Tre-Vill, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1976

225 N.L.R.B. 1259 (N.L.R.B. 1976)

TRE-VILL, INC 1259
Tre-Vill, Inc. and Don Pedro,West Corp . and Retail
Clerks Union Local 10, a/w Retail Clerks Interna-
tional Association , AFL-CIO. Case 25-CA-7423
September 10, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On May 19, 1976, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed limited exceptions and arguments in support
thereof, and 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
To engage in self-organization
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all these things.
WE WILL NOT discharge any of you for sup-
porting Retail Clerks Union Local 10, a/w Re-
tail Clerks International Association, AFL-CIO,
or any other union.
WE WILL NOT coercively question you about
union support or union activities.
WE WILL NOT give an impression of engaging
in surveillance of any of you for supporting a
union.
WE WILL NOT threaten to replace employees
with members of the owners' families in the
event of unionization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
union activities.
WE WILL offer Lorena Everhart immediate
and full reinstatement to her old job or, if that
job no longer exists, to a substantially equivalent
one, and pay her backpay for the salary she lost
because of the discrimination against her.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , Tre-Vill, inc. and Don
Pedro-West Corp., Fort Wayne , Indiana, its officers,
agents, successors , and assigns , shall take the action
set forth in the Administrative Law Judge 's recom-
mended Order , except that the attached notice is sub-
stituted for the Administrative Law Judge 's notice.
' The General Counsel has excepted to certain omissions from the Ad-
ministrative Law Judge's recommended notice We find merit to the excep-
tions Since the omissions appear to have been inadvertent, we shall modify
the Administrative Law Judge's recommended notice to reflect these
changes
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees these rights.
TRE-VILL, INC. AND DON PEDRO-WEST CORP.
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Fort Wayne, Indiana, on February 5,
1976. The charge was filed by the Union on October 14,
1975,' and the complaint was issued on November 28. The
primary issues are whether the Respondent (a) unlawfully
interrogated and threatened employees during the Union's
organizing drive, and (b) discriminatorily discharged an ac-
tive union supporter, in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent, I make the following:
FINDINGS OF FACT
I JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent , Tre-Vill, Inc. and Don Pedro-West
Corp., each an Indiana corporation , each operate a restau-
1 All dates are in 1975 unless otherwise stated
225 NLRB No. 184
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rant and lounge in Fort Wayne, Indiana, as affiliated busi-
nesses with common officers, ownership, directors, and op-
erators constituting a single-integrated business enterprise;
that Tre-Vill Inc., during the 12-month period ending Sep-
tember 30, a representative period, had gross revenues in
excess of $256,000, and purchased and received goods and
materials valued in excess of $50,000 for such operation
from enterprises located in the State of Indiana, which en-
terprises had received these goods and materials directly
from points outside of the State of Indiana, that Don Pe-
dro-West Corp., which began operations on or about Feb-
ruary 19, during the 7-month period of March 1 to Septem-
ber 30, had gross revenues in excess of $171,000, and that
for the 12-month period ending February 29, 1976, it is
reasonable to anticipate that Don Pedro-West Corp. will
receive gross revenues in excess of $290,000, and during the
period of March 1 to September 30 purchased and received
goods and materials valued in excess of $50,000 for such
operations from enterprises located in the State of Indiana,
which enterprises had received these goods and materials
directly from points outside of the State of Indiana. Ac-
cordingly, I find, as likewise alleged and admitted, that
Respondent Tre-Vill Inc. and Don Pedro-West Corp., indi-
vidually and collectively, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 10, a /w Retail Clerks Inter-
national Association , AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5)
of the Act
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1971 Tre-Vill Inc. commenced operating a restaurant
and lounge on the south side of Fort Wayne known as Don
Pedro's Fonda (hereafter south restaurant). The corporate
officers were four brothers-Jose, Benito, Pedro, and Cle-
mente Trevino. This restaurant prospered under the active
management of Clemente and Pedro Trevino, and in 1974
the brothers decided to open up a second restaurant and
lounge in west Fort Wayne. A new corporation, Don Pe-
dro-West Corp., was formed with the same four brothers as
officers, and Jose Trevino was also made president of this
second corporation. In February 1974 Jose Trevino com-
menced working at the south restaurant, as he said, learn-
ing the "food operations, kitchen, bartending." On Febru-
ary 19 Don Pedro's Hacienda (hereafter the west
restaurant) commenced doing business as a restaurant and
lounge, under the direct management of Jose Trevino. The
three brothers actively involved in the day-to-day manage-
ment of the two restaurants-Jose, Pedro, and Clemente-
thereafter would meet weekly at either restaurant to discuss
management problems and matters concerning employees.
B The Union Activities of Everhart
Lorena Everhart was hired by Clemente Trevino on De-
cember 15, 1974, to be the day bartender for the west res-
taurant. During the first 2 weeks of the following February,
she worked at the south restaurant under Clemente Trevi-
no, learning the operation of an IBM cash register de-
signed for a computerized bar When the west restaurant
opened on February 19, Everhart commenced her duties as
its day-shift bartender, working from 10 a.m. to 6 p.m.,
Monday through Saturday, at a wage of $150 per week.
Twelve to fourteen waitresses and kitchen employees
worked at the west restaurant, and nine such employees
worked at the south restaurant.
In late spring, waitresses who worked at the south res-
taurant approached Union Representative Bill Ross about
union representation.' Their interest waned until late in the
summer when they again approached Ross. In early Sep-
tember, Everhart, who lived with Ross, secured five or six
union authorization cards from him, and commenced dis-
cussing the Union with employees at the west restaurant.
On September 4, she secured the signed authorization card
of Sandy Hicks, another employee at the west restaurant,
and on the same date signed her own card. Everhart had
conversations with various employees of the west restau-
rant, including the waitresses, the hostess, and the cook,
about the Union, and candidly admitted to them that she
did not know what the Union could do for them, but ad-
vised them that they should look into it. She advised the
employees of both the west and south restaurants that
there was going to be a union meeting on September 7 at
the union hall.
This Sunday evening meeting took place in the union
hospitality room and was conducted by Union Official
Ross. Everhart presented to him the signed authorization
cards of herself and Sandy Hicks. Besides Everhart, the
employees present were Sherrill Mattix, Patty Abbott, and
a cook whose first name was Gloria, all three of whom
worked at the south restaurant. Everhart was the only em-
ployee present from the west restaurant. A discussion
about wages was begun and Everhart proceeded to tell the
south restaurant employees what her wages were compared
to other employees, and also revealed to them the wages
that other employees at the west restaurant received. Ever-
hart knew what the wages were at the west restaurant be-
cause she cashed paychecks of various employees at the
bar.
C. The Alleged 8(a)(1) Violations Prior to Everhart's
Discharge
Sherrill Mattix left the union meeting and went to the
south restaurant, her regular place of employment as a
waitress, to purchase a carryout order. While waiting for
the food she sat down in a booth with Pedro Trevino. Mat-
2 Jose Trevino testified that he was first aware of union activity in June or
July, when Everhart voluntarily told him while drinking coffee that Ross
had asked her to unionize the waitresses, but that she did not like it, she
never liked the Union, and she did not want to do it He also quoted her as
saying , " Besides I feel like I am part of management here "
TRE-VILL, INC.
tix also knew Pedro Trevino on a friendly social basis, as
her family and his family had places at a nearby lake.
When asked by General Counsel to relate her conversation
with Pedro, she replied, "We talked about a lot of things,
how the lake was that weekend, and whether we did any
skiing, he asked me how the Union meeting went, and I
said, `Fine' that was the extent of it " Mattix further testi-
fied that although the conversation lasted for about one-
half hour there was no other conversation about the
Union.
On the following Wednesday, September 10, Mattix
went into the south restaurant to commence working her 5
p.m. to 11 p.m. shift in the family room. She was standing
at the waitress station waiting for customers, talking to Cle-
mente Trevino. Mattix described what happened thereafter
as follows:
I said that I thought that they should call a waitress
meeting and see why people were dissatisfied, because
I thought it was odd that a restaurant chain as small as
Don Pedro's, that the employees should be consider-
ing, or thinking about having a Union. Pete walked up
to get a cup of coffee, and of course, they already
knew I had been to the Union meeting. I said that I
had signed a card. Pete asked me if I wanted a Union,
and I said I didn't really know. Just because I signed a
card, didn't mean I couldn't change my mind, if it
came to a vote.
She then added that "Pete got a little irritated, and he said
that they did not want a Union in there, and that the fam-
ily could run the restaurants themselves."
Mattix also testified that Pedro stated that he had asked
some of the employees if they had signed cards, and they
had told him no. Mattix then replied, "Well, of course not.
I don't think that some of them would admit it, but I
thought that some of the people were signing cards." She
then volunteered information that she herself had signed
one.3
D. Everhart's Termination
On the following Friday, September 12, between 2 30
and 3 p.m., Everhart was tending bar at the west restaurant
when she had a conversation with two regular customers
concerning her status as an employee. As a result of this
conversation she proceeded to telephone Clemente at the
south restaurant. She testified that the following conversa-
tion took place.
He answered, and I said "Clem I would like to verify
a rumor I have heard " He said "I will try." I said "I
understand I am going to get fired." He said "It is a
possibility." I said "Okay." He says "Do you under-
stand'" I says "Yes " I jokingly said, "I still love you."
He says, "Okay, talk to you later." We hung up.
Later in the afternoon, about 5 45 p.m., Jose Trevino
came to the west restaurant. The night bartender had ar-
3 Mattix's testimony was uncontradicted as neither Clemente nor Pedro
Trevino testified In addition she was an impressive fair witness and I credit
her testimony
1261
rived and Everhart was still there. Jose Trevino asked Ever-
hart to come to his office, and proceeded to tell her that
there was no sense putting it off because she knew what
was going to happen. Everhart went on to testify as fol-
lows:
So then he went on to tell me that he was disappointed
in me, that he never did understand why I was such
highly paid, that I never produced what I said I would
produce, and then he asked if I was at the meeting,
and I said, "Yes." He asked if I knew who was at the
meeting, and I just didn't answer. He made the state-
ment that everything I had said to him 4 he knew with-
in 30 minutes after I said it, because the waitresses
would come back and tell him.
She further testified that Jose Trevino said "That he
knew that he couldn't trust me anymore, because I had
given out confidential information. He knew I had given it
out, because it was information no one else had." At the
end of the 15-minute session she was discharged.
Jose Trevino's testimony on what was said at this dis-
charge meeting varied in major detail from Everhart's ver-
sion On direct examination he admitted that after he
called her to his office he told her that something had hap-
pened, and he was letting her know right now that she was
no longer employed by the restaurant-"You have done
something that I found out about it, and I don't trust you
anymore " He further admitted that Everhart's testimony
that he had told her that he was dissatisfied with her per-
formance the last few weeks was accurate. He denied, how-
ever, that there had been any discussion about a union
meeting. On cross-examination, after repeated attempts by
General Counsel to secure from Jose Trevino what he actu-
ally said to Everhart at the time of the discharge, he re-
plied
I said, "Laurie, I called you here in the office to let
you know that you will not be, or you are not working
with us any longer." I says, "You have done things,
that in my thinking I cannot trust you anymore." I
said, "You haven't been performing your job the way
we expected, and you know what it is , because we talk
about it often and periodically."
Jose did not tell Everhart of any specific reasons for her
discharge, or question her about any of her activities while
in the employ of the Respondent.
E. Respondent's Explanation for Discharging Everhart
Jose Trevino testified that the Respondent had various
reasons for discharging Everhart, and proceeded to enu-
merate a whole series of reasons, most of minor signifi-
cance, backed up solely by his sparse testimony, and one of
major significance, backed up by his voluminous testimo-
ny. Except for an allegation about drinking on the job,
Everhart's performance of her duties as a bartender were
apparently satisfactory to Jose Trevino for the first 6-1/2
months of her 7-1/2-month period of employment. Howev-
er, he testified that about 4 weeks before her discharge, he
Everhart immediately clarified this by stating that everything she had
said to the waitresses would be reported back to him by the waitresses
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noticed that she was not performing her duties "the way
she was performing before," and he began looking at her
job performance.' I will now review the reasons given for
the discharge in the order presented by Jose Trevino at the
hearing, and as set forth in Respondent's brief.
1. Tardiness
Jose's testimony on tardiness was extremely brief and
terse. About 4 weeks before her discharge he noticed "She
was many times late Starting time was 10 o'clock. Many
times she got there 15 or 20 minutes late." Since Everhart
was paid a weekly salary, no time records were kept on her
attendance, and no company records of any kind were of-
fered to support the manager's testimony. Jose Trevino did
not claim that he warned her about being late.
2. Complaints from customers
On direct examination Jose testified that he had about
five different complaints from customers who wanted to be
served while sitting at tables, and Everhart told them if
they wanted to be served they had to sit at the bar. On
cross-examination when asked for the names of these cus-
tomers, Jose stated he would not like to disclose their
names, "because they are customers." However, when
pressed by General Counsel for their names, Jose Trevino
stated weakly that he did not know their names, that "They
are just people that periodically come to the place." Jose
Trevino did not claim that he ever told Everhart about
these alleged complaints.
4. Drinking on the job
Just before the west restaurant started operating, Jose
Trevino testified that he had a meeting with the employees
and told them of the restaurant's oral rules and regulations,
one of which was "the waitresses and bartenders were told
not to drink on the job, and if they drink after working
hours, they have to take the uniform or coat off, and then
they could have a drink " On direct examination, Jose testi-
fied that "shortly" after the Hacienda started operating, he
noticed that Everhart was drinking on the job, so he quietly
told her "You know that you are not supposed to drink on
the job," and that "This happened periodically, maybe
once or twice a week " On cross-examination when asked
how long shortly was, he responded 3, 4, or 5 weeks.
Jose Trevino sought to pinpoint one instance of Everhart
drinking on the job as being within "a few days, 2 or 3 days
before her discharge," when he alleges he picked up a glass
on the bar, and discovered it contained creme de menthe,
or creme de cacao, light. He said to her, "Are you drinking
again?" When Everhart responded that she needed it be-
cause it was late, Trevino testified, "I didn't respond, I Just
told her, you know, that she shouldn't drink on the job."
He admitted that a "couple" of times customers insisted on
buying Everhart a drink while she was working, and he
said "Okay" as "I felt that the customer is always right."
Jose Trevino admitted that he never told Everhart that she
might be fired for drinking on the job.
Everhart admitted that the Respondent had a rule that
the help did not drink on the job She further testified that
five or six times she had a drink on the job, but only when
customers offered to buy her a drink, and she first asked
Jose Trevino for permission. Each time that she asked, Jose
Trevino permitted her to have the drink on the job.
3. Unsatisfactory work and failure to perform her duties
as a bartender
Jose Trevino testified that in the last "couple" of weeks
before Everhart's discharge, he noticed a "couple" of times
people sitting at the bar while Everhart was not at her sta-
tion behind the bar; that she was either sitting at a table or
was over in the kitchen talking to one of the helpers.
Everhart readily admitted that she had left her station
behind the bar at various times, but testified that to fulfill
her duties as a bartender she had to go to the storeroom to
bring out liquor and wine, as well as supplies such as
straws, napkins, and stir-stix; that she had to go to the
cooler to secure fruit to cut up for drinks; that she had to
make the lemon mix for drinks; and that if customers sat in
the lounge from 2 to 5 p.m., she had to go wait on them, as
there were no waitresses working during those hours.
Everhart testified that only once in her period of em-
ployment did a customer leave because he could not get
service, and that was in early summer when she left the bar
to help the waitresses get the food out to a private party in
the backroom. She further testified that Jose Trevino never
warned her that she should stay behind the bar.
5. Revealing confidential information
In its brief the Respondent contends that Everhart was
also discharged for revealing confidential information:
Joe Trevino also testified that another reason for
Lorena's discharge was the fact that she had revealed
confidential information. Both Jose Trevino and Lore-
na Everhart testified that Lorena had revealed confi-
dential information in regard to the earnings of em-
ployees from paycheck information at a union
meeting.
Everhart testified, without contradiction, that she knew the
wages of the various employees from cashing their pay-
checks at the west restaurant There is no evidence present-
ed by the Respondent that Everhart learned about the wag-
es of other employees in any manner other than that stated
by Everhart, and her testimony stands uncontroverted.
6. Taking meat home without payment
The final reason given by the Respondent for discharg-
ing Everhart was, as stated in its brief, that on September
I I she "took six (6) meat specials 6 out of the restaurant,
6 Each day the restaurant featured a $1 95 special platter, which consisted
5 Actually, Everhart was on a vacation for I of these 4 weeks, so he could of meat, potato, or rice, and a vegetable or salad The retail cost of the meat
only have observed her job performance for a 3-week period averaged $1 25, a greater amount than the combined cost of the other items
TRE-VILL, INC. 1263
without payment , without authorization , and without fol-
lowing the normal procedures for writing up food items on
tickets."
Jose Trevino testified that it was right after the rush hour
when:
I notice there were six sizzler steaks left, and I very
specifically told Paula Santos to put those specials in a
container and put them in the cooler . She said,
"Okay." Around six o'clock , I was going home, and I
went out through the package store door, and Laurie
was leaving and going home through the main door. I
noticed that she had a square like , you know, like a
box, plastic covered with aluminum foil in a bag like.
I could only see the front of the bag, it was open, and
there was aluminum foil over it. Bill Falsic and myself,
we was walking out to the car , which many times we
do, and he talks to me in my car, then I take off. I
noticed , you know , I wondered what it was , so I said,
"Well, forget it." In my mind , I didn ' t tell anybody. In
my own mipd, I said, "Well, it looks bad to tell an
employee, `Hey, what you got there?" We never did
before, and I was not about to do it . So I got into my
car, and then I forgot some things, in my office. So I
went back , and when I went back Paula Santos 7
asked me if Laurie had asked me to take the specials
leftover home . I said, "No. I saw that she had some-
thing, with her shoes and purse and everything else."
You know, she says, "Well , I put it in the window to
let it cool off before I put it in the cooler , and she
came over and took them . I figured that she made
some arrangements with you " I said, "No she didn't."
I took my things out of the office , and I went home.
The next morning Jose Trevino stated that he checked
the records "to see whether she could have bought them."
"I checked my records, the tickets , the tape of the cash
registers , and I didn 't find any record showing two dollars
for food or a ticket to go or anything like that."8
Jose Trevino testified that when he totaled the tickets the
next morning , September 12, the total was $869 and some
odd cents , which was something like 21 cents different
from the actual cash in the register . He also testified that
he reviewed the tape from the register and that he could
not find any $2 food item listed thereon.
7 Paula Santos was an assistant cook, and at the time of the hearing was
in Mexico She was quoted by both Jose Trevino and Everhart without
objection , but I have made no findings on any of her asserted statements
Jose Trevino explained the system used at the west restaurant to record
sales as follows
Every sale in the lounge was recorded on a "ticket" (guest check) by
the waitress , who marked on the ticket "Food," if the sale was food On
the reverse side of the ticket there was a space for bar entries The
waitress would total the entire bill, including tax, and turn the ticket
over to the bartender The bartender would insert the ticket into the
cash register which would open up the register, and then ring up the
total amount of the sale The bartender totals the tickets as she goes
about her daily tasks The hostess in the dining room adds up the
dining room tickets, and gives the bartender "a total of food, total of
tax, and total total " Everhart rang up sales on the bar cash register
during the day, as did a night bartender on the evening shift Also, Joe
Trevino and Bill Falsic [Fallings in Respondent 's brief] the night man-
ager , operated the same cash register
He then waited until the afternoon to see if Everhart
would tell him about taking the meat home . About 2 p.m.,
nothing having been said , he went to the south restaurant
and discussed the matter with his brothers , Clemente and
Pedro, telling them "Listen , I have been having problems
with Laurie , about being late, not performing her duties,
and now to top it off , yesterday , she took some specials
that I had left . She took them home ." The brothers left the
decision on Everhart up to Jose. He discharged her that
evening as related in section III,D, above.
According to Everhart , she came into work on the morn-
ing before her discharge , and, as was her custom, at the
request of chef Betty Martinez , tasted the meat portion of
the day's special . Everhart liked the taste very much, and
stated to Martinez that if any were left over , she would like
to take some home for dinner . After lunch, Everhart asked
the chef if any of the special was left, and was informed
there was . She then asked Martinez to give her two or three
pieces for that night 's dinner, whereupon Martinez told as-
sistant cook Santos to put three pieces of meat in a pie tin.
According to Everhart , Santos put the meat in a pie tin,
covered it with aluminum foil, and gave it to her at the bar.
Everhart then stuck the pie tin in a paper bag that con-
tained her shoes, put a dummy ticket in the cash register to
cause it to open , rang up $2 and then stuck $2 in the regis-
ter. She claimed that she did not write up a ticket because
she did not know how , since she was not taking a luncheon
special home , only the meat.
When she arrived home and opened up the container,
she found six pieces of meat. The next morning , September
12, when she went in to work , she stated that she had the
following conversation with Martinez:
I says, "Would you believe that when I got home there
was about six pieces of meat in there?" She said,
"Well, don't worry about it." I said, "Well yes, but I
only put two dollars, you know, I only paid two dol-
lars for it ." She said , "Don't worry about it. It proba-
bly would have been thrown away "
Betty Martinez, who on the day of the hearing was still
the chef at the west restaurant , was asked if she remem-
bered a conversation with Everhart about the daily special
around the second week of September She replied "Yes,
sir. I mean she tasted some of it that morning , and said that
she liked it and if we had any left that she would like to
buy a couple of orders to take home with her that af-
ternoon, or that evening." Martinez also remembered that
the special for that day was a veal cordon bleu, with a
vegetable or rice, and a salad . 9 When she left the restaurant
at 2 p.m. she remembered that there were about six or
seven orders "laying out."
On cross-examination Martinez testified that she could
not remember Everhart mentioning to her on the next day
that Paula, the cook , had put all of the left over meat in the
tray; nor could she remember Everhart telling her that she
9 Veal cordon bleu is described in "Step By Step Guide To Meat Cook-
ing" by Audrey Ellis, The Hamlyn Publishing Group Limited , Middlesex,
England , as two thinly sliced veal scallops sandwiched together with a slice
of ham and a slice of cheese, coated with eggs and soft bread crumbs,
panfried
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had taken the special home, or that Everhart had said that
she paid $2 for what she had taken home. Martinez did not
flatly deny that Everhart made these statements, but testi-
fied that she did not remember them "because I have 20 or
25 people talking to me all day long about the food."
I credit the testimony of Martinez who, although a very
nervous person, impressed me with her sincerity, and desire
to tell the facts as she remembered them.
F. Credibility
Many of the facts of this case are not in issue, as much of
the testimony was uncontroverted. Where there is a con-
flict between Everhart and Jose Trevino, I have credited
Everhart. Everhart impressed me with her straightforward
testimony, sincerity, and prompt and uncontrived re-
sponses on both direct and cross-examination.
Jose Trevino's testimony was unimpressive. He was eva-
sive, unresponsive, and shifted his position in answers to
questions, and I do not consider him to be a reliable wit-
ness. On cross-examination, when faced with a major dis-
crepancy in his repeated testimony about a $2 food item,
he tried to shift completely his testimony. On direct exami-
nation, he had stated repeatedly that, on the morning after
Everhart took the meat home, he checked the cash register
tape and the tickets for any record showing $2 for food,
and he could not find any. When General Counsel com-
menced his cross-examination, he immediately started on
the matter of Trevino looking for a $2 food item:
Q. Mr. Trevino, with regard to the food items
which were taken out by Miss Everhart, the day be-
fore she was fired, you testified on direct examination
that you did not find a two dollar food item on the
cash register slip?
A. We have tickets and on the cash register tape.
Yes, I did.
Q. And when did you check for a two dollar food
item?
A. The following morning
Q. You checked the following morning. That would
have been the day she was fired?
A. Right.
Q. And you specifically looked for a two dollar
food item?
A. Right.
Q. And you didn't find any?
A. No, I didn't.
Further cross-examination went on, with Jose Trevino
repeating several times again that he looked for a $2 food
item on the tape and tickets. When he finally realized that
he did not know until several weeks after Everhart's dis-
charge that she claimed to have put $2 in the cash register,
he changed his testimony to state he was not looking at the
tape or tickets for a $2 food item, butjust looking at tickets
"for anything to prove to me that she had recorded them."
Jose Trevino did not know until Martinez told him that
Everhart claimed to have inserted $2 in the cash register.
He first testified that it was 2 or 3 weeks after Everhart's
discharge that Martinez told him about the $2; then, he
equivocated and said Martinez could have told him on the
day of the discharge However, Martinez testified that the
first time she knew anything about Everhart's claim of pay-
ing $2 was when the "Board of Labor" man talked to her.
Such an interview would have to have occurred after Octo-
ber 14, the date of the filing of the charge.
G Analysis and Conclusions
I As to alleged 8(a)(1) violations
(a) Interrogation of September 7. Sherrill Mattix's testi-
mony was uncontradicted as to what was said to her on
September 7 (and 10) by either Pedro or Clemente Trevino,
as they did not testify. Nonetheless, I find that Respondent
did not violate the Act on September 7 by Pedro
Clemente's single sentence inquiry of how the union meet-
ing went. Mattix had gone to the restaurant as a customer
to get a carryout order She had sat down in a booth and
talked to Pedro as a longtime friend and neighbor, about
their summer homes, the lake, and the weather, when the
lone question about the meeting was interspersed in the
relaxed nonbusmess conversation. I find this inquiry, in the
setting in which it was asked, not to be coercive, and that it
was not violative of the Act.
(b) Interrogation and threats of September 10.• I find that
Respondent violated the Act by Pedro Trevino asking
Mattix if she wanted a Union. Mattix was on duty as a
waitress talking to Clemente Trevino when Pedro injected
himself into the conversation, and questioned her about
her desire for a union. There was nothing friendly or neigh-
borly about Pedro Trevino's question, as it was clearly
coercive, and his inquiry constituted interrogation pro-
scribed by the Act
In addition, Pedro Trevino's statement that they did not
want a union, and that if the employees would have a
union the family themselves would run the restaurant, was
an implied threat of reprisal that if the employees choose
the Union to represent them the Trevinos would lay them
off and operate the restaurant with the Trevinos' wives and
children. Mattix stated that she did not take his statement
to mean that he would fire her, as she excused his angry
outburst because she said she knew he was "upset." How-
ever it is well-settled law that the test to be applied to such
words is an objective test, rather than a subjective one.
N L.R.B v. Link-Belt Company 311 U.S. 584. (1941)
While the record does not show that Clemente Trevino
said anything to Mattix, he was present and did not disa-
vow Pedro's illegal statements. However, his efforts to calm
Pedro Trevino down by saying to him "Don't be upset" or
"Stay cool" are indicative of the anger registered by Pedro
in his threat against union organization.
(c) Interrogation and impression of surveillance of Septem-
ber 12: As previously noted, Jose Trevino called Everhart
into his office on the evening of the discharge. I have cred-
ited Everhart's testimony that Jose Trevino asked her if she
attended the (union) meeting, and that he also asked her
who was at the meeting. Interrogation of this type is not
innocuous and requires justification. There was no attempt
to justify, as Jose Trevino simply denied that he talked
about any union meeting. "The Board holds . . that in-
terrogation which seeks to place an employee in the posi-
TRE-VILL, INC 1265
tion of acting as an informer involving the union activity of
his fellow employees is coercive." Abex Corporation-Engi-
neered Products Division, 162 NLRB 328, 329 (1966). I find
that Jose Trevino's questioning was coercive, and therefore
is prohibited by the Act. Swanson-Nunn Electric Company,
Inc. 203 NLRB 213 (1973). Vincent's Steak House, Inc. 216
NLRB 647 (1975).
I have also credited Everhart's statement that Jose Trevi-
no said he knew everything she had said to the waitresses
within 30 minutes after she said it, because the waitresses
went directly back to him and told him. Jose Trevino did
not deny this statement. Accordingly, I find that Jose
Trevino's statement created the impression that Respon-
dent was keeping the union activities of its employees un-
der surveillance, and that Respondent thereby violated
Section 8(a)(I) of the Act.
2 Everhart's discharge
It is well established that an employer may terminate an
employee for any reason, good, bad, or indifferent, without
running afoul of the Act provided he is not motivated by
unlawful considerations. The existence of justifiable
grounds for dismissal is no defense if the motivation for the
discharge was in part because of the employee's participa-
tion in protected activities. With these principles in mind,
and recognizing that the burden of proof to show the ille-
gality of the discharge rests with the General Counsel, we
now analyze Everhart's discharge.
a. Everhart was active and prominent in the movement
to organize Respondent's employees. In September, Ever-
hart became the active union proponent in the movement
to organize the Respondent's employees, both at the west
and south restaurant. It is true she had not initiated the
campaign, as it had been begun by employees at the south
restaurant in the prior spring. However, in September, Ev-
erhart, by distributing the authorization cards and talking
union to the other employees, rekindled the flame of union
organization and became its spearhead. This of course does
not shield her from being discharged for cause. But dis-
missing an outstanding proponent of a union often tends to
discourage other employees from becoming interested in a
union. "Obviously the discharge of a leading union advo-
cate is a most effective method of undermining a union
organizational effort." N.L.R.B v. Longhorn Transfer Ser-
vice, Inc., 346 F 2d 1003, 1006 (C.A. 5, 1965).
b. Respondent was aware of Everhart's union activity.
Jose Trevino admitted that in the middle of August he
overheard Everhart talking to other employees about the
Union. Sherrill Mattix testified credibly and without con-
tradiction that on the evening of September 7 Pedro Trevi-
no asked her how the union meeting went. The record is
also clear that Everhart was present at this sparsely attend-
ed meeting, and that she was the most vocal employee
present. I have also credited Everhart's testimony that at
the exit interview on September 12 Jose Trevino discussed
the union meeting, and told her that he knew everything
that she said to the waitresses because the waitresses came
back and told him. I do not credit Trevino's testimony that
he did not discuss the union meeting. Jose Trevino obvi-
ously knew that Everhart had been at the meeting and had
revealed the wages of other employees, as one of the rea-
sons presented in Respondent's brief for her discharge
"was the fact that she revealed confidential information."
The brief explains that the confidential information re-
vealed was "in regard to the earnings of employees from
paycheck information at a union meeting."
c. Respondent entertained antiunion hostility. Pedro
Trevino's angry reply to Sherrill Mattix on September 10
that if a union came in the family would run the restau-
rants has already been found to be a violation of Section
8(a)(1) of the Act, as has Jose Trevino's statement at the
exit interview to Everhart giving the impression that he had
the union activities of the employees under surveillance.
Respondent's brief asserts that Jose Trevino had pro-
union sentiments, and Jose at the hearing sought to portray
an image of nonhostility to the Union. He testified that in
prior years he had served as a director of the Northeast
Indiana Migrant Council and as such had referred farm
workers to the United Farm Workers. Also, that he had
served as an elected committeeman for the United Auto
Workers in a General Motors plant for 3 years. I regard
such contention as a sham in light of his conduct towards
the union proponent, Everhart. Manifestly, antiunion hos-
tility in itself is inadequate to prove that Everhart was dis-
criminatorily discharged, (N.L.R.B. v Harry F Berggren &
Sons, Inc, 406 F 2d 239, 246 (C.A. 8, 1969) cert. denied 396
U.S. 823), but it is a factor which may be appraised in
determining the true reasons prompting or inducing a dis-
charge.
d Respondent's stated reasons for discharge did not
stand scrutiny. Jose Trevino's testimony that he had com-
plaints from customers about Everhart's nonperformance
of her duties proved too little and too much. On the one
hand, he stated there were complaints from customers that
she would not serve them at tables, but required them to sit
at the bar. On the other hand, Trevino claimed she was
absent from the bar at times. Everhart presented cogent
reasons, uncontradicted by Jose Trevino, why she had to
leave the bar at various times-from securing supplies to
waiting on customers in the lounge from 2 to 5 p.m. when
no waitress was on duty. Moreover, Jose Trevino was un-
able to cite the name of a single customer who made a
complaint. Also, Jose Trevino never informed her of any
such complaints, nor did he ever warn her of such dere-
lictions of duty. One of the features that stands out in this
case is that Jose Trevino loved Don Pedro's Hacienda, as
he had a right to. After all, he had built it up into a success-
ful bar and restaurant in 7 months and he wanted to see it
continue to prosper and grow If his daytime bartender had
been mistreating customers there is no doubt that he would
have so informed her and warned her of its consequences.
This he never did.
It is true that Respondent had a rule against employees
drinking on the job, but it was not, as stated in
Respondent's brief, "a strict rule." Jose Trevino admitted
that when customers insisted that they wanted to buy Ever-
hart a drink during working hours, a "couple" of times he
agreed as "I felt that the customer is always right." Ever-
hart described it as happening five or six times and I credit
her testimony. It is inconceivable that Jose Trevino ob-
served Everhart drinking on the job once or twice a week
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from "shortly" after the west restaurant opened until the
time of discharge, without ever warning her that she might
be disciplined or discharged for such activity. Such failure
on Respondent's part warrants the inference, and I draw it,
that drinking on the job was not a factor in causing
Everhart's termination.
The Respondent's major reason for discharging Ever-
hart, that she took six pieces of meat home without pay-
ment on September 11, does not stand scrutiny. Jose
Trevino's testimony that after lunch he noticed "there were
six sizzler steaks left" is a measure of his unreliability in
reciting the details of the meat incident. Chef Martinez
testified that the special that day was veal cordon bleu.
Certainly, as an experienced restauranteur, Jose Trevino
would have known what veal cordon bleu looked like, and
had he seen six veal cordon bleu specials that afternoon, he
would not have described them at the hearing as sizzler
steaks.
There is no question but that Everhart took pieces of
meat home on the evening of September 11, and that when
she opened up the pie tin, she found six pieces. There is a
question as to whether she put any money for its purchase
in the cash register. I credit her testimony that she put $2 in
the register. Martinez testified on both direct and cross-
examination that, on the morning Everhart tasted the meat
and liked it so much, Everhart said if there were any left
she would like to buy a couple of orders. If Everhart was
planning to steal the specials, it is not logical that she
would have stated publicly that she would like to buy sev-
eral of them. We do know that Jose Trevino did not look
for a $2 food item on the cash register tape or on the tickets
on the morning of the discharge, as he had originally testi-
fied again and again and again. This change in his testimo-
ny having come about when he realized that he did not
know Everhart's claim of inserting $2 in the register, until
several weeks after the day of discharge.
At the time of the termination interview, Jose Trevino
did not mention the meat incident to Everhart, nor did he
question her about it. He gave no specific reasons for her
discharge, only a vague reason that she had done some-
thing that he had found out about, and that he did not
trust her anymore. This hazy reason fitted Jose Trevino's
theory that Everhart had revealed what he considered con-
fidential information when she told the employees attend-
ing the September 7 union meeting the wages of various
employees. Everhart was engaging in protected concerted
activity when she attended and spoke at this meeting, as
she possessed no indicia of a confidential employee. She
was a bartender who cashed other employees' paychecks,
at their request, and did not even have access to the
Respondent's personnel and financial records. RCA Com-
munications, Inc., 154 NLRB 34 (1965).
A final element in the General Counsel's case is the tim-
ing of Jose Trevino's decision to terminate Everhart Ever-
hart had worked for the Respondent for almost 7 months
without ever being warned about the possibility of disci-
pline or discharge. The timing of Everhart's unheralded
discharge, 5 days after she spoke at the union meeting,
provides further support for the General Counsel's conten-
tion.
At the hearing, Respondent sought to shore up its rea-
sons for justifying the discharge of Everhart by adding an
additional reason to the ones set forth in the Respondent's
answer-tardiness. Jose Trevino gave scant testimony on
this issue, unsupported by records, and with his admission
that she had never been warned about being late, I do not
credit his testimony on the tardiness. However, I do find
some importance in the introduction of the issue of tardi-
ness, as it indicates that the Respondent thought it neces-
sary to buttress its reasons for Everhart's discharge.
It is to be noted that it is not essential, in order to find
Everhart's discharge discriminatory, that it resulted solely
from her union activity. It is sufficient to find such discrim-
ination, notwithstanding that a valid cause may have ex-
isted for her termination, if a substantial or motivating
ground for her discharge was her union activity. N.L.R.B.
v. Whiten Machine Works 204 F.2d 883 (C.A. 1, 1953);
N. L. R. B. v. Lexington Chair Company, 361 F.2d 283, 295
(C.A. 4, 1966). And I find on the basis of the entire record,
including the union animus of the Respondent towards the
organizational campaign, that a substantial or motivating
reason resulting in her discharge was her union activity,
and the said "union activity weighed more heavily in the
decision to fire [her] than did dissatisfaction with her per-
formance." Whitin Machine Works, supra, 885. I further
find that the reasons presented by Respondent for dis-
charge were a pretext to conceal the antiunion motivation
for her discharge. Kelly Transfer, Inc., 214 NLRB 329
(1974); Terminal Equipment, Inc, 219 NLRB 261 (1975).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees, by threatening to re-
place employees with members of the owners' families in
the event of unionization, and by giving its employees the
impression that it was surveilling their union activities.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by terminating employee Lorena Everhart because of
her union activity.
5. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act
The Respondent having discriminatorily discharged
Lorena Everhart, I find it necessary to order the Respon-
dent to offer her full reinstatement, with backpay comput-
ed on a quarterly basis plus interest at 6 percent per annum
as prescribed in F. W Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from the date of her discharge to the date of a
proper offer of reinstatement
TRE-VILL, INC
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 10
Respondent Tre-Vill, Inc. and Don Pedro-West Corp.,
Fort Wayne, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Retail Clerks Union Local 10,
a/w Retail Clerks International Association, AFL-CIO, or
any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to replace employees with members of
the owners' families in the event of unionization.
(d) Giving employees the impression that it was engag-
ing in surveillance of their union activities.
(e) In any other 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 necessary to ef-
fectuate the policies of the Act-
10 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1267
(a) Offer Lorene Everhart immediate and full reinstate-
ment to her former job or, if the job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
for her lost earnings in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its south and west restaurants in Fort Wayne,
Indiana, copies of the attached notice marked "Appen-
dix." 11 Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being duly signed by
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
In the event the Board's 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 "