715 F.2d 237 (6th Cir. 1983), 82-1420, N.L.R.B. v. Valley Plaza, Inc.
| Date | 12 August 1983 |
| Citation | 715 F.2d 237 |
| Docket Number | 82-1420. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VALLEY PLAZA, INC., d/b/a Captain Nemo's, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Page 237
Argued June 6, 1983.
Page 238
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Jerry Wohlgemuth, Washington, D.C. (argued), for petitioner.
R. Drummond Black (argued), Midland, Mich., for respondent.
Before JONES and WELLFORD, Circuit Judges, and DeMASCIO, District Judge. [*]
PER CURIAM.
This case is before the Court upon the application of the National Labor Relations Board (the Board) for enforcement of its order against Valley Plaza, Inc., d/b/a Captain Nemo's. That order requires the company to cease and desist from the unfair labor practices found and from interfering with, restraining or coercing employees in the exercise of their rights under § 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157. In addition, the Board's order requires the company to bargain with the union as the exclusive representative of its employees and to embody in a written document any agreement reached with that union. Finally, the Board also ordered the posting of an appropriate notice.
The company operates a retail complex, the Valley Plaza, which includes a full-service restaurant named Captain Nemo's. The restaurant employs approximately 54 employees, in both full-time and part-time capacities. The center of this complaint involves the company's discharge of five of its dinner waitresses. Sandy Valead and four others were full-time dinner waitresses. It is undisputed that they were the most senior and apparently the most efficient waitresses in the restaurant. Valead, who had been employed at Captain Nemo's for more than six years, was the informal leader among the dinner waitresses and acted as an intermediary between the staff and the restaurant manager, Kristine Selleck.
Page 239
In March 1979, the restaurant began serving lunch five days a week. The lunch shift was staffed primarily by the restaurant breakfast waitresses and by volunteers from the dinner shift. Allegedly, most dinner waitresses had made it clear that they preferred not to work the lunch shift because of scheduling conflicts (i.e., child care, full-time schooling, etc.). On the evening of November 5, 1979, Selleck told one of the waitresses that the company was going to require dinner waitresses to work lunches. The company claims that this was a valid business decision since it was difficult to hire waitresses solely for lunch hour work. However, the employees point out that they had begun a union organization drive immediately preceding this announcement. On October 29, Valead and two other waitresses signed union authorization cards at the union's office and picked up cards to distribute to other employees at the restaurant. The union involved is the Catering Industry, Hospital Workers and Bartenders Union, Local 688, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Valead was apparently the leader of the effort to solicit signatures from the other employees. On October 30, two other dinner waitresses signed the authorization cards and by November 4, five of the kitchen employees had also signed.
On November 6, Selleck convened an afternoon meeting of the dinner waitresses. The waitresses claimed that they were told that they would be required to work lunches and that the number of dinners they would be allowed to work would be determined by a proration formula based on the number of lunches worked. Selleck claimed that she proposed two alternatives to the waitresses: one would involve assigning each waitress one day a week where she was to work lunch and the other involved the proration system. The waitresses were purportedly upset by the announcements because several of them would be unable to work lunches at all, effectively eliminating their jobs at Captain Nemo's. All seven of the full-time dinner waitresses left the restaurant and went to a nearby bar to discuss the problem. All were scheduled to work that evening and one reported to the restaurant promptly at 4:00 p.m. The others apparently tried to call Selleck in order to threaten a protest if the problem could not be worked out. After unsuccessful attempts to reach Selleck, a second waitress reported for work at about 5:00 p.m. The remaining waitresses refused to report for work in claimed protest over the new split shift requirement. The two reporting waitresses claimed to have informed Selleck that the other five waitresses were at the "Overpass Bar" and would not be reporting to work because they were upset over Selleck's announcement. Selleck allegedly replied that she would see to it that none of them ever worked in the area again. Selleck testified, however, that no communication of the waitresses' intent not to show up, nor any explanation of their no-show or whereabouts was given to anyone at Captain Nemo's that night. In addition, Selleck denied the comments attributed to her that evening.
A makeshift work force had to be assembled that evening and Selleck herself served as a waitress to help cover for the five that were missing. Just prior to the closing of the restaurant, at about 1:00 a.m., Selleck filled out termination notices for the five absent waitresses. On each form Selleck indicated that the reason for termination was the failure to report to work that evening, and on each form Selleck recommended that the employee not be rehired. The next morning, Selleck allegedly called one of the waitresses on the telephone and commented that the general manager of the restaurant, Gary Pearson, said that the company should thank Valead "for doing the best housecleaning job ever done at Captain Nemo's." All waitresses testified that the gist of Selleck's conversation indicated that they had been discharged. That evening, four waitresses who had previously worked at a restaurant called the Shanghai Peddler, also owned by Valley Plaza President John Rapanos, reported for work at Captain Nemo's.
On November 10, four of the discharged waitresses picketed the motel entrance to
Page 240
the restaurant, protesting the company's "unfair labor practices," but left the premises on instructions from the company's security guard. That same night, busboy Brian Hopkins held a party at his home at which approximately 17 employees signed union authorization cards. The same four waitresses picketed again on November 13, this time in the parking lot outside the mall entrance to the restaurant.
By November 15, the union had obtained signed authorization cards from 29 of the restaurant's 54 employees (including the fired waitresses) and requested recognition as the collective bargaining representative of the restaurant's employees. The company refused that request. That same day, general manager Pearson conducted meetings with the day and evening shifts to discuss "employee grievances." At that meeting Pearson asked the employees to present their grievances, promised to remedy those grievances, and for the first time told employees that they could bring any problems directly to him. In addition, Pearson announced that the employees would be receiving a raise in their next check as a "Christmas present from him." Pearson also allegedly announced that a follow-up meeting would be held the next week so that employees could see that their grievances were being remedied.
On Friday, November 15, Brian Hopkins was discharged by Selleck. The discharge was purportedly based upon his noncompliance with hair length regulations. On November 21, food manager Armand Prasch called two of the kitchen cooks who had been involved in the union organization and had themselves signed authorization cards and informed them that they were to be laid off. Prasch informed them that the company was going to lay off all part-time help while closing the "Observatory Kitchen", a restaurant in another area of the Valley Plaza, for remodeling. Prasch indicated that it would be too difficult for the company to rearrange the cooks' scheduling or to allow them to work in other kitchens in the motel. This statement was made despite the fact that such schedule changes had often been made and that both cooks had often been shifted from kitchen to kitchen. Despite Prasch's statements, these two cooks were the only part-time employees laid off.
Based on these facts, the Board found that the company had violated § 8(a)(1) of the Act by engaging in the following conduct: coercively interrogating employees about their union activities and the union activities of other employees; creating the impression of surveillance and engaging in coercive surveillance of employee union activities; soliciting and remedying employee grievances and impliedly promising to remedy grievances in order to discourage support for the union; threatening to blacklist employees for having engaged in protected activity; maintaining in effect an overly broad no-solicitation rule; and announcing a wage increase during the organizing campaign in order to undermine support for the union. The Board also found that the company had violated §§ 8(a)(3) and (1) of the Act by discharging the five waitresses and busboy Hopkins and by laying off the two cooks, all in response to their union activity. In addition, the Board found that the company independently violated § 8(a)(1) of the Act by discharging the five waitresses for engaging in protected concerted activity when they stayed off the job in protest of Selleck's announced change in their working conditions. Finally, the Board found that the company had violated §§ 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the union as the representative of a majority of its employees while engaging in the antiunion conduct described. The Board determined that all this conduct undermined support for...
To continue reading
Request your trial