOFT"
material herein, the Respondent derived gross revenues
in excess of $500,000. During the same period of time the
Respondent, in the course of its business operations, pur-
chased and received goods and services valued in excess
of $50,000 directly from sources located outside the State
of Kansas. The complaint alleges and , while the Re-
spondentdenies this, I find that the Respondent is now,
and has been at all times material , an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.2
Additionally, at all times material herein, Robert Zibell
was and is the, owner and overall manager of the busi-
ness; Dee (Delores) Eilert, the managing supervisor; and
Wanda Baird, the operations coordinator. The complaint
alleges, the Respondent admits, and I find that these per-
sons are supervisors within the meaning of Section 2(11)
of the Act, and have been and are now agents of the Re-
spondent acting on its behalf within the meaning of Sec-
tion 2(13) of the Act.
It. THE UNFAIR LABOR PRACTICES
The complaint alleges, in substance, that the Respond-
ent violated Section 8(a)(1) of the Act, by interrogating
its employees regarding their protected concerted activi-
ties; by directing its employees to refrain from engaging
in the protected concerted activity of discussing wages
and working conditions with other employees; by pro-
mulgating and maintaining a written rule for its employ-
ees which prohibited their discussing "pay or other prob-
lems with your job" with coworkers upon penalty of dis-
missal; and by discharging its employee Mary Alice Tidd
because she and other employees engaged in protected
concerted activities and in order to discourage employ-
ees from engaging in such activities for the purpose of
collective bargaining or other mutual aid or protection.
The Respondent denies these allegations.
A. Background
The Respondent operates a restaurant in Topeka,
Kansas, employing approximately 100 people including
waiters, waitresses, bartenders, hostesses, salad and prep
persons, and cooks. The physical facility consists of two
separate dining areas, an upstairs and downstairs level,
and a downstairs bar located four steps above the down-
stairs dining room. Behind the downstairs bar^is a check-
out room where waiters and waitresses report at the end
of their shifts with the money they have collected that
workday.
The evidence shows that as part of its employee wage
structure prior to August 1982, the Respondent instituted
a "tip pool", system whereby employees who recieved
tips from customers in the nature and course of their
duties, i.e., waiters and waitresses, would contribute
"four percent of total revenue" to the "tip pool" which
2 The complaint alleges and the Respondent admits deriving gross rev-
enues in the course and conduct of its business annually in excess of
$500,000, and purchasing and receiving goods and services in excess of
$50,000 directly from sources located outside the State of Kansas I there-
fore find and conclude that the Respondent meets the Board's jurisdic-
tional standards for retail establishments Pancho's Villa, 245 NLRB 440
(1979); Brennan's French Restaurant, 129 NLRB 52 (1960). Also see gen-
erally Photo Drive Up, 267 NLRB 329 (1983).
1445
was then divided among the employees who usually re-
ceived no tips in their work, i.e., hostesses, bartenders,
and prep people.3 Robert Zibell, the Respondent's owner
and manager, testified that up until midsummer of 1982
the employees "seemed to be pleased with the system we
had in effect. I heard no comments from anybody that
they were displeased with the money they were making.
And things were running smoothly." However, Zibell
also testified that in or about the' latter part of 1981 or
early 1982 he received a petition from employees com-
plaining about the tip pool system, and that employees
had "questioned" the Respondent's "wage policy" in the
past.4 It should be noted that I found Zibell's testimony
concerning this to be at times somewhat contradictory
and defensive.
Moreover, although not directly related to the Re-
spondent's tip pool policy, Jeannie Gibson testified that
prior to August 3, 1982, she had complained to Dee
Eilert about the Respondent's pay system because she
felt that other employees, receiving the same salary as
she, were performing less work. She stated that Eilert
told her that if she did not like it, "I could go else-
where." The evidence herein shows that by letter dated
April 23, 1982, Gibson terminated her employment with
the Respondent because she felt that she provided better
service than other employees but was compensated at the
same rate as they. Subsequently, about 3 weeks later she
was rehired by the Respondent.
Additionally, Zibell maintained that the Respondent's
tip pool policy was legal because it was voluntarily
agreed to by all the Respondent's employees. Interesting-
ly, however, the evidence shows that when the Respond-
ent changed to the tip pool system in 1981 , the Respond-
ent required its employees to sign a statement which en-
compassed various work rules and regulations , including
the tip pool system changes, and which stated:
By signing this you- agree to all that was stated
above and have read it thoroughly. . , . if not fill in
comments below. . . . This must be signed by all
employees and turned back in or you will not be
put on the schedule next week.5
Also, the parties stipulated that on September 28, 1982,
Charging Party, Mary Alice Tidd, and nine other em-
ployees including, Jeffrey Alan Chanay, Jeannie Gibson,
Brenda Willis, and Peggy Schumacher, "currently have
on file an action in the state court-in the Shawnee
County District Court for the District of Kansas alleging
violations of the Kansas wage payment laws and the Fair
3 For purposes of the tip pool arrangement total revenue included food
and liquor sales receipts and food and liquor taxes
* Additionally, although it is unclear whether the finding was connect-
ed with the Respondent's tip pool system or not , the record shows that
the Kansas Department of Human Resources in June 1982 held the Re-
spondent to be a "willful] violator of the Kansas Wage Payment Act "
According to Zibell, this finding has been appealed and was pending de-
cision at the time of this proceeding . The wage claim appears to have
involved an employee named Chet Elkins.
5 See G.C. Exh. 6. When testifying about the requirement that employ-
ees voluntarily agree to the tip pool system , and acknowledge such
agreement by signing the form presented , Zibell's testimony seemed
equivocal
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Standards Act against the Respondent in this case,
as well as Robert Zibell, Wanda Baird, and Dee Eilert."
B. The Evidence
Jeffrey Alan Chanay, employed by the Respondent as
a waiter from July 1981 through mid-August 1982,6 testi-
fied that sometime in late May -1982, while doing re-
search as a law clerk,' he discovered that pursuant to
court and administrative rulings a maximum of 15 per-
cent is allowable as deductions from employee tips to be
placed in a tip pool. According to Chanay, the Respond-
ent's tip pool policy, wherein "four percent of total reve-
nue" was being deducted from employees wages and
placed in the tip pool, actually amounted to "25-40 per-
cent" of the tips employees received each evening."
Chanay related that he discussed this with Richard An-
derson, Esq., an attorney with the law firm of Colmery,
McClure, Fund, Letourneau & Entz, Esqs., the firm with
whom he "clerks" during the day,9 and then discussed
this information with "five or six" employees including
Loretta Smith, a waitress, Dawn Smithson, a cocktail
waitress and bartender, and Hugh Janda, a waiter at the
time .10 Chanay continued that on Friday, July 16, 1982,
he and Janda met with Anderson to discuss this problem
and Chanay retained Anderson's law firm to represent
him "in any possible wage and hour claim that I might
have against The Loft." The evidence shows that by
letter dated July 22, 1982, Anderson notified the Re-
spondent of Chanay's wage claim and possible penalties
due in the total amount of $10,000, and requested the
payment or warned a lawsuit would be commenced
against the Respondent.""
Zibell testified that sometime in mid-summer of 1982,
he heard rumors that some of the employees were dissat-
isfied with the Respondent's pay system, particularly the
tip pool policy. Zibell stated that he had heard from em-
ployee Hugh Janda that Chanay was dissatisfied, and
from Dee Eilert, his managing supervisor, that Chanay
was a changed employee, "a little more distant." He re-
lated that it was also his impression that Chanay was a
dissatisfied employee. Zibell recounted that because of
the rumors of employee dissatisfaction, "primarily it was
Jeff Chanay," and since there had not been a meeting be-
tween management and the employees for almost a year
to discuss the restaurant's operations and suggestions for
8 Chanay had previously worked for the Respondent from May until
mid-September 1980
7 Chanay is a law'student.
a Zibell testified that the average deduction from the waiters' and wait-
resses' tips approximated 27 percent at this time
e This law firm also represents the Charging Party both in this pro-
ceeding and in others
1° Chanay testified that this occurred in and around June 1, 1982, and
that Janda had previously "served for a period of about six months as a
manager" for the Respondent
11 Interestingly, Chaiiay testified that on July 23, 1982, he overheard a
telephone conversation between Dale Somers, Esq, an attorney with the
firm of Eidison, Lewis, Porter & Haynes, Esqs ., who represent the Re-
spondent herein, and Richard Anderson and Stuart Entz, Esqs, of the
law firm representing the Charging Party herein, which concerned Chan-
ay's demand letter in his "possible wage claim" action He stated that the
discussion centered around settling the claim wherein Chanay would
agree "not to speak to any other employees or anyone about the terms of
my settlement nor anything I discovered as far as my legal research "
improvement, he decided to hold such a meeting on
Sunday, July 25, 1982,12 Zibell added that he met with
the Respondent's other managers and supervisors prior
to July 25, 1982, to discuss what subjects would be cov-
ered at the upcoming meeting but Zibell could not
"recall the specifics" thereof.
Chanay testified that on July 19 or 20, 1982, Eilert ap-
proached him at work and told hun that there was an
employees' meeting scheduled for Sunday, July 25, 1982,
and that he was required to attend the meeting or be
fired. Eilert also asked Chanay to sign "a sheet stating
that I had in fact been told that there was going to be a
meeting, and that the meeting was required."13 Jeannie
Gibson, employed by the Respondent as a cocktail wait-
ress and bartender from April 1981 until August 21,
1982,14 related that on Monday, `July 19, 1982, Eilert
told her about the meeting scheduled for Sunday, July
25, 1982, "and asked me to sign a piece of paper."
Gibson stated that she asked Eilert what the meeting was
about and Eilert responded, "Oh, you know, somebody
is unhappy with the tip pool system and wants to change
it." Mary Alice Tidd, the Charging Party herein and em-
ployed by the Respondent as a waitress and relief bar-
tender from March 1981, until her discharge on August
3, 1982, testified that on Tuesday, July 20, 1982, Eilert
informed her that there was a meeting on Sunday, July
25, 1982, "and to sign the paper that I had been ac-
knowledged of the meeting." Tidd also testified that
prior to July 1982, Zibell would come to The Loft
during the evening, have dinner there, and then leave.
However, in July 1982 this changed and, according to
Tidd, Zibell's presence at The Loft increased and Zibell
and Wanda Baird were there every night, "walking
around supervising throughout the building."15
1. The meeting of July 23, 1982
The record evidence shows that on Friday, July 23,
1982, several employees held a meeting at the apartment
of employee Bunny Evans to discuss the management-
employee meetings scheduled for Sunday, July 25, 1982.
Present at the meeting were Jeannie Gibson, Brenda
Willis, Mary Alice Tidd, Dawn Smithson, Peggy Schu-
macher, Carol Herron, Jeffrey Chanay, and Evans her-
self 16 Chanay testified that the meeting occurred late in
the evening "probably 11:30, midnight, I would imag-
ine." Chanay stated that he had been invited to attend
the meeting by Jeannie Gibson, a bartender, who told
12 Zibell stated that the rumors of Chanay' s dissatisfaction were con-
firmed when about July 23, 1982, he received the "wage claim" letter
from Anderson, on Chanay's behalf, notifying the Respondent of Chan-
ay's wage claim allegations , based upon its "improper maintenance of a
tip pool under minimum wage law "
18 Zibell testified that he probably instructed Eilert to obtain the signa-
tures of employees so that "all employees who were supposed to attend
the meeting, did . . Because I wanted them to be there Those people
that were directly involved in the tip pool."
14 Gibson commenced her employment with the Respondent as a hos-
tess She voluntarily terminated her employment with the Respondent on
August 21, 1982.
11 Baird testified that from July 25, 1982, through August 1982 she
spent more time at The Loft than before -
1e See the testimony of Chanay, Gibson, Tidd, and Schumacher These
employees all testified herein as witnesses for the General Counsel.
"THE LOFT"
him that "several employees were going to get together
and to discuss what was going to be coming up on the
meeting on the 25th." Chanay added that another em-
ployee, Hugh Janda, appeared at the meeting near its
conclusion and "about an hour and a half, two hours
after it began ." Chanay related that they discussed "tac-
tics .. . how we could be a strong group for the meet-
ing [July 25 , 1982]" and Chanay was questioned about
his "investigation into the wage system."17
Jeannie Gibson testified that, while this meeting was in
progress, they received a telephone call, which she an-
swered, from Dee Eilert , the Respondent 's managing su-
pervisor. Gibson related that Eilert asked her who was
present at the meeting and Gibson responded that Bunny
Evans, Carol Herron," s Mary Alice Tidd, Peggy Schu-
macher, and she were there.19 According to Gibson,
Eilert asked to speak to Schumacher and after she gave
Schumacher the telephone receiver, Schumacher mo-
tioned for her to listen in on the conversation with
Eilert, which Gibson did although she did not inform
Eilert that she was now listening to the conversation be-
tween Eilert and Schumacher . Gibson stated that Eilert
was "upset and crying" and said, "That fucking Jeff
Chanay, he started all of this."20
Peggy Schumacher, employed by the Respondent
from February until August 6, 1982, related that Eilert
asked her over the telephone who was at the meeting
and "why we were there." Schumacher stated that she
told Eilert that "There's just some people here from
work" at the meeting without mentioning any of the
other employees ' names and Eilert did not press her fur-
ther". She added that Eilert commented that "[C]hanay
should be hung by his heels." Schumacher testified that,
although Eilert did not threaten to discharge any em-
ployee who might be at the meeting, nor did Schu-
macher feel intimidated by Eilert's telephone call, she
did not tell Eilert who was present at the meeting when
Eilert asked her about this "[m]ainly because if she knew
who was there-we were all afraid that we were going
to be terminated is basically what it boiled down to, or
phased out. . . . Your scheduling gets less and less each
week. You go from five clays to four days three days, all
of a sudden you're on one day."21
17 The testimony of Gibson, Tidd, and Schumacher concerning the
discussions held at this ,meeting was somewhat similar The discussions
generally centered around the Respondent's "tip pool policy" and em-
ployee counterproposals to the Respondent 's wage system
18 On cross-examination counsel for the Respondent used the name
"Carol Jones" apparently for Herron's
18 Gibson assumed that all the other employees at this meeting heard
her give Eilert the names of these five employees, but she added that,
"[T]hey may not have been paying attention" to what she was saying on
the telephone, or may not have heard her mention the employees' names
20 Chanay testified that during the meeting , either Jeannie Gibson or
Bunny Evans answered a telephone call, which they learned was from
Dee Eilert , and he overheard Gibson or Evans recite the names of
Gibson, Evans, and Schumacher into the telephone Tidd testified that
Eilert had called Evans' apartment during their meeting and that either
Gibson or Evans had answered the call and told the other employees that
it was Eilert on the other end of the phone
21 On cross-examination Schumacher stated that there were nine em-
ployees present at the meeting at Bunny Evans ' apartment on July 23,
1982 However, no further explanation was sought about this , This would
not be contradictory to her other testimony since at one point late in the
1447
Mary Alice Tidd testified that Hugh Janda arrived late
at the meeting when the employees present had finished
their discussion of "other business " and were then only
having "light conversation ." She stated that after the
meeting was over, she met Janda in the apartment build-
ing parking lot and Janda told her that lie was upset with
the employees who attended the meeting because he had
come there to tell them about Zibell's wage proposal, but
the employees had been "cold" towards him, and had
not told him about what had occurred at the meeting
prior to his arrival.
Dee Eilert22 testified that about 10 to 10:30 p.m., on
July 23, 1982, while she was at the restaurant , she re-
ceived a telephone call from Peggy Schumacher near
closing time . 23 Eilert stated:
Well, she asked me if I knew that they had a
meeting, and I said that I'd heard that there was a
meeting but I didn't know if it was true. She also
told me that she was supposed to be the spokesman
at the . . . general meeting we were going to have
the following Sunday.24
She made the comment that she didn 't want to
pull out on me but that she 'd have to if she only got
paid so much money . That she knew that it was
hard for me because I was on both sides. That Bob
was a crook, that he was keeping part-he was
pocketing part of the tip pool money , and that she
thought they were paying too much into the tip
pool. This was some of the things.25
Eilert denied that she had called the employees at Bunny
Evans' apartment , or that she asked Schumacher who
was at the meeting or what they had discussed there.26
She also denied speaking to Gibson or Evans over the
phone. Additionally, Eilert admitted that she was con-
cerned about what was going to happen at the July 25,
1982 meeting.
2. The meeting on July 25, 1982
The Respondent held a meeting at its facility on July
25, 1982, attended by approximately 50 employees, most
of whom were either contributing to the tip pool system
or were receiving payments therefrom . Representing the
Respondent at this meeting were Zibell, Eilert, and
Wanda Baird , the Respondent's operations coordinator
meeting Hugh Janda joined the meeting making nine employees present
at that time
22 Eilert, employed by the Respondent "probably five to six years,"
testified that her duties as managing supervisor were to "oversee all the
nightly operations and directly supervise all the waitpersons, bar-
tenders, hostesses, indirectly supervise kitchen people ." She admittedly
hires and fires employees. Eilert testified as a witness for the Respondent.
25 Schumacher testified that on the evening of July 23 , 1982, she
worked the evening shift at the restaurant from 5 p in until sometime be-
tween 11.30 and 12:30 p m
24 Schumacher denied that she had ever told Eilert that she had been
appointed spokesperson for the employees
25 Eilert testified that Janda had told her earlier, on July 22 or 23,
1982 , that there was going to be an employees ' meeting at Bunny Evans'
house, but not the reason for the meeting She was curious about what
the employees were going to discuss at this meeting
28 Eilert admitted that she and Schumacher were friends and had gone
out socially together after working hours
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and bookkeeper . Zibell testified that , "[W]e started out
discussing business in general which took the first hour
of trying to figure out why business was off and to ...
come up with ways to improve business . Then we talked
about the pay system to find out if there was displeasure
with it or if there were people that were unhappy with
it."27 Zibell related that several employees indicated
their unhappiness with the pay system although a majori-
ty of the employees present expressed satisfaction with
the system.28
At this meeting , Zibell distributed what he termed a
"representative" list of names of employees participating
in the tip pool system with their hours of work , rate of
pay, and individual earnings for a given period of time.29
Zibell testified that he had directed Baird to randomly
select employees ' names and come up with a representa-
tive list which would "give people an idea of what they
were making." He stated , "I wanted to . . . show them
what they were making , I thought , fair wages given the
economic climate of the area and in comparison to what
other restaurants are paying in Topeka ."30 Zibell related
that he told the employees that if they were dissatisfied
with the current pay system , they could come up with a
new pay plan, and he would implement it if it did not
increase the Respondent 's costs. Zibell added that he told
the employees to come up with a new wage policy by
the following Sunday, August 1, 1982. Zibell also ac-
knowledged that he had told the employees at this meet-
ing that there would be no salary increases . He also ad-
mitted the possibility that he used "profanity" during the
meeting.
Chanay testified that during the meeting on July 25,
1982 , Zibell did "most of the talking" at first, discussing
"that the state of the business ... the state of the econo-
my, what could be done to increase sales and make busi-
ness go a little better ." Chanay stated that Zibell inquired
if there was "anything that people weren't happy about"
and employee Carol Herron "said that she wasn't happy
with the money she makes ." Chanay recounted that
Zibell then stated:
"Well, what is it that you think is wrong about the
policy? Is it the amount of money you make or
what?" He had said that we were all making suffi-
cient money . And in dealing with the specifics of
what was wrong , he asked Mary Tidd what was
specifically wrong, if she knew what was illegal
with the pay system . And she said , "To be included
in a tip pool , don't those employees have to be em-
ployees that face . . . customers."
2' Zibell stated that the meeting lasted 3 to 4 hours and was taped be-
cause "its been our practice in the past to tape meetings so that those
people that cannot make the meeting can listen to the tapes at a later
time "
28 While at first maintaining that only Chanay had disagreed with the
tip pool system , he then acknowledged that Tidd , Schumacher, and
others also opposed it
2' The list contained the names of 21 employees (G.C. Exh 3) Seven
of the employees listed had attended the meeting on July 23, 1982, at
Bunny Evans' apartment
31 Zibell testified that the Respondent 's employees were receiving
wages at least equal to or better than employees at other restaurants in
Topeka, Kansas.
Chanay continued that Zibell also directed specific ques-
tions at him that dealt with "my interpretation of the ap-
plicable federal and state wage and hour laws as dealing
with tipped employees ."31 Chanay related that while
Zibell was directing questions at him Zibell 's demeanor
changed at times, varying from "inquisitive to antagonis-
tic to on occasions sarcastic , and angry at times as well,"
He added that Zibell's demeanor was sarcastic when he
directed questions toward Mary Alice Tidd concerning
the legality of the tip pool pay system.
Chanay also recalled that at this meeting Zibell stated
that "[t]hose people who were unhappy with the system
were being bad apples , they were rocking the boat, they
were causing turmoil amongst employees . . . that if
anyone was not happy , they should quit ." Chanay relat-
ed that Zibell then "raised a voluntary termination letter
... and stated that if you didn 't like the way things
were, you could hit the door and sign the sheets."32 He
continued that Eilert similarly stated to employees that,
"You bad apples , rabble rousers , you get out of here if
you don 't like what your doing . We can get anyone off
the street to replace you at half the cost." Chanay re-
membered that Zibell or Eilert had used the number
"eight" in referring to employees who were grouped as
"bad apples, rabble rousers, people who are rocking the
boat," although neither made any reference to the July
23, 1982 employees ' meeting.33
Regarding the July 25, 1982 meeting , Mary Alice Tidd
testified similarly to Chanay, relating that "The meeting
started out with we had a lack of business , what were
the problems , how could we help take care of them. And
it went in later into the tip pool policy and the unhappi-
ness of employees ." Tidd continued:
I only spoke once and that was to the point Bob
had handed out a piece of paper with the names of
some of the employees and what we were making
an hour . And he said , "Now tell me , if you're
making this much money, how can it be illegal?"
That is when I made my first statement . I said,
"What we make an hour is not , what makes it legal
or illegal." He jumped back very fast , "Well then,
Mary, you tell us what is legal or illegal." And I
told him that I felt that everybody who was on the
tip pool system shouldn 't have been as far as any-
body that did not see the customer directly. Then
he told me, "You show me that in writing." And I
did not say anymore.
Tidd recalled that Zibell had used the words "rabble-
rouser" and "bad apple" during the meeting, and that
Eilert had said that "she put her whole life into it and
31 Zibell testified that he had asked Chanay for his opinion of the tip
pool system and Chanay said that he thought the system was illegal,
32 Zibell acknowledged that he told employees at the meeting that if
they were unhappy with the amount of their earnings, they could go else-
where, and that he may have held up a resignation form when he said
this.
33 Chanay associated the remark made by either Zibell or Eilert about
"eight bad apples" and/or "rabble-rousers" with the eight employees
who had attended the July 23 meeting at Bunny Evans ' apartment.
"THE LOFT" 1449
she wasn't -going to let the `eight bad apples ' tear every-
thing up."34
Tidd recounted that Zibell told the employees to meet
together, discuss the problem, come up with "a new
policy as long as it didn't increase his payroll ," and bring
their proposal back -to him the following Sunday. Tidd
stated that the employees told Zibell that they could not
possibly accomplish this by the next Sunday since the
employees worked at The Loft "every night," and could
only meet together as a group on Sundays , and Zibell
wanted " 100 percent" agreement by the employees on
any, new wage policy proposal. However, while Tidd
stated in an affidavit dated September 2, 1982, given to a
Board,-agent during the investigatory state of this pro-
ceeding, that Zibell had requested that the employees
bring back their new wage proposal by the next Sunday,
she, failed , to include therein that the employees told
Zibell that they could not meet this deadline, as it were.
Albeit not stated therein, Tidd maintained that the em-
ployees had in fact advised Zibell that they could not
present a new wage proposal to him by the following
Sunday. , Tidd added that Zibell told the employees that
he was going to change the ",tip pool policy regarding
taking four percent of the gross sales."
Peggy Schumacher testified that Zibell, at the meeting
on July 25 , "started out'discussing the plans for adding
on to the The Loft and the Showcase . Then it went into
a discussion of how we could improve the menu, new
items. And then the final phase of the meeting was about
how' we were unhappy with the tip pool system." She
stated that , during the meeting Eilert "pointed out that
there were `eight bad apples or rabble-rousers ' that were
causing the - problems. " She added that she particularly
remembered Eilert 's comment because "I thought it was
. .. curious to think that she knew that there were eight
and there happened to be eight of us at that particular
meeting. The one at Bunny Evans' home."35 While Jean-
nie Gibson also recalled that Eilert had "referred to sev-
eral of the employees without mention to any names,
that` there was some `bad apples' in the groups," she
could not remember if Eilert had specified or mentioned
the number of employees.
3. What occurred on August 2 and 3, 1982
Tidd ' testified that on August 2, 1982, Eilert ap-
proached her in the checkout room and asked her if the
employees had met to formulate a new tip pool policy.
Tidd related that she responded "no," and Eilert retort-
34 On cross-examination Tidd was questioned whether she included in
her Board affidavit that Edert had used the words "eight bad apples "
Tidd testified that she was not sure about this and thought she may have
phrased it in her statement as "bad apples and rabble rousers." However,
she admitted thereafter that she may not have included either in her
statement
35 An affidavit dated September 2, 1983, given by Schumacher to a
Board agent, contains no mention of the July 23 or 25, 1982 meetings
However, Schumacher testified concerning the affidavit, "If it's not con-
tained to the affidavit, then it was not pertinent to what [the Board agent]
was discussing" Additionally, Schumacher believed, that her statement
comprising the affidavit was taken as a response to the Board agent's di-
rection to "relate what happened as to this incident when you were with
Mary [Tidd]," obviously relating only to the events occurring at the time
of Tidd's discharge
ed, "Well, you ' knew tonight was the deadline." Tidd
stated that she told Eilert that she was not aware that
any deadline had been imposed concerning this.
On August 3, 1982, Zibell changed the Respondent's
tip pool policy and distributed to employees a two-page
handout which detailed the changes.36 Zibell explained
that he had changed the tip pool arrangement because
there were employee complaints about the way the
system operated and the amounts that were being con-
tributed to the pool by employees, and because the old
system was no longer "voluntary" since at least one em-
ployee disagreed with it. Zibell stated that he decided to
devise a legal tip pool system in which the consensus of
all employees was not necessary, and individuals would
contribute to the pool based on their total tips and not
on their total sales. He related that he wanted employees'
overall ,compensation to remain the same and made ap-
propriate changes to accomplish this. Zibell added that
the new system was ' discussed with the general counsel
of the National Restaurant Association who confirmed
the legality of this new tip pool system.37
Zibell testified that employees were given copies of a
two-page handout which detailed the changes in the tip
pool policy and that he had "individual meetings with
the employees as they arrived for their scheduled shifts"
wherein he explained the new system to them. Zibell re-
called specifically explaining the new wage system to
Mary Alice Tidd but did not recall that she made any
comments about it at the time. The changes, detailed in
the handout, provide in relevant part, as follows:
15% of total tips collected will go into the tip pool
nightly. Tip pool will be distributed back to bar-
tenders, hostesses, prep people based on a percent-
age of hours worked . . . Wait,'l5ersons will rotate
into various other positions at the -discretion of the
management . . . a 15% service charge will contin-
ue to be added to tables of 6 or more but this will
become part of the establishments total sales and
will not be passed back to the wait people as a tip.
Moreover, the second page of the handout explaining
the new pay arrangement contains a space for employees
to sign indicating that they have read the handout and
agree to work under this pay system. Zibell testified that
he wanted employees to sign the sheet in order to ac-
knowledge that they had been informed of the new pay
arrangement and that he was taking a tip pool credit.
According to Zibell, he did not require that employees
sign the sheet before they were permitted to report for
work, and that not all employees signed and returned the
document. Zibell added that no employee was threatened
with discharge or in fact discharged for failure to sign
the sheet detailing the new pay arrangement. Eilert testi-
fied. that while Zibell "asked, that, [employees] please sign
33 Zibell testified that he had unilaterally instituted the new tip pool
policy on August 3, 1982, because the employees had failed to come up
with their own proposed wage plan by Sunday, August 1, 1982
39 Baird testified that at Zibell's request she contacted the National
Restaurant Association about the legality of the new tip pool system and
reported back to Zibell about her findings Zibeli" testified that Baird had
told him that the system was "perfectly all right."
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it. He did not tell them that they had to." She indicated
that employee Brenda Willis did not sign the document
regarding the tip pool policy . She explained that the
reason employees were asked to sign this document was
that it was important that they understand the new tip
pool policy.
Tidd recounted that she reported to work on August
3, 1982, and was informed that a meeting was being held
upstairs . She proceeded to the meeting where she was
handed a copy of the Respondent 's new tip pool policy,
and she listened to Zibell reviewing the new policy with
employees . Tidd stated that she was required to sign the
document containing the new tip pool policy, testifying:
Dee Eilert . . . asked me if I was going to sign it.
I told her that I had not read it and that I would go
down and set up and then I would read it.
Bod Zibell informed me at that time that it had
to be signed before I reported back to work. So I
stopped , I read it , and I told them that I did not
agree with it. And he said , "Do you understand it?"
And I said , "Yes, I understand it but I do not agree
with it." And he told me that if I did not agree
with it , that was the policy and if we didn 't agree
with the policy , then we knew where the door was.
So I signed it telling him that I did not agree with it
and reported back to work.
Tidd added that the major changes appearing in the new
tip policy , aside from the change in the amounts contrib-
uted by employees , from 4 percent of total revenue to 15
percent of total tips , were that the 15-percent gratuity
imposed on tables of six patrons or more was now con-
sidered a service charge instead of a gratuity and added
to "the total sales of the establishment," and that em-
ployees were not to be interchanged among the various
job categories at the facility.
4. The discharge of Mary Alice Tidd on August 3,
1982
Tidd testified that later that day, August 3, 1982,
toward the end of the evening, waitress Cathy Carothers
approached her in the bar area after servicing a table of
six customers and asked her how she should fill out the
charge, whether she should place the 15-percent service
charge on the tip line or on the line indicating total sales.
Tidd stated that she informed Carothers that she would
put the charge in "the top line as total sales because it
was no longer a gratuity or a tip, it was not considered
total sales for the establishment." Tidd added that her
conversation with Carothers ended at this point.
Tidd related that subsequently she observed Carothers
coming out of the checkout room with "a very sad, dis-
appointed look on her face," and Tidd asked her,
"[H]ow did her evening go." Tidd recounted that Car-
others told her that she had made only $11 that evening
and that Eilert had kept the $15 that the party of six had
added onto the tip line of her charge. Tidd continued:
I told her to go back in and demand her money
back, the $15.00. . . . Cathy said that-Cathy was
too scared to and she would do it next time. And I
tried to convince her that Bob did say earlier in the
meetings that anything extra left would be ours.
And I tried to encourage her to go in and stand up
for that $15.00.38 '
Tidd stated that while she and Carothers were standing
there, "a voice from the checkout room, which came
from Dee Eilert, yelled out and said, `Mary, if you have
anything to say, say it to me."' Tidd added that she did
not reply to Eilert, and the conversation between her
and Carothers ended.
Tidd testified that later that same evening, while she
was in the bar area waiting for two customers to fill out
their charge slip , and in close proximity to another wait-
ress, Joyce Cramer, whom she had asked "how her
evening had went,"39 Eilert came out of the checkout
room, "grabbed my arm, took off down the hall, whirled
me around, slammed me into the wall." Tidd stated that
when Eilert grabbed her arm and "took off with me"
down the hall, she lost her balance and was thrown into
the wall.40 Tidd recounted that after she regained her
balance she followed Eilert down the hall whereupon
Eilert told her to "shut my mouth." Tidd continued:
I then told her that she had no right to take Cathy's
$15.00. She told me that the customer was not
aware of the 15 percent added on. And I said,
"Well, let's call that customer." And she told me
that she had already called him. And I said , "Well,
then at that time did you tell that customer that
Cathy never got one cent of that?" And Dee turned
around and stomped off and said no more.41
Tidd related that she then returned to the table she had
been servicing to get her charge slip , and the customers
sitting there asked her if she was okay. Tidd added that
she said she was fine and she then walked back to the
bar area to put her change in the charge drawer.
Dee Eilert testified that towards the end of the
evening on August 3, 1982, while checking out the wait-
ers and waitresses , she noticed that waitress Cathy Car-
others had incorrectly included on the charge form of a
party of six, the 15-percent service charge in the total
amount of the tab appearing as one sum in the sales
column. The customers had also included a $15 addition-
al amount as a tip and Eilert now questioned Carothers
whether "she thought the man knew that . . the serv-
ice charge had already been added in that total." She
stated that Carothers responded that she did not think so
33 Tidd explained that she thought that Eilert's keeping the $15 was
improper because "the 15 percent service charge was added into the tab"
already and "that $1500 was an additional $ 1500 that was left for
Cathy "
39 Tidd stated that Cramer was dust standing beside her , "but we
weren't in direct conversation She was getting ready to go upstairs "
Tidd maintained that Eilert was not "in a position to overhear my com-
ments passing between" her and Cramer
40 Tidd testified that it was her impression that Eilert "probably never
meant to slam my face into the wall , but she did violently grab my arm
and yank me"
41 Tidd testified that she did not feel that Ellett had had enough time
to contact the customer , stating , "She had told me that she had called
But the customer had only been gone about 15 minutes "
"THE LOFT" 1451
because, "[H]e didn't even look at the tab." Eilert related
that she telephoned one of the customers in the party
and asked him if he knew that the service charge had
been added on already, and he told her that he had not
known this and requested that she rewrite a new charge
slip without the additional tip. Eilert stated that she then
rewrote a charge slip4 z and "finished checking Cathy
out." Eilert continued that Carothers then left the check-
out room and soon thereafter she heard Mary Alice Tidd
and Carothers "talking out in the next room, but I really
couldn't hear what they were saying until I hear Mary
say very loudly, `Well, she can't do that.' And I assumed
that they were talking about the situation that had just
occurred. And I said-loudly enough for Mary to hear, I
said, `Mary, if you have anything to say, why don't you
say it to me."' Etlert added that although the conversa-
tion between Tidd and Carothers had now ceased, it was
soon resumed again and Eilert again said , "Mary, please,
if you have anything to say, please say it to me," at
which time, "the conversation between Tidd and Car-
others ceased for good."
Eilert testified that after she had finished with the em-
ployees in the checkout room she walked out and no-
ticed Tidd in a corner talking to another waitress "about
it," the Carothers incident. Etlert stated that she went
over to Tidd who was standing about four or five steps
above a dining area in which customers were still seated
and attempted to explain her actions concerning Car-
others. Eilert related that Tidd started to "get very
loud" and she therefore took Tidd's arm and directed
her to another location so that the customers could not
hear their discussion. Eilert recounted that Tidd pulled
her arm away and then followed Eilert down the hall
where again she tried to explain to Tidd the procedure
she followed when a customer had "double-tipped"
without knowing it or had paid more than he thought he
was paying. According to Eilert, Tidd:
[S]tarted getting very loud, yelling at me, saying
that I treated the employees like animals , using pro-
fanity, other things like that. I, you know, was
trying to explain to her.
So finally she screamed, "Why don't you fire me,
why don't you fire me so I can claim unemploy-
ment?" And I said, "Well, Mary, I don't want to
fire you." And in the conversation too I had told
her that I wanted her to shut up because she was
getting loud enough that I knew customers could
still hear us no matter where we were. So then she
screamed that at me and I told her I don't want to
fire her and I'd had enough and I walked away.43
41 Etlert believed that the customers had paid with an American Ex-
press charge card
43 Eilert testified that during this conversation with Tidd, Tidd had
used the words "Fuck, God damn it," things like that, "two or three
things " She added that she did not fire Tidd for this nor recommend any
disciplinary action against her. However, at a previous Kansas unemploy-
ment compensation hearing, Eilert could not remember what obscene
language Tidd used during their conversation. Tidd denied using profani-
ty in their conversation and also denied daring Eilert to fire her
Eilert added that Tidd made no "specific complaints
about the pay system or the working conditions that she
was operating under at the time," nor did Tidd indicate
that she was "acting on behalf of any group of employ-
ees" during their conversation.
Eilert continued that after her conversation with Tidd
had ended , she went upstairs toward the lounge. She
stated , "I was a little bit upset. I guess obviously so, be-
cause I walked by Bob and he said, `What's the matter?'
I said, `Well, Mary Tidd is going on downstairs and I
can't handle it.' And then I walked off by myself."44
Zibell testified similarly about his interchange with Eilert
in the lounge area, to the effect that Eilert was having
problems with Tidd.
Tidd testified that about 5 to 10 minutes after her en-
counter with Eilert on the evening of August 3, 1982,
and while standing near the bar area , Zibell walked up
behind her and asked her if she had a problem , and she
responded, "No Bob, I don't." Tidd stated that she reset
her table and while she continued her work, Zibell fol-
lowed her about for 5 or 10 minutes until finally, when
she was preparing to check out, and Zibell had followed
her to this area as well, she turned and said to him, "Yes,
Bob, I -do have a problem. Let's go talk about it.1145
Tidd related that Zibell responded, "I don't want to talk
to you about it." Tidd continued:
And so at that point I began to tell him that I
thought he was being unfair to his employees, that
he could not treat us like we were animals. I pro-
ceeded to tell him what a good employee I had
been. I had been with him for a year and a half.
And that anytime he called on me any minute that I
would be there if somebody didn't show up. I tried
to stress to him that what he was doing to the em-
ployees was hurting him in the long run.
And he never replied to me on anything . He just
stood there and grinned. At one point he said, "It's
my business, I'll run it the way I want it." I was
upset, I was crying, and I tried to get the point
across that he had built that place with his hands,
he had made it what it was. But his waitresses were
very important to him and they could tear it down,
by when he was unfair to them or wasn't good to
them, then their attitude reflected off on the cus-
tomers.46
44 Jeannie Gibson testified that on the evening of August 3, 1982, as
bartender , she had served Etlert approximately 16 ounces of wine, two
full glasses , between 5 and 7.45 p in and that Eilert had consumed all the
wine because Eilert had returned the empty glasses to the bar She also
testified that Eilert had "acted differently" that evening , explaining that
Eilert "had asked her to leave early which I didn't understand because I
was training another young man who hadn 't worked enough, I felt,
enough to , you know, to have him stay by himself So I thought that was
a little strange ." Eilert acknowledged that it was not unusual for her to
have a drink or two while she was at work and that she may have con-
sumed "some wine, some cola" but that no one suggested that evening
that she had been drinking alcoholic beverages which impaired her judg-
ment
45 Tidd testified that Zibell 's action in following her about the restau-
rant was unusual , he had never done that before.
46 Tidd explained that she was trying to give Zibell her opinion of
how he ought to approach his employees , to try to get their respect by
Continued
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tidd recounted that right before the end of this con-
versation, Peggy Schumacher came downstairs to punch
out on the timeclock located "behind us." Tidd contin-
ued:
[Schumacher] walked up and said, "Mary, it's not
going to do you any good." And that's when I told
her to shut up, I didn't want her in on it. And at
that point Bob told me I could pick up my pay-
check the next morning.
I then asked him why -I was being fired, I would
like to know. And Peggy at that-following me
said, "Bob, why are you firing Mary?" And he said,
"For calling me an ass hole." I told him that I did
not call him an ass hole. I said ,, "It really doesn't
matter, it's your word against mine ." And Peggy at
that time said, "No, it's our word against his."
So I at that time got all the money out of my
drawer and turned around to walk to the check out
room and to leave. And I at that time turned
around and told Bob, "You are an ass hole."47
Tidd testified that the conversation between them
lasted 10 to 15 minutes and that during the conversation
she had become angry because while Zibell appeared to
be listening to what she was saying, she felt that he was
ignoring her meaning and intent. Tidd related that she
was also crying at the time and although she at times
had raised her voice, speaking loudly but not yelling,
Zibell never raised his voice at all. Tidd agreed, in • re-
sponse to a question about this from the Respondent's
counsel, that if she had called Zibell "a profane name"
prior to her termination, "pursuant to the policies in
effect at the time of [her] termination, he would have
grounds to terminate [her]." However, Tidd stated that
she had never been "reported for cussing or using pro-
fane language."
Peggy Schumacher testified that she was present
during the end of the, conversation in which Zibell termi-
nated Tidd. She stated that Brenda Willis was also there
standing on the steps leading down to the 'basement.
Schumacher recounted:
Well, basically what it was, when I came down-
stairs and Mary and Bob were, you know, in the
bar downstairs. And Mary was saying, "Bob," you
know, "The employees, are helping you, why can't
you in turn help us? You're going to ruin your busi-
ness if you don't, you know, take care of us or help
us out. ..." And then Bob in turn said, "Mary,
you can pick up your check." And that's when I
said "Bob, why are you firing Mary?" And he
treating them properly She stated , "So when I was talking , I was not
talking pure money I'm talking about the respect for your employees If
you respect your employees , you'll get more out of them "
47 Tidd maintained that she called Zibell and "ass hole" only after he
had already fired her and that she had not called him any obscene names
prior to his discharging her It should be noted that in her Board affida-
vit, Tidd had stated that Zibell had accused her of calling him a "son of a
bitch" as the asserted reason for her discharge However, Tidd explained,
"In my affidavit I said, 'son of a bitch' At that point I was not sure
which I was informed, 'Do the best you can recall' I've done a lot of
thinking and I firmly believe today that I said 'ass hole'-or that he said
'ass hole,' excuse me "
turned to me and he said, " Because she called me
and an ass hole." And I said, "No, she did not call
you an ass hole." And Bob started walking off and
Mary said, "See, Bob, that's two against one, I did
not call you an ass hole." And that's all that I
heard.48
Schumacher believed that Zibell had then left, ending
the conversation. She acknowledged that she did not
hear any later conversation between Tidd and Zibell, nor
Tidd call Zibell,and "ass hole" after she was terminated.
Brenda Willis, employed by the Respondent from Oc-
tober 1980 until August 14, 1982, testified49 that she was
present at The Loft on August 3, 1982, and overheard
part of the conversation between Tidd and Zibell which
took place near the bar, area "downstairs in the base-
ment," another part of the restaurant. Willis stated.
I went downstairs to take some towels down and
also clock out because I'd finished my duties for the
night. And Mary Tidd was downstairs and Mr.
Zibell was down there also. And Mary was saying
to Mr. Zibell that-asking him how he could be so
inhumane, how could he do this type of thing to his
employees in reference to the new policy that was
being implemented. Mr. Zibell commented by
saying that this was his business and he ran it the
way that he wanted to. And if someone didn't agree
with the policies, you know, that they didn't have
to work there.
And at that point I left from the clocking area
and I was going back up the stairs. And Mary made
a comment that the reason why The Loft was so
popular was because that the employees spread the
word. And by that time I was up the stairs, went
back up the stairs and told Peggy that I thought
there was a heated conversation going on between
Bob and Mary. And then Peggy went down-
stairs.... And later I started back down the,stairs
but I could still hear their voices and they were
kind of raised, so I went back up the stairs. 59-
While Willis testified that she could hear both Tidd's and
Zibell's voices, she acknowledged that Tidd had raised
her voice but that Zibell had not.
Robert Zibell testified that after Eilert had informed
him that she was having problems with Mary Tidd and
"she couldn't take it any longer," he went downstairs to
4e Schumacher testified that she was present only briefly, maybe 3
minutes, dunng the conversation between Tidd and Zibell and only to-
wards its end Schumacher acknowledged that she had no personal
knowledge whether Tidd made any profane statements to Zibell prior to
her coming into the room. She also stated that Tidd was "quite upset"
and had raised her voice loudly but was not screaming while Zibell did
not raise his voice -
49 Willis testified as a witness for the General Counsel
so It is interesting to note that, according to the testimony of Willis
and Schumacher, Willis heard an earlier part of the conversation between
Tidd and Zibell She and Schumacher heard a later part and then Schu-
macher was present at the last stage of the conversation when Tidd was
fired by Zibell Willis testified that she was not present when Zibell ter-
minated Mary Tidd
"THE LOFT"
the, checkout room and saw Tidd through a door in the
service area. He related:
And she was slamming doors. she was restocking
her station but it was obvious that she was very
upset. She was throwing things around.
I' asked her what the problem was. At that point
she said there was no problem. However a few sec-
onds later she said there was a problem. She then
told me that I had no respect for my employees.
That she had worked there for several years and
that she was a very devoted employee. That I treat-
ed - them like animals. That I cared nothing for
them.
She said that I was not fair to the employees by
changing to this other tip pool system. I told her
that I had explained the system to her and that I felt
that it was still a fair system. . . . She continued to
grow more irate. She said that she liked to be
screwed but not by me. That she was going to take
me to Court. Sue me for hundreds of thousands of
dollars. This went on for probably a period of 10
minutes. And it finally got to the point where she
said , "You are a fucking asshole." She said that
twice to me. I said, "You are fired." You can pick
up your check next week!
Zibell stated that Tidd's voice level was "fairly high
. and it continued to grow from there." He continued
that Peggy Schumacher was present "during the majori-
ty of the time . . . . She did very little other than to try
to calm down Mary Tidd . . . . She had very little to
say."51 Zibell added that Tidd's claims regarding treat-
ment of employees played absolutely no part in his deci-
sion to terminate her, that had Tidd not made these
claims but had just called him the profane names she al-
legedly had, he "would have fired her on the spot."52
Moreover, Zibell testified that he was not surprised to
hear Tidd use profanity because "I think I probably
heard her say it before. Or, you know, use some profani-
ty but I am not positive." However, he pointed out that
in their conversation the profanity had been directed spe-
cifically at him. Additionally, although Zibell testified
si Zibell maintained that Schumacher was present when Tidd called
him a "fucking asshole."
°E That Zibell was somewhat perturbed and possibly angered by what
Tidd had said to him during this conversation, aside from her allegedly
having called him a "fucking asshole," is clearly evidenced in the record
Q. Mr. Zibell, during your conversation with Mary Tidd who you
terminated , I believe it is your testimony that she complained about
the tip system that you had just implemented?
A. Yes
Q. And you also testified that she accused you of treating your
employees like animals?
A. That is correct.
Q Didn't that make you angry, what she was saying?
A. I didn't appreciate being told that I treated my people like ani-
mals, no. -
Q. And she also made comments on how you were running your
business?
A. Yes
Q. That also made you angry some?
A Well, I felt that it is my own business really You know, as
long as I run it in a legal manner I can run it the way I choose So
that didn't really bother me
1453
that he had not followed Tidd about while she was per-
forming her duties just prior to the conversation which
led to her discharge, he acknowledges that he may have
testified differently at Tidd's "unemployment hearing"
held prior to the instant proceeding.
Dee Eilert testified that she was in the checkout room
during the length of the conversation between Tidd and
Zibell and overheard "just about" everything that Tidd
said but not what Zibell was saying because he was
speaking in a low tone. Eilert stated:
I heard Mary tell Bob that he was unfair. That he
was treating the employees like animals. That she
likes to get screwed but not by him. That she hadn't
had any sleep lately because she was laying awake
nights thiking of ways to knife him in the back.
That she was going to take him to Court. And win
hundreds of thousands of dollars. And that he was a
fucking asshole. A lot of the conversation went on
like that . . . . I tried to not listen to very much of
it . . . . And I was trying to discourage any other
employees from being too interested in it. . . . I did
hear her say something about she had been a devot-
ed employee and he didn't appreciate that. But I
don't remember everything.
Eilert added that she did not actually overhear the point
at which Zibell fired Mary Alice Tidd and therefore did
not know whether any comments made by Tidd, regard-
ing Zibell being a "fucking asshole," came before or
after she was fired.
Wanda Baird testified that she was not present at The
Loft on the night that Zibell discharged Mary Alice
Tidd. Baird related that she lived with Zibell and that
late that evening of August 3, 1982, Zibell came home
and advised her that he had fired Tidd because she
called him a "fucking asshole."
Eilert testified that sometime in 1981 the Respondent
prepared and distributed to all employees a six-page
"general welcome and policy statement" (R. Exh. 2)
which contained a set of rules and regulations governing
employees at The Loft. Eilert stated that a copy was also
given to all new employees hired subsequently, and that
these rules and regulations remained in effect with little
change throughout 1982 and thereafter. Eilert related
that the Respondent did not require employees to sign or
acknowledge that they had received a copy of this state-
ment. On page 4 thereof, under the heading, "Conduct
that will result in immediate termination," subdivision 3
lists, "abusiveness toward a customer or employee,"
while under the heading "conduct that will result in ter-
mination" subdivisions 2 and 4 list, "insubordination,"
and "uncooperativeness with fellow employees and su-
pervisors," respectively. On page 5 of the "welcome and
policy statement" under the heading "Policies We
Have," it is stated, "Profanity is not allowed and could
be grounds for termination." Eilert added that she did
not know whether or not Tidd and Peggy Schumacher
ever received a copy of this statement.
Tidd testified that she could not recall ever having re-
ceived a copy of the Respondent's "general welcome and
policy statement," nor seeing it. Tidd explained that
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whenever employees were given written notices or state-
ments which they were to read, they were required to
sign it after reading it , and return it to the Respondent
acknowledging that they had read it , unless it was a su-
perficial handout or a document they were to retain for
reference.53 However, Tidd did recall that the Respond-
ent maintained a policy that "anybody that was caught
swearing was taken off the schedule for a week," a
week's suspension for swearing.
Schumacher testified that when she was hired she re-
ceived a set of "The Loft rules" but that it was less ex-
tensive than the one in evidence as Respondent 's Exhibit
2.54 She stated that she never saw a written policy re-
garding prohibitions against the use of profanity or abu-
siveness as to employees of The Loft, but she did re-
member that Eilert had told the employees "last
summer" that "if she heard any profanity among the em-
ployees that that was going to be automatic termina-
tion."55
Moreover, Eilert recounted that during her tenure as
managing supervisor, she had personally terminated one
employee, Chet Elkins, for the use of profanity sometime
in 1981 She related the circumstances surrounding his
termination:
[Chet Elkins] had gone to the front hostess desk to
check the next week's schedule and was very un-
happy with it. Uh, there were customers standing at
the desk and Chet again used profanity ["I must
have been a bad boy! I just fucking quit! This is a
bunch of shit!"] He walked away from the hostess
desk. I followed him and said, "Chet, please watch
your emotional displays in front of customers.
That's not necessary." Chet turned to me and said,
"Fuck you, Dee." And I said, "Fine , Chet, you can
leave and not return.'Z
Eilert stated that she prepared and signed a "Notice of
Termination" regarding Elkins56 and that because Mary
Alice Tidd witnessed the incident , Tidd signed the termi-
nation notice as well.57 Eilert added that she in no way
sa Regarding the "welcome and general policy statement" Tidd testi-
fied "If I had [seen it] you would probably have my signature op it since
we had to sign everything that we received [a]ny thing with any
importance "
54 Schumacher maintained that she had never seen the Respondent's
"welcome and general policy statement " (R Exh 2).
55 Interestingly , when Shumacher was asked on cross-examination
whether she would agree that if Tidd had called Zibell an "asshole" prior
to her termination , she would have been subject to immediate discharge,
Schumacher replied , " I would not agree with you on that Well it
wasn't a written policy that I'm aware of " However, she later stated that
"And if someone called their employer an `asshole ,' and was-for no
cause, then yes, that would be grounds for termination " Schumacher be-
lieved that such was a question of semantics , intended meaning
sfi See R Exh , 3 The description of the Chet Elkins incident therein is
similar to that given by Eilert, stating that the incident occurred on
March 29 , 1981, and gives as the reason for discharge "Such gross mis-
conduct in front of customers and in response to an order from his super-
visor is grounds for immediate termination." Eilert considered the use of
obscene language to a supervisor as a gross breach of company policy "if
it is used in anger in an insubordinating kind of way "
5' Written on the termination notice is "I, Mary Tidd, was present at
the hostess desk on March 29, 1981, when Chet Elkins displayed the
course of conduct described above I agree that he did act as stated "
Tidd's signature appears thereafter
suggested to Tidd that her job would be in jeopardy if
she did not sign the notice of termination. Eilert also tes-
tified that Tidd was not a new employee when the
Elkins' incident occurred and although Eilert did not
recall how long Tidd had been employed at The Loft at
the time, she had been there a while. -
Tidd testified that she was not aware of any employee
being terminated for swearing at the management while
she was employed at The Loft. She related that Chet
Elkins had said some "bad words" on the day he- was
terminated but that they were "directed to the situation,
the policies," and not to his supervisor. Tidd added that
she was unaware that Elkins had directed a "profane
statement to Dee Eilert" outside her presence. Although
Tidd acknowledged that she had signed the termination
notice as a witness to the incident, she stated , "I did sign
a form saying that he had sworn. I also would like to say
that that was my second week of work. I was scared of
losing my job if I didn't sign it. I was not asked to sign
it, it was laid on the hostess desk in front of me and told
me, `Sign it ."' However, Tidd did testify that she was
aware that the profane statement which Elkins directed
at Eilert resulted in his immediate termination and that
she understood that that was the Respondent's policy
concerning obscenity.
5. What occurred thereafter
Zibell testified that employee dissatisfaction with the
Respondent's tip pool policy continued despite its change
to a new system on August 3, 1982. He stated that "there
were several employees-primarily, I thought, one
person that was really not agreeing to anything that we
were doing. And he was causing problems with some of
the other employees out there in terms of .. trying to
get other employees to go along with his idea of what
the pay system should be, to the point of causing at least
three people to break down in tears."58 Zibell identified
the dissatisfied employee as Jeff Chanay. Therefore, in
response to such employee dissatisfaction and disagree-
ment with the new "tip pool policy" instituted on
August 3, 1982, and in part because of Chanay's agitating
employees not to agree to work under this wage system,
the Respondent about August 23, 1982, mailed to its em-
ployees a "Wait Persons Amended Pay Arrangement,
Effective August 23, 1982."59 Zibell added that despite
the fact that Jeff Chanay had "gone around and upset
certain employees," he had never spoken to Chanay
"about his conduct in talking to other employees."60
sa Ztbell related that employee, Julie Vincent, had asked him for a
leave of absence because of Chanay, saying that "she just couldn't take
the pressure any longer "
5' See G C Exhs . 5(a) and (b) This two-page document begins "Due
to any employee/management turmoil that occurred recently the pay ar-
rangement was changed at The Loft "
60 Zibell testified that Chanay voluntarily quit his employment with
the Respondent sometime in September 1982 in order to return to law
school However, on cross-examination , Ztbell acknowledged that
Chanay had terminated his employment prior to August 23 , 1982, and
that Eilert had told him that Chanay gave as the reason that he was re-
turning to law school. When Ztbell was reminded that employees usually
sign termination notices when leaving the Respondent 's employ and that
Chanay had done so, Zibell then admitted that he had read Chanay's
Continued
"THE LOFT"
Chanay testified that I here was continued unhappiness
among the Respondent's employees with the new tip
pool policy instituted by the Respondent on August 3,
1982, including himself. He stated that the employees
contacted "a union organizer, Bill Moore from the
Teamsters to speak with various employees who would
like to meet to discuss what rights, organizational rights,
we might have as a group." He added that a meeting
took place between Moore and some employees on
August 8, 1982.
The amended pay arrangement effective August 23,
1982, provides, in part , that 15 percent of the tips col-
lected would be donated to the tip pool and that "no
service charges or tips will be added to any parties of
any size." Moreover, paragraph 6 of the pay arrange-
ment states:
Any dissatisfaction in your job should be discussed
directly with Dee. Discussing your pay or any
other problems with your job with your co-workers
will be grounds for dismissal.
Wanda Baird, operations coordinator,"' testified that
the above "paragraph 6" was included in the amended
pay arrangement of August 23, 1982, because "several
employees had been complaining to one another and to
other employees. Some of them felt they were being
badgered; they were unhappy with various pay systems
and the way the place was being operated. And there
were several of them that got very upset , came to me or
Bob or Dee, and so that was why we put that in there.
We didn't want other employees being badgered." She
related that prior to August 23, 1982, no supervisor had
ever precluded employee discussion of pay issues at The
Loft. Baird recounted that employees Hugh Janda, Julie
Benson , and Jenny Howells had complained to her about
being badgered by other employees. Janda had told her
that Chanay was "giving him a bad time, harassing him,
saying things to him, bugging him," that he did not like
it and could not work under 'those conditions. Julie
Benson, while crying, had told Baird that "she couldn't
take all this," and Baird asked Zibell to speak to her
about her unhappiness.62 Jenny Howells had told Baird
that "she had been harassed by a couple of cocktail wait-
resses calling her names and saying that she was on our
side and all this."63 Baird stated that she did not speak
notice of termination and that Chanay had given as his reason for quit-
tmg, that he objected to "the pay system." Moreover, Zibell could not
recall if Eilert had written on Chanay's termination notice that Chanay
was "untrustworthy," but adding that if she had done so, it would be
untrue about Chanay. I found Zibell's testimony concerning Chanay's
voluntary termination to be somewhat equivocal.
61 Baird testified as a witness for the Respondent She has been em-
ployed by the Respondent for about 4 years and her duties are to take
reservations, do accounting work, advertising, promotions, book parties,
and she noted that "most of my work is office work "
sa Baird testified that she was not present when Zibell spoke to
Benson, and she was therefore personally unaware of the reason for Ben-
son's unhappiness or why she was crying
ss Baird testified that Howells had said that the cocktail waitresses,
Carol Herron and Bunny Evans, had called her "Snow White" because
they said she was "so pure and so good in our eyes," and since she was a
reasonably new employee, it made her very uncomfortable
1455
to either Chanay; Herron , or Evans concerning these
complaints . She, added that the amended pay arrange-
ment was either mailed or handed out and that here had
been no employee/management meeting to explain it.
According to Baird , the Respondent never enforced the
"no discussion among employees" rule and subsequently
rescinded it sometime in September 1982, and it was no
longer "contained in pay arrangements with employ-
ees."64 However, Baird admitted that the rescission of
this rule was never brought to the attention of the em-
ployees, just that it was removed from "that particular
form" given to new employees.
6. Additional evidence herein
Tidd testified that in May 1982 she requested and re-
ceived a letter of recommendation from Wanda Baird be-
cause she was seeking a sales and catering job with
Brock Hotels.65 Tidd related that she had at first asked
Dee Eilert for the recommendation and, although Eilert
had indicated that she would write the letter, when it
was not forthcoming, Tidd asked Baird for the recom-
mendation.66 The letter of recommendation states, in
part, "I highly recommend Mary to anyone looking for a
employee with initiative and willingness to work hard."
Baird testified that although she was not Tidd's imme-
diate supervisor at the time, she gave Tidd the letter of
recommendation anyway. She related that Tidd had told
her that the recommendation was needed for a daytime
job, and that Tidd did not indicate in any way that she
might be leaving the Respondent's employ. Baird stated
that she did not consult with any other member of man-
agement prior to her writing this letter. Baird added that
she felt that the recommendation was accurate and true.
Dee Eilert testified that, although she was Tidd's im-
mediate supervisor and best qualified to evaluate her
work performance, Tidd had never asked her for a letter
of recommendation. Eilert stated that Tidd was generally
a "very dependable employee," and that she would have
given Tidd a "good recommendation," although not as
"glowing" as Baird had given her.67 On cross-examina-
tion, Eilert admitted that Tidd had spoken to her about
seeking another daytime job and that Tidd may have
asked her for a letter of recommendation.
Moreover, Jeffrey Chanay, Jeannie Gibson, Brenda
Willis, and Peggy Schumacher all testified that they
64 Baird testified that Zibell had directed the rescission of par 6 of the
amended pay arrangement because he had been advised to do so by his
attorney Eilert also testified that this paragraph was rescinded.
fis Tidd testified that while the position she sought would require both
day and evening hours and she might not have been able to retain her job
with the Respondent if she got the new job, she did not advise manage-
ment of this . Tidd denied that she had left the Respondent's management
with the impression that she would retain her evening job at The Loft
while she worked for the Brock Hotels
ss Tidd testified that she had told Eilert one evening that she was
thinking about obtaining another job and Eilert responded that if Tidd
took the job that she would not be able to work at The Loft Tidd con-
jectured that this was because her taking a job with the Brock Hotel Cor-
poration would constitute working for another competitive restaurant
which Eilert would not allow.
67 Eilert stated that during a period in late 1981 through the early part
of 1982, Tidd's "performance had dropped" because she was working
two jobs
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would like to see Mary Alice Tidd prevail in this case
and "prove her claim." Gibson, Willis, and Schumacher
also testified that even if they had not been subpoenaed
as witnesses in this proceeding, they would have volun-
tarily appeared to testify herein. Moreover, Wanda Baird
testified that she wanted the Respondent to "win this
hearing."
C. Acts of Interference, Restraint, and Coercion
Section 7 of the Act grants to employees the right "to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection."
Section 8 (a)(1) of the Act prohibits an employer from in-
terferring with , restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
1. Interrogation of employees concerning their
protected concerted activities
The complaint herein alleges that the Respondent,
acting through its supervisor and agent Dee Eilert, "On
or about July 23[, 1982], by telephone interrogated its
employee regarding its employees' protected, concerted
activities," in violation of Section 8(a)(1) of the Act. The
Respondent denies this allegation.
Analysis and Conclusions
The evidence reveals that on July 23, 1982, eight of
the Respondent's employees met at the home of employ-
ee Bunny Evans, during the late hours of that evening,
to discuss, among other things, their group strategy for
the July 25, 1982 employee-management meeting called
by the Respondent, and their possible responses to any
new tip pool which management would propose at the
meeting.68 Employee Jeannie Gibson testified that
during the course of the meeting, she answered a tele-
phone call received from Managing Supervisor Dee
Eilert who asked her who was present at the apartment.
Gibson related that she gave Eilert the names of four of
the eight employees present, including that of Mary
Alice Tidd and Peggy Schumacher, and then handed the
telephone receiver to Schumacher whom Eilert had re-
quested to speak to. Gibson stated that Eilert was upset
and was crying on the telephone.69
Peggy Schumacher recounted that during her part of
the telephone conversation with Eilert that evening, July
23, 1982, Eilert had inquired who was present at the
meeting and why the employees were there. Schumacher
stated that she responded, "There's just some people
here from work," and that Eilert did not question her
further. Although Schumacher testified that Eilert's
questions did not intimidate her, she also testified that
she had not disclosed the names of the other employees
present at the meeting because "if [Eilert] knew who was
sa The record shows that employee Hugh Janda arrived at the meeting
near its conclusion but was not present when the other employees alleg-
edly received the telephone call from Eilert that evening.
sa Gibson testified that Eilert also had remarked , "That fucking Jeff
Chanay, he started all of this "
there-we were all afraid that we were going to be ter-
minated ... or phased out."70
Additionally, both Jeff Chanay and Mary Alice Tidd
testified that they were present at the employees' meet-
ing on July 23, 1982, at Bunny Evans' home when a tele-
phone call was received that evening, and that they were
told that the call was from Eilert. Moreover, Chanay tes-
tified that he had overheard either Gibson or Evans,
whomever had answered the call, recite the names of
some of the employees who were present at the meeting
into the telephone receiver.
In direct contradiction, Dee Eilert denied having
placed a telephone call to Bunny Evans' home on the
evening of July 23, 1982. Rather, she testified that about
10 or 10:30 that evening, she received a telephone call at
The Loft from Peggy Schumacher who asked her if she
knew that there had been a meeting of employees at
Evans' home, and then Schumacher informed her that
the employees had appointed Schumacher as their
spokesperson for the coming employee/management
meeting scheduled for July 25, 1982. Although Eilert ad-
mitted that she knew prior to the evening of July 23,
1982, that some of the Respondent's employees were
planning to meet at Evans' apartment and that this had
aroused her curiosity, she denied that she had questioned
or interrogated Schumacher or anyone else about who
was present at the meeting, why the employees were
there, and what was discussed by them regarding their
wages and working conditions.' 1
After carefully considering the record evidence herein,
and based on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established
or admitted facts, inherent probabilities, and reasonable
inferences which may be drawn from the record as a
whole,72 I credit the testimony of the General Counsel's
witnesses, Jeannie Gibson, Peggy Schumacher, Mary
Alice Tidd, and Jeff Chanay regarding what occurred on
July 23, 1982,73 for the reason, among others, as will be
set forth hereinafter, that their testimony was generally
clear, detailed, forthright, and unequivocal, 74 and, most
70 Schumacher testified that Ellert had told her over the telephone
that, "Chaney should be hung by his heels "
71 Eilert bad also testified that she was concerned about the
employee/management meeting the Respondent had scheduled for July
25, 1982, and because the July 23, 1982 employee meeting was directly
concerned with employees' response to that meeting, it is not unreason-
able to assume that Eilert might have had some concern about the em-
ployees' meeting as well
"I Northway Nursing Home, 243 NLRB 544 (1979), Gold Standard En.
terprises, 234 NLRB 618 (1978); V & W Casting, 231 NLRB 912 (1977),
Northridge Knitting Mills, 223 NLRB 230 (1976). Also see Cos Walker's
Cash Doors, 249 NLRB 316 (1980).
93 The credibility of Mary Alice Tidd will be discussed more fully
when appropriate to the issue Suffice it to say that I credit her account
of what occurred at the employees meeting on July 23, 1982, and more
particularly her brief account of the telephone call received that evening
and attributed to Eilert, because her testimony was consistent with other
credible evidence in the record, and more believable than Eilert's
74 I am aware that Jeannie Gibson, Peggy Schumacher, Jeff Chanay,
and Mary Alice Tidd are also plaintiffs in a lawsuit against the Respond-
ent, Robert Zibell, Dee Ellert, and Wanda Baird, seeking recovery for
wage claims and/or damages I am also aware that Gibson, Schumacher,
and Chanay all testified that they wanted Tidd to prevail in this proceed-
ing and, although subpoenaed to testify by the General Counsel, would
Continued
"THE LOFT" 1457
importantly, consistent with the other evidence present
in the record and regarding what can reasonably and
logically be found and/or inferred therefrom, and entire-
ly consistent with each others' testlmomes.75
In contrast the testimony of Dee Eilert, concerning
what happened on the evening of July 23, 1982, was con-
tradictory to other, more credible evidence in the record
which makes her account unbelievable. Of compelling
importance in discrediting her testimony regarding the
incident is her claim that she received a telephone, call
from Schumacher that evening at "10:00 or 10:30 at
night, something like that. It was close to closing time,"
a time when Schumacher uncontradictedly and credibly
testified that she was still working at the restaurant.76 In
fact, Eilert's own testimony to the effect that waitresses
usually would be finishing up their work shifts during
the 10 to 10:30 p.m. time period would tend to support
Schumacher's account of what had transpired rather than
Eilert's own. Additionally, Eilert alleged that during her
telephone conversation with Shumacher, the latter in-
formed her that she had been appointed spokesperson for
the employees. Schumacher denied ever relating any in-
formation of this kind to Eilert, and there is nothing in
the record which indicates that Peggy Schumacher ever
assumed the role of spokesperson in any meetings or dis-
cussions with management personnel. Moreover, given
the circumstances that Ellert knew beforehand that em-
ployees were planning a meeting at Evans' home on July
23, 1982, and that her admitted curiosity about this meet-
ing may have engendered some concern also, and given
her obvious interest and loyalty in protecting the inter-
ests of the Respondent,77 it is more likely that the'ac-
count of the telephone call involving Eilert, as given by
the General Counsel's witnesses, depicts what actually
occurred, rather than Eilert's rendition. Lastly, although
the testimony of Jeannie Gibson,' Peggy Schumacher,
Jeff Chanay, and Mary Alice Tidd could have been con-
trived as to Eilert's having telephoned the employees at
Evans' home on the night of July 23, 1982, and interro-
gated Gibson about who was present there, and Schu-
macher about the employees present and the reasons for
their attendance," and that Eilert's denial thereof and her
assertion that Schumacher had called instead was actual-
ly the way things happened that evening, yet "if there
was fabrication, it would seem more probable that it was
the one, rather than the four, who was lying."78
There is no dispute that, the employees' meeting and
group discussion on July 23, 1982, during which the em-
ployees discussed wages and a future course of concerted
action, constituted protected concerned activity under
the Act.79 The General Counsel asserts that by the fore-
going telephone conversation between Dee Eilert, Jean-
nie Gibson, and Peggy Schumacher', in which Eilert
questioned these employees about who was present at
the meeting and the reason therefore, the Respondent un-
lawfully interrogated its employees regarding their pro-
tected concerted activities. I agree. In general the basic
premise in situations involving the questioning of em-
ployees by their employers about union and/or protected
concerted activities is that such questions are inherently
coercive by their very nature and therefore violative of
the Act "because of its natural tendency to instill in the
minds of employees fear of discrimination on the basis of
the information the employer has obtained."80 However,
the Board has held that in certain circumstances employ-
ers may have a legitimate purpose for making a particu-
lar inquiry of employees which may involve, to some
limited extent, union and/or protected concerted activi-
ties."' In the instant case there were no circumstances
present which might have justified some limited inquiry
into the protected concerted activities of the Respond-
ent's employees. The Respondent' offered no legitimate
reason nor can I find any valid purpose for such interro-
gation or questioning of its employees other than that it
was done, when considered in the light of the Respond-
ent's other actions herein, for the purpose of coercing its
employees into refraining from engaging in any union or
protected concerted activities.82 Further, Eilert while
questioning employees Jeannie Gibson and Peggy Schu-
macher, gave them no assurances against reprisals.83
However, in the recent case of Rossmore House, 269
NLRB 1176, 1177 (1984),84 the Board stated:
voluntarily have appeared in this case as witnesses in her behalf. Howev-
er, while they clearly have a real interest or stake, so to speak, in the
outcome of this proceeding, so do the Respondent's witnesses, Eilert,
Baird, and Zibell, as opposing parties in the lawsuit and as managerial
employees and owner of the Respondent's restaurant, respectively, there-
by offsetting and/or balancing any respective parties witnesses' alleged,
asserted, or presumed bias
75 It should be remembered that these witnesses were sequestered
except for Mary Alice Tidd, and therefore did not listen into each other's
testimony at the hearing prior to giving their own, and the record shows
that their testimony was believably consistent with each others'. Nor is
there any evidence in the record showing that these witnesses discussed
their testimony together beforehand, and it would be unreasonable to
assume that because of their common relationship as plaintiffs in the
wage claim lawsuit, they would have discussed together what occurred
on July 23, 1982, since this incident would have no apparent importance
or relevance to the basis and nature of their local court action as such
76 Schumacher testified that on the evening of July 23, 1982, she
worked the evening shift, her usual shift, from 5 p in until anywhere be-
tween "I100 and 12,30 for a weekend night" This testimony was not
controverted by the Respondent whose records, I presume, would have
been produced at the hearing to show otherwise, had that been the fact
77 Eilert did not deny Tidd's testimony that Eilert had told the em-
ployees at the July 25, 1982 meeting that she had "put her whole life into
The Loft] "
78 Classe Ribbon Co., 227 NLRB 406 (1976), Fred Stark , 213 NLRB
209 (1974)
79 Meyers Industries , 268 NLRB 493 ( 1984), Frascona Buick, 266 NLRB
636 (1983), Polynesian Cultural Center , 222 NLRB 1192 (1976), enfd. 382
F1d 467 (5th Cir. 1978)
80 Photo Drive Up, 267 NLRB 329 (1983), Jefferson National Bank, 240
NLRB 1057 (1979), Sans Souci Restaurant, 235 NLRB 604 (1978), NLRB
v. West Coast Casket Co ., 205 F 2d 902 (9th Cir 1953)
81 Photo Drive Up, supra, PB & S Chemical Co, 244 NLRB 1 (1976),
Johnnie's Poultry Co ., 146 NLRB 770 ( 1964), enf denied 334 F 2d 617
(8th Cir. 1965)
92 7-Eleven Food Store , 257 NLRB 108 ( 1981), World Wide Press, 242
NLRB 302 ( 1979), Seal Trucking, Ltd, 237 NLR]3 1090 (1978), Franklin
Property Co, 223 NLRB 873 (1977)
81 Trinity Memorial Hospital of Cudahy, 238 NLRB 809 ( 1978), Thermo
Electric Co., 222 NLRB 358 ( 1976), enfd 547 F 2d 1162 (3d Or 1976),
NLRB v Cement Transport , 490 F 2d 1024 (6th Cir 1974), cert denied
491 U S 828 (1974)
84 This case involved the issue of whether an employer 's questioning
of "open and active union supporters" about their union sentiments nec-
essarily interferes with , restrains , or coerces employees in violation of
Sec 8 (a)(1) of the Act , in the absence of threats or promises made by the
employer The Board concluded that to find a violation under such cir-
Continued
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our view is consonant with that expressed by the
Seventh Circuit Court of Appeals in Midwest Stock
Exchange v. NLRB [635 F.2d 1255, 1267 (1980)]:
It is well established that interrogation of em-
ployees is not illegal per se. Section 8(a)(1) of the
Act prohibits employers only from activity
which in some manner tends to restrain, coerce
or interfere with employee rights. To fall within
the ambit of § 8(a)(1), either the words them-
selves or the context in which they are used must
suggest an element of coercion or interference.85
The Respondent asserts in its brief:
The only question attributed to Ellert during the,
telephone conversation was Schumacher's claim
that Eilert asked who was present at Bunny Evans'
apartment.86 According to Schumacher, she simply
said that "there's just some people here from
work." Eilert did not press Schumacher any fur-
ther. In addition, Schumacher admitted that she was
not intimidated by Eilert's question as to who was
present. Indeed, Eilert considered herself to be a
friend of Schumacher. They had socialized together
after work.
It is respectfully submitted that under all the cir-
cumstances, Eilert's question to Schumacher, if
made, did not interfere with Schumacher's protect-
ed rights. See, e.g. Westville Homes Corp., 194
NLRB 111, 113 (1971). Neither the words attrib-
uted to Eilert 'nor the context in which they were
used suggest any element of coercion or interfer-
ence. See NLRB it. J. Weingarten, Inc., 339 F.2d
498, 500 (5th Cir. 1964).
I do not agree with the Respondent's assertions.
The credited evidence shows that Eilert was aware
that the Respondent's employees were planning to hold a
meeting at employee Bunny Evans' apartment on July
23, 1982. On the evening of July 23, 1982, she tele-
phoned Evans' apartment while the employees were en-
gaged in their meeting and asked Jeannie Gibson which
employees were present Eilert also spoke to Peggy
Schumacher during the same telephone conversation and
questioned Schumacher about who was present and why
the employees were there. Eilert admitted that the fact
that the employees were holding such a meeting prior to
an employee/management meeting called by the Re-
spondent and scheduled for July 25, 1982, had caused
her some concern. Moreover, in this same telephone con-
versation, Eilert told Gibson, "That fucking Jeff Chanay,
he started all this," and also told Schumacher that
"Chanay should be hung by his heels." It was obvious to
Gibson and Schumacher that Eilert was upset and crying
cumstances improperly establishes a "per se rule," as had been done in
PPG Industries, 251 NLRB 1148 (1980), and therefore the Board over-
ruled "PPG and similar cases" to the extent of such finding
85 Also see Graham Architectural Products v NLRB, 697 F 2d 534 (3d
Cir 1983), TRW-United Greenfield Division v NLRB, 637 F 2d 410 (5th
Cir 1981)
86 This is inaccurate Schumacher testified that Eilert also asked her
"why we were there" Moreover, Gibson testified that Eilert had ques-
tioned her about who was present at the meeting
on the phone. Eilert's inquiries about the names of the
employees present at the meeting and the reason for their
presence and her remarks concerning Chanay certainly
did not constitute mere casual conversation especially
when Eilert seemed upset about the meeting. Additional-
ly, although Schumacher testified that she was not in-
timidated by Eilert's questions, she also testified that she
had refrained from giving Eilert the names of the other
employees present at this meeting because she and they
feared reprisals if Eilert knew who they all were. The
fact that Schumacher and Eilert were friends and had so-
cialized together after work does not lessen the effect of
Eilert's coercive interrogation. 87 Eilert's telephoning to
ascertain the names of the employees at the meeting and
the reasons for their being there could only be construed
by the employees as a coercive and threatening intrusion
into their protected concerted activities and interference
by the Respondent.
The test applied in determining whether a violation of
Section 8(a)(1) of the Act occurred is "whether the em-
ployer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the Act."88 Applying that test, I find that
the Respondent by interrogating its employees, as set
forth above, has interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed in
Section 7 of the Act and has thereby violated Section
8(a)(1) thereof.89
2. Direction to an employee to "shut her mouth" or
to "shut up" as violative of the Act
The complaint alleges that the Respondent, acting
through its supervisor and agent Dee Eilert, "On or
about August 3 [1982], at the facility, directed its em-
ployee to refrain from engaging in protected, concerted
activity of discussing wages and working conditions with
other employees," in violation of Section 8(a)(1) of the
Act. The Respondent denies this allegation.
Analysis and Conclusions
During the early evening of August 3, 1982, the Re-
spondent's owner, Robert Zibell, met with employees
who were on duty at the restaurant, to introduce and ex-
plain the new tip pool policy established by the Re-
spondent and to distribute a "two-page handout" to these
employees detailing the changes made. Mary Alice Tidd
testified that after reading the "handout," she advised
Zibell that she did not agree with the new tip pool
system,90 whereupon Zibell directed her to sign the doc-
87 The test of interference, restraint , and coercion, under Sec 8(a)(1)
of the Act does not turn on the Respondent 's motive, courtesy , or gentle-
ness-or whether the supervisor and employee involved are on friendly
or unfriendly terms Rather , the test is whether the supervisors' conduct
reasonably tended to interfere with the free exercise of the employees in
their rights under the Act Photo Drive Up, supra, Florida Steel Corp, 224
NLRB 45 (1976)
98 Photo Drive Up, supra, 7-Eleven Food Store, supra, Electrical Fittings
Corp, 216 NLRB 1076 (1975 ) Also see Rossmore House, supra
89 Photo Drive Up, supra, Jefferson National Bank , supra , World Wide
Press, supra , Colonial Haven Nursing Home, 218 NLRB 1007 (1975)
90 Zibell did not recall that Tidd made any comment about the new tip
pool policy during his meeting with her and other employees
"THE LOFT"
ument acknowledging that she had been made aware of
the new system, 91 and he told her that if she disagreed
with it, she "knew wheie the door was."
Tidd related that later that evening waitress Cathy
Carothers had asked heir assistance in filling out a charge
slip under the.new tip pool system regarding a table of
six customers that she had just finished servicing, and
Tidd told her how to do so 92 Sometime thereafter, Car-
others informed Tidd that Managing Supervisor Eilert
had not allowed her to keep a $15 tip that the customers
at that particular table of six had added on to the charge
slip, and Tidd told Carothers to demand the $15 from
Eilert adding, "I tried to encourage her to go in and
stand up for that $15.00." Tidd stated that while this was
happening, Eilert. yelled out' from the checkout room,
"Mary, if you have anything to say, say it to me."93
Tidd recounted that she made no reply to Eilert and the
conversation between her and Carothers ended
Tidd testified that later that same evening, while stand-
ing near the bar exchanging a few words with another
waitress, Joyce Cramer, about "how the evening had
went," Eilert emerged from the checkout room, grabbed
Tidd's arm, dragged her down the hall and whirled her
around, whereupon Tidd fell against the wall Tidd
stated that after she regained her balance, she followed
Eilert further down the hall and Eilert turned to her and
told her to "shut [her] mouth." Tidd related that she told
Eilert that she had no right to withhold the $15 tip from
Carothers, and Eilert explained that she had contacted
the customers involved and that they were unaware that
a 15-percent service charge had been added to the total
bill and had not intended a $15 tip in addition to that
amount. Tidd recounted that at the conclusion of this
conversation, Eilert "turned around and stomped off,"
while she returned to the table she was servicing as wait-
ress . Tidd added that the customers at this table, appar-
ently observing what had occurred, asked her if she was
all right to which she responded yes.
Although Eilert's testimony regarding this incident
was generally similar to Tidd's, it did however differ is
some aspects. Eilert testified that Carothers had incor-
rectly included the 15-percent service charge and the
charges for the meal in one total amount with the cus-
tomers adding an additional $15 as a tip or gratuity on
the charge. After checking with Carothers, Eilert deter-
mined that the customers were unaware that a 15-percent
service charge had already been added to the total
91 Although Zibell denied that he had required any employee to sign
this document, the "handout" does contain a space for the employee's
signature and states that the employee has read the document and agrees
to work under the new pay system It seems more likely from the evi-
dence,and from Tidd's testimony that she was compelled to sign this doc-
ument before being allowed to report for work that evening, in contrast
to Zibell's asserting that no employees were required to sign in order to
work at the restaurant Moreover, the evidence also shows that employ-
ees had been faced with a similar requirement previously when the origi-
nal tip pool policy had been instituted during the previous year
92 Tidd had advised Carothers to include the 15-percent service
charge, which had formerly been considered a gratuity and listed sepa-
rately on the charge slip, as part of the total bill for services and listed as
one total amount
93 Neither the complaint herein nor the General Counsel at the hear-
ing or in her brief alleges that this statement by Eilert constituted a viola-
tion of Sec 8(a)(1) of the Act
1459
amount of the bill, and that the inclusion of an additional
$15 tip was inadvertent, and she decided to check with
one of the customers whom she knew, although they had
already left the restaurant. Eilert related that it was
sometime thereafter that she heard Tidd tell Carothers in
a loud voice, "Well, she can't do that." Eilert stated that
she assumed that Tidd and Carothers were discussing the
$15 tip and therefore "loudly enough for Mary to hear,"
she said, "Mary, if you have anything to say, why don't
you say it to me." Eilert added that although the conver-
sation between Tidd and Carothers then ceased, it was
soon resumed and Eilert again told Tidd, "Mary, please,
if you have anything to say, please say it to me."
Eilert continued that after completing her work she
left the checkout room and noticed Tidd talking to an-
other waitress on the stairway above the dining room
area and, assuming that they were discussing the incident
concerning Carothers, she walked over to them intend-
ing to explain to Tidd why she had taken the action she
had regarding Carothers' tip. Eilert related that Tidd
started to raise her voice during the conversation and
since there were still customers seated in the adjacent
dining area, she took Tidd' s arm intending to lead Tidd
to an area down the hallway and away from the dining
area where they could not be overheard. Eilert recount-
ed that once down the hallway, she again attempted to
explain to Tidd the reason for her withholding Car-
others' tip when Tidd started yelling, at her in a loud
voice, used profanity (but not directed at her), and told
Eilert that she "treated the employees like animals."
Eilert added that she told Tidd "to shut up because she
was getting loud enough that I knew the customers
could still hear us no matter where we were."
The General Counsel maintains that when Etlert told
Tidd to "`shut her mouth' with respect to discussing the
Carothers tip problem," Eilert thereby forebade the Re-
spondent's employees from discussing wages and other
conditions of employment in violation of Section 8(a)(1)
of the Act. I do not agree. The General Counsel also as-
serts that Tidd's version of this incident should be cred-
ited over that given by Eilert because, under the circum-
stances present, "it is entirely reasonable to conclude that
Eilert approached Tidd for the purpose of warning her
about her continued talking" about the Carothers' tip in-
cident. Again I do not agree. Moreover, even if Tidd's
rendition of what occurred is credited, the General
Counsel has failed to sustain its burden of proving that
Eilert's statement to Tidd was violative of the Act.
With regard to the credibility of the varying accounts
by Tidd and Eilert of what transpired on August 3, 1982,
between them, the General Counsel points to the follow-
ing to support the reasonability of Tidd's version over
Eilerts': That Eilert had testified "that immediately prior
to this incident happening, she had told Tidd on two oc-
casions that if Tidd had anything to say, she should say
it to Eilert", that Eilert also testified that "with respect
to the second admonishment she did not actually hear
what Tidd and [Carothers] were talking about" and
"when she saw Tidd engaged in conversation ... with
Joyce Cramer," she assumed with both employees that
they were talking about the Carothers' tip incident; that
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eilert was admittedly "irritated" by Tidd's behavior in
continuing to discuss this problem; and that Eilert fur-
ther testified that Tidd used profanity in their ensuing
conversation down the hall and accused her of treating
the employees like animals and, despite this, Eilert took
no disciplinary action against Tidd although the Re-
spondent had a rule against the use of profanity by em-
ployees while at the, restaurant and Eiler had the author-
ity to fire employees for violating the profanity rule and
had done so on one occasion in the past.
However, from 'the circumstances present, it is equally
if not more reasonable to 'conclude that Eilert ap-
proached Tidd to put the Carothers' tip incident to rest
by explaining to Tidd why she had acted as she had con-
cerning Carothers. As is evident from the record, Eilert
believed that Tidd -had continued to discuss the Car-
others incident with employees despite Eilert's request
that Tidd speak to her if she had anything to say about
the matter, Because Eilert felt that she had acted respon-
sibly and in the best interests of the Respondent in
regard to the customers involved in the incident, she had
reason to explain her actions to Tidd in order to resolve
the problem. It is also plausible that the preceding events
of that evening; Zibell's institution of the new tip system
which Tidd disagreed with, Tidd's obvious belief that
Eilert had handled the problem of Carothers' tip in an
arbitrary and unfair manner , and Eilert's subsequent re-
quest to Tidd' to discuss this matter with her if Tidd had
anything to say about it rather than with Carothers, well
may have angered Tidd to the extent of responding to
Eilert in a loud and angry manner during their conversa-
tion.
' Additionally, concerning Eilert's failure to take any
disciplinary action against Tidd for allegedly using pro-
fanity during their conversation, it should be remem-
bered that such profanity was not directed at Eilert per-
sonally, but was allegedly used by Tidd generally and
conversationally. While not to be condoned or encour-
aged as a general rule, realistically it is not unusual for
people who are agitated, upset, or distraught to use pro-
fanity to express these emotions and, under the circum-
stances present herein, it does not stretch credulity to un-
derstand why Eilert accepted Tidd's use thereof in the
heat of their conversation without thereafter disciplining
her. Moreover, the employee, whom Eilert had previous-
ly fired for using profanity, had directed such profane re-
marks, directly at Eilert personally and with other em-
ployees present, which was not the case here.
Be that as it may, even accepting Tidd's version of
What occurred as accurate, there remains a lack of a pre-
ponderance of the evidence present and a substantial
doubt in my mind, that when Eilert told Tidd to "shut
her mouth," she thereby intended and did forbid Tidd
from discussing wages and other conditions of employ-
ment with other employees in violation of the Act. Had
Eilert sought to accomplish this, it is reasonable to
assume that she would have said this directly to Tidd
when she found Tidd and Cramer apparently in conver-
sation together near the bar area. Or if she intended to
tell Tidd that she was not to discuss the Carothers inci-
dent with 'other employees, and outside the hearing of
customers still dining in the restaurant when she attempt-
ed to lead Tidd down the hallway and away from the
dining area, her opening remark to Tidd to "shut her
mouth" is a most unclear and ambiguous way of doing
so. This choice of words could convey various inten-
tions, i.e., that Eilert wanted Tidd to keep quiet while
she explained what had occurred, or that she was angry
at Tidd because of Tidd' s insistence on talking about em-
ployee matters within the hearing of dining patrons, etc.
Significantly, during the ensuing conversation between
them Eilert never told Tidd straightforwardly to stop
talking to other employees about Carothers but, instead,
the conversation was directed towards Tidd' s unhappi-
ness with Eilert's action regarding Carothers tip and Ei-
lert's explanation. It seems most likely to me that Eilert
would have done this had she intended to effectuate such
a purpose especially in view of her having previously
asked Tidd to speak to her about the matter if Tidd had
anything to say about it, but Eilert did not do this in
either account of the incident given.
Furthermore, under the circumstances present herein,
it is more reasonable and plausible to infer that Eilert di-
rected Tidd to "shut her mouth" or to "shut up" because
Tidd was speaking in a loud and angry manner and
within earshot of customers dining at the restaurant
rather than to warn Tidd not to discuss the Carothers
matter with coworkers. That Tidd was angry about the
events of that evening up until her discussion with Eilert
is clear from the record.94 That Tidd was capable of
raising her voice in anger that evening is also inferable
from the evidence.95 And that patrons at the restaurant
were aware that something was amiss either by over-
hearing and/or observing part of what occurred is also
evident therefrom.9° Moreover, that Eilert directed Tidd
away from her work station, down the hallway, and
away from the customers' dining area , suggests other
than the purpose of telling Tidd to "shut her mouth" or
to "shut up," regarding her talking to other employees.
In sum, I find that Eilert's order to Tidd to "shut her
mouth" or to "shut up" was unrelated, other than tan-
gentially, to Tidd's discussion with other employees re-
garding "wages and working conditions," vis a vis, Ei-
lert's application of the Respondent's new tip pool
policy. Rather, the direction to Tidd constituted a lawful
effort by Eilert to maintain order and respect at the
work place.97 Accordingly, I conclude that the Re-
94 As stated, Tidd was unhappy with the institution of the Respond-
ent's" new tip policy, Zibell's remarks to her when she was apprised there-
of, what she perceived as Eilert's unfair treatment of Carothers, Etlert's
direction to her to speak to Eilert if she had anything to say about it, and
Eilert's taking Tidd's arm to lead her down the hall causing Tidd to lose
her balance and fall against the wail, all contributed to Tidd's anger, dis-
content, and unhappiness at the time.
Si Although only Tidd and Eilert testified about this incident, and only
Eilert testified that Tidd was yelling at her loudly during the conversa,
tion, Tidd did not deny this, and there is testimony from Brenda Willis
and Peggy Schumacher that Tidd had spoken to Zibell later that evening
in a raised tone of voice.
96 Tidd, in fact, testified that when she returned to her customers'
table in the dining area after her conversation with Eilert had ended,
they asked her if she was all right Their inquiry suggests that they may
have been aware that something untoward had occurred or was amiss.
97 Chrysler Corp, 249 NLRB 1102 (1980); Calmos Combining Co., 184
NLRB 914 (1970)
"THE LOFT"
spondent did not violate Section 8(a)(1) of the Act when
Eilert ordered Tidd to "shut her mouth" or to "shut
up."98
3. The written rule against discussing wages or
other problems with coworkers
The complaint alleges that the Respondent, on or
about August 23, 1982, by written announcement, pro-
mulgated and maintained a rule for its employees prohib-
iting their discussion of pay or other job-related prob-
lems with coworkers upon penalty of dismissal, in viola-
tion of Section 8(a)(1) of the Act. The Respondent, in
substance, denies this allegation.
Analysis and Conclusions
The evidence herein shows that effective August 23,
1982, the Respondent amended its wage system for
"Wait Persons," issuing a written "Amended Pay Ar-
rangement" containing the following rule:
Any dissatisfaction in your job should be discussed
directly with Dee [Eilert]. Discussing your pay or
any other problems with your job with co-workers
will be grounds for dismissal.
Operations Coordinator Wanda Baird related that the
Respondent had received several complaints from em-
ployees that they were being "badgered" by other em-
ployees who were unhappy with the new pay system
and opposed to its continuance. She stated that the Re-
spondent had promulgated this rule in response to the
employees being upset about such "badgering" and the
"turmoil" created by employee dissatisfaction with the
pay system.99 She recounted that the amended pay ar-
rangement was either mailed to employees or handed out
to them at the restaurant. Baird testified uncontradictedly
that this rule was never enforced and was in fact rescind-
ed by the Respondent in September 1982. Baird added
that as far as she knew, the employees were not directly
informed of the rule's rescission but that it was omitted
from copies of the "Amended Pay Arrangement" distrib-
uted to new employees thereafter.
The General Counsel asserts that, " It is clear that such
a rule is violative of Section 8(a)(1) of the Act." I agree.
The Respondent promulgated this rule at a time when its
employees were voicing dissatisfaction with its wage
18 The General Counsel cites Comm Pond Diner, 248 NLRB 1158
(1980), in support of its contention herein that Eilert's direction to Tidd
constituted a violation of Sec 8(a)(1) of the Act, Clearly the facts in
Comm Pond Diner and the instant case are distinguishable In Coram
Pond Diner, the employer told an employee at a meeting with employees,
that "she should keep her mouth shut and not start trouble in response to
her demand that proper taxes be taken out of her pay." On a subsequent
occasion the employer told this same employee "to keep her mouth shut
and that she talked too much to the girls " The employer therein had also
told another employee "in response to her question whether she was
fired, that she had a big mouth, to keep it shut, and leave the girls alone."
It is obvious from the facts of this case, that these statements were made
in the context of the employees union and/or protected concerted activi-
ties and directed to these employees clearly to compel them to refrain
from discussing wages and/or working conditions with other employees,
unlike what occurred in the instant case
99 Ztbell testified that this employee dissatisfaction was due in part to
the efforts of employee Jeff Chanay.
1461
policy and working conditions. Additionally, when the
"Amended Pay Arrangement" containing this rule was
distributed to employees, upon being; given the opportu-
nity to read it, the employees were then asked to ac-
knowledge its receipt by signing their names at the
bottom. Moreover, while the Respondent asserts that the
rule was never enforced and was subsequently rescinded,
this was admittedly never brought to the attention of the
employees.
In Blue Cross-Blue Shield of Alabama, 225 NLRB 1217
(1976), the Board affirmed the ruling of an administrative
law judge that the employer violated Section 8(a)(1) of
the Act by promulgating and maintaining a rule which
forbade employees from discussing their wages at any
time under penalty of dismissal. Similarly in the instant
case, the rule in question here provided that an employ-
ee's discussion of pay, any other employment, or prob-
lem with coworkers was forbidden and violation thereof
constituted grounds for discharge. This rule constituted a
serious impediment to, and a clear restraint upon, and in-
terference with the employees' Section 7 rights to
engage in protected concerted activity.100
The Respondent contends that no violation should be
found since the ,rule was never enforced and in fact was
rescinded shortly after its promulgation. The Respondent
states in its brief, "Assuming arguendo that the promulga-
tion of the rule constituted a violation of Section 8(a)(1),
no Board-ordered remedy is necessary in view of the
statement's rescission." I do not agree. As long as the
rule remained in existence , and as long as the Respond-
ent failed to notify employees of its revocation or rescis-
sion, the possibility of its application against employees
engaged in protected concerted activity remained real in
the employees' minds and therefore tended to coerce, re-
strain, and interfere with the employees in the exercise of
their Section 7 rights.' 0 t
Moreover, because this rule was invalid on its face, it
was unnecessary for the General Counsel to show that it
was illegally motivated, discriminatorily enforced, or
even enforced at all. 102 Nor does the Respondent's as-
serted, but admittedly unannounced, decision not to en-
force the rule constitute a valid defense. When an em-
ployer's rule or regulation is alleged to restrict unduly
employees' rights, the Board looks to the wording of the
rule itself, rather than to the expressed limitation or in-
terpretation that are given by the employer.103 Accord-
ingly, I find that the Respondent violated Section 8(a)(1)
of the Act by promulgating and maintaining a rule which
prohibited employees from discussing their wages and
other working conditions among themselves.104
100 Blue Cross-Blue Shield, supra, Jeannette Corp. Y . NLRB, 532 F.2d
916 (3d Cir. 1976)
101 Blue Cross-Blue Shield , supra ; Hyland Machine Co., 210 NLRB
1063 (1974), Marinette Marine Corp, 179 NLRB 627 (1969)
102 Congoleum Industries, 197 NLRB 534 (1972), Farah Mfg. Corp., 187
NLRB 601 (1970); Lexington Metal Products Co, 166 NLRB 878 (1967).
102 Solo Cup Co, 144 NLRB 1481 (1963).
104 Blue Cross-Blue Shield, supra , Jeannette Coro, supra
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The discharge of Mary Alice Tidd
The complaint alleges that the Respondent about
August 3, 1982, discharged Mary Alice Tidd because she
and other employees concertedly discussed their wages
and working conditions and because Tidd concertedly
complained to the Respondent about such wages and
working conditions, in order to discourage employees
from engaging in such activities or other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, in violation of Section 8(a)(1)
of the Act. The Respondent denies this allegation and
contends that Tidd was discharged for cause.
Analysis and Conclusions
The evidence reveals that late in the evening of
August 3, 1982, and soon after Tidd and Eilert engaged
in the confrontation previously described, Eilert apprised
Zibell that "Mary Tidd is going on downstairs and I
can't handle it." Zibell then approached Tidd and asked
her if she had a problem, to which Tidd replied that she
did not. However, after Zibell began to follow Tidd
about the restaurant while she was performing her
duties, she now told Zibell that she indeed had a prob-
lem and would like to discuss it with him. 105 Tidd testi-
fied that despite Zibell's reluctance to talk to her about
this, she told him that "[H]e was being unfair to his em-
ployees, that he could not treat us like we were animals
... that what he was doing to the employees was hurt-
ing him in the long run."1106 Tidd also reminded Zibell
that she had worked for the Respondent for over a year
and a half and was a good and devoted employee. Tidd
admitted that she was angry, upset, and crying, and had
raised her voice during the conversation, because Zibell
had just stood there and "grinned," not replying to her
"on anything," and while he appeared to be listening to
what she was saying, she felt that he was deliberately ig-
noring her meaning and intent. i 0 v
Tidd testified that toward the end of the conversation
Peggy Schumacher came downstairs preparing to
"punch out" and after witnessing part of the conversa-
tion between her and Zibell, told Tidd "Mary it's not
going to do any good," whereupon Tidd told Schu-
macher to "shut up," and stay out of the controversy.
Tidd stated that at this point Zibell told her that she
could pick up her paycheck the next morning. Tidd re-
lated that both she and Schumacher asked Zibell why'he
as firing Tidd and Zibell responded, "For calling me an
asshole." Tidd recounted that she told Zibell that she
had not called him an "asshole," and they both knew
ios Although Zibell at first denied that he had followed Tidd about
while she performed her duties , he acknowledged that he may have testi-
fied to the contrary as a witness for the Respondent at Tidd's unemploy-
ment compensation hearing
106 Brenda Willis testified corroboratively that she overheard part of
the conversation between Tidd and Zibell and that Tidd had asked
Zibell, "[H]ow he could be so inhumane , how could he do this type of
thing to his employees in reference to the new [tip] policy that was being
implemented"" Willis continued that Zibell responded it was his business
and he would run it the way he wanted to, and if anyone disagreed with
his policies, they could work elsewhere
107 Tidd testified that Zibell had told her that it was his restaurant
business and he would manage it as he pleased
this, but that if made no difference since it was his word
against hers, whereupon Schumacher said that it was Zi-
bell's word against theirs because she had not heard Tidd
call Zibell an "asshole." Tidd added that after Zibell had
discharged her and just before she was about to leave the
restaurant, she said to Zibell, "You are an asshole."
Schumacher testified similarly to Tidd that she was
present only toward the end of the conversation between
Tidd and Zibell and had heard Tidd say, "[T]he employ-
ees are helping you, why can't you in turn help us?
You're going to ruin you business if you don't, you
know, take care of us or help us out." She stated that
Zibell turned to Tidd and told her, "Mary, you can pick
up your check." Schumacher related that she asked
Zibell why he was firing Tidd and Zibell answered, "Be-
cause she called me an asshole." Schumacher than told
Zibell that Tidd had not called him that name where-
upon Zibell started to walk away. She recounted that
Tidd now told Zibell that it was "two against one, I did
not call you an asshole." Schumacher admitted that she
did not know whether or not Tidd had called Zibell an
"asshole" prior to her coming upon the scene , since she
was only present for a brief period of time toward the
end of the conversation. Schumacher added that while
Tidd appeared to be upset and had raised her voice
loudly, she was not screaming at Zibell.
Although Zibell's testimony concerning what was said
during this conversation was, in some respects, quite
similar to Tidd's version , it did differ in other important
and significant aspects. Zibell testified that Tidd had told
him that he had no respect for the employees, that he
treated them like animals and cared nothing for them,
that he had been unfair to the employees when he insti-
tuted the amended tip pool system, and that she had
worked for the Respondent for several years and was an
able and dedicated employee. Zibell stated that as he
tried to explain the amended pay arrangement and its
fairness, Tidd became more irate and told him that
"[S]he liked to be screwed but not by [him]," and that
she was going to bring a court action against him for a
substantial amount. Zibell related that after this had gone
on for about 10 minutes, Tidd called him a "fucking ass-
hole" twice.108 Zibell recounted that he then fired Tidd
and told her to pick up her paycheck the following
week. He continued that Peggy Schumacher was present
during this conversation for "the majority of the time,"
but he said little other than to try to calm Tidd
down.109 Zibell admitted that he "didn't appreciate"
Tidd's complaining to him about the new pay arrange-
i°8 Zibell testified that Tidd's use of profanity in the context of their
conversation did not surprise him because "I think I probably heard her
say it before Or, you know, use some profanity but I am not positive " I
note that his testimony was somewhat equivocal on this point However,
he added that her use of the term "fucking asshole" at this time was di-
rected personally at him
toe As stated herembefore , Schumacher denied that she was present
during this conversation for more than a brief period towards its end, and
that she had not heard Tidd call Zibell a "fucking asshole" or "asshole"
during that time
"THE LOFT"
ment and her negative comments about how he was
treating his employees and operating the restaurant. i i 0
Dee Eilert testified that she had overheard what Tidd
said to Zibell that evening because of Tidd's raised
voice, and it was essentially similar to what Zibell testi-
fied to, including Tidd's having allegedly called Zibell a
"fucking asshole." However, Eilert admitted that she did
not hear that portion of the conversation wherein Zibell
had fired Tidd and, therefore, did not know whether
Tidd had called Zibell a "fucking asshole" before or
after her discharge.
It is extremely difficult to decide whose testimony is
to be credited concerning the discharge of Mary Alice
Tidd. Both the General Counsel's witnesses, Tidd, Schu-
macher, and Willis, and the Respondent's witnesses,
Zibell and Eilert, all have a personal reason other than
truthfulness for testifying as they did, although this in
and of itself does not make their respective testimony un-
believable. i i i Additionally, the testimony of the key wit-
nesses, Tidd and Zibell, was at times and in part, contra-
dictory and equivocal, as set forth hereinbefore, as was
Eilert's testimony.' i 2 Moreover, other than Tidd and
Zibell, the other witnesses to this conversation did not
hear its entirety.
However, after carefully considering the evidence in
the record as a whole, I credit the account of what oc-
curred relating to the discharge of Mary Alice Tidd, as
given by the General Counsel's witnesses, Tidd, Schu-
macher, and Willis. Having previously credited the testi-
mony of these witnesses, especially that of Schumacher
and Willis, 113 with regard to another issue presented
herein, I find no valid reason for disbelieving their testi-
mony about this issue. Moreover, although Zibell testi-
fied that Schumacher was present when Tidd called him
a "fucking asshole," Schumacher testified credibly that
she never heard Tidd use such profanity while she was
there. Additionally, it should be noted that Tidd was
well aware of the Respondent's rule that employees
could be discharged for using profanity against custom-
ers, supervisors, or other employees, having been a wit-
ness to just such an occurrence previously and, even
though upset and angry, would therefore be unlikely to
direct what could be considered a harsh and highly pro-
fane name as "fucking asshole" at the Respondent's
owner while still in its employ.
The Respondent asserts in its brief that Tidd's version
of what occurred "must be discredited" since the claim
110 In fact, from a reading of Zibell's testimony, it is not unreasonable
to infer that Zibell was annoyed and angered by Tidd's complaints and
remarks
iii I do not mean to imply that these witnesses necessarily were being
untruthful because of a personal interest in the outcome of this proceed-
ing, but only point out that this is a factor to be considered in determin-
ing credibility
ill This observation is made on consideration of all their testimony
given
113 As stated, the testimony of Schumacher and Willis on the whole
was given in a clear, unequivocal, and forthright manner throughout, and
was also consistent with the other credible evidence in the record In
contrast, the testimony of Zibell and Eilert was at times guarded, equivo-
cal, inconsistent, and unbelievable This is not to ignore the fact that
Tidd's testimony was also at times inconsistent but, on balance, and for
the reasons stated, I believe the General Counsel's witnesses with regard
to this issue
1463
of Tidd and Schumacher that Tidd had not called Zibell
an "asshole," despite Zibell's having advanced this as the
reason for Tidd's discharge after both she and Schu-
macher had asked Zibell why he had fired Tidd, "does
not comport with common sense." The Respondent con-
tinues therein:
Viewing the totality of the circumstances, is it rea-
sonable to believe that a supervisor would immedi-
ately attribute his action in terminating an employee
to the fact that he had been called an "asshole"
unless the statement was made? It is respectfully
submitted that common sense dictates that Tidd did
call Zibell the profane and abusive name prior to
her discharge. In this situation it is beyond the
bounds of credence to conclude that Zibell, in re-
sponse to Tidd's immediate demand to know the
reason for her discharge, would falsely claim that
Tidd made an obscene remark directed toward him.
If Tidd's obscene remark was not, the basis, would it
not have been more likely that Zibell would have
made reference to Tidd's complaints or would have
refused to give any reason at all?
I have also pondered and considered the significance of
this, but reach a different conclusion than the Respond-
ent, which appears reasonable and consistent with
common sense under the circumstances presented herein.
Considering Eilert's testimony that Tidd had allegedly
used profanity during their conversation which took
place just prior to the one between Tidd and Zibell
wherein Tidd was discharged, and noting Eilert's admit-
ted agitation and unhappiness with Tidd over the con-
tent, it is most likely that Eilert apprised Zibell of more
than Tidd's "going on downstairs," in order for Zibell to
have sought out Tidd as he did while she was still work-
ing out on the restaurant floor. I find it not unreasonable
to assume, under the circumstances, that Eilert told
Zibell about Tidd's alleged use of profanity during their
conversation, and that her confrontation with Tidd was
precipitated by Tidd's discontent with the "amended pay
arrangement" and the Carothers incident. Zibell must
have been fully aware of the Respondent's rule against
the use of profanity by employees whereby they could
be summarily discharged for the breach. Additionally,
while Zibell may not have intended to fire Tidd when
their conversation began, he admittedly was less than ap-
preciative; more likely he became quite angry at her con-
tinued complaints about the Respondent's pay system,
employee working conditions in general, Zibell's treat-
ment of employees in particular, and his management of
the restaurant. Furthermore, employee discontent over
these issues, seemingly fomented by a few employees, in-
cluding Tidd, was causing Zibell some concern, especial-
ly about the legal ramifications of the Respondent and
Zibell. Tidd was admittedly a good worker, without any
blemishes, disciplinary or otherwise, to her work record.
What other reasonable and presumably lawfully support-
ed excuse for her precipitous discharge could Zibell have
propounded?
Moreover, for Zibell to have given no reason for
Tidd's discharge when asked for one by Tidd and Schu-
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
macher would have been unsatisfactory on the part of
the Respondent in the sense that such an omission could
present problems for Win any subsequent proceeding, if
and when the Respondent was confronted in an unem-
ployment compensation hearing involving Tidd or a pos-
sible Board proceeding for wrongful discharge or other
unfair labor practice. In this same vein, to attribute
Tidd's discharge to her complaints about the Respond-
ent's pay system or employee working condition would
-also leave the Respondent potentially vulnerable in sub-
sequent proceedings. Therefore, by asserting as the
reason for Tidd's termination, her calling him a "fucking
asshole," Zibell, in effect, countered these problems. As
ancillary thereto, consider that perhaps Zibell' s anger at
Tidd for the above reasons may have suddenly flared
and crystallized during their conversation, whereupon
Zibell decided to fire her on the spot. Having done so,
he was suddenly asked for the reason for' her discharge
and, on the spur of the moment, considering it to be a
good and sufficient reason, he said that Tidd had called
him a "fucking asshole." After all, it was in fact his word
and possibly Eilert's (since Baird was not present at the
restaurant at the time), against Tidd's and Schumacher's
word.114
Be that as it may, and viewing the totality of the cir-
cumstances present, I do not find that Zibell's having at-
tributed Tidd's discharge when asked to her having
called him an obscene name, although, in truth, she had
not done so, a strain on credulity or common sense re-
quiring disbelief of the testimony given by Tidd and
Schumacher.
As set forth, Section 7 of the National Labor Relations
Act grants to employees the right " to engage in .. .
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection." Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7." Thus, for
employees' activities to be protected under the Act, the
activities must be concerted. The Board and the courts
have always considered, first, whether the activity of the
discharged employee is concerted, and only then, wheth-
er it is protected. This approach is mandated by the stat-
ute itself, which requires that an activity be both "con-
certed" and "protected.'"' 15
The General Counsel asserts that Tidd was engaged in
"protected concerted activity at the time of her termina-
tion and had been thus engaged for some time." Specifi-
cally, the General Counsel argues that Tidd was dis-
charged for engaging in the protected concerted activity
of discussing the Respondent's revised tip pool system
with other employees and complaining to the Respond-
ent about its wage policy and the working conditions of
the Respondent's employees in general.' 16 The Respond-
114 Also, Zibell testified that he was not surprised that Tidd used pro-
fanity during their conversation, since he believed that she had used it
before Thus it is not farfetched that he would seize on this as a reason to
discharge her.
115 Meyers Industries, 268 NLRB 493 (1984); NLRB v. Dawson Cabinet
Co., 566 F 2d 1079 (8th Cir. 1977)
1111 The General Counsel states, "It is well established that protests of
wages, hours, other working conditions and the presentation of ,lob-relat-
ent, on the other hand, contends tha Tidd's statements,
"constituted individual griping and complaining rather
than 'concerted, protected activity."' While treatment of
Respondent 's employees may be a matter of general con-
cern, Tidd had never been designated as spokesperson
for others and did not speak with Zibell -on others
behalf."117 The Respondent continues: "In the instant
case, Respondent's employees are not unionized and no
collective bargaining agreement is in effect., On the
evening of August 3, Mary Tidd, acting alone, made
generalized statements of dissatisfaction to Zibell.'+"s
In the recent case of Meyers Industries, 268 NLRB 493,
497 (1984), the Board set forth the following definition
of concerted activity:'19
In general, to find an ` employees' activity to be
"concerted ," we shall require that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self. Once the activity is found to be concerted, an
8(a)(1) violation will be found if, in addition, the
employer knew of the concerted nature of the em-
ployees' activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue (e.g., discharge) was motivated by
the employees' protected concerted activity.23
za See Wright Line, 251 NLRB 1083 (1980), enfd . 662 F.2d 899
(Ist Or. 1981), cert, denied 455 U.S. 989, approved in NLRB V.
Transportation Management Corp., 103 S Ct 2496, 97 LC ¶ 10,164
(1983).
Under this standard , an employee "may be discharged by the
employer for a good reason, a poor reason, or no reason at all, so
long as the terms of the statue are not violated ." " NLRB Y. Con-
denser Corp. of America, 128 F.2d 67, 75, (3d Cir. 1942). Thus,
absent special circumstances like NLRB Y. Burnup & Sims, 379
U.S 21 (1964), there is no violation if an employer, even mistaken-
ly, imposes discipline in the good -faith belief that an employee en-
gaged in misconduct.'"
ed grievances are for the mutual aid and protection of employees and are
protected by Section 7 of the Act." NLRB v. Washington Aluminum Co.,
370 U.S. 9 (1972).
117 Citing Mushroom Transportation Co Y. NLRB, 330 F.2d 683 (3d
Cir. 1964).
118 Concerted activities need not take place in a union setting and it is
not necessary that a collective-bargaining agreement be in effect. It is suf-
ficient that the employee intends or contemplates, as an end result, group
activity which will also benefit some other employees . Koch Supplies Y.
NLRB, 646 F.2d 1257 (8th Cir. 1981).
119 The Board observed in Meyers, 26$ NLRB at 497:
Although the definition of concerted activity we set forth below is
an attempt at a comprehensive one, we caution that it is by no means
exhaustive. We acknowledge the myriad of factual situations that
have arisen, and will continue to arise, in this area of the law.
120 In Alleluia Cushion Co., 221 NLRB 999 (1975), the Board decided
that it was no longer required to find concert of action . The existence of
relevant legislation and its invocation by a solitary employee became suf-
ficient to find concerted activity. Under Alleluia and its progeny, it was
unnecessary to find "an observable manifestation of `group will' in the
workplace" in order to establish concert of action. If an individual em.
ployee was protesting an issue about which employees "ought to have a
group concern," the Board deemed the employees protest to be concert.
ed activity. However, this was changed by the Meyers case wherein the
Board stated:
[W]e hold that the concept of concerted activity first enunciated in
Alleluia does not comport with the principles inherent in Section 7 of
the Act. We rely, instead, upon the "objective" standard of concert-
Continued
"THE LOFT"
The Board continued in Meyers, 268 NLRB. at 497:
We emphasize that our return to a preAlleluia
standard of concerted activity places on the General
'Counsel the burden of proving the elements of a
violation as set forth herein. It will no longer be
sufficient for the General Counsel, to set out the
subject matter that is of alleged concern to a theo-
retical group and expect to establish concert of
'action thereby.121
Tidd's protests to Zibell on August 3,' 1982, essentially
,,centered around the Respondent's tip pool policy and Zi-
bell's general treatment of the Respondent's employees.
Certainly the Respondent's method of distributing tips
was of direct concern to all the employees 'participating
in the tip pool system and, as the record clearly dis-
closes, had been a source of employee dissatisfaction for
some time . Because of'this, several employees, including
Tidd, had met together on July 23, 1982, specifically to
discuss employee strategy and what their response
-should be to any new proposal made by the Respondent
at a scheduled meeting,to be held on July 25, 1982, be-
tween management and the employees for discussion of
the tip pool problem and any other job-related ones. The
Respondent was aware that Tidd was present at the July
23, 1982 meeting.
Moreover, at the July 25, 1982 meeting, the Respond-
ent's tip pool system was an important topic of discus-
sion and several employees, including Tidd, expressed
their dissatisfaction with the tip pool policy. Of some sig-
nificance is the fact that Zibell asked Tidd for an expla-
nation why the employees thought the, present tip pool
system was unlawful. The only other employee asked
about this was Chanay, whom Zibell believed to be the
`moving force in employee opposition to the tip pool
system. 122 Add to this the additional fact that subse-
quently Eilert approached Tidd and inquired whether or
not the employees had come up with their own recom-
mendation for a new tip pool system and it may well be
inferred, with some reason, that the Respondent consid-
ered Tidd as at least one of the spokespersons for those
employees dissatisfied with the Respondent's pay ar-
rangement . 12 3 Additionally, Tidd did not at any time
speak solely for her own benefit but always in behalf of
all the employees interested.
On August 3, 1982, after the Respondent had instituted
its new tip pool system, Tidd again registered a com-
plaint about this new system as, it may be inferred, did
others who had done so regarding the previous tip
ed activity-the standard on which the Board and courts relied
before Alleluia Accordingly, we hereby overrule Alleluia and its
progeny [268 NLRB at 4961 r
121 The Board also indicated in its Meyers decision that under the
"standard" adopted therein, "the question of whether an employee en-
gaged' in concerted activity is, at its heart, a factual one, the fate of a
particular case rising or'fallmg on the record evidence."
322 Zibell was aware at the time that Jeff Chanay, an employee and a
law student, was responsible for the employees' belief that the Respond-
ent's tip pool system was unlawful, but despite this, Tidd was also ques-
tioned about its legality
'22 Moreover, no employees at the July 25, 1982 meeting or thereafter
registered disapproval of Ttdd speaking on their behalf at this meeting or
at any other time
1465
system, at a meeting held by Zibell with employees. She
also complained to Eilert, notkabout any problem of her
own, but about Eilert's handling of another employee's
problem in effect seeking to intervene on behalf of a
fellow employee.124 Furthermore, during the conversa-
tion between Tidd and Zibell later that evening, Tidd
protested Zibell's treatment of all the employees, not
merely herself, and the institution of the new tip system
which she maintained was no better than the old one in
its unfairness to the employees thereunder. The evidence
shows that not only were Tidd and Carothers dissatisfied
with the new tip policy but other employees had ex-
pressed their aversion to working under this system. Sig-
nificantly, the result of this widespread employee dissat-
isfaction with the Respondent's pay arrangement, was
that the Respondent was compelled to amend the tip
pool policy once again on August 23, 1982. Moreover,
the credible evidence establishes that at least some of
Tidd's complaints resulted from group discussion and
action.12 5.
The foregoing circumstances all support the finding
that Tidd's protests during her confrontation with Zibell
on August 3, 1982, were of a concerted character within
the meaning of Meyers Industries, and that the Respond-
ent was fully aware of the concerted nature of Tidd's ac-
tions. Additionally, as Board precedent held in several
pre-Alleluia cases:
Even individual protests are protected as concerted
activity 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.126
I find substantial support in the record that Tidd spoke
for her coworkers when she complained to the Respond-
ent about its tip system which constituted an important
issue "of moment" to the employees.127
Having concluded that Tidd's activity was concerted
and that the evidence clearly shows that the Respondent
had knowledge of the concerted character of her activi-
ty, I turn to the next question to be resolved: whether
the concerted activity was protected under the Act.
The record clearly shows that at the time of.her dis-
charge, Tidd was complaining to the Respondent about
its tip pool system as part of its employee wage structure
in particular, and employee working conditions in gener-
124 Intermountain Rural Electric Assn., 253 NLRB 1153 (1981), enfd.
732 F 2d 354 (10th Ctr. 1984)
125 Frascona Buick, 266 NLRB 636 (1983)
126 The Barnsider, 195 NLRB 754 (1980); Corret Corp, 191 NLRB 892
(1971), Hugh H Wilson Co., 171 NLRB 1040 (1968), enfd 414 F.2d 1345
(3d Cir 1969).
127 Also see Fairmont Hotel Co., 230 NLRB 874 (1977). The cases
cited by the Respondent in support of its contention herein regarding
whether or not Tidd's complaints were concerted are distinguishable on
the facts In each of these cases, NLRB v. Buddies Supermarkets, 481 F.2d
714 (5th Car 1973), and Koch Supplies v NLRB, 646 F 2d 1257 (8th Cir.
1981), there was no evidence that the employee' s particular complaints
were intended to benefit any employees other than themselves in their
respective cases
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al, conduct undeniably protected under Section 7 of the
Act. The Respondent argues that even assuming Tidd
did engage in protected concerted activity, since she
called the Respondent's owner, Zibell, a "fucking ass-
hole" during the course of such activity, she lost the pro-
tection of the Act. The Respondent maintains that Tidd
was terminated because she called Zibell an obscene
name and not because of her concerted activity. The
General Counsel contends that since Tidd did not call
Zibell a profane name prior to her termination, the Re-
spondent's asserted reason for her discharge is pretextual,
the Respondent's real reason for firing Tidd being her
protected concerted activity of discussing wages and
working conditions with other employees and complain-
ing to the Respondent about such wages and working
conditions. Having credited the account given by the
General Counsel's witnesses as to what was said during
the conversation between Tidd and Zibell on August 3,
1982, leading to the discharge of Tidd, I find it follows
that Tidd's believable denial that she did not call Zibell
an obscene name prior to her termination necessitates a
finding that the Respondent's proferred reason for her
discharge was in fact pretextual. It was offered to mask
the Respondent's real reason for firing her, namely, be-
cause she had engaged in protected concerted activity.
The evidence shows that the Respondent was fully
aware that Tidd had engaged in and was continuing to
engage in the protected concerted activity of discussing
wages and working conditions with fellow employees
and of complaining to the Respondent about these,-espe-
cially concerning the Respondent's tip pool system, for
the purpose of changing the employee pay arrangement
and other working conditions. That Zibell was unhappy,
distressed, angered, and concerned about employee dis-
satisfaction with the Respondent's tip pool policy and
particularly with Tidd's vocal and active opposition, is
also evident from the record. Moreover, Tidd was a
good-employee 12 8 and had never been disciplined previ-
ously for using profanity nor for any other misconduct,
and the only reason advanced by the Respondent for her
discharge was that of having called Zibell an obscene
name and this reason was found to be pretextual. There-
fore, from the foregoing, it is obvious that Mary Alice
Tidd was discharged by the Respondent because of her
protected concerted activity in violation of Section
8(a)(1) of the Act and I so find.129
128 The concensus of the testimony of the Respondent' s witnesses,
Zibell, Eilert, and Baird, was that Tidd was a good employee This is
further evidenced by the fine letter of recommendation given to Tidd by
Wanda Baird prior to Tidd's discharge.
129 Kay Fries, Inc, 265 NLRB 1077 fn 2 (1982) Moreover, as the
Board stated therein-
Rather, the Board has held that, where a pretext discharge is found,
"[n]o substantive objective is served by our reiterating and recasting
an administrative law judge's findings and conclusions in order to
achieve a formalistic consistency with Wright Line . " Limestone
Apparel Corp., 255 NLRB 722 (1981) This is so because a finding of
pretext necessarily means that the reasons advanced by the employer
either did not exist or were not in fact relied on, and therefore estab-
lishes that the employer had failed to rebut the General Counsel's
prima facie case
The General Counsel also asserts in her brief that even
assuming arguendo that Tidd call Zibell a profane name
prior to her discharge, her conduct was insufficient "to
remove her discharge from the protection of the Act."
The General Counsel submits that at the time of her dis-
charge, Tidd was complaining to the Respondent about
the wages and working conditions of the employees,
"conduct undeniably protected under Section 7 of the
Act. Tidd's comment, if made, would thus have occurred
in the context of protected concerted activity." The
General Counsel continues therein:
Under analogous circumstances the Board has held
that an employee may only be deprived of the pro-
tection of the Act if his or her misconduct is violent
or of such serious nature as to render the employee
unfit for further service. Cf. Thor Power Tool Com-
pany, 148 NLRB 1379 (1964), enf d 351 F.2d 584
(1965); United States Postal Service, 250 NLRB 4
(1980). Tidd's use of profanity in no way constitutes
conduct as egregious as to render her unfit for fur-
ther service. . . . Counsel for the General Counsel
would thus submit in the alternative, that Tidd's dis-
charge was violative of Section 8(a)(1) of the ACt
irrespective of whether she had called Zibell a pro-
fane name before her termination.
The Board has held that in the context of protected
concerted activity by employees, a certain degree of
leeway is allowed in terms of the manner in which they
conduct themselves.130 In cases involving formal griev-
ances or negotiating sessions , wherein an employee has
uttered an obscenity or used extremely strong language,
the employee's conduct has been found to be protected
as part of the "res gestae," or as conduct engaged in
"during a moment of animal exuberance." 13 i
However, as the Board stated in Bettcher Mfg. Corp.,
76 NLRB 526 (1948):
We do not hold, of course,-that an employee may
never be lawfully discharged because of what he
says or does in the course of a bargaining confer-
ence. A line exists beyond which an employee may
not with impunity go, but that line must be drawn
"between cases where employees engaged in con-
certed activities exceed the bounds of lawful con-
duct in `a moment of animal exuberance' (Milk
Wagon Drivers Union v. Meadowmoor Dairies, Inc.,
312 U.S. 287, 293) or in a manner not activated by
improper motives, and those flagrant cases in which
the misconduct is so violent or of such serious char-
acter as to render the employee unfit for further
service."
130 Bettcher Mfg Corp., 76 NLRB 526 (1958), NLRB v. Thor Power
Tool Co, 351 F.2d 584 (7th Cir. 1965) See also Crown Central Petroleum
Corp. Y. NLRB, 430 F 2d 724 (5th Cir 1970), Southwestern Bell Telephone
Co., 260 NLRB 237 (1982), Postal Service, 250 NLRB 4 (1980); Max
Factor Co, 239 NLRB 804 (1978); Hawaiian Hauling Service, 219 NLRB
765 (1975)
131 Ibid fn 130. See also Illinois Bell, 259 NLRB 1240 (1982); Firch
Baking Co., 232 NLRB 772 (1977); Webster Clothes, 222, NLRB 1262
(1976).
"THE LOFT" 1467
Moreover, as the court stated in NLRB v Thor Power
Too! Co., 351 F.2d 584, 587 (7th Cir. 1965):
As other cases have made clear, flagrant conduct
of an employee, even though occurring in the
course of Section 7 activity, may justify disciplinary
action by the employer. On the other hand, not
every impropriety committed during such activity
places the employee beyond the protective shield of
the Act. The employee's right to engage in concert-
ed activity may permit some leeway for impulsive
behavior, which must be balanced against the em-
ployer's right to maintain order and respect. NLRB
v Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946).
Again, in Atlantic Steel Co., 245 NLRB 814, 816
(1979), the Board stated: '
The Administrative Law Judge cited no deci-
sions, however, and we know of none, where the
Board has held that an employee's use of obscenity
to a supervisor on the production floor, following a
question concerning working conditions, is protect-
ed as would be a spontaneous outburst during the
heat of a formal grievance proceeding or in con-
tract negotiations . To the contrary, the Board and
the courts have recognized (as did the Administra-
tive Law Judge in passing) that even an employee
who is engaged in concerted protected activity can,
by opprobrious conduct, lose the protection of the
Act,
The decision as to whether the employee has
crossed that line depends on several factors: (1) the
place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee's out-
burst; and (4) whether the outburst was, in any
way, provoked by an employer's unfair labor prac-
tice. 132
With ample support therefore in the record as set
forth, I found that the Respondent's real reason for dis-
charging Tidd was because of her concerted protected
activity. In assuming that she had called Zibell an ob-
scene name during this activity her discharge may have
been motivated by this as well. In Wright Line, 251
NLRB 1083 (1980), the Board set forth a test of causa-
tion to be applied in cases involving actions based on
"dual" motives, one of which is lawful and one of which
is unlawful. Under that test, the General Counsel is first
required to establish a prima facie case sufficient to sup-
port the inference that the protected conduct was a "mo-
tivating factor" in the employer's decision. If this is es-
tablished, the burden then shifts to the employer to dem-
onstrate that it had a legitimate, permissible reason for its
action such that the disciplinary action would have taken
place even in the absence of the protected conduct. In
the instant case, it is clear that the General Counsel es-
tablished a prima facie case, as set forth hereinbefore.
However, I also find that the Respondent has not met its
requisite burden of proof by demonstrating that it would
133 Also see Chrysler Corp., 249 NLRB 1102 (1980).
have discharged Tidd even in the absence of her protect-
ed concerted activity.
It should be noted, that the Respondent knew that
Tidd was engaging in the protected concerted activity of
discussing wages and working conditions with other em-
ployees133 and complaining to the Respondent about
these, particularly in connection with the Respondent's
tip pool system;134 that the Respondent resented Tidd's
vocal and active opposition to the Respondent's tip pool
policy and would have liked for her to voluntarily resign
and leave its employ;' 35 that Tidd was an acknowledged
good employee and had never been disciplined before;
that it can be said that in some respect, Zibell actually
provoked her outburst;136 that the use of profanity by
management and employees alike was not unusual;137
that Tidd's conduct on the whole did not amount to
gross insubordination, did not threaten violence, did not
cause an employee work stoppage, and was not disrup-
tive of the Respondent's right to maintain order and dis-
cipline;138 and that Tidd's obscene statement, although
not to be considered condoned by any finding herein,
and although vulgar, was not so defamatory or opprobri-
ousl3s and her conduct so violent or extreme as to
render her unfit for further service. 140
133 Certainly Eilert (and it can be reasonably assumed that Zibell also)
found out and knew about Tidd's presence at the employees' meeting on
July 23, 1982, at Evans' house, and the reason for this meeting.
134 Both at the meeting of July 26, 1982, and during their conversation
on August 3, 1982, Tidd complained to Zibell about the Respondent's tip
pool system
135 Zibell, at least twice, and Ellett, at least once, had told employees
that if they did not like its pay system, they should quit Also note Ei-
lert's animosity toward Chanay for allegedly causing employee unrest
and Zibell's attitude towards Tidd at the July 25, 1982 meeting and again
on August 3, 1982
136 Zibell initiated the conversation, than wanted to preclude discus-
sion of any problem, he followed Tidd about the premises while she was
performing her work, which was unusual, appeared to ignore the mean-
ing of her complaints other than to listen , smile , and tell her he would
run the business as he saw fit, and generally treated her with some indif-
ference during their conversation, all contributing to Tidd's feelings of
frustration and unhappiness as evidenced by her crying and raising her
voice and, finally, after her discharge, voicing an obscenity agamt Zibell
131 Zibell admitted that he may have used profanity during the July
25 1982 meeting with employees, Eilert used profanity during her tele-
phone e conversation with employees on July 23, 1982, and it is alleged
that Tidd used profanity in her conversation with Eilert on August 3,
1982, and occasionally while on duty at the restaurant, which did not
result in any discipline against her at that time I am aware that the Re-
spondent had previously fired an employee for using profanity directed
against a supervisor. However, that incident involved an employee whose
insubordinate action in doing so was not connected with any protected
concerted activity at all, was unprovoked, involved Eilert, as a woman,
and evidenced behavior that other employees observed and clearly could
view as being insubordinate
138 Contrast Woodruff & Sons, 265 NLRB 345 (1982); Leshner Corp,
260 NLRB 157 (1982), Hotel St. Moritz, 251 NLRB 67 (1980), NLRB v.
Red Top Cab Co., 383 F.2d 547 (5th Cir 1967), Chemvet Laboratories v
NLRB, 497 F.2d 445 (8th Cir 1974), Sullair P.T.O., Inc v NLRB, 641
F 2d 500 (7th Cir 1981) Also Postal Service, 268 NLRB 274 (1983); Hyatt
On Square, 265 NLRB 612 (1982).
139 "Asshole," as used currently, has taken on a connotation similar to
the use of the words "stupid" or "dumb" or "unreliable "
140 Postal Service, 250 NLRB 4 (1980), Firch Baking Co., 199 NLRB
414 (1972), A T. & T. Co., 211 NLRB 782 (1974); Thor Power Tool Co,
supra.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From all of the foregoing , I find and conclude that the
Respondent 's discharge of Tidd on August 3, 1982, was
violative of Section 8 (a)(1) of the Act:141
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of the Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing the free flow of com-
merce. _
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
As the unfair labor practices committed by the ,Re-
spondent were serious and go to the very heart of the
Act, I shall recommend that the Respondent cease and
desist therefrom and in any other manner from interfer-
ing with , restraining, and coercing its employees in the
exercise of the rights guaranteed to them in Section 7 of
the Act. 142
Having found that the Respondent did unlawfully dis-
charge Mary Alice Tidd, I recommend that the Re-
spondent offer her immediate and full reinstatement to
her former position143 or, if that position no longer
exists, to a substantially equivalent position, without loss
of seniority or other benefits, and make her whole for
any loss of pay resulting from her unlawful discharge by
payment of a sum of money equal to the amount she nor-
mally would, have earned as wages from the date of her
discharge to the date of a bona fide offer of reinstate-
ment, less net interim earnings . The backpay due under
the terms of the recommended Order shall be computed
in the manner prescribed by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977). 144
CONCLUSIONS OF LAW
1. The Respondent , "The Loft" (Showcase , Inc.), is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Respondent has interfered with , restrained, and
coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act
by:
141 Postal Service, 250 NLRB 4 (1980), Thor Power Tool Co, supra.
142 Hickmott Foods, 242 NLRB 1357 (1979), NLRB v. Express Publish-
ing Co., 312 US. 426 (1941), NLRB v. Entwistle Mfg. Co., 120 F.2d 532
(4th Cir 1941)
143 Even though Tidd called Zibell an "asshole" after her discharge
this was unquestionably provoked by such unlawful discharge and would
not render Tidd "unfit for further service."
144 See generally Isis Plumbing Co, 138 NLRB 716 (1962). Also see
Olympic Medical Corp, 250 NLRB 146 (1980); Pioneer Concrete Co., 241
NLRB 264 (1979).
(a) Coercively interrogating its employees regarding
their protected concerted activities.
(b) Promulgating and maintaining an unlawful rule
prohibiting its employees from discussing pay, or any
other job problems with coworkers upon penalty, of dis-
missal.
(c) Unlawfully discharging its employees Mary Alice
Tidd because she and other employees engaged in pro-
tected concerted activities.
3. The unfair labor practices, found above are unfair
labor practices affecting commerce within the meaning.,
of Section 2(6) and (7) of the Act. '
4. The Respondent did not engage in unfair labor prac-
tices within the meaning of Section '8(a)(1) of the Act
when it directed an employee to "shut her mouth" or, to'
"shut up."
On these findings of. fact and conclusions of law and
on the entire record, I issue the following recommend
ed14s
ORDER
The Respondent, "The Loft" (Showcase, "Inc.),
Topeka, Kansas, its officers , agents, successors , and as-
signs, shall '
1. Cease and desist from
(a) Coercively interrogating its employees regarding
their protected concerted activities.
(b) Promulgating and maintaining an unlawful rule
prohibiting its employees from discussing pay or .any
other job-related problems, with coworkers on penalty of
dismissal.
(c) Discouraging its employees from engaging in dis-
cussion of their wages 'and working conditions and con-'
certedly complaining about the same or any other-con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, by discharging them
or otherwise punishing them for exercising rights guaran-
teed them by Section 7 of the Act.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act. 146
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Mary Alice Tidd immediate and full rein--'
statement to her former job' or, if that' job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed.
(b) Make Mary Alice Tidd whole for any loss of pay
suffered by her by reason of her unlawful discharge, in
the manner described in the remedy section:
(c) Remove from its files any reference to the dis-
charge of Mary Alice Tidd on August 3, 1982, and
145 If no,exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec . 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
141 A broad order is warranted as indicated by the seriousness of the
unfair labor practices found. Backstage Restaurant, 232 NLRB 1082
(1977); Ann Lee Sportswear, 220 NLRB 982 (1975).
"THE LOFT" 1469
notify -her in writing that this has been done and that evi-
dence of this unlawful discharge will not be used as a
basis for future personnel actions against her. 147
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Rescind its unlawful rule prohibiting employees
from discussing pay or any other job related problems
with coworkers and notify all its employees thereof.
(f) Post at its facility located at 417 West 37th Street,
Topeka, Kansas, copies of the attached notice marked
"Appendix."148 Copies of the notice, on forms provided
by the Regional Director for Region 17, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees- are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the allegation of
unlawful conduct not specifically found herein to be vio-
lative of the Act be dismissed.
197 Sterling Sugars, 261 NLRB 472 ( 1982).
148 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT do anything that interfers with, re-
strains, or coerces you with respect to these rights.
WE WILL NOT coercively interrogate you regarding
your protected concerted activities.
WE WILL NOT promulgate and maintain an unlawful
rule prohibiting you from discussing pay or other job re-
lated problems with coworkers on penalty of dismissal.
WE WILL NOT discourage you from engaging in dis-
cussions of wages and working conditions and concer-
tedly complaining about the same or any other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, by discharging you or
otherwise punishing you for exercising rights guaranteed
you by Section 7 of the Act.
WE WILL NOT in any other manner interfere with, re-
strain or coerce you in the exercise of your rights guar-
anteed by Section 7 of the National Labor Relations Act.
WE WILL rescind our unlawful rule and notify you
thereof.
WE WILL offer Mary Alice Tidd immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or any other rights or privileges
previously enjoyed and WE WILL make her whole for
any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL notify Mary Alice Tidd that we have re-
moved from our files any reference to her discharge and
that the discharge will not be used against her in any
way.
"THE LOFT" (SHOWCASE, INC.)
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.