Town House Restaurant

National Labor Relations Board - Board Decisions

May 24, 1973

203 N.L.R.B. 864 (N.L.R.B. 1973)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Town House Restaurant and Hotel & Restaurant Em-
ployees & Bartenders Union Local No. 427 affiliated
with Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO. Case 19-CA-5837
May 24, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On February 16, 1973, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a supporting brief , and a request for oral argument.
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 I and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings,' and
conclusions 3 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Town House Restaurant,
Missoula , Montana, its officers , agents , successors,
and assigns, shall take the action set forth in the said
recommended Order.
I Respondent 's request for oral argument is hereby denied , as the record
and exceptions in our view adequately present the issues and positions of the
parties.
2 In agreeing with the Administrative Law Judge that there is a proper basis
for asserting Junsdiction over Respondent , we do not rely on his finding that
Respondent posted the entire 1970 union contract in the restaurant , as such
is not supported by the record . However, we note that Respondent posted
the wage schedule of the contract and kept a copy of the agreement available
and adhered to its terms.
The Respondent 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 credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd . 188 F.2d 362 (C A. 3) We have carefully examined the record and find
no basis for reversing his findings
7 In the absence of exceptions thereto , we adopt , pro forma, the Adminis-
trative Law Judge's disposition of the 8 (aX3) and (5) allegations.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This pro-
ceeding was heard before me in Missoula, Montana, on
October 25 and 26, 1972, pursuant to due notice. The charge
and an amended charge were filed on May 12 and June 21,
1972, respectively, and a complaint and amended complaint
were issued on June 15 and July 19, 1972, respectively. The
amended complaint alleges violations of Section 8(a)(1), (3),
(4) and (5) of the National Labor Relations Act. Respon-
dent filed an answer to the amended complaint denying the
Board has jurisdiction over its operations and the commis-
sion of the alleged unfair labor practices. All parties were
afforded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses , to argue orally on
the record, and to file briefs. Briefs were filed by both Re-
spondent and the General Counsel.
Upon the entire record in the case and from my observa-
tion of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Albert C. Bailey and Irma M. Bailey , husband and wife,
d/b/a Town House Restaurant , herein called Respondent,
are engaged in the operation of a restaurant in Missoula,
Montana . Respondent 's gross receipts , considered alone,
are insufficient to meet the Board's appropriate standard for
the assertion of jurisdiction . The amended complaint alleges
that Respondent has been a member of and represented for
the purposes of collective bargaining by the Missoula Res-
taurant Association, herein called Association , and that ju-
risdiction should be asserted on the basis of the aggregate
gross receipts of the members of the Association. While no
evidence was introduced regarding the gross revenue of the
members of the Association , the General Counsel also con-
tends the Board has jurisdiction over Respondent since he
has engaged in group bargaining and that one of the group
of restaurants likewise engaged meets the Board 's jurisdic-
tional standards. Denying that it has ever been a member
of the Association or a party to a collective-bargaining
agreement , Respondent contends that the Board lacks juris-
diction.
Finding hereafter that Respondent engaged in group bar-
gaining at the time material herein , I further find that the
operations of Respondent affect commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction here-
in.
11 THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
203 NLRB No. 134
TOWN HOUSE RESTAURANT 865
111. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that the Respondent and the
Union are parties to a multiemployer collective -bargaining
agreement covering the Respondent 's employees ; that on or
about April 17, 1972, Respondent terminated employee
Joann Mitchell because she refused to perform cook 's duties
at a wage rate lower than that provided in the collective-
bargaining agreement ; that on June 14, 1972, Respondent
reinstated Mitchell , but not to her former or substantially
equivalent terms or conditions of employment ; that com-
mencing in June 1972 , Respondent unilaterally changed its
rules regarding coffee and smoke breaks , acceptance of tips
at the cash register, and time for reporting to work and
leaving the employer's premises ; and that on or about June
20, 1972, Respondent again discharged Mitchell because
her original discharge was the subject of the instant charge,
or for the reason she was terminated on April 17. The
changes in rules are alleged as violations of Section 8(a)(1)
and (5), the terminations and reinstatement as violative of
Section 8(a)(3), and the June 20 termination also as a viola-
tion of Section 8(a)(4). Respondent admits that he partici-
pated and assisted in the negotiations which culminated in
an agreement between the Association and the Union, but
denies he is a party to said agreement . He further contends
that Mitchell was terminated for cause and that the changes
in rules , if they occurred , were not in violation of the Act.
Thus, in addition to jurisdiction, the issues are whether
Respondent is a party to the June 12 , 1970, multiemployer
contract with the Union; whether he made certain unilateral
changes in employment conditions in violation of the Act;
and whether the termination, reinstatement , and second
termination of Mitchell were in violation of the Act.
A. Contract Coverage and Jurisdiction
The Association 's articles of incorporation disclose that
it was founded in 1963 for the purpose , inter alia, of serving
"as the bargaining agent of its members in their relations
with organized labor . . . ." In 1967 , and again in 1970,
Jeremy Thane, a Missoula attorney , represented the Associ-
ation in collective-bargaining negotiations with the Charg-
ing Party , herein called Union . On April 4 , 1967, Thane
wrote the Union regarding the forthcoming negotiations
and enclosed a list of employers which purported to be the
membership of the Association for which he would bargain.
The Town House is listed , followed by the name of the then
owner , Pete Kolokotrones . The Baileys purchased the Town
House on or about April 15 , 1967. The evidence does not
disclose that the Respondent participated in the 1967 nego-
tiations nor that he signed the 1967 collective-bargaining
agreement with the Union.
I Prior to the commencement of the 1970 negotiations, a
number of the restaurant owners in the Missoula area met
and reviewed the Union's demands. Thane, Gagnier, the
Association 's president , and Albert C. Bailey were the prin-
cipal spokesmen at the meeting, Bailey having read the
Union's proposals to the group . Not all employers present
belonged to the Association.
On May 19, 1972 , the first of five negotiation meetings
took place. Bailey attended and participated as a member
of the Employer's negotiating committee along with Thane,
Gagnier, and representatives of several other restaurants in
the Missoula area . Thane opened the meeting by stating
that the group of employers present represented the Associ-
ation . The Union's secretary-treasurer asked Thane for a list
of the names he was negotiating for, which Thane agreed to
furnish at the next meeting . At the May 22 meeting, which
Bailey also attended as a member of the Employer 's negoti-
ating committee, Thane delivered to the union representa-
tive a list of employers which he purported to represent,
including Respondent, the 4 B's Cafe , and Dorothy's Coffee
Cup. None of the latter three are members of the Associa-
tion . At no time during the negotiations did Bailey inform
anyone that Respondent's participation in group bargaining
was limited in any way. Moreover, on May 15, 1972, Bailey
signed the Board's interstate commerce data form where, in
answer to the question "Are you a member of, or participant
in, an association or group which engaged in collective bar-
gaining?" , he gave an affirmative response and listed there-
after "Missoula Restaurant Association ." On June 12, 1970,
an agreement was reached effective June 1, 1970, until May
31, 1973. Thane signed the agreement on behalf of the Asso-
ciation, and asked the Union to furnish him enough addi-
tional copies for each of the employers represented in the
negotiations . Accordingly, additional copies of the agree-
ment were prepared by the Union and delivered to Thane.
While the record does not disclose from whom Bailey ac-
quired a copy, it is clear that he in fact did obtain a copy
of the agreement, presumably from Thane , which he posted
in the restaurant.
Regarding Thane's bargaining authority, Dorothy Van
Alstine , owner of Dorothy's Coffee Cup, testified that she
understood Thane was negotiating for the entire group, in-
cluding those who did not belong to the Association. Bill
Hainline, of the 4 B's Cafe , testified that he participated in
the negotiations , that Thane was the spokesman for the
employers , and that Thane had signed the contract on be-
half of the 4 B's.
Although the record does not disclose the extent to which
Respondent followed the agreement , as noted above it was
established-that he posted a copy of the agreement in the
restaurant , paid employees in accordance with it , posted a
union house card in the restaurant for a period of time,
obtained some employees through the Union, and made
arrangements with the Union whereby Bailey personally
paid the union dues of an individual performing part-time
work so that he would not "have any problem with the other
girls."
In view of the foregoing , I find no merit in the
Respondent 's contention that the Board should not assert
jurisdiction in this case . The record demonstrates that the
employers who participated in the 1970 negotiations, in-
cluding Respondent, had joined together for the purpose of
conducting collective-bargaining negotiations . In these cir-
cumstances , the Board has repeatedly held that they consti-
tute a single employer for jurisdictional purposes ,' and that
a multiemployer unit is appropriate even though an employ-
er may not have specifically delegated to the employer
1 See, for example, Belleville Employing Printers, 122 NLRB 350; Santa
Clara County Pharmaceutical Association, et al, 114 NLRB 256.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group the authority to represent it in collective bargaining
or given the employer group the power to execute final and
binding agreements on its behalf, or where some of the
contracts have not been signed by all members of the group.
What is essential is that the employer has indicated from the
outset an intention to be bound in collective bargaining by
group rather than by individual action? Here Respondent
sufficiently indicated from the commencement of bargain-
ing with the Union the necessary intention to be bound by
group bargaining. Indeed, the Board has found a multiem-
ployer unit "even though the employers had never formal-
ized themselves into an employer association , a requirement
the Board has never demanded. Substance rather than legal-
istic form is all the Board has ever required in multiemploy-
er bargaining." Town & Country Dairy, 136 NLRB 517, 523.
Nor can Respondent escape the obligations of the Associa-
tion agreement merely because he has not signed the instru-
ment individually, particularly where, as here, he
participated in the negotiations and has enjoyed some of the
benefits of the agreement .3
Based on the foregoing, I find that the Association had
full authority to represent, negotiate for, and bind Respon-
dent to a contract covering the wages, rates of pay, hours,
and other conditions of employment of Respondent's em-
ployees in the multiemployer unit, when it negotiated with
the Union and executed the contract on June 12, 1970.
As I have found that the employer-members of the Asso-
ciation, together with the other employers who participated
in the 1970 negotiations, constitute a single employer for
jurisdictional purposes, the relevant criterion in determining
the Board's jurisdiction is the effect on commerce of the
combined operations of all of the employers. As the gross
revenue of the 4 B's Cafes for the calendar year 1971 far
exceeded the Board's $500,000 retail standard, and as the 4
B's Cafes received goods in Montana from outside the State
in an amount in excess of $50,000, it is clear, and I find, that
the Board has jurisdiction over the multiemployer group,
including the Respondent.
B. The Initial Termination
Joann Mitchell commenced working for the Baileys as a
waitress on June 1, 1971. Although a member, Mitchell was
not hired through the Union. Under conditions set forth
hereafter, Mitchell was first terminated on April 17, 1972,4
reinstated on June 14, and finally terminated on June 20.
The amended complaint alleges that Mitchell was terminat-
ed on April 17 because she had previously refused to per-
form cook 's duties at a wage rate lower than that provided
in the collective-bargaining agreement between Respondent
and the Union.
Testimony regarding events leading up to the April 17
termination was conflicting as hereafter detailed . It is clear
that the Baileys had planned on taking a 6-week vacation
in the early part of 1972, and in fact left on February 7 and
2 The Kroger Co, 148 NLRB 569
3 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Henry V Rabourn, d/b/a Conway's Express), 87 NLRB
972, enfd. 195 F.2d 906 (C.A. 2, 1952).
4 All dates are in the year 1972 unless otherwise stated.
returned on or about March 16. While away, they planned
to keep the restaurant open for the first 3 weeks, close the
next 2 weeks, and reopen the final week preceding their
return.
It appears from the record that Mr. Bailey regularly per-
formed the cook's duties from the time the restaurant
opened in the morning until a second cook came on duty
around midmorning. Inasmuch as the Baileys were going to
be gone for 6 weeks, it was necessary to find someone else
to open the restaurant and cook from 7 a.m. to approxi-
mately 9:30 a.m. when the regular cook reported for work.
Mitchell testified that on January 25 Bailey called her to the
pickup window in the kitchen, where he and Glenda Dodd,
another cook, were having a discussion. Bailey asked Mit-
chell what she thought about cooking from 7 to 9:30 in the
morning, as well as being a waitress while the Baileys were
on vacation. Mitchell replied that she didn't know, that she
was not a cook and was reluctant to do it, whereupon Bailey
told her to think it over. According to Mitchell, on February
3, Bailey posted a work schedule which showed that she
would be the only employee on duty to perform both cook
and waitress duties from 7 until 9:30 a.m., and would per-
form only waitress duties from 9:30 a.m. to the end of her
shift at 3:30 p.m. After observing the schedule, Mitchell
testified she told Bailey that since they had not discussed the
matter again, she didn't realize it had been settled. Bailey
asked why she had waited so long to talk to him about it,
whereupon she replied that he had not said any more to her
concerning the matter since the January 25 conversation.
Mitchell then stated "If you are expecting me to do the
cooking and to be the waitress what do you intend to pay
me?" Bailey replied that he would give her $1.47 above
waitress wages , to which Mitchell replied "Albert, that isn't
right. The Union contract states that if you work in two
positions and on any one shift you get the higher of the two
pay scales." After Bailey stated that she had misinterpreted
the contract, Mitchell replied "Well, then, putting it this
way, isn't it worth more than $1.47 a day to you to be able
to go on vacation and have someone else here that you can
depend on to take care of things while you are gone?" The
conversation ended when Bailey replied "It is not worth
cook's wages and I can't afford it." At the conclusion of her
shift, Mitchell contacted the Union's secretary -treasurer
who informed her that she had interpreted the contract
correctly, and that if Mitchell cooked for waitress wages the
Union would fine her and that she should so inform
Bailey.5
According to Mitchell, on the following afternoon, Fri-
day, February 4, she approached Bailey in the kitchen,
again in the presence of Glenda Dodd, and informed him
that her union representative had advised her that if she
cooked for waitress wages she would be fined, and that if
he insisted that she cook for waitress wages she would be
forced to quit because she couldn't pay the fine. She testified
that Bailey stated he would pay the fine, to which she re-
sponded "Well, why don't you just pay me to cook?" Inas-
much as Bailey didn't respond, Mitchell asked what he
wanted her to do, to which he replied "You just come in 7
5 Sec 6(d) of the contract provides . "In cases when an employee occupies
a position which combines two or more classifications of work , he shall be
paid at the rate of the highest classification."
TOWN HOUSE RESTAURANT 867
to 3 and be the waitress. That is all you will ever be around
here." Bailey then asked Mitchell for the return of her key
to the restaurant.
The Baileys left on vacation on Monday, February 7,
having first arranged for another individual to open up and
cook in the morning. As earlier stated, the restaurant was
open the first 3 weeks, closed the next 2 weeks, and open-the
week the Baileys returned. During their absence, Mitchell
worked her regular waitress shift from 7 a.m. to 3 p.m.
While Glenda Dodd's testimony regarding the Bailey-
Mitchell conversations of January 25 and February 4 is
generally corroborative of Mitchell's, the Baileys' versions
of purported conversations on different dates differed sub-
stantially. For reasons set forth hereafter, I credit the Mit-
chell-Dodd version . As of the date of the trial herein, Dodd
was still employed by the Baileys as a cook. Thus, it would
behoove her, were she not telling the truth, to testify in
support of the Baileys' version, which she did not do. As
stated above, Dodd was present during the conversation
between Bailey and Mitchell which took place in the kitchen
a couple of weeks before the Baileys were to leave on vaca-
tion. She testified that Bailey asked Mitchell if she would be
willing to cook in addition to her waitress duties from 7 to
9:30 a.m. while they were on vacation; that Mitchell said
she didn't want to; that Bailey stated it would be easier for
him if she did; that Mitchell replied she didn't feel she could
give customers good service if she had to be going back to
the kitchen to cook; that Bailey told her he felt she was
capable of handling it and asked her to think about it. Thus,
it is clear that no definite arrangement had been made at
this point. Bailey had asked a reluctant Mitchell only to
"think about it." Dodd testified as follows regarding the
February 4 conversation between Bailey and Mitchell
which likewise took place in the kitchen in her presence:
A. Joann started the conversation and she told Mr.
Bailey that she still didn't want to cook, and Mr. Bailey
said well, she knew that he had been planning on her
to do this, then the question of how much she was going
to get paid came up and Mr. Bailey offered to pay her
for those two and a half hours that she would be cook-
ing to pay her the cook' s wages, Joann mentioned she
had gone to the union and they had told her that they
could fine her if she didn't get cook's wages for the
entire shift. Mr. Bailey told Joann that he felt the con-
tract read he only had to pay her cook's wages for the
time she was actually doing cooking. So, but he did tell
her then just to do her job as a waitress, not to worry
about the cooking end of it, just to work her regular
hours, 7 to 3 and she would be waitress only and he also
asked her to return the key he had given her and then
he gave the key to me.
The procedure for placing orders in the restaurant was for
the waitress to go to the kitchen window and call in the
order to the cook. The cook would then call back or "echo"
the order so that there would be no misunderstanding as to
what was ordered. Mitchell testified that following the Bai-
leys return from vacation, Bailey would sometimes "echo"
orders and on other occasions he "echoed" in a manner she
could not understand, and if she asked him to repeat, he
shouted at her. Mitchell testified that on April 10 she asked
Bailey if she could talk to him since "I know there is some-
thing wrong, I don't know what it is, and if I don't know
what it is I can 't do anything about it." She asked if she was
doing her job, to which he replied "No, I have no complaint
with the way you do your job." She testified that Bailey
went on to state that he was upset and angry because of her
refusal to cook and the fact she had tried to "hold him up
or pressure him" when he was ready to go on vacation, and
that since she had told him she was quitting, she should be
adult enough to do so. Mitchell responded that she was
going to try to do her job and went back to work. On April
17, Mitchell received the following written notice which
Bailey had left with a neighbor:
April 17, 1972
Joann:
Since you have notified me twice that you intended to
quit-here is your last check.
Albert
On May 12, the Union filed the initial charge alleging
Mitchell was terminated because she refused to violate the
collective-bargaining agreement.
The Baileys contend that while Mitchell was a good wait-
ress at first, she was terminated on April 17 because her
attitude had changed and she was no longer a satisfactory
waitress . In their efforts to portray her as unsatisfactory,
both Mr. and Mrs. Bailey testified that Mitchell became
belligerent and her) attitude changed in mid-December
1971, the day after Mrs. Bailey had declined to call her to
the telephone in response to a call from her son who had just
had an automobile accident. They further testified that Mit-
chell had accused them of failing to notify her of several
telephone calls from her mother, and that Mitchell called
them "liars" when they denied receiving any such calls.
Bailey testified that at this point Mitchell's service began to
decline "to the point it was intolerable." However, in a
sworn statement given an agent of the Board during the
investigation of the initial charge, Mrs. Bailey stated that
Mitchell's attitude started to change "with the cook's wage
situation," (which would place the time as February 4 in-
stead of in December 1971), and that except for one com-
plaint 6 approximately 3 or 4 months after she started
working, "she was a good waitress, pleasant and fast."
Mitchell's denial that she called the Baileys liars must be
credited for several reasons: (1) Mrs. Bailey 's sworn state-
ment made during the course of the investigation, as set
forth immediately above, is completely inconsistent with
6 Bailey called as a witness the individual who had made the complaint.
That individual testified he had complained that Mitchell was not giving him
the service he ought to get but that Bailey must have talked to her because
thereafter she took care of him in the proper manner. Mitchell testified,
without contradiction, that she had talked to Bailey about this individual
since she had found him personally offensive , and that Bailey had told her
that he had bothered other waitresses and that she did not have to wait on
or put up with him. Bailey also called as a witness a driver for the Florence
Laundry. That individual testified that he had discontinued going to the
Town House approximately 1-1/2 years ago (which would be prior to
Mitchell 's employment) because he didn't get along too well with one of the
waitresses whom he would recognize . He stated emphatically that Mitchell
was not the waitress. He further denied he had called Bailey in January to
complain about the service
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a statement having been made by Mitchell ; (2) Bailey
alluded to statements made by an individual who had pur-
portedly overheard Mitchell call him a liar , yet he failed to
call him as a corroborating witness ; and (3) if Mitchell had
in fact called the Baileys liars, and had her attitude deterio-
rated or changed in December 1971 to the point the Baileys
would have me believe, it is completely illogical that they
would have asked her to open up and be in complete charge
of the restaurant for 2-1/2 hours every day while they were
away on vacation . Accordingly, I discredit the Baileys ' testi-
mony that Mitchell called them liars in December 1971, that
her attitude changed or that her service commenced to de-
cline at that time to the point it was intolerable.
The Baileys' testimony regarding conversations with Mit-
chell about the work she would do while they were on
vacation is in conflict with the testimony of Mitchell and
Dodd , and in some respects in conflict with each other.
Bailey testified that on January 2 he told Mitchell that they
were planning to go on vacation about January 15 or 17,
and that he would like for her to cook in the early morning
hours; that she informed him that she could cook "common
ordinary things" but "might not be able to put it out just
exactly as you do"; that he replied it wouldn't make much
difference for the period of time they were to be gone; and
that nothing more was said at that time.
Bailey testified that since they were not going to be able
to leave on January 15 as they had hoped, he had another
conversation with Mitchell on or about January 15, and that
Mrs. Bailey was present . He states he told Mitchell that they
appreciated her doing the extra work and that they would
pay her cook's wages for the period of time she cooked
although other restaurants in the area didn't always pay
extra for such short periods of time . He further testified that
he told her that although her vacation wasn't due until June,
since she was doing the extra work they would give her
vacation pay of I week plus an extra half week's pay so she
would have something during the 2 weeks the restaurant
would be closed. He states she replied that she didn't prefer
to do it, `but if this is what you want why it is all right with
me." Bailey did not testify to his wife 's presence in the
January 2 conversation. Mrs. Bailey, however, testified that
the offer of vacation pay of 1 week plus an extra half week's
pay was made during the January 2 conversation.
Bailey further testified that about 6 days before they were
scheduled to leave, Mitchell asked if they were "still plan-
ning on going ahead the way we had discussed it," that she
expressed doubt as to whether she could cook to satisfy him,
and that he replied that it was immaterial since they would
be gone only 6 weeks. He further testified that on February
4 Mitchell approached him and stated that she had decided
not to cook while they were gone unless she recived cook's
wages for the entire day; that after he responded that it was
not worth it, she asked what it was worth for him to get to
go on vacation ; that he replied it was none of her business;
that Mitchell stated that if they wouldn't pay her cook's
wages for the entire day, she would quit; that Bailey said he
would not pay cook's wages for 8 hours when she only
worked as a cook for 1-1/2 to 2 hours, and to go ahead and
quit, he would make other arrangements . Mrs. Bailey 's testi-
mony substantially corroborated the testimony of her hus-
band.
Glenda Dodd impressed me as a truthful witness. As
stated earlier, she testified contrary to her employer even
though it may have been in her better interest to testify as
he might wish her to. While Bailey failed to testify to any
conversations with Mitchell in Dodd's presence, his leading
questions on the cross-examination of Dodd, and her re-
sponse thereto, convinces me, and I find, that the substance
of the conversations of January 25 and February 4 which
both Mitchell and Dodd testified to are in fact true, that the
Baileys' testimony regarding the purported conversations
on January 2 and 15 is false , and that, contrary to the
Baileys, Mitchell did inform Bailey on February 4 that she
had contacted the Union regarding the matter of wages
which he proposed to pay her for performing cook's work.
I further find that on February 4 Mitchell did not threaten
to quit her employment if she didn't receive cook's wages,
but that she informed Bailey that if she had to cook for
waitress wages she would have to quit because the Union
would fine her. The Baileys testified that while they were on
vacation they bought mementos for the girls, including Mit-
chell, but that they didn't give one to Mitchell because she
was still belligerent when they returned. I have previously
discredited the Baileys' testimony to the effect that Mitchell
had called them liars in December 1971, that her attitude
changed, or that her services commenced to decline at that
time to the point of being intolerable. There was also testi-
mony to the effect that the restaurant was robbed the night
before the Baileys returned from vacation and that the po-
lice reported it was an "inside job." Bailey attempted to
show, albeit futilely, that Mitchell had a key to the restau-
rant and was under suspicion. On cross-examination, how-
ever, he conceded the robbery had nothing to do with her
termination. Both Mr. and Mrs. Bailey testified to the fact
that Mitchell was the only employee who didn't express any
regret over the robbery. Based upon the foregoing, I con-
clude that the only credible evidence of conduct on the part
of Mitchell which could have approached belligerence was
her having gone to the Union regarding the wages the Bai-
leys proposed to pay her, and her having insisted on cook's
wages in accordance with the interpretation both she and
the Union placed on the wording of the contract which the
Baileys purported to follow.
In an attempt to further portray Mitchell as a belligerent
and undesirable employee, Mrs. Bailey testified that there
were many customer complaints against Mitchell, and that
it was worse after they returned from vacation than before.
Aside from the fact that she had given a statement to a
Board agent covering the period before the vacation which
was directly to the contrary, no probative evidence of cus-
tomer complaints was elicited covering the period from
March 16 when they returned to April 17 when Mitchell was
first terminated. In her attempt to picture Mitchell as having
an intolerable, belligerent attitude, Mrs. Bailey testified that
even Mitchell's sister had asked her why Mitchell was bellig-
erent. Bailey testified that 2 or 3 days before she was termi-
nated that he had a discussion with Mitchell in the
backroom regarding the situation at the restaurant, and that
Mitchell thumbed her nose at him and went back out in
front. From my observation of the demeanor of both Mit-
chell and Bailey as witnesses, I conclude that Bailey's testi-
mony to that effect is false and a desperate attempt to
TOWN HOUSE RESTAURANT
concoct an excuse for terminating her. Had such an event
occurred, I am convinced that Bailey would have terminat-
ed her on the spot. I further credit Mitchell's testimony that
during a conversation which occurred in the backroom
about this time that Bailey stated he was upset and angry
because she refused to cook and because she had tried to
"hold him up or pressure him" when he was ready to go on
vacation. Thus, I find that the reasons advanced by Respon-
dent in terminating Mitchell are pretextual and that she was
terminated because she had attempted to invoke the terms
of the collective-bargaining agreement to which Respon-
dent was a party. Such an attempt on the part of Mitchell
constituted concerted protected activity protected by Sec-
tion 7 of the Act, and a discharge therefore is violative of
Section 8(a)(1) of the Act. H. C. Smith Construction Co., 174
NLRB 1173, enfd. 439 F.2d 1064 (C.A. 9, 1971); Interboro
Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d 495 (C.A.
2, 1967).7
C. Reinstatement and Alleged Change in Rules
Following the investigation of the initial charge and un-
successful negotiations between Bailey and Regional per-
sonnel toward an informal settlement of the matter , on June
8 Mitchell received the following letter by registered mail:
June 8, 1972
Joan Mitchel;
You are hereby notified that you are ordered to return
to the Town House Restaurant as a waitress within five
days of this notice.
Albert C. Bailey
Pre-return by written notice is required
Albert C . Bailey
On June 14 Mitchell reported for work at 6:50 a .m. Bailey
talked to her in the kitchen and advised her that she would
no longer be allowed to report to work earlier than 5 min-
utes before 7 and that she would no longer be permitted a
cup of coffee or cigarette as in the past .8 After a short
discussion , Mitchell was told she would have to go outside
for a cigarette which she did, returning at 7 a .m. Upon
returning she told Bailey that all she wanted to do was to
get along and do her job. She testified without contradiction
that Bailey responded "there is no chance of that now be-
cause you told too many lies about me." Mitchell denied
telling any lies and stated that she had only told what had
happened , followed by a request that he tell her what rules
had changed so that she wouldn 't be getting into trouble.
Bailey advised her again that she could not report for work
more than 5 minutes early , the only cigarette she could have
in the restaurant would be on her lunch break , that she
could answer customer's questions but not carry on any
r It is unnecessary to consider whether by such discharge the Respondent
also violated Sec 8(a)(3) of the Act, since in any case the remedy would be
the same
8 It was undisputed that before her termination Mitchell had reported for
work at 20 or 25 minutes before 7 at Bailey's suggestion, and that he had told
her she could have coffee or toast in the morning if she wished and that he
had never before prohibited her having a cigarette.
869
conversations with them, and she was not to talk to other
employees. Following this, Mitchell filled the cream pitch-
ers in the manner that she had in the past; however, Bailey
found fault with what she was doing. Shortly thereafter,
Bailey called her into the kitchen and stated "Do you see
any of the notices that you demanded to be posted here .. .
well you are not going to see them posted. I am not paying
you any money and you will find out all about it at the
hearing next week." At approximately 7:30 a. m., Bertha
Palmer entered the restaurant and ordered breakfast. Mit-
chell testified that she took the order and called "fry one"
to Bailey in a "clear voice," and that he echoed "a bowl of
oats." She replied "No, Albert, fry one," which he failed to
echo. Bertha Palmer was called as a witness and corroborat-
ed the foregoing facts. Palmer remained in the restaurant
until approximately 8:40 a.m., and testified she was sitting
near the kitchen and on two occasions observed that Bailey
put up orders that were not as Mitchell had called in. She
overheard Mitchell tell Bailey of this fact, and Bailey's re-
sponse that the orders were as they had been placed.
At or about 8 o'clock that morning, a customer went to
the cash register to pay for his breakfast which cost 95 cents.
He put down a dollar bill and two nickels and said to
Mitchell "that is yours." She then rang up the 95 cents for
the breakfast, took the nickel change from the cash register
and put the three nickels in her pocket. With that, Bailey
came walking out of the kitchen rapidly. I credit Mitchell's
account of what transpired thereafter since it is supported
in material part by the testimony of Palmer and three wom-
en from the telephone company who were in the restaurant
and witnessed a portion of the incident. Mitchell testified as
follows:
I rang up the 95 cents and put the three nickels in my
pocket, and with that I could hear Mr. Bailey shout-
ing9 and I turned and he was running from the kitchen
toward me. He came up beside me and he said, "What
did you put in your pocket?" And I said, "I put 15 cents
in my pocket." I took it out and showed him. He said,
"You are not to be taking my money out of my till and
putting it in your pocket and money has been disap-
pearing right and left." I said, "Albert , the man left me
a 15-cent tip and I put it in my pocket." And he said,
"If this happens again-no, he didn't- he said, "You
pick up your check at the end of the day." I said, "If
you feel that way, why don't you just give me my check
and I will go now." He said something which I didn't
understand at that point, and he went back to the kitch-
en. Then he called me back to the kitchen again and
went through the same thing, except at that point he
added that he and his wife worked too hard for their
money for me to be stealing from them, and I kept
denying that I was stealing from anybody.
A short time later another customer left a quarter to cover
9 Mitchell characterized his voice as "shouting ," and Palmer as "scream-
ing." Bailey testified he was "disturbed" over the incident Mrs. Bailey testi-
fied she had never heard her husband scream in 39 years of marriage. The
three employees of the telephone company, all called as witnesses by Respon-
dent, testified that he spoke loudly and that Bailey's conduct had offended
them.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a 15-cent bill. Mitchell testified as follows : "the bill was
laying there with a quarter on it, and I took the bill and
quarter to Mr. Bailey and I said `What shall I do with this?'
This was at the pickup window . He said , `Leave it here.' And
he pointed to the shelf , and I put it down . I said, 'Do you
mean I don't get my tip?' He said , 'What makes you think
it is yours?' I didn't answer that ; I walked away . Mr. Bailey
took the ticket and I assume the quarter and went to the
cash register and rang something up. I was too far away to
see what it was. There was no further discussion of that. I
wasn't given the dime."
During the weeks between Mitchell 's first termination
and her recall, the Baileys had experienced shortages at the
cash register . Therefore , following the above-related "tip"
incidents , Bailey revived a tip policy which had been in
effect sometime in the past.
Mitchell testified that about 9:30 that morning as she was
cleaning pie cases, the following occurred:
In getting the water and preparing to clean these pie
cases . . . he proceeded to tell me about this "bird"
that the National Labor Relations Board had sent from
Seattle to investigate him, because the man didn't-he
was doing this because he didn 't have brains enough to
hold a job or run a business , and I made no comment
to that . Some customers sitting around were making
comments . He went from that to Josephine Jensen,
who was supposedly running this waitress union down
the street for this bunch of dummies who were so-called
waitresses, and he knew from her background that she
had run a cafe and worked waitresses 13 and 14 hours
and wouldn't pay overtime, and just in general what a
terrible person that she was and now she was running
this waitress union for a bunch of dummies.
I credit Mitchell's testimony regarding the above inas-
much as Bailey exhibited animosity throughout the trial
towards the Board agent who had investigated the initial
charge , and, on cross-examination by the General Counsel,
admitted that "I was upset at her going to the Union when
they had, when they made no say , when she made no state-
ment to me or ever came back and tried to talk with me
about it at all. She went to the Union which I, our house is
not even a Union house and what does the Union have to
do with it."
In the afternoon of June 14, Bailey told Mitchell that she
was to leave the building as soon as her shift was finished,
which meant that she could not sit down and have a ciga-
rette and a cup of coffee as had been permitted in the past.
The following morning Dodd reported for work at 10:20
a.m., sat at a table and had a cigarette and coffee before
going to work at 10:30.
There were several other minor incidents of possible har-
assment about which Mitchell testified but which are not
alleged in the complaint and do not warrant further discus-
sion, other than Mitchell 's testimony that on occasion until
her termination on June 20 Bailey failed to "echo" or fill
orders as she called them in.
Upon the basis of the foregoing and the additional testi-
mony of Dodd and Bealieu , I conclude and find that the
changes in rules regarding coffee and smoke breaks and the
time for reporting for work and leaving the premises were
not applicable to all employees but were harassment direct-
ed only at Mitchell because her original discharge had be-
come the subject of a charge with the Board. Accordingly,
I find said changes do not violate Section 8(a)(5), but are
violative of Section 8(a)(1) of the Act. I further find that her
reinstatement under those changed terms and conditions of
employment is also a violation of Section 8(a)(1).1°
I further conclude and find that reviving the former poli-
cy concerning the acceptance of tips at the cash register is
not a violation of either Section 8(a)(1) or (5) of the Act.
Perhaps the Baileys had become lax in enforcing the old
policy, but the evidence revealed they had sustained some
losses at the cash register prior to Mitchell's recall, and I am
satisfied that the change was made for a legitimate business
purpose. Perhaps Bailey overreacted when he discovered
the old policy was not being followed, but I do not connote
an illegal purpose to the change.
D. Second Termination
Near the end of her shift on June 20, Mitchell was handed
an envelope containing her final paycheck and the follow-
ing note which Bailey had asked Dodd to deliver:
June 20, 1972
Joann:
Your attitude in the restaurant can no longer be tolerat-
ed; therefore this is your final check-all customers
have to be waited on-a friendly attitude is a necessity
even though there is no time for visiting.
Albert C. Bailey
The Baileys' testimony does not coincide as to how the
decision to terminate came about. Bailey testified that "on
the 20th, about the 20th of June, my wife came to the
backroom and said, 'Albert, we just cannot go along, we
won't have any customers, they are being run off . . . I have
had three people in the last two days and now Joann's own
sister is complaining about her attitude in the restaurant.' I
said, Okay, we will terminate her as of tonight. I wrote her
a note dated June 20, which is Exhibit # 10 in the file, and
I terminated her."t I
Bailey conducted much of his examination of Mrs. Bailey
through leading questions, although he had been advised
that little if any weight would be given to such testimony.
However, Bailey's leading questions and Mrs. Bailey's an-
swers regarding Mitchell's termination on June 20 shed con-
siderable light on how the decision came to be make:
Q. On the day of her termination did Mr. Bailey
come into your restaurant and ask you at about ap-
proximately 11 o'clock in the morning, at the time I
talked to them I thought it was about 2 o'clock or
something like this, I remember now it was about 11,
did Mr. Bailey come in and ask you if you were making
payroll checks?
A. Yes, he did.
Q. What did he instruct you to do?
10 Fn 7, supra, also applies to reinstatement
11 One of the reasons given for the April discharge was that Mitchell's sister
had complained about her attitude
TOWN HOUSE RESTAURANT 871
A. He said. "Make Joann's payroll, paycheck out
right now for the last one , for the termination , termi-
nating her right now."
Q. Terminating her at what time?
A. At the end of her shift.
Q. Did Mr. Bailey indicate to you why at that time?
A. Yes, you were mad, you stated that you had had
complaints that she refused to wait on people , they had
just told you about it. [Emphasis supplied.]
Sometime during the morning of June 20 , Bailey left the
restaurant and went to the telephone company to talk to the
three women who had been present a few days before when
Bailey had accused Mitchell of taking money from the cash
register . Bailey inquired why they hadn' t been back in the
restaurant since that date . Helen Sowre , called as a witness
by Respondent , testified it was customary for her and four
others to go to the Town House every morning for coffee;
that the bill for five cups is 75 cents ; and that they usually
left a dollar , which meant that the waitress was to receive
a 25-cent tip . She testified that Mitchell was a good waitress
and that she had never complained about her. The three
women testified that they had been offended by Bailey's
conduct during the incident and that he informed them he
would apologize to Mitchell.
Bailey called James Curtis, a barber whose shop is located
across the street from the Town House . Curtis, a close,
personal friend of Bailey 's, performs the janitorial work for
the restaurant . Curtis , whose demeanor and testimony were
not credibly impressive , contradicted himself. At one point
he stated Mitchell had been impudent , flicking her apron at
him after he had waited for 30 minutes for a meal. At
another point he stated that he had been served but that
three men had sat down with him and that she flicked the
apron at him when he asked her to wait on the three men.
He testified that he told Bailey about this incident within a
week of its happening ; yet, in a statement given a Board
agent on June 29 , he stated he didn't identify Mitchell as the
insolent waitress . He testified that on another occasion
about the first of the year that he had gone to the Town
House and ordered a "quick lunch" from one of the wait-
resses , and that Mitchell had overheard it and said jokingly,
"How about me for a quicky." Curtis attempted to convey
the impression that he was "sore about it" and told Bailey
"right away ." At another point he testified he did not tell
Bailey of the incident until the morning of Mitchell's termi-
nation . In answer to a leading question posed by Bailey, he
stated that on numerous occasions he had told Bailey that
Mitchell had a bad attitude and was driving customers
away, although his June 29 affidavit stated he had never
told the Baileys about Mitchell's attitude . Furthermore: he
was evasive and fenced with counsel for the General Coun-
sel when asked to explain the discrepancies . In sum , Curtis
did not give me the impression that he was telling the truth,
and I discredit his testimony . It is apparent to me that on
June 20, Bailey contacted Curtis and the women from the
telephone company for the express purpose of building a
case so that he could justify Mitchell's termination.
In a further attempt to establish a basis for terminating
Mitchell , Bailey called Mrs. Curtis who testified that on
June 15 she and her husband had left the Town House after
waiting 30 to 40 minutes without being served. There is a
conflict as to whether the alleged incident occurred June 15
or 18 or whether it occurred before or after the noon hour.
Her husband admitted on cross-examination that Mitchell
was the only waitress on duty at the time, and that she was
busy serving other customers and not standing around or
drinking coffee. Bailey also attempted to show through Mrs.
Curtis that on another occasion Mitchell had declined to
serve some customers at the request of another waitress, Pat
Bealieu . Mrs. Bealieu testified that she did not recall such
an incident. Moreover , this could not have entered into the
June 20 decision to terminate Mitchell since Bailey was not
apprised of it until after the termination and shortly before
the trial.
Jewel Madar was called as a witness by Respondent. She
testified that she had been a morning coffee customer of the
Town House; that she usually had about 10 minutes for
coffee; and that the other girls who knew her gave her "very,
very prompt service ," and that Mitchell was a little slower
than the others. She communicated the fact to Mrs. Bailey
on an unknown date , and Bailey called her in late spring or
early summer to ask if she would testify on their behalf if
the NLRB contacted her. Testimony of Mary Jane Mast
could not have entered into the decision to terminate Mit-
chell since it was not related to Bailey until after Mitchell's
final termination.
On the basis of all of the foregoing and the entire record,
I conclude and find that the General Counsel has proven by
a' preponderance of the evidence that Bailey was upset with
Mitchell for having gone to the Union regarding their dis-
agreement over what she was to be paid during the Baileys'
vacation ; that she was terminated initially because she at-
tempted to invoke the terms of the collective-bargaining
agreement in violation of Section 8(a)(1) of the Act; that her
recall was under conditions which amounted to harassment
and violative of Section 8(a)(1); and that the reason for her
final termination on June 20 was twofold : (1) because she
had invoked the terms of the collective -bargaining agree-
ment in January; and (2) because her April termination had
become the subject of a charge with the Board, in violation
of Section 8(a)(4) and (1) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade , traffic and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
On the basis of the foregoing findings of fact, and of the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
2. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of the
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act.
3. By discharging Joann Mitchell on April 17, 1972, as
found above, the Respondent violated Section 8(a)(1) of the
Act.
4. By reinstating Mitchell under the conditions found
above , the company has engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
5. By discharging Mitchell on June 20, 1972, as found
above, the Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(4) and (1) of the Act.
6. The aforesaid violations are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it will be
necessary to order the Respondent to cease and desist from
the unfair labor practices found and from commission of
like or related acts and to take certain affirmative action.
Having found that the Respondent discriminatorily dis-
charged Joann Mitchell on April 17, 1972, and again on
June 20, 1972, in violation of Section 8(axl) and (4) of the
Act, it is necessary that it be ordered to offer her full rein-
statement and restoration of all rights , with backpay com-
puted on a quarterly basis , plus interest at 6 percent per
annum , as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716, from the date of her initial discharge to the date rein-
statement is offered.
RECOMMENDED ORDER
It is recommended that the Town House Restaurant, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of their protected concerted activity.
(b) Discharging or otherwise discriminating against any
employee because he has been the subject of a charge or
given testimony under the Act.
(c) In any like or related manner , interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Joann Mitchell immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent job, without prejudice to her senior-
ity or other rights and privileges, and make her whole for Dated By
any loss of earnings she may have suffered by reason of the
discrimination against her in the manner set forth in the
section here entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due and the right of
reinstatement under the terms of this Recommended Order.
(c) Post in conspicuous places at the employer 's place of
business in Missoula , Montana , including all places where
notices to employees are customarily posted , copies of the
notice attached hereto and marked "Appendix." Copies of
the said notice, to be furnished by the Regional Director for
Region 19, shall, after being duly signed by an authorized
representative of the Respondent, be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places . Reason-
able steps shall be taken by the said Respondent to insure
that said notice is not covered, altered or defaced by any
other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
II Is FURTHER ORDERED that the complaint, be, and it hereby
is, dismissed insofar as it alleges the unilateral institution of
policies or practices in violation of Section 8(a)(5) of the
Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
trial, that we violated Federal law by discharging Joann
Mitchell for refusing to perform certain work at a wage rate
lower than that provided in our contract with Hotel & Res-
taurant Employees & Bartenders Union Local No. 427 affi-
liated with Hotel & Restaurant Employees & Bartenders
International Union , AFL-CIO, for failing to reinstate her
to her former or substantially equivalent terms or conditions
of employment , and for finally terminating her because a
charge was filed with the National Labor Relations Board
based upon her original discharge:
WE WILL offer Joann Mitchell immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other
rights and privileges previously enjoyed , and we will
not harass or otherwise discriminate against her.
WE WILL make Joann Mitchell whole for any loss of
pay she may have suffered by reason of the discrimina-
tion against her.
TOWN HOUSE RESTAURANT
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 10th Floor, Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-7472.