"The Loft" (Showcase, Inc.)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "The Loft" (Showcase , Inc.) and Mary Alice Tidd. Case 17-CA-11169

7 January 1986

DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS

DENNIS AND BABSON On 5 December 1984 Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief .1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order.

ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, "The Loft" (Showcase, Inc.), Topeka, Kansas, its officers, ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully_ examined the record and find no basis for reversing the findings

2 The judge found that the Respondent violated Sec 8(a)(1) of the Act by discharging employee Mary Tidd ffor'litr 3 August 1982 activity of protesting the Respondent 's tipping policy . We agree We find that Tidd's conduct was a continuation of the earlier concerted activity of the 23 and-25 July employee meetings at which the employees formulated strategy against and protested the Respondent's tipping policy Tldd was very outspoken at those meetings and 'was viewed by the Respondent as an employee spokesperson. Tidd's 3 August conduct was in response to Managing Supervisor Dee Eilert 's and Owner-Manager Robert Zibell's confronting her because they overheard her making comments to other employees about the tipping policy, or perceived her as making such comments In the exchange which resulted in Tidd's discharge, her com- ments to Zibell directly related and referred to the earlier concerted ac- tivity. Thus, according to Zibell's own testimony, Tidd specifically men- tioned the tipping system which was the principal subject of the employ- ee meetings As Tidd's 3 August conduct was clearly a continuation of the earlier conduct with her fellow employees in pursuit of their common concern, the objective test, required by Myers Industries, 268 NLRB 493 (1984), remanded sub nom Prill v NLRB, 755 F 2d 941 (D C Cir 1985), cert denied 120 LRRM 3392 (1985), has been met In so concluding, however, Chairman Dotson and Member Babson find it unnecessary to rule on the judge's additional finding that Tidd was engaged in concerted activity by attempting to intervene on behalf of employee Cathy Car- others In finding that Tidd was, engaged in concerted activity, Member Dennis additionally relies on the judge's rationale , including his citation of pre-Alleluta Cushion Co, 221 NLRB 999 (1975), cases Finally, in adopting the judge's conclusion that the Respondent violat- ed Sec 8(a)(1) by discharging Tidd, we rely on his finding that Tidd did not, as contended by the Respondent, use profanity in her conversation with Zibell. We, therefore, find it unnecessary to pass on his alternative finding that, even assuming that Tidd engaged in the alleged profanity, such conduct would not have deprived her of the protection of the Act agents, successors , and assigns, shall take the action set forth in the Order. Deborah A. Ford, Esq., for the General Counsel. K. Gary Sebelius, Esq. (Eidson, Lewis, Porter & Haynes, Esqs.), of Topeka, Kansas, for the Respondent. Richard D. Anderson, Esq. (Colmery, McClure, Funk, Le- tourneau & Entz, Esq.), of Topeka, Kansas, for the Charging Party.

DECISION STATEMENT OF THE CASE

JESSE KLEIMAN , Administrative Law Judge. On a charge filed on August 25, 1982, and an amended charge filed on September 29, 1982, in Case 17-CA-11169, by Mary Alice Tidd, an individual , the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 17 , Kansas City, Kansas, duly issued a complaint and notice of hearing on October 8, 1982, against "The Loft" (Showcase Inc.) (the Respondent), al- leging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act. On November 19, 1982, the Respondent , by counsel , duly filed an answer denying the material allegations in the complaint.

A hearing was duly held before me in Topeka , Kansas, on February 10 and 11, 1983. All parties were afforded full opportunity to appear , to introduce evidence, to ex- amine and cross-examine witnesses , to argue orally on the record , and to file briefs. At the conclusion of the General Counsel 's case and again at the close of the hearing the Respondent moved to. dismiss the allegations made in paragraphs 5(a) and (b) of the complaint.I I denied these motions. Thereafter, the General Counsel and the Respondent filed briefs . In its brief the Respond- ent submits that "the General Counsel has failed to sus- tain its ultimate burden of proof and the complaint should be dismissed in its entirety ." For the reasons ap- pearing hereinafter , I deny the Respondent 's request to dismiss the complaint in its entirety. On the entire record and the briefs of the parties, and on my observation of the witnesses , I make the following

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, at all times material, has been a cor- poration engaged in the operation of a restaurant at a fa- cility located at 417 West 37th Street, Topeka, Kansas. In the course and conduct of the Respondent's business operations during the preceding 12 months, these oper- ations being representative of its operations at all times i Par . 5(a) of the complaint alleges that the Respondent , acting through its supervisor and agent Dee Eilert, "On or about July 23, by telephone, interrogated its employees regarding its employees ' protected concerted activities " Par. 5(b) of the complaint alleges that the Respond- ent, acting through its supervisor and agent Dee Eilert , "on or about August 3 , at the facility , directed its employees to refrain from engaging in protected, concerted activity of discussing wages and working condi- tions with other employees "

277 NLRB No. 170 "THE LOFT" material herein, the Respondent derived gross revenues in excess of $500,000. During the same period of time the Respondent, in the course of its business operations, pur- chased and received goods and services valued in excess of $50,000 directly from sources located outside the State of Kansas. The complaint alleges and , while the Re- spondentdenies this, I find that the Respondent is now, and has been at all times material , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 Additionally, at all times material herein, Robert Zibell was and is the, owner and overall manager of the busi- ness; Dee (Delores) Eilert, the managing supervisor; and Wanda Baird, the operations coordinator. The complaint alleges, the Respondent admits, and I find that these per- sons are supervisors within the meaning of Section 2(11) of the Act, and have been and are now agents of the Re- spondent acting on its behalf within the meaning of Sec- tion 2(13) of the Act. It. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance, that the Respond- ent violated Section 8(a)(1) of the Act, by interrogating its employees regarding their protected concerted activi- ties; by directing its employees to refrain from engaging in the protected concerted activity of discussing wages and working conditions with other employees; by pro- mulgating and maintaining a written rule for its employ- ees which prohibited their discussing "pay or other prob- lems with your job" with coworkers upon penalty of dis- missal; and by discharging its employee Mary Alice Tidd because she and other employees engaged in protected concerted activities and in order to discourage employ- ees from engaging in such activities for the purpose of collective bargaining or other mutual aid or protection. The Respondent denies these allegations. A. Background The Respondent operates a restaurant in Topeka, Kansas, employing approximately 100 people including waiters, waitresses, bartenders, hostesses, salad and prep persons, and cooks. The physical facility consists of two separate dining areas, an upstairs and downstairs level, and a downstairs bar located four steps above the down- stairs dining room. Behind the downstairs bar^is a check- out room where waiters and waitresses report at the end of their shifts with the money they have collected that workday. The evidence shows that as part of its employee wage structure prior to August 1982, the Respondent instituted a "tip pool", system whereby employees who recieved tips from customers in the nature and course of their duties, i.e., waiters and waitresses, would contribute "four percent of total revenue" to the "tip pool" which

2 The complaint alleges and the Respondent admits deriving gross rev- enues in the course and conduct of its business annually in excess of $500,000, and purchasing and receiving goods and services in excess of $50,000 directly from sources located outside the State of Kansas I there- fore find and conclude that the Respondent meets the Board's jurisdic- tional standards for retail establishments Pancho's Villa, 245 NLRB 440 (1979); Brennan's French Restaurant, 129 NLRB 52 (1960). Also see gen- erally Photo Drive Up, 267 NLRB 329 (1983). 1445 was then divided among the employees who usually re- ceived no tips in their work, i.e., hostesses, bartenders, and prep people.3 Robert Zibell, the Respondent's owner and manager, testified that up until midsummer of 1982 the employees "seemed to be pleased with the system we had in effect. I heard no comments from anybody that they were displeased with the money they were making. And things were running smoothly." However, Zibell also testified that in or about the' latter part of 1981 or early 1982 he received a petition from employees com- plaining about the tip pool system, and that employees had "questioned" the Respondent's "wage policy" in the past.4 It should be noted that I found Zibell's testimony concerning this to be at times somewhat contradictory and defensive. Moreover, although not directly related to the Re- spondent's tip pool policy, Jeannie Gibson testified that prior to August 3, 1982, she had complained to Dee Eilert about the Respondent's pay system because she felt that other employees, receiving the same salary as she, were performing less work. She stated that Eilert told her that if she did not like it, "I could go else- where." The evidence herein shows that by letter dated April 23, 1982, Gibson terminated her employment with the Respondent because she felt that she provided better service than other employees but was compensated at the same rate as they. Subsequently, about 3 weeks later she was rehired by the Respondent. Additionally, Zibell maintained that the Respondent's tip pool policy was legal because it was voluntarily agreed to by all the Respondent's employees. Interesting- ly, however, the evidence shows that when the Respond- ent changed to the tip pool system in 1981 , the Respond- ent required its employees to sign a statement which en- compassed various work rules and regulations , including the tip pool system changes, and which stated: By signing this you- agree to all that was stated above and have read it thoroughly. . , . if not fill in comments below. . . . This must be signed by all employees and turned back in or you will not be put on the schedule next week.5 Also, the parties stipulated that on September 28, 1982, Charging Party, Mary Alice Tidd, and nine other em- ployees including, Jeffrey Alan Chanay, Jeannie Gibson, Brenda Willis, and Peggy Schumacher, "currently have on file an action in the state court-in the Shawnee County District Court for the District of Kansas alleging violations of the Kansas wage payment laws and the Fair

3 For purposes of the tip pool arrangement total revenue included food and liquor sales receipts and food and liquor taxes * Additionally, although it is unclear whether the finding was connect- ed with the Respondent's tip pool system or not , the record shows that the Kansas Department of Human Resources in June 1982 held the Re- spondent to be a "willful] violator of the Kansas Wage Payment Act " According to Zibell, this finding has been appealed and was pending de- cision at the time of this proceeding . The wage claim appears to have involved an employee named Chet Elkins.

5 See G.C. Exh. 6. When testifying about the requirement that employ- ees voluntarily agree to the tip pool system , and acknowledge such agreement by signing the form presented , Zibell's testimony seemed equivocal 1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Standards Act against the Respondent in this case, as well as Robert Zibell, Wanda Baird, and Dee Eilert." B. The Evidence Jeffrey Alan Chanay, employed by the Respondent as a waiter from July 1981 through mid-August 1982,6 testi- fied that sometime in late May -1982, while doing re- search as a law clerk,' he discovered that pursuant to court and administrative rulings a maximum of 15 per- cent is allowable as deductions from employee tips to be placed in a tip pool. According to Chanay, the Respond- ent's tip pool policy, wherein "four percent of total reve- nue" was being deducted from employees wages and placed in the tip pool, actually amounted to "25-40 per- cent" of the tips employees received each evening." Chanay related that he discussed this with Richard An- derson, Esq., an attorney with the law firm of Colmery, McClure, Fund, Letourneau & Entz, Esqs., the firm with whom he "clerks" during the day,9 and then discussed this information with "five or six" employees including Loretta Smith, a waitress, Dawn Smithson, a cocktail waitress and bartender, and Hugh Janda, a waiter at the time .10 Chanay continued that on Friday, July 16, 1982, he and Janda met with Anderson to discuss this problem and Chanay retained Anderson's law firm to represent him "in any possible wage and hour claim that I might have against The Loft." The evidence shows that by letter dated July 22, 1982, Anderson notified the Re- spondent of Chanay's wage claim and possible penalties due in the total amount of $10,000, and requested the payment or warned a lawsuit would be commenced against the Respondent."" Zibell testified that sometime in mid-summer of 1982, he heard rumors that some of the employees were dissat- isfied with the Respondent's pay system, particularly the tip pool policy. Zibell stated that he had heard from em- ployee Hugh Janda that Chanay was dissatisfied, and from Dee Eilert, his managing supervisor, that Chanay was a changed employee, "a little more distant." He re- lated that it was also his impression that Chanay was a dissatisfied employee. Zibell recounted that because of the rumors of employee dissatisfaction, "primarily it was Jeff Chanay," and since there had not been a meeting be- tween management and the employees for almost a year to discuss the restaurant's operations and suggestions for

8 Chanay had previously worked for the Respondent from May until mid-September 1980

7 Chanay is a law'student. a Zibell testified that the average deduction from the waiters' and wait- resses' tips approximated 27 percent at this time e This law firm also represents the Charging Party both in this pro- ceeding and in others 1° Chanay testified that this occurred in and around June 1, 1982, and that Janda had previously "served for a period of about six months as a manager" for the Respondent

11 Interestingly, Chaiiay testified that on July 23, 1982, he overheard a telephone conversation between Dale Somers, Esq, an attorney with the firm of Eidison, Lewis, Porter & Haynes, Esqs ., who represent the Re- spondent herein, and Richard Anderson and Stuart Entz, Esqs, of the law firm representing the Charging Party herein, which concerned Chan- ay's demand letter in his "possible wage claim" action He stated that the discussion centered around settling the claim wherein Chanay would agree "not to speak to any other employees or anyone about the terms of my settlement nor anything I discovered as far as my legal research " improvement, he decided to hold such a meeting on Sunday, July 25, 1982,12 Zibell added that he met with the Respondent's other managers and supervisors prior to July 25, 1982, to discuss what subjects would be cov- ered at the upcoming meeting but Zibell could not "recall the specifics" thereof. Chanay testified that on July 19 or 20, 1982, Eilert ap- proached him at work and told hun that there was an employees' meeting scheduled for Sunday, July 25, 1982, and that he was required to attend the meeting or be fired. Eilert also asked Chanay to sign "a sheet stating that I had in fact been told that there was going to be a meeting, and that the meeting was required."13 Jeannie Gibson, employed by the Respondent as a cocktail wait- ress and bartender from April 1981 until August 21, 1982,14 related that on Monday, `July 19, 1982, Eilert told her about the meeting scheduled for Sunday, July 25, 1982, "and asked me to sign a piece of paper." Gibson stated that she asked Eilert what the meeting was about and Eilert responded, "Oh, you know, somebody is unhappy with the tip pool system and wants to change it." Mary Alice Tidd, the Charging Party herein and em- ployed by the Respondent as a waitress and relief bar- tender from March 1981, until her discharge on August 3, 1982, testified that on Tuesday, July 20, 1982, Eilert informed her that there was a meeting on Sunday, July 25, 1982, "and to sign the paper that I had been ac- knowledged of the meeting." Tidd also testified that prior to July 1982, Zibell would come to The Loft during the evening, have dinner there, and then leave. However, in July 1982 this changed and, according to Tidd, Zibell's presence at The Loft increased and Zibell and Wanda Baird were there every night, "walking around supervising throughout the building."15

1. The meeting of July 23, 1982 The record evidence shows that on Friday, July 23, 1982, several employees held a meeting at the apartment of employee Bunny Evans to discuss the management- employee meetings scheduled for Sunday, July 25, 1982. Present at the meeting were Jeannie Gibson, Brenda Willis, Mary Alice Tidd, Dawn Smithson, Peggy Schu- macher, Carol Herron, Jeffrey Chanay, and Evans her- self 16 Chanay testified that the meeting occurred late in the evening "probably 11:30, midnight, I would imag- ine." Chanay stated that he had been invited to attend the meeting by Jeannie Gibson, a bartender, who told

12 Zibell stated that the rumors of Chanay' s dissatisfaction were con- firmed when about July 23, 1982, he received the "wage claim" letter from Anderson, on Chanay's behalf, notifying the Respondent of Chan- ay's wage claim allegations , based upon its "improper maintenance of a tip pool under minimum wage law "

18 Zibell testified that he probably instructed Eilert to obtain the signa- tures of employees so that "all employees who were supposed to attend the meeting, did . . Because I wanted them to be there Those people that were directly involved in the tip pool."

14 Gibson commenced her employment with the Respondent as a hos- tess She voluntarily terminated her employment with the Respondent on August 21, 1982.

11 Baird testified that from July 25, 1982, through August 1982 she spent more time at The Loft than before - 1e See the testimony of Chanay, Gibson, Tidd, and Schumacher These employees all testified herein as witnesses for the General Counsel. "THE LOFT" him that "several employees were going to get together and to discuss what was going to be coming up on the meeting on the 25th." Chanay added that another em- ployee, Hugh Janda, appeared at the meeting near its conclusion and "about an hour and a half, two hours after it began ." Chanay related that they discussed "tac- tics .. . how we could be a strong group for the meet- ing [July 25 , 1982]" and Chanay was questioned about his "investigation into the wage system."17 Jeannie Gibson testified that, while this meeting was in progress, they received a telephone call, which she an- swered, from Dee Eilert , the Respondent 's managing su- pervisor. Gibson related that Eilert asked her who was present at the meeting and Gibson responded that Bunny Evans, Carol Herron," s Mary Alice Tidd, Peggy Schu- macher, and she were there.19 According to Gibson, Eilert asked to speak to Schumacher and after she gave Schumacher the telephone receiver, Schumacher mo- tioned for her to listen in on the conversation with Eilert, which Gibson did although she did not inform Eilert that she was now listening to the conversation be- tween Eilert and Schumacher . Gibson stated that Eilert was "upset and crying" and said, "That fucking Jeff Chanay, he started all of this."20 Peggy Schumacher, employed by the Respondent from February until August 6, 1982, related that Eilert asked her over the telephone who was at the meeting and "why we were there." Schumacher stated that she told Eilert that "There's just some people here from work" at the meeting without mentioning any of the other employees ' names and Eilert did not press her fur- ther". She added that Eilert commented that "[C]hanay should be hung by his heels." Schumacher testified that, although Eilert did not threaten to discharge any em- ployee who might be at the meeting, nor did Schu- macher feel intimidated by Eilert's telephone call, she did not tell Eilert who was present at the meeting when Eilert asked her about this "[m]ainly because if she knew who was there-we were all afraid that we were going to be terminated is basically what it boiled down to, or phased out. . . . Your scheduling gets less and less each week. You go from five clays to four days three days, all of a sudden you're on one day."21

17 The testimony of Gibson, Tidd, and Schumacher concerning the discussions held at this ,meeting was somewhat similar The discussions generally centered around the Respondent's "tip pool policy" and em- ployee counterproposals to the Respondent 's wage system

18 On cross-examination counsel for the Respondent used the name "Carol Jones" apparently for Herron's

18 Gibson assumed that all the other employees at this meeting heard her give Eilert the names of these five employees, but she added that, "[T]hey may not have been paying attention" to what she was saying on the telephone, or may not have heard her mention the employees' names

20 Chanay testified that during the meeting , either Jeannie Gibson or Bunny Evans answered a telephone call, which they learned was from Dee Eilert , and he overheard Gibson or Evans recite the names of Gibson, Evans, and Schumacher into the telephone Tidd testified that Eilert had called Evans' apartment during their meeting and that either Gibson or Evans had answered the call and told the other employees that it was Eilert on the other end of the phone

21 On cross-examination Schumacher stated that there were nine em- ployees present at the meeting at Bunny Evans ' apartment on July 23, 1982 However, no further explanation was sought about this , This would not be contradictory to her other testimony since at one point late in the 1447 Mary Alice Tidd testified that Hugh Janda arrived late at the meeting when the employees present had finished their discussion of "other business " and were then only having "light conversation ." She stated that after the meeting was over, she met Janda in the apartment build- ing parking lot and Janda told her that lie was upset with the employees who attended the meeting because he had come there to tell them about Zibell's wage proposal, but the employees had been "cold" towards him, and had not told him about what had occurred at the meeting prior to his arrival. Dee Eilert22 testified that about 10 to 10:30 p.m., on July 23, 1982, while she was at the restaurant , she re- ceived a telephone call from Peggy Schumacher near closing time . 23 Eilert stated: Well, she asked me if I knew that they had a meeting, and I said that I'd heard that there was a meeting but I didn't know if it was true. She also told me that she was supposed to be the spokesman at the . . . general meeting we were going to have the following Sunday.24 She made the comment that she didn 't want to pull out on me but that she 'd have to if she only got paid so much money . That she knew that it was hard for me because I was on both sides. That Bob was a crook, that he was keeping part-he was pocketing part of the tip pool money , and that she thought they were paying too much into the tip pool. This was some of the things.25 Eilert denied that she had called the employees at Bunny Evans' apartment , or that she asked Schumacher who was at the meeting or what they had discussed there.26 She also denied speaking to Gibson or Evans over the phone. Additionally, Eilert admitted that she was con- cerned about what was going to happen at the July 25, 1982 meeting.

2. The meeting on July 25, 1982 The Respondent held a meeting at its facility on July 25, 1982, attended by approximately 50 employees, most of whom were either contributing to the tip pool system or were receiving payments therefrom . Representing the Respondent at this meeting were Zibell, Eilert, and Wanda Baird , the Respondent's operations coordinator meeting Hugh Janda joined the meeting making nine employees present at that time

22 Eilert, employed by the Respondent "probably five to six years," testified that her duties as managing supervisor were to "oversee all the nightly operations and directly supervise all the waitpersons, bar- tenders, hostesses, indirectly supervise kitchen people ." She admittedly hires and fires employees. Eilert testified as a witness for the Respondent.

25 Schumacher testified that on the evening of July 23 , 1982, she worked the evening shift at the restaurant from 5 p in until sometime be- tween 11.30 and 12:30 p m

24 Schumacher denied that she had ever told Eilert that she had been appointed spokesperson for the employees

25 Eilert testified that Janda had told her earlier, on July 22 or 23, 1982 , that there was going to be an employees ' meeting at Bunny Evans' house, but not the reason for the meeting She was curious about what the employees were going to discuss at this meeting

28 Eilert admitted that she and Schumacher were friends and had gone out socially together after working hours 1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and bookkeeper . Zibell testified that , "[W]e started out discussing business in general which took the first hour of trying to figure out why business was off and to ... come up with ways to improve business . Then we talked about the pay system to find out if there was displeasure with it or if there were people that were unhappy with it."27 Zibell related that several employees indicated their unhappiness with the pay system although a majori- ty of the employees present expressed satisfaction with the system.28 At this meeting , Zibell distributed what he termed a "representative" list of names of employees participating in the tip pool system with their hours of work , rate of pay, and individual earnings for a given period of time.29 Zibell testified that he had directed Baird to randomly select employees ' names and come up with a representa- tive list which would "give people an idea of what they were making." He stated , "I wanted to . . . show them what they were making , I thought , fair wages given the economic climate of the area and in comparison to what other restaurants are paying in Topeka ."30 Zibell related that he told the employees that if they were dissatisfied with the current pay system , they could come up with a new pay plan, and he would implement it if it did not increase the Respondent 's costs. Zibell added that he told the employees to come up with a new wage policy by the following Sunday, August 1, 1982. Zibell also ac- knowledged that he had told the employees at this meet- ing that there would be no salary increases . He also ad- mitted the possibility that he used "profanity" during the meeting. Chanay testified that during the meeting on July 25, 1982 , Zibell did "most of the talking" at first, discussing "that the state of the business ... the state of the econo- my, what could be done to increase sales and make busi- ness go a little better ." Chanay stated that Zibell inquired if there was "anything that people weren't happy about" and employee Carol Herron "said that she wasn't happy with the money she makes ." Chanay recounted that Zibell then stated: "Well, what is it that you think is wrong about the policy? Is it the amount of money you make or what?" He had said that we were all making suffi- cient money . And in dealing with the specifics of what was wrong , he asked Mary Tidd what was specifically wrong, if she knew what was illegal with the pay system . And she said , "To be included in a tip pool , don't those employees have to be em- ployees that face . . . customers." 2' Zibell stated that the meeting lasted 3 to 4 hours and was taped be- cause "its been our practice in the past to tape meetings so that those people that cannot make the meeting can listen to the tapes at a later time "

28 While at first maintaining that only Chanay had disagreed with the tip pool system , he then acknowledged that Tidd , Schumacher, and others also opposed it 2' The list contained the names of 21 employees (G.C. Exh 3) Seven of the employees listed had attended the meeting on July 23, 1982, at Bunny Evans' apartment

31 Zibell testified that the Respondent 's employees were receiving wages at least equal to or better than employees at other restaurants in Topeka, Kansas. Chanay continued that Zibell also directed specific ques- tions at him that dealt with "my interpretation of the ap- plicable federal and state wage and hour laws as dealing with tipped employees ."31 Chanay related that while Zibell was directing questions at him Zibell 's demeanor changed at times, varying from "inquisitive to antagonis- tic to on occasions sarcastic , and angry at times as well," He added that Zibell's demeanor was sarcastic when he directed questions toward Mary Alice Tidd concerning the legality of the tip pool pay system. Chanay also recalled that at this meeting Zibell stated that "[t]hose people who were unhappy with the system were being bad apples , they were rocking the boat, they were causing turmoil amongst employees . . . that if anyone was not happy , they should quit ." Chanay relat- ed that Zibell then "raised a voluntary termination letter ... and stated that if you didn 't like the way things were, you could hit the door and sign the sheets."32 He continued that Eilert similarly stated to employees that, "You bad apples , rabble rousers , you get out of here if you don 't like what your doing . We can get anyone off the street to replace you at half the cost." Chanay re- membered that Zibell or Eilert had used the number "eight" in referring to employees who were grouped as "bad apples, rabble rousers, people who are rocking the boat," although neither made any reference to the July 23, 1982 employees ' meeting.33 Regarding the July 25, 1982 meeting , Mary Alice Tidd testified similarly to Chanay, relating that "The meeting started out with we had a lack of business , what were the problems , how could we help take care of them. And it went in later into the tip pool policy and the unhappi- ness of employees ." Tidd continued:

I only spoke once and that was to the point Bob had handed out a piece of paper with the names of some of the employees and what we were making an hour . And he said , "Now tell me , if you're making this much money, how can it be illegal?" That is when I made my first statement . I said, "What we make an hour is not , what makes it legal or illegal." He jumped back very fast , "Well then, Mary, you tell us what is legal or illegal." And I told him that I felt that everybody who was on the tip pool system shouldn 't have been as far as any- body that did not see the customer directly. Then he told me, "You show me that in writing." And I did not say anymore. Tidd recalled that Zibell had used the words "rabble- rouser" and "bad apple" during the meeting, and that Eilert had said that "she put her whole life into it and

31 Zibell testified that he had asked Chanay for his opinion of the tip pool system and Chanay said that he thought the system was illegal,

32 Zibell acknowledged that he told employees at the meeting that if they were unhappy with the amount of their earnings, they could go else- where, and that he may have held up a resignation form when he said this.

33 Chanay associated the remark made by either Zibell or Eilert about "eight bad apples" and/or "rabble-rousers" with the eight employees who had attended the July 23 meeting at Bunny Evans ' apartment. "THE LOFT" 1449 she wasn't -going to let the `eight bad apples ' tear every- thing up."34 Tidd recounted that Zibell told the employees to meet together, discuss the problem, come up with "a new policy as long as it didn't increase his payroll ," and bring their proposal back -to him the following Sunday. Tidd stated that the employees told Zibell that they could not possibly accomplish this by the next Sunday since the employees worked at The Loft "every night," and could only meet together as a group on Sundays , and Zibell wanted " 100 percent" agreement by the employees on any, new wage policy proposal. However, while Tidd stated in an affidavit dated September 2, 1982, given to a Board,-agent during the investigatory state of this pro- ceeding, that Zibell had requested that the employees bring back their new wage proposal by the next Sunday, she, failed , to include therein that the employees told Zibell that they could not meet this deadline, as it were. Albeit not stated therein, Tidd maintained that the em- ployees had in fact advised Zibell that they could not present a new wage proposal to him by the following Sunday. , Tidd added that Zibell told the employees that he was going to change the ",tip pool policy regarding taking four percent of the gross sales." Peggy Schumacher testified that Zibell, at the meeting on July 25 , "started out'discussing the plans for adding on to the The Loft and the Showcase . Then it went into a discussion of how we could improve the menu, new items. And then the final phase of the meeting was about how' we were unhappy with the tip pool system." She stated that , during the meeting Eilert "pointed out that there were `eight bad apples or rabble-rousers ' that were causing the - problems. " She added that she particularly remembered Eilert 's comment because "I thought it was . .. curious to think that she knew that there were eight and there happened to be eight of us at that particular meeting. The one at Bunny Evans' home."35 While Jean- nie Gibson also recalled that Eilert had "referred to sev- eral of the employees without mention to any names, that` there was some `bad apples' in the groups," she could not remember if Eilert had specified or mentioned the number of employees.

3. What occurred on August 2 and 3, 1982 Tidd ' testified that on August 2, 1982, Eilert ap- proached her in the checkout room and asked her if the employees had met to formulate a new tip pool policy. Tidd related that she responded "no," and Eilert retort-

34 On cross-examination Tidd was questioned whether she included in her Board affidavit that Edert had used the words "eight bad apples " Tidd testified that she was not sure about this and thought she may have phrased it in her statement as "bad apples and rabble rousers." However, she admitted thereafter that she may not have included either in her statement

35 An affidavit dated September 2, 1983, given by Schumacher to a Board agent, contains no mention of the July 23 or 25, 1982 meetings However, Schumacher testified concerning the affidavit, "If it's not con- tained to the affidavit, then it was not pertinent to what [the Board agent] was discussing" Additionally, Schumacher believed, that her statement comprising the affidavit was taken as a response to the Board agent's di- rection to "relate what happened as to this incident when you were with Mary [Tidd]," obviously relating only to the events occurring at the time of Tidd's discharge ed, "Well, you ' knew tonight was the deadline." Tidd stated that she told Eilert that she was not aware that any deadline had been imposed concerning this. On August 3, 1982, Zibell changed the Respondent's tip pool policy and distributed to employees a two-page handout which detailed the changes.36 Zibell explained that he had changed the tip pool arrangement because there were employee complaints about the way the system operated and the amounts that were being con- tributed to the pool by employees, and because the old system was no longer "voluntary" since at least one em- ployee disagreed with it. Zibell stated that he decided to devise a legal tip pool system in which the consensus of all employees was not necessary, and individuals would contribute to the pool based on their total tips and not on their total sales. He related that he wanted employees' overall ,compensation to remain the same and made ap- propriate changes to accomplish this. Zibell added that the new system was ' discussed with the general counsel of the National Restaurant Association who confirmed the legality of this new tip pool system.37 Zibell testified that employees were given copies of a two-page handout which detailed the changes in the tip pool policy and that he had "individual meetings with the employees as they arrived for their scheduled shifts" wherein he explained the new system to them. Zibell re- called specifically explaining the new wage system to Mary Alice Tidd but did not recall that she made any comments about it at the time. The changes, detailed in the handout, provide in relevant part, as follows: 15% of total tips collected will go into the tip pool nightly. Tip pool will be distributed back to bar- tenders, hostesses, prep people based on a percent- age of hours worked . . . Wait,'l5ersons will rotate into various other positions at the -discretion of the management . . . a 15% service charge will contin- ue to be added to tables of 6 or more but this will become part of the establishments total sales and will not be passed back to the wait people as a tip. Moreover, the second page of the handout explaining the new pay arrangement contains a space for employees to sign indicating that they have read the handout and agree to work under this pay system. Zibell testified that he wanted employees to sign the sheet in order to ac- knowledge that they had been informed of the new pay arrangement and that he was taking a tip pool credit. According to Zibell, he did not require that employees sign the sheet before they were permitted to report for work, and that not all employees signed and returned the document. Zibell added that no employee was threatened with discharge or in fact discharged for failure to sign the sheet detailing the new pay arrangement. Eilert testi- fied. that while Zibell "asked, that, [employees] please sign

33 Zibell testified that he had unilaterally instituted the new tip pool policy on August 3, 1982, because the employees had failed to come up with their own proposed wage plan by Sunday, August 1, 1982

39 Baird testified that at Zibell's request she contacted the National Restaurant Association about the legality of the new tip pool system and reported back to Zibell about her findings Zibeli" testified that Baird had told him that the system was "perfectly all right." 1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. He did not tell them that they had to." She indicated that employee Brenda Willis did not sign the document regarding the tip pool policy . She explained that the reason employees were asked to sign this document was that it was important that they understand the new tip pool policy. Tidd recounted that she reported to work on August 3, 1982, and was informed that a meeting was being held upstairs . She proceeded to the meeting where she was handed a copy of the Respondent 's new tip pool policy, and she listened to Zibell reviewing the new policy with employees . Tidd stated that she was required to sign the document containing the new tip pool policy, testifying: Dee Eilert . . . asked me if I was going to sign it.

I told her that I had not read it and that I would go down and set up and then I would read it. Bod Zibell informed me at that time that it had to be signed before I reported back to work. So I stopped , I read it , and I told them that I did not agree with it. And he said , "Do you understand it?" And I said , "Yes, I understand it but I do not agree with it." And he told me that if I did not agree with it , that was the policy and if we didn 't agree with the policy , then we knew where the door was. So I signed it telling him that I did not agree with it and reported back to work. Tidd added that the major changes appearing in the new tip policy , aside from the change in the amounts contrib- uted by employees , from 4 percent of total revenue to 15 percent of total tips , were that the 15-percent gratuity imposed on tables of six patrons or more was now con- sidered a service charge instead of a gratuity and added to "the total sales of the establishment," and that em- ployees were not to be interchanged among the various job categories at the facility.

4. The discharge of Mary Alice Tidd on August 3, 1982 Tidd testified that later that day, August 3, 1982, toward the end of the evening, waitress Cathy Carothers approached her in the bar area after servicing a table of six customers and asked her how she should fill out the charge, whether she should place the 15-percent service charge on the tip line or on the line indicating total sales. Tidd stated that she informed Carothers that she would put the charge in "the top line as total sales because it was no longer a gratuity or a tip, it was not considered total sales for the establishment." Tidd added that her conversation with Carothers ended at this point. Tidd related that subsequently she observed Carothers coming out of the checkout room with "a very sad, dis- appointed look on her face," and Tidd asked her, "[H]ow did her evening go." Tidd recounted that Car- others told her that she had made only $11 that evening and that Eilert had kept the $15 that the party of six had added onto the tip line of her charge. Tidd continued:

I told her to go back in and demand her money back, the $15.00. . . . Cathy said that-Cathy was too scared to and she would do it next time. And I tried to convince her that Bob did say earlier in the meetings that anything extra left would be ours. And I tried to encourage her to go in and stand up for that $15.00.38 ' Tidd stated that while she and Carothers were standing there, "a voice from the checkout room, which came from Dee Eilert, yelled out and said, `Mary, if you have anything to say, say it to me."' Tidd added that she did not reply to Eilert, and the conversation between her and Carothers ended. Tidd testified that later that same evening, while she was in the bar area waiting for two customers to fill out their charge slip , and in close proximity to another wait- ress, Joyce Cramer, whom she had asked "how her evening had went,"39 Eilert came out of the checkout room, "grabbed my arm, took off down the hall, whirled me around, slammed me into the wall." Tidd stated that when Eilert grabbed her arm and "took off with me" down the hall, she lost her balance and was thrown into the wall.40 Tidd recounted that after she regained her balance she followed Eilert down the hall whereupon Eilert told her to "shut my mouth." Tidd continued:

I then told her that she had no right to take Cathy's $15.00. She told me that the customer was not aware of the 15 percent added on. And I said, "Well, let's call that customer." And she told me that she had already called him. And I said , "Well, then at that time did you tell that customer that Cathy never got one cent of that?" And Dee turned around and stomped off and said no more.41 Tidd related that she then returned to the table she had been servicing to get her charge slip , and the customers sitting there asked her if she was okay. Tidd added that she said she was fine and she then walked back to the bar area to put her change in the charge drawer. Dee Eilert testified that towards the end of the evening on August 3, 1982, while checking out the wait- ers and waitresses , she noticed that waitress Cathy Car- others had incorrectly included on the charge form of a party of six, the 15-percent service charge in the total amount of the tab appearing as one sum in the sales column. The customers had also included a $15 addition- al amount as a tip and Eilert now questioned Carothers whether "she thought the man knew that . . the serv- ice charge had already been added in that total." She stated that Carothers responded that she did not think so

33 Tidd explained that she thought that Eilert's keeping the $15 was improper because "the 15 percent service charge was added into the tab" already and "that $1500 was an additional $ 1500 that was left for Cathy "

39 Tidd stated that Cramer was dust standing beside her , "but we weren't in direct conversation She was getting ready to go upstairs " Tidd maintained that Eilert was not "in a position to overhear my com- ments passing between" her and Cramer

40 Tidd testified that it was her impression that Eilert "probably never meant to slam my face into the wall , but she did violently grab my arm and yank me"

41 Tidd testified that she did not feel that Ellett had had enough time to contact the customer , stating , "She had told me that she had called But the customer had only been gone about 15 minutes " "THE LOFT" 1451 because, "[H]e didn't even look at the tab." Eilert related that she telephoned one of the customers in the party and asked him if he knew that the service charge had been added on already, and he told her that he had not known this and requested that she rewrite a new charge slip without the additional tip. Eilert stated that she then rewrote a charge slip4 z and "finished checking Cathy out." Eilert continued that Carothers then left the check- out room and soon thereafter she heard Mary Alice Tidd and Carothers "talking out in the next room, but I really couldn't hear what they were saying until I hear Mary say very loudly, `Well, she can't do that.' And I assumed that they were talking about the situation that had just occurred. And I said-loudly enough for Mary to hear, I said, `Mary, if you have anything to say, why don't you say it to me."' Etlert added that although the conversa- tion between Tidd and Carothers had now ceased, it was soon resumed again and Eilert again said , "Mary, please, if you have anything to say, please say it to me," at which time, "the conversation between Tidd and Car- others ceased for good." Eilert testified that after she had finished with the em- ployees in the checkout room she walked out and no- ticed Tidd in a corner talking to another waitress "about it," the Carothers incident. Etlert stated that she went over to Tidd who was standing about four or five steps above a dining area in which customers were still seated and attempted to explain her actions concerning Car- others. Eilert related that Tidd started to "get very loud" and she therefore took Tidd's arm and directed her to another location so that the customers could not hear their discussion. Eilert recounted that Tidd pulled her arm away and then followed Eilert down the hall where again she tried to explain to Tidd the procedure she followed when a customer had "double-tipped" without knowing it or had paid more than he thought he was paying. According to Eilert, Tidd: [S]tarted getting very loud, yelling at me, saying that I treated the employees like animals , using pro- fanity, other things like that. I, you know, was trying to explain to her. So finally she screamed, "Why don't you fire me, why don't you fire me so I can claim unemploy- ment?" And I said, "Well, Mary, I don't want to fire you." And in the conversation too I had told her that I wanted her to shut up because she was getting loud enough that I knew customers could still hear us no matter where we were. So then she screamed that at me and I told her I don't want to fire her and I'd had enough and I walked away.43

41 Etlert believed that the customers had paid with an American Ex- press charge card

43 Eilert testified that during this conversation with Tidd, Tidd had used the words "Fuck, God damn it," things like that, "two or three things " She added that she did not fire Tidd for this nor recommend any disciplinary action against her. However, at a previous Kansas unemploy- ment compensation hearing, Eilert could not remember what obscene language Tidd used during their conversation. Tidd denied using profani- ty in their conversation and also denied daring Eilert to fire her Eilert added that Tidd made no "specific complaints about the pay system or the working conditions that she was operating under at the time," nor did Tidd indicate that she was "acting on behalf of any group of employ- ees" during their conversation. Eilert continued that after her conversation with Tidd had ended , she went upstairs toward the lounge. She stated , "I was a little bit upset. I guess obviously so, be- cause I walked by Bob and he said, `What's the matter?'

I said, `Well, Mary Tidd is going on downstairs and I can't handle it.' And then I walked off by myself."44 Zibell testified similarly about his interchange with Eilert in the lounge area, to the effect that Eilert was having problems with Tidd. Tidd testified that about 5 to 10 minutes after her en- counter with Eilert on the evening of August 3, 1982, and while standing near the bar area , Zibell walked up behind her and asked her if she had a problem , and she responded, "No Bob, I don't." Tidd stated that she reset her table and while she continued her work, Zibell fol- lowed her about for 5 or 10 minutes until finally, when she was preparing to check out, and Zibell had followed her to this area as well, she turned and said to him, "Yes, Bob, I -do have a problem. Let's go talk about it.1145 Tidd related that Zibell responded, "I don't want to talk to you about it." Tidd continued: And so at that point I began to tell him that I thought he was being unfair to his employees, that he could not treat us like we were animals. I pro- ceeded to tell him what a good employee I had been. I had been with him for a year and a half. And that anytime he called on me any minute that I would be there if somebody didn't show up. I tried to stress to him that what he was doing to the em- ployees was hurting him in the long run. And he never replied to me on anything . He just stood there and grinned. At one point he said, "It's my business, I'll run it the way I want it." I was upset, I was crying, and I tried to get the point across that he had built that place with his hands, he had made it what it was. But his waitresses were very important to him and they could tear it down, by when he was unfair to them or wasn't good to them, then their attitude reflected off on the cus- tomers.46

44 Jeannie Gibson testified that on the evening of August 3, 1982, as bartender , she had served Etlert approximately 16 ounces of wine, two full glasses , between 5 and 7.45 p in and that Eilert had consumed all the wine because Eilert had returned the empty glasses to the bar She also testified that Eilert had "acted differently" that evening , explaining that Eilert "had asked her to leave early which I didn't understand because I was training another young man who hadn 't worked enough, I felt, enough to , you know, to have him stay by himself So I thought that was a little strange ." Eilert acknowledged that it was not unusual for her to have a drink or two while she was at work and that she may have con- sumed "some wine, some cola" but that no one suggested that evening that she had been drinking alcoholic beverages which impaired her judg- ment

45 Tidd testified that Zibell 's action in following her about the restau- rant was unusual , he had never done that before.

46 Tidd explained that she was trying to give Zibell her opinion of how he ought to approach his employees , to try to get their respect by Continued 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tidd recounted that right before the end of this con- versation, Peggy Schumacher came downstairs to punch out on the timeclock located "behind us." Tidd contin- ued: [Schumacher] walked up and said, "Mary, it's not going to do you any good." And that's when I told her to shut up, I didn't want her in on it. And at that point Bob told me I could pick up my pay- check the next morning.

I then asked him why -I was being fired, I would like to know. And Peggy at that-following me said, "Bob, why are you firing Mary?" And he said, "For calling me an ass hole." I told him that I did not call him an ass hole. I said ,, "It really doesn't matter, it's your word against mine ." And Peggy at that time said, "No, it's our word against his." So I at that time got all the money out of my drawer and turned around to walk to the check out room and to leave. And I at that time turned around and told Bob, "You are an ass hole."47 Tidd testified that the conversation between them lasted 10 to 15 minutes and that during the conversation she had become angry because while Zibell appeared to be listening to what she was saying, she felt that he was ignoring her meaning and intent. Tidd related that she was also crying at the time and although she at times had raised her voice, speaking loudly but not yelling, Zibell never raised his voice at all. Tidd agreed, in • re- sponse to a question about this from the Respondent's counsel, that if she had called Zibell "a profane name" prior to her termination, "pursuant to the policies in effect at the time of [her] termination, he would have grounds to terminate [her]." However, Tidd stated that she had never been "reported for cussing or using pro- fane language." Peggy Schumacher testified that she was present during the end of the, conversation in which Zibell termi- nated Tidd. She stated that Brenda Willis was also there standing on the steps leading down to the 'basement. Schumacher recounted: Well, basically what it was, when I came down- stairs and Mary and Bob were, you know, in the bar downstairs. And Mary was saying, "Bob," you know, "The employees, are helping you, why can't you in turn help us? You're going to ruin your busi- ness if you don't, you know, take care of us or help us out. ..." And then Bob in turn said, "Mary, you can pick up your check." And that's when I said "Bob, why are you firing Mary?" And he treating them properly She stated , "So when I was talking , I was not talking pure money I'm talking about the respect for your employees If you respect your employees , you'll get more out of them "

47 Tidd maintained that she called Zibell and "ass hole" only after he had already fired her and that she had not called him any obscene names prior to his discharging her It should be noted that in her Board affida- vit, Tidd had stated that Zibell had accused her of calling him a "son of a bitch" as the asserted reason for her discharge However, Tidd explained, "In my affidavit I said, 'son of a bitch' At that point I was not sure which I was informed, 'Do the best you can recall' I've done a lot of thinking and I firmly believe today that I said 'ass hole'-or that he said 'ass hole,' excuse me " turned to me and he said, " Because she called me and an ass hole." And I said, "No, she did not call you an ass hole." And Bob started walking off and Mary said, "See, Bob, that's two against one, I did not call you an ass hole." And that's all that I heard.48 Schumacher believed that Zibell had then left, ending the conversation. She acknowledged that she did not hear any later conversation between Tidd and Zibell, nor Tidd call Zibell,and "ass hole" after she was terminated. Brenda Willis, employed by the Respondent from Oc- tober 1980 until August 14, 1982, testified49 that she was present at The Loft on August 3, 1982, and overheard part of the conversation between Tidd and Zibell which took place near the bar, area "downstairs in the base- ment," another part of the restaurant. Willis stated.

I went downstairs to take some towels down and also clock out because I'd finished my duties for the night. And Mary Tidd was downstairs and Mr. Zibell was down there also. And Mary was saying to Mr. Zibell that-asking him how he could be so inhumane, how could he do this type of thing to his employees in reference to the new policy that was being implemented. Mr. Zibell commented by saying that this was his business and he ran it the way that he wanted to. And if someone didn't agree with the policies, you know, that they didn't have to work there. And at that point I left from the clocking area and I was going back up the stairs. And Mary made a comment that the reason why The Loft was so popular was because that the employees spread the word. And by that time I was up the stairs, went back up the stairs and told Peggy that I thought there was a heated conversation going on between Bob and Mary. And then Peggy went down- stairs.... And later I started back down the,stairs but I could still hear their voices and they were kind of raised, so I went back up the stairs. 59- While Willis testified that she could hear both Tidd's and Zibell's voices, she acknowledged that Tidd had raised her voice but that Zibell had not. Robert Zibell testified that after Eilert had informed him that she was having problems with Mary Tidd and "she couldn't take it any longer," he went downstairs to 4e Schumacher testified that she was present only briefly, maybe 3 minutes, dunng the conversation between Tidd and Zibell and only to- wards its end Schumacher acknowledged that she had no personal knowledge whether Tidd made any profane statements to Zibell prior to her coming into the room. She also stated that Tidd was "quite upset" and had raised her voice loudly but was not screaming while Zibell did not raise his voice -

49 Willis testified as a witness for the General Counsel so It is interesting to note that, according to the testimony of Willis and Schumacher, Willis heard an earlier part of the conversation between Tidd and Zibell She and Schumacher heard a later part and then Schu- macher was present at the last stage of the conversation when Tidd was fired by Zibell Willis testified that she was not present when Zibell ter- minated Mary Tidd "THE LOFT" the, checkout room and saw Tidd through a door in the service area. He related: And she was slamming doors. she was restocking her station but it was obvious that she was very upset. She was throwing things around. I' asked her what the problem was. At that point she said there was no problem. However a few sec- onds later she said there was a problem. She then told me that I had no respect for my employees. That she had worked there for several years and that she was a very devoted employee. That I treat- ed - them like animals. That I cared nothing for them. She said that I was not fair to the employees by changing to this other tip pool system. I told her that I had explained the system to her and that I felt that it was still a fair system. . . . She continued to grow more irate. She said that she liked to be screwed but not by me. That she was going to take me to Court. Sue me for hundreds of thousands of dollars. This went on for probably a period of 10 minutes. And it finally got to the point where she said , "You are a fucking asshole." She said that twice to me. I said, "You are fired." You can pick up your check next week! Zibell stated that Tidd's voice level was "fairly high . and it continued to grow from there." He continued that Peggy Schumacher was present "during the majori- ty of the time . . . . She did very little other than to try to calm down Mary Tidd . . . . She had very little to say."51 Zibell added that Tidd's claims regarding treat- ment of employees played absolutely no part in his deci- sion to terminate her, that had Tidd not made these claims but had just called him the profane names she al- legedly had, he "would have fired her on the spot."52 Moreover, Zibell testified that he was not surprised to hear Tidd use profanity because "I think I probably heard her say it before. Or, you know, use some profani- ty but I am not positive." However, he pointed out that in their conversation the profanity had been directed spe- cifically at him. Additionally, although Zibell testified si Zibell maintained that Schumacher was present when Tidd called him a "fucking asshole." °E That Zibell was somewhat perturbed and possibly angered by what Tidd had said to him during this conversation, aside from her allegedly having called him a "fucking asshole," is clearly evidenced in the record Q. Mr. Zibell, during your conversation with Mary Tidd who you terminated , I believe it is your testimony that she complained about the tip system that you had just implemented? A. Yes Q. And you also testified that she accused you of treating your employees like animals? A. That is correct.

Q Didn't that make you angry, what she was saying? A. I didn't appreciate being told that I treated my people like ani- mals, no. - Q. And she also made comments on how you were running your business? A. Yes Q. That also made you angry some?

A Well, I felt that it is my own business really You know, as long as I run it in a legal manner I can run it the way I choose So that didn't really bother me 1453 that he had not followed Tidd about while she was per- forming her duties just prior to the conversation which led to her discharge, he acknowledges that he may have testified differently at Tidd's "unemployment hearing" held prior to the instant proceeding. Dee Eilert testified that she was in the checkout room during the length of the conversation between Tidd and Zibell and overheard "just about" everything that Tidd said but not what Zibell was saying because he was speaking in a low tone. Eilert stated:

I heard Mary tell Bob that he was unfair. That he was treating the employees like animals. That she likes to get screwed but not by him. That she hadn't had any sleep lately because she was laying awake nights thiking of ways to knife him in the back. That she was going to take him to Court. And win hundreds of thousands of dollars. And that he was a fucking asshole. A lot of the conversation went on like that . . . . I tried to not listen to very much of it . . . . And I was trying to discourage any other employees from being too interested in it. . . . I did hear her say something about she had been a devot- ed employee and he didn't appreciate that. But I don't remember everything. Eilert added that she did not actually overhear the point at which Zibell fired Mary Alice Tidd and therefore did not know whether any comments made by Tidd, regard- ing Zibell being a "fucking asshole," came before or after she was fired. Wanda Baird testified that she was not present at The Loft on the night that Zibell discharged Mary Alice Tidd. Baird related that she lived with Zibell and that late that evening of August 3, 1982, Zibell came home and advised her that he had fired Tidd because she called him a "fucking asshole." Eilert testified that sometime in 1981 the Respondent prepared and distributed to all employees a six-page "general welcome and policy statement" (R. Exh. 2) which contained a set of rules and regulations governing employees at The Loft. Eilert stated that a copy was also given to all new employees hired subsequently, and that these rules and regulations remained in effect with little change throughout 1982 and thereafter. Eilert related that the Respondent did not require employees to sign or acknowledge that they had received a copy of this state- ment. On page 4 thereof, under the heading, "Conduct that will result in immediate termination," subdivision 3 lists, "abusiveness toward a customer or employee," while under the heading "conduct that will result in ter- mination" subdivisions 2 and 4 list, "insubordination," and "uncooperativeness with fellow employees and su- pervisors," respectively. On page 5 of the "welcome and policy statement" under the heading "Policies We Have," it is stated, "Profanity is not allowed and could be grounds for termination." Eilert added that she did not know whether or not Tidd and Peggy Schumacher ever received a copy of this statement. Tidd testified that she could not recall ever having re- ceived a copy of the Respondent's "general welcome and policy statement," nor seeing it. Tidd explained that 1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whenever employees were given written notices or state- ments which they were to read, they were required to sign it after reading it , and return it to the Respondent acknowledging that they had read it , unless it was a su- perficial handout or a document they were to retain for reference.53 However, Tidd did recall that the Respond- ent maintained a policy that "anybody that was caught swearing was taken off the schedule for a week," a week's suspension for swearing. Schumacher testified that when she was hired she re- ceived a set of "The Loft rules" but that it was less ex- tensive than the one in evidence as Respondent 's Exhibit 2.54 She stated that she never saw a written policy re- garding prohibitions against the use of profanity or abu- siveness as to employees of The Loft, but she did re- member that Eilert had told the employees "last summer" that "if she heard any profanity among the em- ployees that that was going to be automatic termina- tion."55 Moreover, Eilert recounted that during her tenure as managing supervisor, she had personally terminated one employee, Chet Elkins, for the use of profanity sometime in 1981 She related the circumstances surrounding his termination: [Chet Elkins] had gone to the front hostess desk to check the next week's schedule and was very un- happy with it. Uh, there were customers standing at the desk and Chet again used profanity ["I must have been a bad boy! I just fucking quit! This is a bunch of shit!"] He walked away from the hostess desk. I followed him and said, "Chet, please watch your emotional displays in front of customers. That's not necessary." Chet turned to me and said, "Fuck you, Dee." And I said, "Fine , Chet, you can leave and not return.'Z Eilert stated that she prepared and signed a "Notice of Termination" regarding Elkins56 and that because Mary Alice Tidd witnessed the incident , Tidd signed the termi- nation notice as well.57 Eilert added that she in no way sa Regarding the "welcome and general policy statement" Tidd testi- fied "If I had [seen it] you would probably have my signature op it since we had to sign everything that we received [a]ny thing with any importance "

54 Schumacher maintained that she had never seen the Respondent's "welcome and general policy statement " (R Exh 2).

55 Interestingly , when Shumacher was asked on cross-examination whether she would agree that if Tidd had called Zibell an "asshole" prior to her termination , she would have been subject to immediate discharge, Schumacher replied , " I would not agree with you on that Well it wasn't a written policy that I'm aware of " However, she later stated that "And if someone called their employer an `asshole ,' and was-for no cause, then yes, that would be grounds for termination " Schumacher be- lieved that such was a question of semantics , intended meaning sfi See R Exh , 3 The description of the Chet Elkins incident therein is similar to that given by Eilert, stating that the incident occurred on March 29 , 1981, and gives as the reason for discharge "Such gross mis- conduct in front of customers and in response to an order from his super- visor is grounds for immediate termination." Eilert considered the use of obscene language to a supervisor as a gross breach of company policy "if it is used in anger in an insubordinating kind of way " 5' Written on the termination notice is "I, Mary Tidd, was present at the hostess desk on March 29, 1981, when Chet Elkins displayed the course of conduct described above I agree that he did act as stated " Tidd's signature appears thereafter suggested to Tidd that her job would be in jeopardy if she did not sign the notice of termination. Eilert also tes- tified that Tidd was not a new employee when the Elkins' incident occurred and although Eilert did not recall how long Tidd had been employed at The Loft at the time, she had been there a while. - Tidd testified that she was not aware of any employee being terminated for swearing at the management while she was employed at The Loft. She related that Chet Elkins had said some "bad words" on the day he- was terminated but that they were "directed to the situation, the policies," and not to his supervisor. Tidd added that she was unaware that Elkins had directed a "profane statement to Dee Eilert" outside her presence. Although Tidd acknowledged that she had signed the termination notice as a witness to the incident, she stated , "I did sign a form saying that he had sworn. I also would like to say that that was my second week of work. I was scared of losing my job if I didn't sign it. I was not asked to sign it, it was laid on the hostess desk in front of me and told me, `Sign it ."' However, Tidd did testify that she was aware that the profane statement which Elkins directed at Eilert resulted in his immediate termination and that she understood that that was the Respondent's policy concerning obscenity.

5. What occurred thereafter Zibell testified that employee dissatisfaction with the Respondent's tip pool policy continued despite its change to a new system on August 3, 1982. He stated that "there were several employees-primarily, I thought, one person that was really not agreeing to anything that we were doing. And he was causing problems with some of the other employees out there in terms of .. trying to get other employees to go along with his idea of what the pay system should be, to the point of causing at least three people to break down in tears."58 Zibell identified the dissatisfied employee as Jeff Chanay. Therefore, in response to such employee dissatisfaction and disagree- ment with the new "tip pool policy" instituted on August 3, 1982, and in part because of Chanay's agitating employees not to agree to work under this wage system, the Respondent about August 23, 1982, mailed to its em- ployees a "Wait Persons Amended Pay Arrangement, Effective August 23, 1982."59 Zibell added that despite the fact that Jeff Chanay had "gone around and upset certain employees," he had never spoken to Chanay "about his conduct in talking to other employees."60 sa Ztbell related that employee, Julie Vincent, had asked him for a leave of absence because of Chanay, saying that "she just couldn't take the pressure any longer " 5' See G C Exhs . 5(a) and (b) This two-page document begins "Due to any employee/management turmoil that occurred recently the pay ar- rangement was changed at The Loft "

60 Zibell testified that Chanay voluntarily quit his employment with the Respondent sometime in September 1982 in order to return to law school However, on cross-examination , Ztbell acknowledged that Chanay had terminated his employment prior to August 23 , 1982, and that Eilert had told him that Chanay gave as the reason that he was re- turning to law school. When Ztbell was reminded that employees usually sign termination notices when leaving the Respondent 's employ and that Chanay had done so, Zibell then admitted that he had read Chanay's Continued "THE LOFT" Chanay testified that I here was continued unhappiness among the Respondent's employees with the new tip pool policy instituted by the Respondent on August 3, 1982, including himself. He stated that the employees contacted "a union organizer, Bill Moore from the Teamsters to speak with various employees who would like to meet to discuss what rights, organizational rights, we might have as a group." He added that a meeting took place between Moore and some employees on August 8, 1982. The amended pay arrangement effective August 23, 1982, provides, in part , that 15 percent of the tips col- lected would be donated to the tip pool and that "no service charges or tips will be added to any parties of any size." Moreover, paragraph 6 of the pay arrange- ment states: Any dissatisfaction in your job should be discussed directly with Dee. Discussing your pay or any other problems with your job with your co-workers will be grounds for dismissal. Wanda Baird, operations coordinator,"' testified that the above "paragraph 6" was included in the amended pay arrangement of August 23, 1982, because "several employees had been complaining to one another and to other employees. Some of them felt they were being badgered; they were unhappy with various pay systems and the way the place was being operated. And there were several of them that got very upset , came to me or Bob or Dee, and so that was why we put that in there. We didn't want other employees being badgered." She related that prior to August 23, 1982, no supervisor had ever precluded employee discussion of pay issues at The Loft. Baird recounted that employees Hugh Janda, Julie Benson , and Jenny Howells had complained to her about being badgered by other employees. Janda had told her that Chanay was "giving him a bad time, harassing him, saying things to him, bugging him," that he did not like it and could not work under 'those conditions. Julie Benson, while crying, had told Baird that "she couldn't take all this," and Baird asked Zibell to speak to her about her unhappiness.62 Jenny Howells had told Baird that "she had been harassed by a couple of cocktail wait- resses calling her names and saying that she was on our side and all this."63 Baird stated that she did not speak notice of termination and that Chanay had given as his reason for quit- tmg, that he objected to "the pay system." Moreover, Zibell could not recall if Eilert had written on Chanay's termination notice that Chanay was "untrustworthy," but adding that if she had done so, it would be untrue about Chanay. I found Zibell's testimony concerning Chanay's voluntary termination to be somewhat equivocal.

61 Baird testified as a witness for the Respondent She has been em- ployed by the Respondent for about 4 years and her duties are to take reservations, do accounting work, advertising, promotions, book parties, and she noted that "most of my work is office work " sa Baird testified that she was not present when Zibell spoke to Benson, and she was therefore personally unaware of the reason for Ben- son's unhappiness or why she was crying ss Baird testified that Howells had said that the cocktail waitresses, Carol Herron and Bunny Evans, had called her "Snow White" because they said she was "so pure and so good in our eyes," and since she was a reasonably new employee, it made her very uncomfortable 1455 to either Chanay; Herron , or Evans concerning these complaints . She, added that the amended pay arrange- ment was either mailed or handed out and that here had been no employee/management meeting to explain it. According to Baird , the Respondent never enforced the "no discussion among employees" rule and subsequently rescinded it sometime in September 1982, and it was no longer "contained in pay arrangements with employ- ees."64 However, Baird admitted that the rescission of this rule was never brought to the attention of the em- ployees, just that it was removed from "that particular form" given to new employees.

6. Additional evidence herein Tidd testified that in May 1982 she requested and re- ceived a letter of recommendation from Wanda Baird be- cause she was seeking a sales and catering job with Brock Hotels.65 Tidd related that she had at first asked Dee Eilert for the recommendation and, although Eilert had indicated that she would write the letter, when it was not forthcoming, Tidd asked Baird for the recom- mendation.66 The letter of recommendation states, in part, "I highly recommend Mary to anyone looking for a employee with initiative and willingness to work hard." Baird testified that although she was not Tidd's imme- diate supervisor at the time, she gave Tidd the letter of recommendation anyway. She related that Tidd had told her that the recommendation was needed for a daytime job, and that Tidd did not indicate in any way that she might be leaving the Respondent's employ. Baird stated that she did not consult with any other member of man- agement prior to her writing this letter. Baird added that she felt that the recommendation was accurate and true. Dee Eilert testified that, although she was Tidd's im- mediate supervisor and best qualified to evaluate her work performance, Tidd had never asked her for a letter of recommendation. Eilert stated that Tidd was generally a "very dependable employee," and that she would have given Tidd a "good recommendation," although not as "glowing" as Baird had given her.67 On cross-examina- tion, Eilert admitted that Tidd had spoken to her about seeking another daytime job and that Tidd may have asked her for a letter of recommendation. Moreover, Jeffrey Chanay, Jeannie Gibson, Brenda Willis, and Peggy Schumacher all testified that they

64 Baird testified that Zibell had directed the rescission of par 6 of the amended pay arrangement because he had been advised to do so by his attorney Eilert also testified that this paragraph was rescinded. fis Tidd testified that while the position she sought would require both day and evening hours and she might not have been able to retain her job with the Respondent if she got the new job, she did not advise manage- ment of this . Tidd denied that she had left the Respondent's management with the impression that she would retain her evening job at The Loft while she worked for the Brock Hotels ss Tidd testified that she had told Eilert one evening that she was thinking about obtaining another job and Eilert responded that if Tidd took the job that she would not be able to work at The Loft Tidd con- jectured that this was because her taking a job with the Brock Hotel Cor- poration would constitute working for another competitive restaurant which Eilert would not allow.

67 Eilert stated that during a period in late 1981 through the early part of 1982, Tidd's "performance had dropped" because she was working two jobs 1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would like to see Mary Alice Tidd prevail in this case and "prove her claim." Gibson, Willis, and Schumacher also testified that even if they had not been subpoenaed as witnesses in this proceeding, they would have volun- tarily appeared to testify herein. Moreover, Wanda Baird testified that she wanted the Respondent to "win this hearing." C. Acts of Interference, Restraint, and Coercion Section 7 of the Act grants to employees the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8 (a)(1) of the Act prohibits an employer from in- terferring with , restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.

1. Interrogation of employees concerning their protected concerted activities The complaint herein alleges that the Respondent, acting through its supervisor and agent Dee Eilert, "On or about July 23[, 1982], by telephone interrogated its employee regarding its employees' protected, concerted activities," in violation of Section 8(a)(1) of the Act. The Respondent denies this allegation. Analysis and Conclusions The evidence reveals that on July 23, 1982, eight of the Respondent's employees met at the home of employ- ee Bunny Evans, during the late hours of that evening, to discuss, among other things, their group strategy for the July 25, 1982 employee-management meeting called by the Respondent, and their possible responses to any new tip pool which management would propose at the meeting.68 Employee Jeannie Gibson testified that during the course of the meeting, she answered a tele- phone call received from Managing Supervisor Dee Eilert who asked her who was present at the apartment. Gibson related that she gave Eilert the names of four of the eight employees present, including that of Mary Alice Tidd and Peggy Schumacher, and then handed the telephone receiver to Schumacher whom Eilert had re- quested to speak to. Gibson stated that Eilert was upset and was crying on the telephone.69 Peggy Schumacher recounted that during her part of the telephone conversation with Eilert that evening, July 23, 1982, Eilert had inquired who was present at the meeting and why the employees were there. Schumacher stated that she responded, "There's just some people here from work," and that Eilert did not question her further. Although Schumacher testified that Eilert's questions did not intimidate her, she also testified that she had not disclosed the names of the other employees present at the meeting because "if [Eilert] knew who was sa The record shows that employee Hugh Janda arrived at the meeting near its conclusion but was not present when the other employees alleg- edly received the telephone call from Eilert that evening. sa Gibson testified that Eilert also had remarked , "That fucking Jeff Chanay, he started all of this " there-we were all afraid that we were going to be ter- minated ... or phased out."70 Additionally, both Jeff Chanay and Mary Alice Tidd testified that they were present at the employees' meet- ing on July 23, 1982, at Bunny Evans' home when a tele- phone call was received that evening, and that they were told that the call was from Eilert. Moreover, Chanay tes- tified that he had overheard either Gibson or Evans, whomever had answered the call, recite the names of some of the employees who were present at the meeting into the telephone receiver. In direct contradiction, Dee Eilert denied having placed a telephone call to Bunny Evans' home on the evening of July 23, 1982. Rather, she testified that about 10 or 10:30 that evening, she received a telephone call at The Loft from Peggy Schumacher who asked her if she knew that there had been a meeting of employees at Evans' home, and then Schumacher informed her that the employees had appointed Schumacher as their spokesperson for the coming employee/management meeting scheduled for July 25, 1982. Although Eilert ad- mitted that she knew prior to the evening of July 23, 1982, that some of the Respondent's employees were planning to meet at Evans' apartment and that this had aroused her curiosity, she denied that she had questioned or interrogated Schumacher or anyone else about who was present at the meeting, why the employees were there, and what was discussed by them regarding their wages and working conditions.' 1 After carefully considering the record evidence herein, and based on my observation of the demeanor of the wit- nesses, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole,72 I credit the testimony of the General Counsel's witnesses, Jeannie Gibson, Peggy Schumacher, Mary Alice Tidd, and Jeff Chanay regarding what occurred on July 23, 1982,73 for the reason, among others, as will be set forth hereinafter, that their testimony was generally clear, detailed, forthright, and unequivocal, 74 and, most

70 Schumacher testified that Ellert had told her over the telephone that, "Chaney should be hung by his heels "

71 Eilert bad also testified that she was concerned about the employee/management meeting the Respondent had scheduled for July 25, 1982, and because the July 23, 1982 employee meeting was directly concerned with employees' response to that meeting, it is not unreason- able to assume that Eilert might have had some concern about the em- ployees' meeting as well "I Northway Nursing Home, 243 NLRB 544 (1979), Gold Standard En. terprises, 234 NLRB 618 (1978); V & W Casting, 231 NLRB 912 (1977), Northridge Knitting Mills, 223 NLRB 230 (1976). Also see Cos Walker's Cash Doors, 249 NLRB 316 (1980).

93 The credibility of Mary Alice Tidd will be discussed more fully when appropriate to the issue Suffice it to say that I credit her account of what occurred at the employees meeting on July 23, 1982, and more particularly her brief account of the telephone call received that evening and attributed to Eilert, because her testimony was consistent with other credible evidence in the record, and more believable than Eilert's

74 I am aware that Jeannie Gibson, Peggy Schumacher, Jeff Chanay, and Mary Alice Tidd are also plaintiffs in a lawsuit against the Respond- ent, Robert Zibell, Dee Ellert, and Wanda Baird, seeking recovery for wage claims and/or damages I am also aware that Gibson, Schumacher, and Chanay all testified that they wanted Tidd to prevail in this proceed- ing and, although subpoenaed to testify by the General Counsel, would Continued "THE LOFT" 1457 importantly, consistent with the other evidence present in the record and regarding what can reasonably and logically be found and/or inferred therefrom, and entire- ly consistent with each others' testlmomes.75 In contrast the testimony of Dee Eilert, concerning what happened on the evening of July 23, 1982, was con- tradictory to other, more credible evidence in the record which makes her account unbelievable. Of compelling importance in discrediting her testimony regarding the incident is her claim that she received a telephone, call from Schumacher that evening at "10:00 or 10:30 at night, something like that. It was close to closing time," a time when Schumacher uncontradictedly and credibly testified that she was still working at the restaurant.76 In fact, Eilert's own testimony to the effect that waitresses usually would be finishing up their work shifts during the 10 to 10:30 p.m. time period would tend to support Schumacher's account of what had transpired rather than Eilert's own. Additionally, Eilert alleged that during her telephone conversation with Shumacher, the latter in- formed her that she had been appointed spokesperson for the employees. Schumacher denied ever relating any in- formation of this kind to Eilert, and there is nothing in the record which indicates that Peggy Schumacher ever assumed the role of spokesperson in any meetings or dis- cussions with management personnel. Moreover, given the circumstances that Ellert knew beforehand that em- ployees were planning a meeting at Evans' home on July 23, 1982, and that her admitted curiosity about this meet- ing may have engendered some concern also, and given her obvious interest and loyalty in protecting the inter- ests of the Respondent,77 it is more likely that the'ac- count of the telephone call involving Eilert, as given by the General Counsel's witnesses, depicts what actually occurred, rather than Eilert's rendition. Lastly, although the testimony of Jeannie Gibson,' Peggy Schumacher, Jeff Chanay, and Mary Alice Tidd could have been con- trived as to Eilert's having telephoned the employees at Evans' home on the night of July 23, 1982, and interro- gated Gibson about who was present there, and Schu- macher about the employees present and the reasons for their attendance," and that Eilert's denial thereof and her assertion that Schumacher had called instead was actual- ly the way things happened that evening, yet "if there was fabrication, it would seem more probable that it was the one, rather than the four, who was lying."78 There is no dispute that, the employees' meeting and group discussion on July 23, 1982, during which the em- ployees discussed wages and a future course of concerted action, constituted protected concerned activity under the Act.79 The General Counsel asserts that by the fore- going telephone conversation between Dee Eilert, Jean- nie Gibson, and Peggy Schumacher', in which Eilert questioned these employees about who was present at the meeting and the reason therefore, the Respondent un- lawfully interrogated its employees regarding their pro- tected concerted activities. I agree. In general the basic premise in situations involving the questioning of em- ployees by their employers about union and/or protected concerted activities is that such questions are inherently coercive by their very nature and therefore violative of the Act "because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained."80 However, the Board has held that in certain circumstances employ- ers may have a legitimate purpose for making a particu- lar inquiry of employees which may involve, to some limited extent, union and/or protected concerted activi- ties."' In the instant case there were no circumstances present which might have justified some limited inquiry into the protected concerted activities of the Respond- ent's employees. The Respondent' offered no legitimate reason nor can I find any valid purpose for such interro- gation or questioning of its employees other than that it was done, when considered in the light of the Respond- ent's other actions herein, for the purpose of coercing its employees into refraining from engaging in any union or protected concerted activities.82 Further, Eilert while questioning employees Jeannie Gibson and Peggy Schu- macher, gave them no assurances against reprisals.83 However, in the recent case of Rossmore House, 269

NLRB 1176, 1177 (1984),84 the Board stated: voluntarily have appeared in this case as witnesses in her behalf. Howev- er, while they clearly have a real interest or stake, so to speak, in the outcome of this proceeding, so do the Respondent's witnesses, Eilert, Baird, and Zibell, as opposing parties in the lawsuit and as managerial employees and owner of the Respondent's restaurant, respectively, there- by offsetting and/or balancing any respective parties witnesses' alleged, asserted, or presumed bias

75 It should be remembered that these witnesses were sequestered except for Mary Alice Tidd, and therefore did not listen into each other's testimony at the hearing prior to giving their own, and the record shows that their testimony was believably consistent with each others'. Nor is there any evidence in the record showing that these witnesses discussed their testimony together beforehand, and it would be unreasonable to assume that because of their common relationship as plaintiffs in the wage claim lawsuit, they would have discussed together what occurred on July 23, 1982, since this incident would have no apparent importance or relevance to the basis and nature of their local court action as such

76 Schumacher testified that on the evening of July 23, 1982, she worked the evening shift, her usual shift, from 5 p in until anywhere be- tween "I100 and 12,30 for a weekend night" This testimony was not controverted by the Respondent whose records, I presume, would have been produced at the hearing to show otherwise, had that been the fact

77 Eilert did not deny Tidd's testimony that Eilert had told the em- ployees at the July 25, 1982 meeting that she had "put her whole life into The Loft] "

78 Classe Ribbon Co., 227 NLRB 406 (1976), Fred Stark , 213 NLRB 209 (1974)

79 Meyers Industries , 268 NLRB 493 ( 1984), Frascona Buick, 266 NLRB 636 (1983), Polynesian Cultural Center , 222 NLRB 1192 (1976), enfd. 382 F1d 467 (5th Cir. 1978)

80 Photo Drive Up, 267 NLRB 329 (1983), Jefferson National Bank, 240

NLRB 1057 (1979), Sans Souci Restaurant, 235 NLRB 604 (1978), NLRB v. West Coast Casket Co ., 205 F 2d 902 (9th Cir 1953)

81 Photo Drive Up, supra, PB & S Chemical Co, 244 NLRB 1 (1976), Johnnie's Poultry Co ., 146 NLRB 770 ( 1964), enf denied 334 F 2d 617 (8th Cir. 1965) 92 7-Eleven Food Store , 257 NLRB 108 ( 1981), World Wide Press, 242

NLRB 302 ( 1979), Seal Trucking, Ltd, 237 NLR]3 1090 (1978), Franklin Property Co, 223 NLRB 873 (1977)

81 Trinity Memorial Hospital of Cudahy, 238 NLRB 809 ( 1978), Thermo Electric Co., 222 NLRB 358 ( 1976), enfd 547 F 2d 1162 (3d Or 1976),

NLRB v Cement Transport , 490 F 2d 1024 (6th Cir 1974), cert denied

491 U S 828 (1974)

84 This case involved the issue of whether an employer 's questioning of "open and active union supporters" about their union sentiments nec- essarily interferes with , restrains , or coerces employees in violation of Sec 8 (a)(1) of the Act , in the absence of threats or promises made by the employer The Board concluded that to find a violation under such cir- Continued 1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our view is consonant with that expressed by the Seventh Circuit Court of Appeals in Midwest Stock Exchange v. NLRB [635 F.2d 1255, 1267 (1980)]: It is well established that interrogation of em- ployees is not illegal per se. Section 8(a)(1) of the Act prohibits employers only from activity which in some manner tends to restrain, coerce or interfere with employee rights. To fall within the ambit of § 8(a)(1), either the words them- selves or the context in which they are used must suggest an element of coercion or interference.85 The Respondent asserts in its brief: The only question attributed to Ellert during the, telephone conversation was Schumacher's claim that Eilert asked who was present at Bunny Evans' apartment.86 According to Schumacher, she simply said that "there's just some people here from work." Eilert did not press Schumacher any fur- ther. In addition, Schumacher admitted that she was not intimidated by Eilert's question as to who was present. Indeed, Eilert considered herself to be a friend of Schumacher. They had socialized together after work. It is respectfully submitted that under all the cir- cumstances, Eilert's question to Schumacher, if made, did not interfere with Schumacher's protect- ed rights. See, e.g. Westville Homes Corp., 194

NLRB 111, 113 (1971). Neither the words attrib- uted to Eilert 'nor the context in which they were used suggest any element of coercion or interfer- ence. See NLRB it. J. Weingarten, Inc., 339 F.2d 498, 500 (5th Cir. 1964).

I do not agree with the Respondent's assertions. The credited evidence shows that Eilert was aware that the Respondent's employees were planning to hold a meeting at employee Bunny Evans' apartment on July 23, 1982. On the evening of July 23, 1982, she tele- phoned Evans' apartment while the employees were en- gaged in their meeting and asked Jeannie Gibson which employees were present Eilert also spoke to Peggy Schumacher during the same telephone conversation and questioned Schumacher about who was present and why the employees were there. Eilert admitted that the fact that the employees were holding such a meeting prior to an employee/management meeting called by the Re- spondent and scheduled for July 25, 1982, had caused her some concern. Moreover, in this same telephone con- versation, Eilert told Gibson, "That fucking Jeff Chanay, he started all this," and also told Schumacher that "Chanay should be hung by his heels." It was obvious to Gibson and Schumacher that Eilert was upset and crying cumstances improperly establishes a "per se rule," as had been done in

PPG Industries, 251 NLRB 1148 (1980), and therefore the Board over- ruled "PPG and similar cases" to the extent of such finding

85 Also see Graham Architectural Products v NLRB, 697 F 2d 534 (3d Cir 1983), TRW-United Greenfield Division v NLRB, 637 F 2d 410 (5th Cir 1981)

86 This is inaccurate Schumacher testified that Eilert also asked her "why we were there" Moreover, Gibson testified that Eilert had ques- tioned her about who was present at the meeting on the phone. Eilert's inquiries about the names of the employees present at the meeting and the reason for their presence and her remarks concerning Chanay certainly did not constitute mere casual conversation especially when Eilert seemed upset about the meeting. Additional- ly, although Schumacher testified that she was not in- timidated by Eilert's questions, she also testified that she had refrained from giving Eilert the names of the other employees present at this meeting because she and they feared reprisals if Eilert knew who they all were. The fact that Schumacher and Eilert were friends and had so- cialized together after work does not lessen the effect of Eilert's coercive interrogation. 87 Eilert's telephoning to ascertain the names of the employees at the meeting and the reasons for their being there could only be construed by the employees as a coercive and threatening intrusion into their protected concerted activities and interference by the Respondent. The test applied in determining whether a violation of Section 8(a)(1) of the Act occurred is "whether the em- ployer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act."88 Applying that test, I find that the Respondent by interrogating its employees, as set forth above, has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and has thereby violated Section 8(a)(1) thereof.89

2. Direction to an employee to "shut her mouth" or to "shut up" as violative of the Act The complaint alleges that the Respondent, acting through its supervisor and agent Dee Eilert, "On or about August 3 [1982], at the facility, directed its em- ployee to refrain from engaging in protected, concerted activity of discussing wages and working conditions with other employees," in violation of Section 8(a)(1) of the Act. The Respondent denies this allegation. Analysis and Conclusions During the early evening of August 3, 1982, the Re- spondent's owner, Robert Zibell, met with employees who were on duty at the restaurant, to introduce and ex- plain the new tip pool policy established by the Re- spondent and to distribute a "two-page handout" to these employees detailing the changes made. Mary Alice Tidd testified that after reading the "handout," she advised Zibell that she did not agree with the new tip pool system,90 whereupon Zibell directed her to sign the doc-

87 The test of interference, restraint , and coercion, under Sec 8(a)(1) of the Act does not turn on the Respondent 's motive, courtesy , or gentle- ness-or whether the supervisor and employee involved are on friendly or unfriendly terms Rather , the test is whether the supervisors' conduct reasonably tended to interfere with the free exercise of the employees in their rights under the Act Photo Drive Up, supra, Florida Steel Corp, 224

NLRB 45 (1976)

98 Photo Drive Up, supra, 7-Eleven Food Store, supra, Electrical Fittings Corp, 216 NLRB 1076 (1975 ) Also see Rossmore House, supra

89 Photo Drive Up, supra, Jefferson National Bank , supra , World Wide Press, supra , Colonial Haven Nursing Home, 218 NLRB 1007 (1975)

90 Zibell did not recall that Tidd made any comment about the new tip pool policy during his meeting with her and other employees "THE LOFT" ument acknowledging that she had been made aware of the new system, 91 and he told her that if she disagreed with it, she "knew wheie the door was." Tidd related that later that evening waitress Cathy Carothers had asked heir assistance in filling out a charge slip under the.new tip pool system regarding a table of six customers that she had just finished servicing, and Tidd told her how to do so 92 Sometime thereafter, Car- others informed Tidd that Managing Supervisor Eilert had not allowed her to keep a $15 tip that the customers at that particular table of six had added on to the charge slip, and Tidd told Carothers to demand the $15 from Eilert adding, "I tried to encourage her to go in and stand up for that $15.00." Tidd stated that while this was happening, Eilert. yelled out' from the checkout room, "Mary, if you have anything to say, say it to me."93 Tidd recounted that she made no reply to Eilert and the conversation between her and Carothers ended Tidd testified that later that same evening, while stand- ing near the bar exchanging a few words with another waitress, Joyce Cramer, about "how the evening had went," Eilert emerged from the checkout room, grabbed Tidd's arm, dragged her down the hall and whirled her around, whereupon Tidd fell against the wall Tidd stated that after she regained her balance, she followed Eilert further down the hall and Eilert turned to her and told her to "shut [her] mouth." Tidd related that she told Eilert that she had no right to withhold the $15 tip from Carothers, and Eilert explained that she had contacted the customers involved and that they were unaware that a 15-percent service charge had been added to the total bill and had not intended a $15 tip in addition to that amount. Tidd recounted that at the conclusion of this conversation, Eilert "turned around and stomped off," while she returned to the table she was servicing as wait- ress . Tidd added that the customers at this table, appar- ently observing what had occurred, asked her if she was all right to which she responded yes. Although Eilert's testimony regarding this incident was generally similar to Tidd's, it did however differ is some aspects. Eilert testified that Carothers had incor- rectly included the 15-percent service charge and the charges for the meal in one total amount with the cus- tomers adding an additional $15 as a tip or gratuity on the charge. After checking with Carothers, Eilert deter- mined that the customers were unaware that a 15-percent service charge had already been added to the total

91 Although Zibell denied that he had required any employee to sign this document, the "handout" does contain a space for the employee's signature and states that the employee has read the document and agrees to work under the new pay system It seems more likely from the evi- dence,and from Tidd's testimony that she was compelled to sign this doc- ument before being allowed to report for work that evening, in contrast to Zibell's asserting that no employees were required to sign in order to work at the restaurant Moreover, the evidence also shows that employ- ees had been faced with a similar requirement previously when the origi- nal tip pool policy had been instituted during the previous year

92 Tidd had advised Carothers to include the 15-percent service charge, which had formerly been considered a gratuity and listed sepa- rately on the charge slip, as part of the total bill for services and listed as one total amount

93 Neither the complaint herein nor the General Counsel at the hear- ing or in her brief alleges that this statement by Eilert constituted a viola- tion of Sec 8(a)(1) of the Act 1459 amount of the bill, and that the inclusion of an additional $15 tip was inadvertent, and she decided to check with one of the customers whom she knew, although they had already left the restaurant. Eilert related that it was sometime thereafter that she heard Tidd tell Carothers in a loud voice, "Well, she can't do that." Eilert stated that she assumed that Tidd and Carothers were discussing the $15 tip and therefore "loudly enough for Mary to hear," she said, "Mary, if you have anything to say, why don't you say it to me." Eilert added that although the conver- sation between Tidd and Carothers then ceased, it was soon resumed and Eilert again told Tidd, "Mary, please, if you have anything to say, please say it to me." Eilert continued that after completing her work she left the checkout room and noticed Tidd talking to an- other waitress on the stairway above the dining room area and, assuming that they were discussing the incident concerning Carothers, she walked over to them intend- ing to explain to Tidd why she had taken the action she had regarding Carothers' tip. Eilert related that Tidd started to raise her voice during the conversation and since there were still customers seated in the adjacent dining area, she took Tidd' s arm intending to lead Tidd to an area down the hallway and away from the dining area where they could not be overheard. Eilert recount- ed that once down the hallway, she again attempted to explain to Tidd the reason for her withholding Car- others' tip when Tidd started yelling, at her in a loud voice, used profanity (but not directed at her), and told Eilert that she "treated the employees like animals." Eilert added that she told Tidd "to shut up because she was getting loud enough that I knew the customers could still hear us no matter where we were." The General Counsel maintains that when Etlert told Tidd to "`shut her mouth' with respect to discussing the Carothers tip problem," Eilert thereby forebade the Re- spondent's employees from discussing wages and other conditions of employment in violation of Section 8(a)(1) of the Act. I do not agree. The General Counsel also as- serts that Tidd's version of this incident should be cred- ited over that given by Eilert because, under the circum- stances present, "it is entirely reasonable to conclude that Eilert approached Tidd for the purpose of warning her about her continued talking" about the Carothers' tip in- cident. Again I do not agree. Moreover, even if Tidd's rendition of what occurred is credited, the General Counsel has failed to sustain its burden of proving that Eilert's statement to Tidd was violative of the Act. With regard to the credibility of the varying accounts by Tidd and Eilert of what transpired on August 3, 1982, between them, the General Counsel points to the follow- ing to support the reasonability of Tidd's version over Eilerts': That Eilert had testified "that immediately prior to this incident happening, she had told Tidd on two oc- casions that if Tidd had anything to say, she should say it to Eilert", that Eilert also testified that "with respect to the second admonishment she did not actually hear what Tidd and [Carothers] were talking about" and "when she saw Tidd engaged in conversation ... with Joyce Cramer," she assumed with both employees that they were talking about the Carothers' tip incident; that 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eilert was admittedly "irritated" by Tidd's behavior in continuing to discuss this problem; and that Eilert fur- ther testified that Tidd used profanity in their ensuing conversation down the hall and accused her of treating the employees like animals and, despite this, Eilert took no disciplinary action against Tidd although the Re- spondent had a rule against the use of profanity by em- ployees while at the, restaurant and Eiler had the author- ity to fire employees for violating the profanity rule and had done so on one occasion in the past. However, from 'the circumstances present, it is equally if not more reasonable to 'conclude that Eilert ap- proached Tidd to put the Carothers' tip incident to rest by explaining to Tidd why she had acted as she had con- cerning Carothers. As is evident from the record, Eilert believed that Tidd -had continued to discuss the Car- others incident with employees despite Eilert's request that Tidd speak to her if she had anything to say about the matter, Because Eilert felt that she had acted respon- sibly and in the best interests of the Respondent in regard to the customers involved in the incident, she had reason to explain her actions to Tidd in order to resolve the problem. It is also plausible that the preceding events of that evening; Zibell's institution of the new tip system which Tidd disagreed with, Tidd's obvious belief that Eilert had handled the problem of Carothers' tip in an arbitrary and unfair manner , and Eilert's subsequent re- quest to Tidd' to discuss this matter with her if Tidd had anything to say about it rather than with Carothers, well may have angered Tidd to the extent of responding to Eilert in a loud and angry manner during their conversa- tion. ' Additionally, concerning Eilert's failure to take any disciplinary action against Tidd for allegedly using pro- fanity during their conversation, it should be remem- bered that such profanity was not directed at Eilert per- sonally, but was allegedly used by Tidd generally and conversationally. While not to be condoned or encour- aged as a general rule, realistically it is not unusual for people who are agitated, upset, or distraught to use pro- fanity to express these emotions and, under the circum- stances present herein, it does not stretch credulity to un- derstand why Eilert accepted Tidd's use thereof in the heat of their conversation without thereafter disciplining her. Moreover, the employee, whom Eilert had previous- ly fired for using profanity, had directed such profane re- marks, directly at Eilert personally and with other em- ployees present, which was not the case here. Be that as it may, even accepting Tidd's version of What occurred as accurate, there remains a lack of a pre- ponderance of the evidence present and a substantial doubt in my mind, that when Eilert told Tidd to "shut her mouth," she thereby intended and did forbid Tidd from discussing wages and other conditions of employ- ment with other employees in violation of the Act. Had Eilert sought to accomplish this, it is reasonable to assume that she would have said this directly to Tidd when she found Tidd and Cramer apparently in conver- sation together near the bar area. Or if she intended to tell Tidd that she was not to discuss the Carothers inci- dent with 'other employees, and outside the hearing of customers still dining in the restaurant when she attempt- ed to lead Tidd down the hallway and away from the dining area, her opening remark to Tidd to "shut her mouth" is a most unclear and ambiguous way of doing so. This choice of words could convey various inten- tions, i.e., that Eilert wanted Tidd to keep quiet while she explained what had occurred, or that she was angry at Tidd because of Tidd' s insistence on talking about em- ployee matters within the hearing of dining patrons, etc. Significantly, during the ensuing conversation between them Eilert never told Tidd straightforwardly to stop talking to other employees about Carothers but, instead, the conversation was directed towards Tidd' s unhappi- ness with Eilert's action regarding Carothers tip and Ei- lert's explanation. It seems most likely to me that Eilert would have done this had she intended to effectuate such a purpose especially in view of her having previously asked Tidd to speak to her about the matter if Tidd had anything to say about it, but Eilert did not do this in either account of the incident given. Furthermore, under the circumstances present herein, it is more reasonable and plausible to infer that Eilert di- rected Tidd to "shut her mouth" or to "shut up" because Tidd was speaking in a loud and angry manner and within earshot of customers dining at the restaurant rather than to warn Tidd not to discuss the Carothers matter with coworkers. That Tidd was angry about the events of that evening up until her discussion with Eilert is clear from the record.94 That Tidd was capable of raising her voice in anger that evening is also inferable from the evidence.95 And that patrons at the restaurant were aware that something was amiss either by over- hearing and/or observing part of what occurred is also evident therefrom.9° Moreover, that Eilert directed Tidd away from her work station, down the hallway, and away from the customers' dining area , suggests other than the purpose of telling Tidd to "shut her mouth" or to "shut up," regarding her talking to other employees. In sum, I find that Eilert's order to Tidd to "shut her mouth" or to "shut up" was unrelated, other than tan- gentially, to Tidd's discussion with other employees re- garding "wages and working conditions," vis a vis, Ei- lert's application of the Respondent's new tip pool policy. Rather, the direction to Tidd constituted a lawful effort by Eilert to maintain order and respect at the work place.97 Accordingly, I conclude that the Re-

94 As stated, Tidd was unhappy with the institution of the Respond- ent's" new tip policy, Zibell's remarks to her when she was apprised there- of, what she perceived as Eilert's unfair treatment of Carothers, Etlert's direction to her to speak to Eilert if she had anything to say about it, and Eilert's taking Tidd's arm to lead her down the hall causing Tidd to lose her balance and fall against the wail, all contributed to Tidd's anger, dis- content, and unhappiness at the time. Si Although only Tidd and Eilert testified about this incident, and only Eilert testified that Tidd was yelling at her loudly during the conversa, tion, Tidd did not deny this, and there is testimony from Brenda Willis and Peggy Schumacher that Tidd had spoken to Zibell later that evening in a raised tone of voice.

96 Tidd, in fact, testified that when she returned to her customers' table in the dining area after her conversation with Eilert had ended, they asked her if she was all right Their inquiry suggests that they may have been aware that something untoward had occurred or was amiss.

97 Chrysler Corp, 249 NLRB 1102 (1980); Calmos Combining Co., 184

NLRB 914 (1970) "THE LOFT" spondent did not violate Section 8(a)(1) of the Act when Eilert ordered Tidd to "shut her mouth" or to "shut up."98

3. The written rule against discussing wages or other problems with coworkers The complaint alleges that the Respondent, on or about August 23, 1982, by written announcement, pro- mulgated and maintained a rule for its employees prohib- iting their discussion of pay or other job-related prob- lems with coworkers upon penalty of dismissal, in viola- tion of Section 8(a)(1) of the Act. The Respondent, in substance, denies this allegation. Analysis and Conclusions The evidence herein shows that effective August 23, 1982, the Respondent amended its wage system for "Wait Persons," issuing a written "Amended Pay Ar- rangement" containing the following rule: Any dissatisfaction in your job should be discussed directly with Dee [Eilert]. Discussing your pay or any other problems with your job with co-workers will be grounds for dismissal. Operations Coordinator Wanda Baird related that the Respondent had received several complaints from em- ployees that they were being "badgered" by other em- ployees who were unhappy with the new pay system and opposed to its continuance. She stated that the Re- spondent had promulgated this rule in response to the employees being upset about such "badgering" and the "turmoil" created by employee dissatisfaction with the pay system.99 She recounted that the amended pay ar- rangement was either mailed to employees or handed out to them at the restaurant. Baird testified uncontradictedly that this rule was never enforced and was in fact rescind- ed by the Respondent in September 1982. Baird added that as far as she knew, the employees were not directly informed of the rule's rescission but that it was omitted from copies of the "Amended Pay Arrangement" distrib- uted to new employees thereafter. The General Counsel asserts that, " It is clear that such a rule is violative of Section 8(a)(1) of the Act." I agree. The Respondent promulgated this rule at a time when its employees were voicing dissatisfaction with its wage

18 The General Counsel cites Comm Pond Diner, 248 NLRB 1158 (1980), in support of its contention herein that Eilert's direction to Tidd constituted a violation of Sec 8(a)(1) of the Act, Clearly the facts in Comm Pond Diner and the instant case are distinguishable In Coram Pond Diner, the employer told an employee at a meeting with employees, that "she should keep her mouth shut and not start trouble in response to her demand that proper taxes be taken out of her pay." On a subsequent occasion the employer told this same employee "to keep her mouth shut and that she talked too much to the girls " The employer therein had also told another employee "in response to her question whether she was fired, that she had a big mouth, to keep it shut, and leave the girls alone." It is obvious from the facts of this case, that these statements were made in the context of the employees union and/or protected concerted activi- ties and directed to these employees clearly to compel them to refrain from discussing wages and/or working conditions with other employees, unlike what occurred in the instant case

99 Ztbell testified that this employee dissatisfaction was due in part to the efforts of employee Jeff Chanay. 1461 policy and working conditions. Additionally, when the "Amended Pay Arrangement" containing this rule was distributed to employees, upon being; given the opportu- nity to read it, the employees were then asked to ac- knowledge its receipt by signing their names at the bottom. Moreover, while the Respondent asserts that the rule was never enforced and was subsequently rescinded, this was admittedly never brought to the attention of the employees. In Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976), the Board affirmed the ruling of an administrative law judge that the employer violated Section 8(a)(1) of the Act by promulgating and maintaining a rule which forbade employees from discussing their wages at any time under penalty of dismissal. Similarly in the instant case, the rule in question here provided that an employ- ee's discussion of pay, any other employment, or prob- lem with coworkers was forbidden and violation thereof constituted grounds for discharge. This rule constituted a serious impediment to, and a clear restraint upon, and in- terference with the employees' Section 7 rights to engage in protected concerted activity.100 The Respondent contends that no violation should be found since the ,rule was never enforced and in fact was rescinded shortly after its promulgation. The Respondent states in its brief, "Assuming arguendo that the promulga- tion of the rule constituted a violation of Section 8(a)(1), no Board-ordered remedy is necessary in view of the statement's rescission." I do not agree. As long as the rule remained in existence , and as long as the Respond- ent failed to notify employees of its revocation or rescis- sion, the possibility of its application against employees engaged in protected concerted activity remained real in the employees' minds and therefore tended to coerce, re- strain, and interfere with the employees in the exercise of their Section 7 rights.' 0 t Moreover, because this rule was invalid on its face, it was unnecessary for the General Counsel to show that it was illegally motivated, discriminatorily enforced, or even enforced at all. 102 Nor does the Respondent's as- serted, but admittedly unannounced, decision not to en- force the rule constitute a valid defense. When an em- ployer's rule or regulation is alleged to restrict unduly employees' rights, the Board looks to the wording of the rule itself, rather than to the expressed limitation or in- terpretation that are given by the employer.103 Accord- ingly, I find that the Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining a rule which prohibited employees from discussing their wages and other working conditions among themselves.104

100 Blue Cross-Blue Shield, supra, Jeannette Corp. Y . NLRB, 532 F.2d 916 (3d Cir. 1976)

101 Blue Cross-Blue Shield , supra ; Hyland Machine Co., 210 NLRB 1063 (1974), Marinette Marine Corp, 179 NLRB 627 (1969)

102 Congoleum Industries, 197 NLRB 534 (1972), Farah Mfg. Corp., 187

NLRB 601 (1970); Lexington Metal Products Co, 166 NLRB 878 (1967).

102 Solo Cup Co, 144 NLRB 1481 (1963).

104 Blue Cross-Blue Shield, supra , Jeannette Coro, supra 1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD

4. The discharge of Mary Alice Tidd The complaint alleges that the Respondent about August 3, 1982, discharged Mary Alice Tidd because she and other employees concertedly discussed their wages and working conditions and because Tidd concertedly complained to the Respondent about such wages and working conditions, in order to discourage employees from engaging in such activities or other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8(a)(1) of the Act. The Respondent denies this allegation and contends that Tidd was discharged for cause. Analysis and Conclusions The evidence reveals that late in the evening of August 3, 1982, and soon after Tidd and Eilert engaged in the confrontation previously described, Eilert apprised Zibell that "Mary Tidd is going on downstairs and I can't handle it." Zibell then approached Tidd and asked her if she had a problem, to which Tidd replied that she did not. However, after Zibell began to follow Tidd about the restaurant while she was performing her duties, she now told Zibell that she indeed had a prob- lem and would like to discuss it with him. 105 Tidd testi- fied that despite Zibell's reluctance to talk to her about this, she told him that "[H]e was being unfair to his em- ployees, that he could not treat us like we were animals ... that what he was doing to the employees was hurt- ing him in the long run."1106 Tidd also reminded Zibell that she had worked for the Respondent for over a year and a half and was a good and devoted employee. Tidd admitted that she was angry, upset, and crying, and had raised her voice during the conversation, because Zibell had just stood there and "grinned," not replying to her "on anything," and while he appeared to be listening to what she was saying, she felt that he was deliberately ig- noring her meaning and intent. i 0 v Tidd testified that toward the end of the conversation Peggy Schumacher came downstairs preparing to "punch out" and after witnessing part of the conversa- tion between her and Zibell, told Tidd "Mary it's not going to do any good," whereupon Tidd told Schu- macher to "shut up," and stay out of the controversy. Tidd stated that at this point Zibell told her that she could pick up her paycheck the next morning. Tidd re- lated that both she and Schumacher asked Zibell why'he as firing Tidd and Zibell responded, "For calling me an asshole." Tidd recounted that she told Zibell that she had not called him an "asshole," and they both knew ios Although Zibell at first denied that he had followed Tidd about while she performed her duties , he acknowledged that he may have testi- fied to the contrary as a witness for the Respondent at Tidd's unemploy- ment compensation hearing

106 Brenda Willis testified corroboratively that she overheard part of the conversation between Tidd and Zibell and that Tidd had asked Zibell, "[H]ow he could be so inhumane , how could he do this type of thing to his employees in reference to the new [tip] policy that was being implemented"" Willis continued that Zibell responded it was his business and he would run it the way he wanted to, and if anyone disagreed with his policies, they could work elsewhere

107 Tidd testified that Zibell had told her that it was his restaurant business and he would manage it as he pleased this, but that if made no difference since it was his word against hers, whereupon Schumacher said that it was Zi- bell's word against theirs because she had not heard Tidd call Zibell an "asshole." Tidd added that after Zibell had discharged her and just before she was about to leave the restaurant, she said to Zibell, "You are an asshole." Schumacher testified similarly to Tidd that she was present only toward the end of the conversation between Tidd and Zibell and had heard Tidd say, "[T]he employ- ees are helping you, why can't you in turn help us? You're going to ruin you business if you don't, you know, take care of us or help us out." She stated that Zibell turned to Tidd and told her, "Mary, you can pick up your check." Schumacher related that she asked Zibell why he was firing Tidd and Zibell answered, "Be- cause she called me an asshole." Schumacher than told Zibell that Tidd had not called him that name where- upon Zibell started to walk away. She recounted that Tidd now told Zibell that it was "two against one, I did not call you an asshole." Schumacher admitted that she did not know whether or not Tidd had called Zibell an "asshole" prior to her coming upon the scene , since she was only present for a brief period of time toward the end of the conversation. Schumacher added that while Tidd appeared to be upset and had raised her voice loudly, she was not screaming at Zibell. Although Zibell's testimony concerning what was said during this conversation was, in some respects, quite similar to Tidd's version , it did differ in other important and significant aspects. Zibell testified that Tidd had told him that he had no respect for the employees, that he treated them like animals and cared nothing for them, that he had been unfair to the employees when he insti- tuted the amended tip pool system, and that she had worked for the Respondent for several years and was an able and dedicated employee. Zibell stated that as he tried to explain the amended pay arrangement and its fairness, Tidd became more irate and told him that "[S]he liked to be screwed but not by [him]," and that she was going to bring a court action against him for a substantial amount. Zibell related that after this had gone on for about 10 minutes, Tidd called him a "fucking ass- hole" twice.108 Zibell recounted that he then fired Tidd and told her to pick up her paycheck the following week. He continued that Peggy Schumacher was present during this conversation for "the majority of the time," but he said little other than to try to calm Tidd down.109 Zibell admitted that he "didn't appreciate" Tidd's complaining to him about the new pay arrange- i°8 Zibell testified that Tidd's use of profanity in the context of their conversation did not surprise him because "I think I probably heard her say it before Or, you know, use some profanity but I am not positive " I note that his testimony was somewhat equivocal on this point However, he added that her use of the term "fucking asshole" at this time was di- rected personally at him toe As stated herembefore , Schumacher denied that she was present during this conversation for more than a brief period towards its end, and that she had not heard Tidd call Zibell a "fucking asshole" or "asshole" during that time "THE LOFT" ment and her negative comments about how he was treating his employees and operating the restaurant. i i 0 Dee Eilert testified that she had overheard what Tidd said to Zibell that evening because of Tidd's raised voice, and it was essentially similar to what Zibell testi- fied to, including Tidd's having allegedly called Zibell a "fucking asshole." However, Eilert admitted that she did not hear that portion of the conversation wherein Zibell had fired Tidd and, therefore, did not know whether Tidd had called Zibell a "fucking asshole" before or after her discharge. It is extremely difficult to decide whose testimony is to be credited concerning the discharge of Mary Alice Tidd. Both the General Counsel's witnesses, Tidd, Schu- macher, and Willis, and the Respondent's witnesses, Zibell and Eilert, all have a personal reason other than truthfulness for testifying as they did, although this in and of itself does not make their respective testimony un- believable. i i i Additionally, the testimony of the key wit- nesses, Tidd and Zibell, was at times and in part, contra- dictory and equivocal, as set forth hereinbefore, as was Eilert's testimony.' i 2 Moreover, other than Tidd and Zibell, the other witnesses to this conversation did not hear its entirety. However, after carefully considering the evidence in the record as a whole, I credit the account of what oc- curred relating to the discharge of Mary Alice Tidd, as given by the General Counsel's witnesses, Tidd, Schu- macher, and Willis. Having previously credited the testi- mony of these witnesses, especially that of Schumacher and Willis, 113 with regard to another issue presented herein, I find no valid reason for disbelieving their testi- mony about this issue. Moreover, although Zibell testi- fied that Schumacher was present when Tidd called him a "fucking asshole," Schumacher testified credibly that she never heard Tidd use such profanity while she was there. Additionally, it should be noted that Tidd was well aware of the Respondent's rule that employees could be discharged for using profanity against custom- ers, supervisors, or other employees, having been a wit- ness to just such an occurrence previously and, even though upset and angry, would therefore be unlikely to direct what could be considered a harsh and highly pro- fane name as "fucking asshole" at the Respondent's owner while still in its employ. The Respondent asserts in its brief that Tidd's version of what occurred "must be discredited" since the claim

110 In fact, from a reading of Zibell's testimony, it is not unreasonable to infer that Zibell was annoyed and angered by Tidd's complaints and remarks iii I do not mean to imply that these witnesses necessarily were being untruthful because of a personal interest in the outcome of this proceed- ing, but only point out that this is a factor to be considered in determin- ing credibility ill This observation is made on consideration of all their testimony given

113 As stated, the testimony of Schumacher and Willis on the whole was given in a clear, unequivocal, and forthright manner throughout, and was also consistent with the other credible evidence in the record In contrast, the testimony of Zibell and Eilert was at times guarded, equivo- cal, inconsistent, and unbelievable This is not to ignore the fact that Tidd's testimony was also at times inconsistent but, on balance, and for the reasons stated, I believe the General Counsel's witnesses with regard to this issue 1463 of Tidd and Schumacher that Tidd had not called Zibell an "asshole," despite Zibell's having advanced this as the reason for Tidd's discharge after both she and Schu- macher had asked Zibell why he had fired Tidd, "does not comport with common sense." The Respondent con- tinues therein: Viewing the totality of the circumstances, is it rea- sonable to believe that a supervisor would immedi- ately attribute his action in terminating an employee to the fact that he had been called an "asshole" unless the statement was made? It is respectfully submitted that common sense dictates that Tidd did call Zibell the profane and abusive name prior to her discharge. In this situation it is beyond the bounds of credence to conclude that Zibell, in re- sponse to Tidd's immediate demand to know the reason for her discharge, would falsely claim that Tidd made an obscene remark directed toward him. If Tidd's obscene remark was not, the basis, would it not have been more likely that Zibell would have made reference to Tidd's complaints or would have refused to give any reason at all?

I have also pondered and considered the significance of this, but reach a different conclusion than the Respond- ent, which appears reasonable and consistent with common sense under the circumstances presented herein. Considering Eilert's testimony that Tidd had allegedly used profanity during their conversation which took place just prior to the one between Tidd and Zibell wherein Tidd was discharged, and noting Eilert's admit- ted agitation and unhappiness with Tidd over the con- tent, it is most likely that Eilert apprised Zibell of more than Tidd's "going on downstairs," in order for Zibell to have sought out Tidd as he did while she was still work- ing out on the restaurant floor. I find it not unreasonable to assume, under the circumstances, that Eilert told Zibell about Tidd's alleged use of profanity during their conversation, and that her confrontation with Tidd was precipitated by Tidd's discontent with the "amended pay arrangement" and the Carothers incident. Zibell must have been fully aware of the Respondent's rule against the use of profanity by employees whereby they could be summarily discharged for the breach. Additionally, while Zibell may not have intended to fire Tidd when their conversation began, he admittedly was less than ap- preciative; more likely he became quite angry at her con- tinued complaints about the Respondent's pay system, employee working conditions in general, Zibell's treat- ment of employees in particular, and his management of the restaurant. Furthermore, employee discontent over these issues, seemingly fomented by a few employees, in- cluding Tidd, was causing Zibell some concern, especial- ly about the legal ramifications of the Respondent and Zibell. Tidd was admittedly a good worker, without any blemishes, disciplinary or otherwise, to her work record. What other reasonable and presumably lawfully support- ed excuse for her precipitous discharge could Zibell have propounded? Moreover, for Zibell to have given no reason for Tidd's discharge when asked for one by Tidd and Schu- 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD macher would have been unsatisfactory on the part of the Respondent in the sense that such an omission could present problems for Win any subsequent proceeding, if and when the Respondent was confronted in an unem- ployment compensation hearing involving Tidd or a pos- sible Board proceeding for wrongful discharge or other unfair labor practice. In this same vein, to attribute Tidd's discharge to her complaints about the Respond- ent's pay system or employee working condition would -also leave the Respondent potentially vulnerable in sub- sequent proceedings. Therefore, by asserting as the reason for Tidd's termination, her calling him a "fucking asshole," Zibell, in effect, countered these problems. As ancillary thereto, consider that perhaps Zibell' s anger at Tidd for the above reasons may have suddenly flared and crystallized during their conversation, whereupon Zibell decided to fire her on the spot. Having done so, he was suddenly asked for the reason for' her discharge and, on the spur of the moment, considering it to be a good and sufficient reason, he said that Tidd had called him a "fucking asshole." After all, it was in fact his word and possibly Eilert's (since Baird was not present at the restaurant at the time), against Tidd's and Schumacher's word.114 Be that as it may, and viewing the totality of the cir- cumstances present, I do not find that Zibell's having at- tributed Tidd's discharge when asked to her having called him an obscene name, although, in truth, she had not done so, a strain on credulity or common sense re- quiring disbelief of the testimony given by Tidd and Schumacher. As set forth, Section 7 of the National Labor Relations Act grants to employees the right " to engage in .. . concerted activities for the purpose of collective bargain- ing or other mutual aid or protection." Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Thus, for employees' activities to be protected under the Act, the activities must be concerted. The Board and the courts have always considered, first, whether the activity of the discharged employee is concerted, and only then, wheth- er it is protected. This approach is mandated by the stat- ute itself, which requires that an activity be both "con- certed" and "protected.'"' 15 The General Counsel asserts that Tidd was engaged in "protected concerted activity at the time of her termina- tion and had been thus engaged for some time." Specifi- cally, the General Counsel argues that Tidd was dis- charged for engaging in the protected concerted activity of discussing the Respondent's revised tip pool system with other employees and complaining to the Respond- ent about its wage policy and the working conditions of the Respondent's employees in general.' 16 The Respond-

114 Also, Zibell testified that he was not surprised that Tidd used pro- fanity during their conversation, since he believed that she had used it before Thus it is not farfetched that he would seize on this as a reason to discharge her.

115 Meyers Industries, 268 NLRB 493 (1984); NLRB v. Dawson Cabinet Co., 566 F 2d 1079 (8th Cir. 1977) 1111 The General Counsel states, "It is well established that protests of wages, hours, other working conditions and the presentation of ,lob-relat- ent, on the other hand, contends tha Tidd's statements, "constituted individual griping and complaining rather than 'concerted, protected activity."' While treatment of Respondent 's employees may be a matter of general con- cern, Tidd had never been designated as spokesperson for others and did not speak with Zibell -on others behalf."117 The Respondent continues: "In the instant case, Respondent's employees are not unionized and no collective bargaining agreement is in effect., On the evening of August 3, Mary Tidd, acting alone, made generalized statements of dissatisfaction to Zibell.'+"s In the recent case of Meyers Industries, 268 NLRB 493, 497 (1984), the Board set forth the following definition of concerted activity:'19 In general, to find an ` employees' activity to be "concerted ," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self. Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the em- ployees' activity, the concerted activity was pro- tected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employees' protected concerted activity.23 za See Wright Line, 251 NLRB 1083 (1980), enfd . 662 F.2d 899 (Ist Or. 1981), cert, denied 455 U.S. 989, approved in NLRB V. Transportation Management Corp., 103 S Ct 2496, 97 LC ¶ 10,164 (1983). Under this standard , an employee "may be discharged by the employer for a good reason, a poor reason, or no reason at all, so long as the terms of the statue are not violated ." " NLRB Y. Con- denser Corp. of America, 128 F.2d 67, 75, (3d Cir. 1942). Thus, absent special circumstances like NLRB Y. Burnup & Sims, 379 U.S 21 (1964), there is no violation if an employer, even mistaken- ly, imposes discipline in the good -faith belief that an employee en- gaged in misconduct.'" ed grievances are for the mutual aid and protection of employees and are protected by Section 7 of the Act." NLRB v. Washington Aluminum Co.,

370 U.S. 9 (1972).

117 Citing Mushroom Transportation Co Y. NLRB, 330 F.2d 683 (3d Cir. 1964).

118 Concerted activities need not take place in a union setting and it is not necessary that a collective-bargaining agreement be in effect. It is suf- ficient that the employee intends or contemplates, as an end result, group activity which will also benefit some other employees . Koch Supplies Y. NLRB, 646 F.2d 1257 (8th Cir. 1981).

119 The Board observed in Meyers, 26$ NLRB at 497: Although the definition of concerted activity we set forth below is an attempt at a comprehensive one, we caution that it is by no means exhaustive. We acknowledge the myriad of factual situations that have arisen, and will continue to arise, in this area of the law.

120 In Alleluia Cushion Co., 221 NLRB 999 (1975), the Board decided that it was no longer required to find concert of action . The existence of relevant legislation and its invocation by a solitary employee became suf- ficient to find concerted activity. Under Alleluia and its progeny, it was unnecessary to find "an observable manifestation of `group will' in the workplace" in order to establish concert of action. If an individual em. ployee was protesting an issue about which employees "ought to have a group concern," the Board deemed the employees protest to be concert. ed activity. However, this was changed by the Meyers case wherein the Board stated: [W]e hold that the concept of concerted activity first enunciated in Alleluia does not comport with the principles inherent in Section 7 of the Act. We rely, instead, upon the "objective" standard of concert- Continued "THE LOFT" The Board continued in Meyers, 268 NLRB. at 497: We emphasize that our return to a preAlleluia standard of concerted activity places on the General 'Counsel the burden of proving the elements of a violation as set forth herein. It will no longer be sufficient for the General Counsel, to set out the subject matter that is of alleged concern to a theo- retical group and expect to establish concert of 'action thereby.121 Tidd's protests to Zibell on August 3,' 1982, essentially ,,centered around the Respondent's tip pool policy and Zi- bell's general treatment of the Respondent's employees. Certainly the Respondent's method of distributing tips was of direct concern to all the employees 'participating in the tip pool system and, as the record clearly dis- closes, had been a source of employee dissatisfaction for some time . Because of'this, several employees, including Tidd, had met together on July 23, 1982, specifically to discuss employee strategy and what their response -should be to any new proposal made by the Respondent at a scheduled meeting,to be held on July 25, 1982, be- tween management and the employees for discussion of the tip pool problem and any other job-related ones. The Respondent was aware that Tidd was present at the July 23, 1982 meeting. Moreover, at the July 25, 1982 meeting, the Respond- ent's tip pool system was an important topic of discus- sion and several employees, including Tidd, expressed their dissatisfaction with the tip pool policy. Of some sig- nificance is the fact that Zibell asked Tidd for an expla- nation why the employees thought the, present tip pool system was unlawful. The only other employee asked about this was Chanay, whom Zibell believed to be the `moving force in employee opposition to the tip pool system. 122 Add to this the additional fact that subse- quently Eilert approached Tidd and inquired whether or not the employees had come up with their own recom- mendation for a new tip pool system and it may well be inferred, with some reason, that the Respondent consid- ered Tidd as at least one of the spokespersons for those employees dissatisfied with the Respondent's pay ar- rangement . 12 3 Additionally, Tidd did not at any time speak solely for her own benefit but always in behalf of all the employees interested. On August 3, 1982, after the Respondent had instituted its new tip pool system, Tidd again registered a com- plaint about this new system as, it may be inferred, did others who had done so regarding the previous tip ed activity-the standard on which the Board and courts relied before Alleluia Accordingly, we hereby overrule Alleluia and its progeny [268 NLRB at 4961 r

121 The Board also indicated in its Meyers decision that under the "standard" adopted therein, "the question of whether an employee en- gaged' in concerted activity is, at its heart, a factual one, the fate of a particular case rising or'fallmg on the record evidence."

322 Zibell was aware at the time that Jeff Chanay, an employee and a law student, was responsible for the employees' belief that the Respond- ent's tip pool system was unlawful, but despite this, Tidd was also ques- tioned about its legality '22 Moreover, no employees at the July 25, 1982 meeting or thereafter registered disapproval of Ttdd speaking on their behalf at this meeting or at any other time 1465 system, at a meeting held by Zibell with employees. She also complained to Eilert, notkabout any problem of her own, but about Eilert's handling of another employee's problem in effect seeking to intervene on behalf of a fellow employee.124 Furthermore, during the conversa- tion between Tidd and Zibell later that evening, Tidd protested Zibell's treatment of all the employees, not merely herself, and the institution of the new tip system which she maintained was no better than the old one in its unfairness to the employees thereunder. The evidence shows that not only were Tidd and Carothers dissatisfied with the new tip policy but other employees had ex- pressed their aversion to working under this system. Sig- nificantly, the result of this widespread employee dissat- isfaction with the Respondent's pay arrangement, was that the Respondent was compelled to amend the tip pool policy once again on August 23, 1982. Moreover, the credible evidence establishes that at least some of Tidd's complaints resulted from group discussion and action.12 5. The foregoing circumstances all support the finding that Tidd's protests during her confrontation with Zibell on August 3, 1982, were of a concerted character within the meaning of Meyers Industries, and that the Respond- ent was fully aware of the concerted nature of Tidd's ac- tions. Additionally, as Board precedent held in several pre-Alleluia cases: Even individual protests are protected as concerted activity if the matter at issue is of moment to the group of employees complaining and if the matter is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speaking for the interested group.126

I find substantial support in the record that Tidd spoke for her coworkers when she complained to the Respond- ent about its tip system which constituted an important issue "of moment" to the employees.127 Having concluded that Tidd's activity was concerted and that the evidence clearly shows that the Respondent had knowledge of the concerted character of her activi- ty, I turn to the next question to be resolved: whether the concerted activity was protected under the Act. The record clearly shows that at the time of.her dis- charge, Tidd was complaining to the Respondent about its tip pool system as part of its employee wage structure in particular, and employee working conditions in gener-

124 Intermountain Rural Electric Assn., 253 NLRB 1153 (1981), enfd.

732 F 2d 354 (10th Ctr. 1984)

125 Frascona Buick, 266 NLRB 636 (1983)

126 The Barnsider, 195 NLRB 754 (1980); Corret Corp, 191 NLRB 892 (1971), Hugh H Wilson Co., 171 NLRB 1040 (1968), enfd 414 F.2d 1345 (3d Cir 1969).

127 Also see Fairmont Hotel Co., 230 NLRB 874 (1977). The cases cited by the Respondent in support of its contention herein regarding whether or not Tidd's complaints were concerted are distinguishable on the facts In each of these cases, NLRB v. Buddies Supermarkets, 481 F.2d 714 (5th Car 1973), and Koch Supplies v NLRB, 646 F 2d 1257 (8th Cir. 1981), there was no evidence that the employee' s particular complaints were intended to benefit any employees other than themselves in their respective cases 1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al, conduct undeniably protected under Section 7 of the Act. The Respondent argues that even assuming Tidd did engage in protected concerted activity, since she called the Respondent's owner, Zibell, a "fucking ass- hole" during the course of such activity, she lost the pro- tection of the Act. The Respondent maintains that Tidd was terminated because she called Zibell an obscene name and not because of her concerted activity. The General Counsel contends that since Tidd did not call Zibell a profane name prior to her termination, the Re- spondent's asserted reason for her discharge is pretextual, the Respondent's real reason for firing Tidd being her protected concerted activity of discussing wages and working conditions with other employees and complain- ing to the Respondent about such wages and working conditions. Having credited the account given by the General Counsel's witnesses as to what was said during the conversation between Tidd and Zibell on August 3, 1982, leading to the discharge of Tidd, I find it follows that Tidd's believable denial that she did not call Zibell an obscene name prior to her termination necessitates a finding that the Respondent's proferred reason for her discharge was in fact pretextual. It was offered to mask the Respondent's real reason for firing her, namely, be- cause she had engaged in protected concerted activity. The evidence shows that the Respondent was fully aware that Tidd had engaged in and was continuing to engage in the protected concerted activity of discussing wages and working conditions with fellow employees and of complaining to the Respondent about these,-espe- cially concerning the Respondent's tip pool system, for the purpose of changing the employee pay arrangement and other working conditions. That Zibell was unhappy, distressed, angered, and concerned about employee dis- satisfaction with the Respondent's tip pool policy and particularly with Tidd's vocal and active opposition, is also evident from the record. Moreover, Tidd was a good-employee 12 8 and had never been disciplined previ- ously for using profanity nor for any other misconduct, and the only reason advanced by the Respondent for her discharge was that of having called Zibell an obscene name and this reason was found to be pretextual. There- fore, from the foregoing, it is obvious that Mary Alice Tidd was discharged by the Respondent because of her protected concerted activity in violation of Section 8(a)(1) of the Act and I so find.129

128 The concensus of the testimony of the Respondent' s witnesses, Zibell, Eilert, and Baird, was that Tidd was a good employee This is further evidenced by the fine letter of recommendation given to Tidd by Wanda Baird prior to Tidd's discharge.

129 Kay Fries, Inc, 265 NLRB 1077 fn 2 (1982) Moreover, as the Board stated therein- Rather, the Board has held that, where a pretext discharge is found, "[n]o substantive objective is served by our reiterating and recasting an administrative law judge's findings and conclusions in order to achieve a formalistic consistency with Wright Line . " Limestone Apparel Corp., 255 NLRB 722 (1981) This is so because a finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied on, and therefore estab- lishes that the employer had failed to rebut the General Counsel's prima facie case The General Counsel also asserts in her brief that even assuming arguendo that Tidd call Zibell a profane name prior to her discharge, her conduct was insufficient "to remove her discharge from the protection of the Act." The General Counsel submits that at the time of her dis- charge, Tidd was complaining to the Respondent about the wages and working conditions of the employees, "conduct undeniably protected under Section 7 of the Act. Tidd's comment, if made, would thus have occurred in the context of protected concerted activity." The General Counsel continues therein: Under analogous circumstances the Board has held that an employee may only be deprived of the pro- tection of the Act if his or her misconduct is violent or of such serious nature as to render the employee unfit for further service. Cf. Thor Power Tool Com- pany, 148 NLRB 1379 (1964), enf d 351 F.2d 584 (1965); United States Postal Service, 250 NLRB 4 (1980). Tidd's use of profanity in no way constitutes conduct as egregious as to render her unfit for fur- ther service. . . . Counsel for the General Counsel would thus submit in the alternative, that Tidd's dis- charge was violative of Section 8(a)(1) of the ACt irrespective of whether she had called Zibell a pro- fane name before her termination. The Board has held that in the context of protected concerted activity by employees, a certain degree of leeway is allowed in terms of the manner in which they conduct themselves.130 In cases involving formal griev- ances or negotiating sessions , wherein an employee has uttered an obscenity or used extremely strong language, the employee's conduct has been found to be protected as part of the "res gestae," or as conduct engaged in "during a moment of animal exuberance." 13 i However, as the Board stated in Bettcher Mfg. Corp.,

76 NLRB 526 (1948): We do not hold, of course,-that an employee may never be lawfully discharged because of what he says or does in the course of a bargaining confer- ence. A line exists beyond which an employee may not with impunity go, but that line must be drawn "between cases where employees engaged in con- certed activities exceed the bounds of lawful con- duct in `a moment of animal exuberance' (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc.,

312 U.S. 287, 293) or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious char- acter as to render the employee unfit for further service."

130 Bettcher Mfg Corp., 76 NLRB 526 (1958), NLRB v. Thor Power Tool Co, 351 F.2d 584 (7th Cir. 1965) See also Crown Central Petroleum Corp. Y. NLRB, 430 F 2d 724 (5th Cir 1970), Southwestern Bell Telephone Co., 260 NLRB 237 (1982), Postal Service, 250 NLRB 4 (1980); Max Factor Co, 239 NLRB 804 (1978); Hawaiian Hauling Service, 219 NLRB 765 (1975)

131 Ibid fn 130. See also Illinois Bell, 259 NLRB 1240 (1982); Firch Baking Co., 232 NLRB 772 (1977); Webster Clothes, 222, NLRB 1262 (1976). "THE LOFT" 1467 Moreover, as the court stated in NLRB v Thor Power Too! Co., 351 F.2d 584, 587 (7th Cir. 1965): As other cases have made clear, flagrant conduct of an employee, even though occurring in the course of Section 7 activity, may justify disciplinary action by the employer. On the other hand, not every impropriety committed during such activity places the employee beyond the protective shield of the Act. The employee's right to engage in concert- ed activity may permit some leeway for impulsive behavior, which must be balanced against the em- ployer's right to maintain order and respect. NLRB v Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946). Again, in Atlantic Steel Co., 245 NLRB 814, 816 (1979), the Board stated: ' The Administrative Law Judge cited no deci- sions, however, and we know of none, where the Board has held that an employee's use of obscenity to a supervisor on the production floor, following a question concerning working conditions, is protect- ed as would be a spontaneous outburst during the heat of a formal grievance proceeding or in con- tract negotiations . To the contrary, the Board and the courts have recognized (as did the Administra- tive Law Judge in passing) that even an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act, The decision as to whether the employee has crossed that line depends on several factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's out- burst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor prac- tice. 132 With ample support therefore in the record as set forth, I found that the Respondent's real reason for dis- charging Tidd was because of her concerted protected activity. In assuming that she had called Zibell an ob- scene name during this activity her discharge may have been motivated by this as well. In Wright Line, 251

NLRB 1083 (1980), the Board set forth a test of causa- tion to be applied in cases involving actions based on "dual" motives, one of which is lawful and one of which is unlawful. Under that test, the General Counsel is first required to establish a prima facie case sufficient to sup- port the inference that the protected conduct was a "mo- tivating factor" in the employer's decision. If this is es- tablished, the burden then shifts to the employer to dem- onstrate that it had a legitimate, permissible reason for its action such that the disciplinary action would have taken place even in the absence of the protected conduct. In the instant case, it is clear that the General Counsel es- tablished a prima facie case, as set forth hereinbefore. However, I also find that the Respondent has not met its requisite burden of proof by demonstrating that it would

133 Also see Chrysler Corp., 249 NLRB 1102 (1980). have discharged Tidd even in the absence of her protect- ed concerted activity. It should be noted, that the Respondent knew that Tidd was engaging in the protected concerted activity of discussing wages and working conditions with other em- ployees133 and complaining to the Respondent about these, particularly in connection with the Respondent's tip pool system;134 that the Respondent resented Tidd's vocal and active opposition to the Respondent's tip pool policy and would have liked for her to voluntarily resign and leave its employ;' 35 that Tidd was an acknowledged good employee and had never been disciplined before; that it can be said that in some respect, Zibell actually provoked her outburst;136 that the use of profanity by management and employees alike was not unusual;137 that Tidd's conduct on the whole did not amount to gross insubordination, did not threaten violence, did not cause an employee work stoppage, and was not disrup- tive of the Respondent's right to maintain order and dis- cipline;138 and that Tidd's obscene statement, although not to be considered condoned by any finding herein, and although vulgar, was not so defamatory or opprobri- ousl3s and her conduct so violent or extreme as to render her unfit for further service. 140

133 Certainly Eilert (and it can be reasonably assumed that Zibell also) found out and knew about Tidd's presence at the employees' meeting on July 23, 1982, at Evans' house, and the reason for this meeting.

134 Both at the meeting of July 26, 1982, and during their conversation on August 3, 1982, Tidd complained to Zibell about the Respondent's tip pool system

135 Zibell, at least twice, and Ellett, at least once, had told employees that if they did not like its pay system, they should quit Also note Ei- lert's animosity toward Chanay for allegedly causing employee unrest and Zibell's attitude towards Tidd at the July 25, 1982 meeting and again on August 3, 1982

136 Zibell initiated the conversation, than wanted to preclude discus- sion of any problem, he followed Tidd about the premises while she was performing her work, which was unusual, appeared to ignore the mean- ing of her complaints other than to listen , smile , and tell her he would run the business as he saw fit, and generally treated her with some indif- ference during their conversation, all contributing to Tidd's feelings of frustration and unhappiness as evidenced by her crying and raising her voice and, finally, after her discharge, voicing an obscenity agamt Zibell

131 Zibell admitted that he may have used profanity during the July 25 1982 meeting with employees, Eilert used profanity during her tele- phone e conversation with employees on July 23, 1982, and it is alleged that Tidd used profanity in her conversation with Eilert on August 3, 1982, and occasionally while on duty at the restaurant, which did not result in any discipline against her at that time I am aware that the Re- spondent had previously fired an employee for using profanity directed against a supervisor. However, that incident involved an employee whose insubordinate action in doing so was not connected with any protected concerted activity at all, was unprovoked, involved Eilert, as a woman, and evidenced behavior that other employees observed and clearly could view as being insubordinate

138 Contrast Woodruff & Sons, 265 NLRB 345 (1982); Leshner Corp,

260 NLRB 157 (1982), Hotel St. Moritz, 251 NLRB 67 (1980), NLRB v. Red Top Cab Co., 383 F.2d 547 (5th Cir 1967), Chemvet Laboratories v NLRB, 497 F.2d 445 (8th Cir 1974), Sullair P.T.O., Inc v NLRB, 641

F 2d 500 (7th Cir 1981) Also Postal Service, 268 NLRB 274 (1983); Hyatt On Square, 265 NLRB 612 (1982).

139 "Asshole," as used currently, has taken on a connotation similar to the use of the words "stupid" or "dumb" or "unreliable "

140 Postal Service, 250 NLRB 4 (1980), Firch Baking Co., 199 NLRB 414 (1972), A T. & T. Co., 211 NLRB 782 (1974); Thor Power Tool Co, supra. 1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From all of the foregoing , I find and conclude that the Respondent 's discharge of Tidd on August 3, 1982, was violative of Section 8 (a)(1) of the Act:141 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE The activities of the Respondent set forth in section II, above, found to constitute unfair labor practices occur- ring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing the free flow of com- merce. _

THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. As the unfair labor practices committed by the ,Re- spondent were serious and go to the very heart of the Act, I shall recommend that the Respondent cease and desist therefrom and in any other manner from interfer- ing with , restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 142 Having found that the Respondent did unlawfully dis- charge Mary Alice Tidd, I recommend that the Re- spondent offer her immediate and full reinstatement to her former position143 or, if that position no longer exists, to a substantially equivalent position, without loss of seniority or other benefits, and make her whole for any loss of pay resulting from her unlawful discharge by payment of a sum of money equal to the amount she nor- mally would, have earned as wages from the date of her discharge to the date of a bona fide offer of reinstate- ment, less net interim earnings . The backpay due under the terms of the recommended Order shall be computed in the manner prescribed by the Board in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). 144

CONCLUSIONS OF LAW

1. The Respondent , "The Loft" (Showcase , Inc.), is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Respondent has interfered with , restrained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act, and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by:

141 Postal Service, 250 NLRB 4 (1980), Thor Power Tool Co, supra.

142 Hickmott Foods, 242 NLRB 1357 (1979), NLRB v. Express Publish- ing Co., 312 US. 426 (1941), NLRB v. Entwistle Mfg. Co., 120 F.2d 532 (4th Cir 1941)

143 Even though Tidd called Zibell an "asshole" after her discharge this was unquestionably provoked by such unlawful discharge and would not render Tidd "unfit for further service."

144 See generally Isis Plumbing Co, 138 NLRB 716 (1962). Also see Olympic Medical Corp, 250 NLRB 146 (1980); Pioneer Concrete Co., 241

NLRB 264 (1979).

(a) Coercively interrogating its employees regarding their protected concerted activities.

(b) Promulgating and maintaining an unlawful rule prohibiting its employees from discussing pay, or any other job problems with coworkers upon penalty, of dis- missal.

(c) Unlawfully discharging its employees Mary Alice Tidd because she and other employees engaged in pro- tected concerted activities.

3. The unfair labor practices, found above are unfair labor practices affecting commerce within the meaning., of Section 2(6) and (7) of the Act. '

4. The Respondent did not engage in unfair labor prac- tices within the meaning of Section '8(a)(1) of the Act when it directed an employee to "shut her mouth" or, to' "shut up." On these findings of. fact and conclusions of law and on the entire record, I issue the following recommend ed14s

ORDER The Respondent, "The Loft" (Showcase, "Inc.), Topeka, Kansas, its officers , agents, successors , and as- signs, shall '

1. Cease and desist from

(a) Coercively interrogating its employees regarding their protected concerted activities.

(b) Promulgating and maintaining an unlawful rule prohibiting its employees from discussing pay or .any other job-related problems, with coworkers on penalty of dismissal.

(c) Discouraging its employees from engaging in dis- cussion of their wages 'and working conditions and con-' certedly complaining about the same or any other-con- certed activities for the purpose of collective bargaining or other mutual aid or protection, by discharging them or otherwise punishing them for exercising rights guaran- teed them by Section 7 of the Act.

(d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 146

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Offer Mary Alice Tidd immediate and full rein--' statement to her former job' or, if that' job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed.

(b) Make Mary Alice Tidd whole for any loss of pay suffered by her by reason of her unlawful discharge, in the manner described in the remedy section:

(c) Remove from its files any reference to the dis- charge of Mary Alice Tidd on August 3, 1982, and

145 If no,exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec . 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.

141 A broad order is warranted as indicated by the seriousness of the unfair labor practices found. Backstage Restaurant, 232 NLRB 1082 (1977); Ann Lee Sportswear, 220 NLRB 982 (1975). "THE LOFT" 1469 notify -her in writing that this has been done and that evi- dence of this unlawful discharge will not be used as a basis for future personnel actions against her. 147

(d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records , social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order.

(e) Rescind its unlawful rule prohibiting employees from discussing pay or any other job related problems with coworkers and notify all its employees thereof.

(f) Post at its facility located at 417 West 37th Street, Topeka, Kansas, copies of the attached notice marked "Appendix."148 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees- are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.

IT IS FURTHER RECOMMENDED that the allegation of unlawful conduct not specifically found herein to be vio- lative of the Act be dismissed.

197 Sterling Sugars, 261 NLRB 472 ( 1982).

148 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities.

WE WILL NOT do anything that interfers with, re- strains, or coerces you with respect to these rights.

WE WILL NOT coercively interrogate you regarding your protected concerted activities.

WE WILL NOT promulgate and maintain an unlawful rule prohibiting you from discussing pay or other job re- lated problems with coworkers on penalty of dismissal.

WE WILL NOT discourage you from engaging in dis- cussions of wages and working conditions and concer- tedly complaining about the same or any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, by discharging you or otherwise punishing you for exercising rights guaranteed you by Section 7 of the Act.

WE WILL NOT in any other manner interfere with, re- strain or coerce you in the exercise of your rights guar- anteed by Section 7 of the National Labor Relations Act.

WE WILL rescind our unlawful rule and notify you thereof.

WE WILL offer Mary Alice Tidd immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest.

WE WILL notify Mary Alice Tidd that we have re- moved from our files any reference to her discharge and that the discharge will not be used against her in any way. "THE LOFT" (SHOWCASE, INC.) The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights.