223 N.L.R.B. 725 (N.L.R.B. 1976)

The Mandarin

National Labor Relations Board - Board DecisionsApr 7, 1976

223 N.L.R.B. 725 (N.L.R.B. 1976)

THE MANDARIN M Restaurants , Incorporated , d/b/a The Mandarin and San Francisco Local Joint Executive Board of Culinary Workers, Bartenders , Hotel , Motel and Club Service Workers, Hotel and Restaurant Em- ployees and Bartenders International . Case 20-CA- 9975 April 7, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On November 21, 1975, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and the Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. Contrary to the Administrative Law Judge, we find that Chien violated Section 8(a)(1) by telling Wong and Hall that they could not continue to work for the Respondent if they engaged in picketing at Respondent' s premises during their days off. As the Respondent did not introduce any evidence to show that either Wong or Hall had at any time blocked the entrances to The Mandarin or shouted epithets about The Mandarin's food 2 or that, while at work, either of them had urged any customers to boycott The Mandarin, we find that, when Chien gave Wong and Hall the choice of either working or picketing, his only concern, as indicated by his own testimony, was to stop them from picketing to publicize the Union's dispute with the Respondent.' As the record does not ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We do not attribute this conduct to Wong and Hall, as the Administra- tive Law Judge did, because both were present on the picket line when some of it occurred . Absent any showing of individual participation , we do not agree that a showing of a general course of conduct by these pickets pro- vides a basis for attributing unprotected activity to Wong and Hall. See Acker Industries, Inc., 184 NLRB 472 (1970); Otsego Ski Club-Hidden Val- ley,, Inc., 217 NLRB No. 64 (1975). Moreover, there was no evidence introduced to show that the state 725 support the finding that Wong and Hall were guilty of any picket line misconduct, and as the purpose of the picketing itself, i.e., to encourage a boycott to protest Respondent's labor policies, was protected,4 we find that Chien's ultimatums violated the Act. AMENDED CONCLUSION OF LAW Delete the Administrative Law Judge's Conclusion of Law 3, and add the following Conclusions of Law: "3. Respondent violated Section 8(a)(1) of the Act by threatening to discharge Karen Wong and Renee Hall because they picketed the Respondent during off-duty hours. "4. Respondent did not, through any other alleged conduct, violate Section 8(a)(1), (3), and (4) of the Act, as alleged in the complaint, and Respondent did not in any other manner interfere with, restrain, or coerce its employees in the exercise of rights guaran- teed in Section 7 of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board orders that the Respondent, M Restau- rants, Incorporated, d/b/a The Mandarin, San Fran- cisco, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing em- ployees by threatening to discharge them for engag- ing in concerted activities, including lawful picketing, for the purpose of mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Post at its restaurant, 900 North Point, Ghirar- delli Square, San Francisco, California, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by court's temporary restraining order enjoining the pickets from engaging in coercive conduct was violated after it issued on January 24, 1975, more than 2 weeks before Chien gave Wong this choice on February 9. We further note that the Respondent did not contend that Chien gave Wong and Hall the choice between working or picketing because of a good-faith belief that they had engaged in any of this alleged misconduct. Edir, Inc., d/b/a Wolfie's, 159 NLRB 686 (1966); Sears, Roebuck & Co., 168 NLRB 955 (1967); Burns Ford, Inc., 182 NLRB 753 (1970); Vincent F. Lang and Wilma Lang d/b/a La Mesa Convalescent Hospital, 217 NLRB No. 37 (1975). 5 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 223 NLRB No. 100 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 20, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT interfere with, restrain, or coerce employees by threatening to discharge them for engaging in concerted activities, including law- ful picketing, for the purpose of mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the Nation- al Labor Relations Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named labor organization, or any other labor organization. M RESTAURANTS, INCORPORATED, d/b/a THE MANDARIN DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at San Francisco, California, on August 27, 28, and 29 and September 29, 1975.1 The complaint, issued May 23, is based upon an initial charge filed Febru- ary 19, a first amended charge filed April 25, and a second amended charge filed on May 20 by San Francisco Local Joint Executive Board of Culinary Workers, Bartenders and Hotel, Motel and Club Service Workers. The com- plaint alleges that M Restaurants, Incorporated, d/b/a The Mandarin, hereinafter referred to as Respondent, violated 1 All dates hereinafter are within 1975, unless stated to be otherwise. Section 8(a)(1), (3), and (4) of the National Labor Rela- tions Act, as amended, hereinafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-examine witnesses , and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record, and from my observation of the witnesses , and their demeanor, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a California corporation with its main of- fice and principal place of business located in San Francis- co, California, and is engaged in operating restaurants and cocktail lounges. During the fiscal year ending December 31, 1974, Respondent, in the course and conduct of its business operations , received gross revenues in excess of $500,000. During the same fiscal year Respondent, in the course and conduct of its business operations, made pur- chases directly from suppliers located outside the State of California, valued in excess of $5,000. I find that Respon- dent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED San Francisco Local Joint Executive Board of Culinary Workers, Bartenders , Hotel, Motel and Club Service Workers, Hotel and Restaurant Employees and Bartenders International , hereinafter referred to as the Union, is a la- bor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent operates a restaurant and lounge in San Francisco called The Mandarin, which specializes in Chi- nese meals . A similar restaurant recently was established by Respondent in Los Angeles. Respondent's owners are Linsan Chien (Chien) and Cecilia Chiang (Chiang). Karen Wong (Wong) began work at The Mandarin in September of 1973 as a hostess, and sometimes served as a cocktail waitress. Wong was one of the principal activists in union organizational efforts at The Mandarin, particu- larly during the period of, approximately, July 1974 through February 1975. During that period of time Wong distributed union authorization cards, held organizational meetings in her home, attended all union meetings relating to The Mandarin, picketed, distributed leaflets, assisted in the drafting and preparation of leaflets, acted as union ob- server at the election conducted November 22, 1974,2 gave interviews to news media relative to organizational efforts, and otherwise gave full support to the union drive at The 2 The Union won the election and Respondent filed objections thereto, which at the date hereof are pending before the National Labor Relations Board. The Union has not been certified to date. THE MANDARIN Mandarin . In her capacity as one of The Mandarin 's host- esses , Wong greeted customers , seated them or provided waiting facilities if necessary , distributed menus , and gen- erally acted as one of The Mandarin 's receptionists .3 Until she was directed by Chien in December 1974 or January to discontinue doing so , Wong also answered the telephone and made reservations for customers. It was stipulated by counsel that , in a hearing held De- cember 17, 1974, in Case 20-CA-9552 involving the same parties as herein , Wong testified on behalf of the General Counsel. On January 4 Chien gave to Wong a letter (G.C. Exh. 4) of warning and I week's suspension because of (allegedly) poor work performance . On January 16 Chien told Renee Hall (Hall), another hostess , and on February 9 he told Wong, that they would have to make a choice between picketing and continuing to work for The Mandarin. On April 14 Chien discharged Wong for (allegedly) taking a customer 's jacket home , for her personal wardrobe. (G.C. Exh. 8) On January 24, 1975, Judge Robert J . Drewes of the Superior Court for the City and County of San Francisco issued a temporary restraining order and order to show cause , upon Respondent's complaint that the Union was engaging in improper and illegal picketing of its premises. A preliminary injunction was issued February 7, 1975, and its issuance was challenged by the Union . That challenge was unsuccessful in the appellate court and in the supreme court of the State of California. B. Contentions of the Parties General Counsel contends that the aforesaid instruction by Chien to Hall and Wong that they could not both picket and work as hostesses for The Mandarin, Wong's suspen- sion, and her termination were in violation of the Act since they were engaged in by Respondent because of Wong's union or other protected activities. Respondent contends that the choice given to Hall and Wong was not illegal , since their picketing activities were disloyal and inconsistent with their work as hostesses, therefore not protected; that the letters of warning and suspension were justified because of customer complaints about Wong's poor work and arrogant attitude; and that Wong's termination was solely because of her taking a customer's jacket without permission or right. 1. The picketing choice given to Wong and Hall Paragraph VI of the complaint alleges that, on or about January 18 and February 8, Chien advised employees they could not work for Respondent if they engaged in picket- ing at Respondent's premises during their off-hours. The fact that Chien gave Wong and Hall a choice of picketing or working is not in dispute. Renee Hall, who was a hostess for The Mandarin from April 1974 until she quit the end of April 1975, testified 3 The Mandarin prides itself upon its location , its claimed exclusiveness, and its wide reputation as a specialist in the art of Chinese food preparation, as shown by testimony herein. 727 that Chien told her on January 18: He said, "I saw you picketing last night and you are not to picket as long as you work for the Mandarin. I give you your choice; either you work for the Manda- rin, or you can picket and not work for the Manda- rin." I asked him if that meant he was firing me. And he said, "You have these two choices to choose from, because if you go out there and picket, you con- fuse the workers, you confuse the customers. "One day you will be out there picketing and telling people not to patronize the Mandarin, and the next day you will be working at the Mandarin and serving the customers." Wong testified that Chien told her on February 8; He said that he noticed that on my day off I was picketing in front of the Mandarin, and asked the cus- tomers not to come in. But when I work at the Mandarin, I have to greet people at the Mandarin, because that is my job. He said that it was hypocritical for me to do both, and he said that I can't do both. He said he is giving me a choice; either I picket and tell people not to come into the Mandarin, or I work in the Mandarin. Chien testified he told Hall on January 16: I said, "You have to make a choice. Either you are going to continue to work here to help the restaurant, or you are going to continue to picket and hurt the business." Chien testified he told Wong on February 9: I told her that she cannot both picket outside, urg- ing customers not to come into the restaurant, and at the same time, work in the restaurant as a hostess, welcoming and greeting customers. I told her that she had to make a choice. I said, "You cannot do both. When you are in the restaurant, you are greeting customers and telling cus- tomers to please call on us again, and the same time, the very next day, and go out and you see the same customers and are saying not to patronize the Manda- rin restaurant." I told her that this, to me, is hypocritical and also a disloyal action towards your employer. Alan R. Hassett (Hassett), a private investigator, testi- fied that he was at The Mandarin as an employee of an investigative agency retained by Respondent on the eve- nings of January 14, 15, and 18. He stated there were many pickets at and near The Mandarin on all three evenings, and that, on all three evenings, the pickets booed loudly each time a customer went to the restaurant and cheered loudly each time a customer seemed to change his mind and not enter. Hassett said he heard pickets say to pro- spective customers: "They have cockroaches in their food," "Don't eat chop suey, eat spaghetti," "Bloodsucker, nonunion restaurant," "What happens if you eat at the Mandarin, get sick, throw up," "Don't come back you 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rats" (stated as customers left the restaurant), and repeat- edly, the statement "Boycott the Mandarin Restaurant." Chien and other witnesses testified to the large number of pickets walking in circles near the restaurant entrance, and blocking the doorways, making it difficult to enter. Wong and Hall testified in much the same manner rela- tive to the picketing, but denied hearing various statements attributed to the pickets other than the one asking a boy- cott of the restaurant. General Counsel's witness Mario D'Angeli (D'Angeli), a union employee, acknowledged there were from 60 to 80 pickets at The Mandarin January 14, that they circled near the restaurant entrance , that the pickets "stated various comments; some of them together" that there were "con- siderable circling and considerable issuing of statements," particularly early in the evening, that the pickets told peo- ple "don't go in ," that there were "crude" expressions, that the pickets made "some expression of negative feeling" (jeered) when customers entered the restaurant, and that the pickets cheered when potential customers declined to go into the restaurant. D'Angeli said the situation on Janu- ary 15 and 18 was about the same as on January 14. Signs were displayed in abundance by the pickets, and leaflets were freely distributed to people near the entrance, urging a boycott of The Mandarin. The temporary injunction issued by the superior court and later upheld on appeal to the supreme court of Califor- nia enjoined and restrained the Union from engaging in, threatening, or attempting a broad range of violent and coercive conduct. Wong testified that she circulated with the pickets on January 15, asked people not to go into The Mandarin, and distributed leaflets urging a boycott of The Mandarin. She said she distributed leaflets or picketed the entire peri- od of her suspension (from January 15 until January 22), and that thereafter, on her nights off until February 8, she was with the pickets and handbilling. She said she "possi- bly" asked more than 200 people not to go into the restau- rant , and that some did not go in as a result of her efforts. On cross-examination she stated that she and Hall were among those picketing. Hall testified that she picketed and handbilled January 15, but that she has not picketed or handbilled since that date. Chien testified to seeing Wong with the other pickets, and handbilling, during the times Wong acknowledged she was with them. Analysis It is beyond question that the picketing engaged in at The Mandarin in January and early February was coer- cive, disruptive, and dangerous. Its purpose clearly was, by malicious remarks and conduct, to prevent customers from patronizing the restaurant and to bring the business to a halt. No strike was involved; no employees of The Manda- rin were involved other than Wong and Hall. On February 8 the picketing was the subject of an injunction later af- firmed by the supreme court of California. By her own testimony Wong engaged in the picketing and handbilling on a regular basis from January 15 until February 8. Hall acknowledged participating in the picket- ing on January 15, but not thereafter. Wong said she was given the choice to work or picket on February 8; Hall said she was given the same choice on January 18 .4 Hall's choice was given by Chien at the height of actions later enjoined. Wong's choice was given by Chien 2 days after the date of the injunction. However, there is no showing that the nature of the picketing had changed by the time of Chien's conversation with Wong,5 and Chien and Wong both stated that Wong was with the pickets the preceding day, February 8. Further, issuance of the injunction was on appeal until its affirmance after hearing herein was opened. Finally, there is no showing of when the injunction was served upon the Union. There is abundant evidence and testimony showing strenuous efforts by the pickets to interrupt the business of The Mandarin and to intimidate potential customers as well as the owners of the restaurant.' That evidence and testimony also shows attempts to convince passers-by as well as possible customers that The Mandarin was serving food unfit to eat. Whether or not Wong and Hall actually uttered some of the statements in evidence, they cannot be heard to disa- vow them since they were with the pickets when the state- ments were made; Wong helped draft handbills urging a boycott of The Mandarin; Wong was heard to urge such a boycott, and she was at the very forefront of picketing and all its attendant activities, including the giving of inter- views to news media. Whether or not Wong and Hall made all the statements attributed to the pickets is immaterial. Obviously, they were engaged in a bitter battle with the owners of The Mandarin, and would embrace any state- ments by the pickets that would assist their cause. It is further noted that Wong and Hall at no time endeavored to disassociate themselves from the pickets' words or ac- tions. To the contrary, when Chien talked with her, Wong insisted that the choice he gave her was "illegal," and that she could do anything she wanted to on her time off. Chien stated that he was upset and worried because of the effect of the pickets' actions upon The Mandarin and its customers. He did not fire, or otherwise discipline, Wong or Hall because of their actions; he only attempted to prevent them from engaging in conduct clearly in con- flict with their duties as hostesses. As he explained to the two, they could not walk the picket lines and strongly urge customers to stay away from The Mandarin, then come inside and be hospitable hostesses to the same class of peo- ple they tried to turn away. Chien was not addressing him- self to a normal picketing concept; he was confronted with a far more serious situation-one so serious, in fact, that it was enjoined by court action. Chien testified he gave Wong the choice on February 9, and Hall on January 16. Chien is credited, although resolution of this discrepancy is not required for this discussion. Testimony on this point indicates there was a gradual , rather than an abrupt. change in the picketing to conform with requirements of the injunc- tion . Wong testified that the only change she made as a result of the injunc- tion was to stand farther from other pickets , and to move rather than re- main fixed. 6 In this connection , the witness Hassett is credited . He was firm and convincing throughout his direct and cross -examinations. THE MANDARIN 729 Under such circumstances, at the time Chien gave Wong and Hall the choice of picketing or working he was not addressing himself to concerted activity protected by Sec- tion 7 of the Act. The choice he gave the two employees was between working, and engaging in disloyalty not pro- tected by the Act. He clearly communicated to Wong and Hall that he was concerned because of their disloyalty. He told them their actions were hypocritical and unethical. Any argument that the existence of a labor dispute of itself clothes disloyalty with the protection of Section 7 was put to rest in the case of N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, 346 U.S. 464, 477 (1953), when the Supreme Court stated: Even if the attack were to be treated, as the Board has not treated it, as a concerted activity wholly or partial- ly within the scope of those mentioned in § 7, the means used by the technicians in conducting the at- tack have deprived the attackers of the protection of that section, when read in the light and context of the purpose of the Act. See also , The Patterson-Sargent Company, 115 NLRB 1627 (1956); Kitty Clover, Inc., 103 NLRB 1665 (1953), enfd. 208 F.2d 212 (C.A. 8, 1953) (involving remarks made by em- ployees in attempting to convince customers not to patron- ize their employer); William C. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966). The case of Hennepin Broadcasting Associates, Inc., 215 NLRB (1974), cited by General Counsel is inapposite, since it involves no more than a simple appeal for support, in temperate language. The case of Texaco, Inc., 189 NLRB 343 (1971), cited by General Counsel, also clearly is inapposite. The Administrative Law Judge there stated, in- ter alia, "the union bulletin was not critical of the Respondent's products or services, but rather of the labor practices followed by the Respondent at other facilities." It is found that this allegation is not proved. 2. Alleged suspension of Wong Paragraph VII(a) of the complaint alleges that, on or about January 14, Respondent suspended Wong because she had given testimony at a National Labor Relations Board hearing on December 17, 1974, and/or because of her activities on behalf of the Union, and/or because she engaged in other protected concerted activities. Counsel stipulated that Wong testified December 17, 1974, in Case 20-CA-9552, adversely to Respondent. Wong testified that she talked with Chien between 11:30 p.m. and midnight on January 14, at which time Chien handed her a letter of suspension from January 16 until January 22.' The letter included a warning about future conduct. She said she was not shown the customer letter of complaint upon which her letter of suspension was based, and she stated that she had never been previously warned or reprimanded, although she had been spoken to "often" (about once each month) by Chien and told "we should smile and be gracious and be courteous to customers." Wong said such reprimands always were given to groups, not to Wong singly. Elizabeth Rhee (Rhee) testified that she has been a regu- lar customer at The Mandarin for about 1-1/2 or 2 years. She said she first met Chiang several years ago, but did not see her thereafter, until The Mandarin was opened. She said she is not a friend or social acquaintance of Chiang, nor has Chiang ever joined Rhee at the table when Rhee patronized The Mandarin. Rhee testified that she has com- plained on many occasions to Chien and Chiang about the rudeness of Wong and other hostesses at The Mandarin, and that she was particularly upset by an incident in No- vember or December 1974, at which time Wong was surly and rude throughout Rhee's arrival and seating . Rhee com- plained to Chiang, who asked her to write a letter about the incident. Rhee said she thought about writing the letter for some time , and finally did write it on January 7.1 Chiang testified to many complaints she had received about the rudeness of Wong and other hostesses, and about the incident Rhee testified to. Chiang said she asked Rhee to write a letter of complaint to form a basis for taking some form of action. Chien testified that he had to talk with Wong on many occasions about her unsatisfactory work. He stated that, after the letter from Rhee was received, he called his law- yer about possibly suspending Wong because she was the only hostess named in the letter, and she was named as the rudest and most arrogant of the hostesses. The reason for the call was that the Union had filed from four to six charges against The Mandarin during the past year, and Chien wanted to consult with his attorney prior to taking any action. Chien said he discharged an employee in June 1974 following a letter of complaint about an employee named Ramon Ing. Prior to the discharge of Ing, Chien had warned all employees about soliciting tips, which was the specific reason for Ing's discharge. Analysis Rhee was an impressive witness. She was firm and con- vincing in her answers, and her testimony was not shaken on cross-examination. No bias or prejudice on her part was shown. Her version of the various incidents at The Manda- rin involving Wong, culminating in the incident of Novem- ber or December which resulted in Rhee's letter of January 7 to Chiang, is credited. Rhee's testimony is supported in substantial measure by that of Wong, who testified that Chien talked with her about once each month concerning treatment of customers, and she said those talks were tak- ing place as early as the spring of 1974. Wong attempted to soften that testimony by stating that one or more hostesses were included in all the lectures, but that attempt was far from convincing. Further, the fact that monthly talks ad- mittedly were necessary attests to the obvious shortcom- ings of Wong's performance. Chien's testimony concerning his actions after receiving the Rhee letter, including his call to his attorney on Janu- ary 13, is credited. The fact that Wong first picketed on January 14 is found not related to the letter of suspension for several reasons. First, there is no evidence, or any rea- 7 G.C. Exh. 4. 8 Resp. Exh. 4. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable basis for inference, that Chien's letter of suspen- sion was prepared after Wong began her picketing on Jan- uary 14; rather, the evidence is that the letter was prepared and written before that time. Second, the picketing was only part of Wong's union efforts. She had been extremely, and openly, active for several months prior to January; she gave interviews to news media in December 1974; she held, and attended , many union meetings ; she testified against The Mandarin on December 17, 1974; she was a union observer at the election of November 22, 1974. The record shows that Chien and Chiang were well aware of the nature and extent of Wong's union activities since prior to No- vember 1974. If Chien had been determined to find or con- trive a reason to suspend or get rid of Wong, he would have acted long before January 14. Even assuming, arguen- do, that the letter hastily was put together January 14 only because Wong was with the pickets, that does not explain why Chiang asked Rhee in November or December to put her complaints in writing, nor does it explain why, if the letter of January 14 was intended as a way to punish Wong for her strong activism, Wong merely was suspended for a week . If the letter would support suspension , it would sup- port termination . The record is consistent with Wong's sus- pension because of her poor work and poor attitude. It is not consistent with her suspension because she was en- gaged in union activities . Finally, Wong was treated even more generously than an employee (Ing) about whom a letter of complaint was given to Chien in June 1974. It is clear that Chien had ample cause to discharge Wong after receiving the letter from Rhee , had he chosen to do so. Her consistent disregard for restaurant policies ,9 necessitating at least monthly reprimands or talking to since the spring of 1974 (if not prior thereto), would have warranted imme- diate discharge upon Rhee's oral complaint in November or December. That basis for action did not abate, then suddenly become reactivated the day Wong picketed. There was continuous consideration of the matter until Chien called his attorney on January 13, which resulted in the letter on January 14. Rhee testified that she had experienced repeated instan- ces over a long period of time wherein Wong treated her in a rude and arrogant manner . She said the incident in No- vember or December was the last straw, as a result of which she told Chiang she no longer would patronize The Mandarin unless changes were made . Chien testified that he had experienced complaints over a long period of time involving Wong and , to a somewhat lesser extent, other hostesses . He recited specific instances wherein Wong and other hostesses had been advised of complaints by custom- ers, following which Chien reprimanded or lectured Wong and the other hostesses. As discussed above, Wong's testi- mony supports the testimony of Rhee and Chien in that she acknowledged monthly (at least) lectures by Chien on the duties of hostesses . Rhee and Chien are credited in their conclusions that Wong was an unsatisfactory hostess, partially upon the basis that their testimony is supported by Wong, and partially upon the basis of observation of 9 Chien testified to three instances in September 1974 when he repri- manded Wong for violating such policies . That testimony was not denied or contradicted. the witnesses. Rhee and Chien gave the appearance of forthright and reliable witnesses, and their testimony has support at every turn. Wong gave the appearance of an unreliable witness, and her testimony frequently either was supportive of Rhee and Chien, or was self-contradictory and obviously contrary to fact, as discussed herein. It is contended by General Counsel that Wong was sus- pended because she gave testimony unfavorable to Re- spondent in a prior hearing. That contention is discussed in connection with the allegation considered next below. Under such circumstances it is quite clear, and it is found, that Wong's suspension was the result of a letter of complaint written by Rhee, culminating a long history of unsatisfactory work performance that had been a source of annoyance to customers and management of The Manda- rin. It is found that the General Counsel did not sustain his burden of proof on this allegation, and that Wong was suspended solely because of her unsatisfactory work. 3. Wong's discharge Paragraph VII(b) of the complaint alleges that, on or about April 14, Respondent terminated Wong because she had given testimony at a National Labor Relations Board hearing on December 17, and/or because of her activities on behalf of the Union, and/or because she engaged in other protected concerted activities. The defense is that Wong was discharged solely because she appropriated a customer's jacket placed in the cloak room of The Mandarin for safekeeping. There is no controversy about the fact that the jacket in question was lost at The Mandarin by a customer, Mrs. Diana Fuller, during a Chinese New Year's celebration on February 12, and that it was placed in the cloakroom for safekeeping. There is considerable controversy about what happened thereafter. Wong testified: In the beginning of the evening I was called to the coatroom to look for a jacket that everyone wears when they are cold, and it wasn't there. There was another one there so I put it on. I was standing at the front desk with the other host- esses and I was looking at the coat and I said, "This coat is not bad looking." One of the other hostesses, Patti Fay (phonetic), said, "Oh, that's not yours. I thought it was yours." I said, "No, I found it in the closet." She said, "Oh, that has been there a long time. If you turn up the sleeves, it will fit you. Why don't you just wear it home." Q. What did you do? A. I wore it the rest of the night and I wore it home too. Wong said she was, the one who placed the jacket in the cloakroom the evening of February 12, and that, after she took the jacket home March 20, she wore it "a few times." Wong further testified that, when she arrived home April 6, she saw a note on the blackboard written by Hall, her roommate, which said: "Patti [Patti Fei, hereinafter Fei] called about the coat that you have. She said the customer THE MANDARIN came in to get it." Something also was said about "she [Fei] hadn't told Mr. Chien yet." Wong stated that she worked April 7, but did not return the jacket that day; that she did not work April 8 and did not return the jacket that day; and that she worked April 9 and placed the jacket in the cloakroom that day. Wong testified that she talked with Chien about 6 p.m. on the evening of April 9, and told Chien in response to his inqui- ry that her justification for taking the jacket was "I was cold one night, so I put it on, and the other hostesses said that it had been there a long time, so why didn't I wear it home." Wong said she worked April 10, was off work April 11 and 12, worked April 13, and was fired when she came to work April 14.10 Wong said Chien told her the customer came for the jacket, that the customer was upset because the jacket was not there, and that Wong was fired because she took the jacket without permission. Wong protested and said Fei gave her permission to take the jacket, and Chien replied that Fei did not have that authority. On cross-examination Wong testified that, pursuant to policy and practice, the daytime hostess periodically cleans the closet of lost and found articles and "either she would throw them away or give them to people." Wong further stated that the only time she knows of that policy having been followed, other than this incident, was an'occasion when Wong first started working at The Mandarin, at which time "another hostess gave me another jacket to take home before." Wong said either Chien or Chiang, or both, "usually" were at the restaurant, and she "guessed" one of them was there the evening she took the jacket. Hall verified the fact that she received a telephone call from Fei in early April, and left a note in the apartment she shared with Wong, for Wong to read. Hall stated that a hostess offered her a scarf, and a lipstick that had been lost at The Mandarin, in the summer of 1974, but she did not accept them. Hall also testified that a copy of Respondent's Exhibit No. 111 was shown to her by Chien at the time she was hired in April 1974 by The Mandarin, and that she read it. She said a simpler version of the rules is kept in the drawer used by hostesses at the front desk. Patti Fei, a hostess at The Mandarin since July 1974, testified that she saw Wong with the Fuller jacket about the end of February or the first part of March. Wong told Fei she would like to take the jacket home, "and that it has been hanging there for a long time and nobody had come to pick it up." Fei testified, "I just smiled and didn't say anything." She stated that Mrs. Fuller came to the restau- rant April 5 to talk with Chiang about her jacket, but Chiang was not there. Fei gave Chiang a message with Mrs. Fuller's telephone number, and later told Chiang about Mrs. Fuller's visit. Fei said she called Wong that day and, since Wong was out, she told her roommate, Hall, about Mrs. Fuller's visit and asked Hall to tell Wong to 10 G.C. Exh. 8. 11 This is The Mandarin's rules and policies. Included in it is the following rule: 12. No tangible properties of this restaurant will be allowed to be taken out by any employees without authorization from the Management. The Mandarin reserves the right to inspect any packages being taken out from the restaurant by any personnel. 731 return the jacket. Fei tried to telephone Wong April 6, but Wong was not in, and she again called Wong's apartment April 7 and talked with Hall. She told Hall the jacket still had not been returned. When Wong came to work April? she told Fei she "forgot" to bring the jacket. Wong re- turned the jacket April 9. Fei denied that she ever told Wong to wear the jacket or take it home, and she said she had no such authority. Fei testified that the restaurant's rules (Resp. Exh. 1) at all times are kept in the desk drawer used by the hostesses. She said hostesses are not permitted to use items left in the restaurant by customers, and she has never seen any hostess (other than Wong) take anything home that had been left in the closet, nor has she ever seen a hostess give anything left in the closet to anyone else. Chien testified as follows: Between 1968 and 1974, he gave a copy of The Mandarin's rules (Resp. Exh. 1) to each new employee; in 1974 the copies were exhausted and thereafter he read the rules to each new employee, and discussed the rules with them. A copy of the rules also was kept in the front desk drawer, available to all employees. A copy of the rules was not given to Wong, since he was away when she was hired. Chien first heard about Fuller's jacket on April? when Chiang told him about it and said she had been trying for 3 days, without success, to get in touch with Fuller. Chiang asked Chien to look into the matter, since Chiang was going to Los Angeles that afternoon. Chien then talked with Fei, who told him about Mrs. Fuller's coming to the restaurant April 5 to look for the jacket. Chien talked with Hall April 9 and was told that Wong took the jacket. Chien then talked with Wong, who said she had returned the jacket that evening. Chien asked Wong for her justification for taking the jacket, and Wong replied that she had worn it one night when she was cold, since it had been in the cloakroom for some time; that it fit her and since no one seemed to be claiming the jacket, she took it. After the conversation with Wong, Chien decided he would have to fire her. He called Chiang in Los Angeles on the telephone that evening and advised her he had de- cided to discharge Wong. All checks of The Mandarin re- quire the signatures of both Chien and Chiang, therefore, Chien sent Chiang a check that evening for her to sign. The signed check was returned to Chien April 14. That evening Chien discharged Wong and gave her the severance check and a letter of dismissal. At that time Wong said Fei gave her permission to take the jacket, and Chien said Fei did not have that authority. The jacket was returned to Mrs. Fuller April 19 or 20. The owners of The Mandarin always have followed a strict policy about taking property without permission, and about all forms of dishonesty. That policy has included immediate dismissal. The number one cook was fired in 1968 for stealing pots and pans; two barten- ders were fired on separate occasions for stealing money;12 at least two cocktail waitresses have been fired for "load- ing" customers' cocktail bills; one waiter was fired for cheating the restaurant by using the same dinner bill twice; another waiter was fired for stealing by using a credit card; a bartender was fired for giving Chien a false illness report in order to get time off. The Mandarin has no policy of permitting hostesses to give away lost and found articles; 12 The bartenders were named Jimmy Yee and Jerry Tye. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only Chien disposes of such articles. Chiang testified much the same as Fei and Chien on this subject. Mrs. Fuller testified that the jacket cost about $60 when it was new , about 6 years ago . She said she missed the jacket 2 or 3 weeks after the Chinese New Year party at The Mandarin. She said "somebody," she thought it was her husband, went to the restaurant to pick up the jacket, after she made an earlier telephone inquiry about it. The jacket was not at the restaurant, and Mrs. Fuller "was very irate . . . and I wanted my jacket." Thereafter she made another telephone call to The Mandarin and the jacket was there . Mrs. Fuller said she still is wearing the jacket. Analysis Mrs. Fuller left her jacket at The Mandarin February 12, later made two telephone calls about it, and sent someone to the restaurant on two occasions concerning the jacket. She still is wearing it. Wong acknowledged taking the jacket home and wear- ing it thereafter . She said she took it March 20. Fei said Wong took the jacket the end of February or the first part of March . Fei was an unusually impressive witness, whose testimony is credited in its entirety . Based upon that testi- mony, it is found that Wong took the jacket late February or early March. There is no controversy about the date of the jacket's return by Wong-April 9. The record shows, and it is found, that from its inception The Mandarin has had a firm policy against dishonesty and that policy is embodied in a written document given to each new employee or made readily available to employees at all times , in a desk drawer used by hostesses . The record also shows that the policy has been invoked on many occa- sions, resulting in dismissal of employees. The record does not show any instance wherein dishonesty has been tolerat- ed. Wong testified that she received permission from Fei to take the jacket . Fei denied that statement , and said she (Fei) has no authority to take such action. Fei is credited." It is found that Wong appropriated the Fuller jacket and returned it only after repeated requests to do so; that such action was a violation of The Mandarin's policy concern- ing lost and found articles; that Wong was well aware of that policy at the time she took the jacket; that the jacket's loss was of considerable concern to its owner , and still is being worn by that owner, following its return ; and that Wong was fired solely because she appropriated the jacket to her own possession and use. It is contended by General Counsel that Wong was fired (and also suspended) because she gave testimony against Respondent at a former hearing , or because of her union or 13 Fei is a hostess, the same as Wong. Neither is a supervisor. There is nothing in the record to support Wong's testimony. Further, commonsense would dictate Wong's asking either Chien or Chiang about taking the jack. et, since one of them always is available. other protected activity. The record is devoid of any basis upon which to find that Wong was fired (or suspended) because of any testimony given by her. So far as being fired for union activity is concerned, it is noted that Hall was known by Respondent to be active in union affairs, yet she was not fired. George Le Yug was known by Respon- dent to be an active union supporter, and known by Re- spondent to have testified at an earlier Board hearing. However, Le Yug still is employed by Respondent. There is no support in the record for a finding that Wong was fired because of her protected activity; the inference urged by General Counsel is without foundation. There is no question but that Chien had good cause to fire Wong, and that she was discharged for that cause. The fact that Wong was known by Respondent to be a union activist and any assumption that Chien and Chiang would like to be rid of her are immaterial. As the Board stated in Erie Strayer Co., 213 NLRB 346, fn. 9 (1974): We have long held that even where an employer may want to rid himself of an employee whose union activ- ities have made him persona non grata, "if the employ- ee himself obliges his employer by providing a valid independent reason for discharge-i.e., by engaging in conduct for which he would have been discharged anyway-his discharge cannot properly be labeled a pretext and ruled unlawful." See also , Kaye-Smith Enterprises, 211 NLRB 1034 (1974); P. G. Berland Paint City, Inc., 199 NLRB 927 (1972). As discussed above, the evidence does not support a conclusion that her union or other protected activity was even partially a cause for suspending and later firing Wong. The fact that Chien and Chiang were no doubt glad to see Wong leave their employ does not, of itself, create the inference that the reasons for her suspension and dis- charge were pretextual. Wong created the conditions that gave rise to her discipline; those conditions were not creat- ed by the owners of The Mandarin. It is found that this allegation of the complaint is not proved. CONCLUSIONS OF LAW 1. Respondent, M Restaurants, Incorporated, d/b/a The Mandarin, is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. San Francisco Local Joint Executive Board of Culi- nary Workers, Bartenders, Hotel, Motel and Club Service Workers, Hotel and Restaurant Employees and Bartenders International is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not, through alleged conduct, violate Section 8(a)(1), (3), and (4) of the Act as alleged in the complaint and Respondent did not in any manner interfere with, restrain, or coerce its employees in the exercise of rights guaranteed in Section 7 of the Act. [Recommended Order for dismissal omitted from publi- cation.]