N.L.R.B. v. Baja's Place, 83-5117

• Decision Date: 03 May 1984
• Docket Number: No. 83-5117,83-5117
• Citation: 733 F.2d 416
• Parties: 116 L.R.R.M. (BNA) 2245, 101 Lab.Cas. P 11,001 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAJA'S PLACE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 416

733 F.2d 416

116 L.R.R.M. (BNA) 2245, 101 Lab.Cas. P 11,001

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAJA'S PLACE, Respondent.

No. 83-5117.

United States Court of Appeals Sixth Circuit.

Argued and Submitted March 13, 1984.

Decided May 3, 1984.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Helen L. Morgan, Mark S. McCarty, argued, Washington, D.C., for petitioner.

Ellsworth K. Hanlon, Dearborn, Mich., for respondent.

Before KEITH and KRUPANSKY, Circuit Judges, and WEICK, Senior Circuit Judge.

PER CURIAM.

This case is before this court on the application for enforcement of an NLRB order issued against Baja's Place, Inc. on August 31, 1982. The order was predicated on the Board's findings that Baja's Place (Company) had violated Sec. 8(a)(1), 29 U.S.C. Sec. 158(a)(1), of the National Labor Relations Act (Act), by coercively interrogating employees about their union activities, by threatening to close the facility (a restaurant) if the employees unionized, and by creating the impression that the company had employee union activity under surveillance. The Board also concluded the Company violated Sec. 8(a)(3) and (1) of the Act when it discharged employee Marilyn Drean (Drean) as a result of her union activities.

The Board's order required the company, which is now insolvent and inoperative, to cease and desist from unfair labor practices, and to reinstate Drean to her former or a comparable position, to compensate her for lost earnings, and to expunge any reference of the discharge from the Company's personnel records.

The factual record upon which the Board's conclusions are predicated center on several incidents which occurred within approximately a three week time frame during November and December of 1980. On November 22, 1980, owner John Baja (Baja) announced at an employee meeting "the retrenchment of certain promised benefits." At the meeting, Baja also disclosed that assistant manager Sue Zukovich, who had hired most of the employees, had been discharged. On November 25, 1980, Drean contacted Dennis Tap (Tap), a business representative for Local 24 of the Hotel, Motel, Restaurant Employees, Cooks & Bartenders Union, and told him that the company employees were desirous of knowing more about union representation. Drean testified that one of the major reasons for contacting the Union was that following Zukovich's discharge, Drean felt that the Union would provide more job security for those hired by Zukovich. There was also testimony by Robin Ross (Ross), a former employee at Baja's, that there were several general discussions about unionizing during informal after hours socializing at a nearby establishment called Kernin's Steakhouse. Ross said she thought at least one of these discussions occurred prior to the November 25 meeting and that Drean was present, but the administrative law judge determined that Ross was too inconclusive on this point to substantiate that claim.

At approximately 2 p.m. on November 25, union representative Tap met with twelve or thirteen of Baja's employees at Drean's house. During this meeting Tap obtained approximately twelve union authorization cards, including one signed by Drean, and subsequently that evening, Drean solicited signatures from an additional nineteen employees.

The following day, November 26, 1980, the union filed a representation petition with the NLRB's regional office. Later that day Tap hand delivered to restaurant manager Jack Panzer (Panzer) a letter addressed to owner Baja wherein the union asserted majority status and demanded recognition. Baja testified that he obtained legal advice sometime between this date and December 3, and was advised not to discuss the union with any of his employees.

On December 3, 1980, Baja and Drean encountered one another at a local restaurant. The events of that date were greatly disputed at the hearing. The controversy focused on the conversation between the two. Drean testified that she had never seen Baja at that particular establishment prior to December 3; Baja contrarily stated that he habitually frequented the restaurant after work.

Substantively Drean testified that when the two noticed one another they initially exchanged pleasantries. According to Drean's version, Baja then insisted on knowing if Drean was aware of union activity among company employees. While denying any knowledge thereof, Drean also stated that she opined to Baja that the waitresses had become concerned about their employment security following the discharge of Zukovich, who was widely perceived to have been an effective manager. Drean related that Baja then warned her that he would close the restaurant if the union was recognized.

Baja's hearing testimony contradicted Drean's particularly with respect to the alleged threat of closure. Baja stated that when he entered the local restaurant, an intoxicated Drean accosted him. Baja said that Drean called his manager Panzer "a jerk," opined that Zukovich should not have been discharged, said that she generally liked her job, and affirmatively stated, without any prompting from Baja, that she was not involved in the union drive.

The A.L.J. credited Drean's version of the events. First, the administrative law judge noted that, as to most other matters, Drean's testimony had been reliably corroborated. The A.L.J. then considered the substantive accounts and relative demeanor of Drean and Baja:

Additionally, I find it improbable that Drean, who initiated and who largely organized employee support for the Union, would have on two occasions thereafter voluntarily and loudly proclaimed her loyalty to Respondent and her disconnection with the union effort, while she simultaneously criticized the management of the restaurant. I find it more probable that Baja, having recently been made aware of the union activities, seized the opportunity to interrogate an employee concerning the Union within the context of an ostensible, casual social encounter. His conduct, as testified to by Drean, is in accord and concurrent with the conduct of his subordinate chief cook, Brown, i.e., interrogation and threat. Finally, I found Drean's demeanor to have been more certain and to have possessed more of that quality of spontaneity characteristic of candor than the demeanor exhibited by Baja. Thus I conclude that John Baja did interrogate and threaten Drean on December 3, as testified to by Drean.

Waitress Robin Ross (Ross) testified that during the first week of December chief cook Craig Brown (Brown) initiated a conversation with her about the union. According to Ross, Brown asked her whether she knew anything about the union. Ross said she responded that she had little knowledge of the union, and that Brown then replied that he thought Baja would close the restaurant if the union organization was successful. Brown testified that he recalled the conversation, but that his only comment was his personal opinion that the restaurant could not stand the financial burden if the union was successful. Brown further testified that his only other conversations regarding unions involved encouraging employees to vote one way or the other. The A.L.J. credited Ross' account of the conversation, adding that even if Brown's statement to Ross was his own opinion, he did not clearly label it as such, and therefore, his statements could be construed as those of management. The A.L.J. further deemed Brown to have been a "supervisor" within the meaning of the Act.

Drean testified that around the same time as the Ross conversation, Brown accused Drean of being the union's "ringleader." Drean testified she denied his allegation, but when Brown persisted in asking what the employee complaints were, she listed job security and fringe benefits. According to her, Brown responded that Baja's Place would be forced to close if the union were successful. Brown could not recall this conversation. The A.L.J. concluded: "As his demeanor was uncertain and as he did not explicitly deny the aforesaid conversation with Drean, I credit her testimony."

The events reached a head on December 11 with an altercation between Drean and Baja. The facts surrounding the incident are again greatly disputed, and the testimony of the participants and witnesses provided little clarification as to what actually happened.

Drean testified that, at about 7:30 p.m. she and her neighbor, Debbie Celski (Celski) were together celebrating Celski's birthday. Drean stated that at about 10 p.m. they arrived at Baja's Place. When they arrived, they were seated at a table near the railing adjacent to the bar, and waitress Robin Ross accepted their order. However, Drean testified, Ross delivered a drink only for Celski. Ross advised Drean that she had been instructed by Baja not to serve Drean. Drean, Celski, and Ross testified that only at that point did Drean approach the bar where Baja was seated, and there ensued a profane, heated argument. According to Drean, Baja directed her to vacate the premises. Drean testified that she was shocked by the intensity of Baja's statements and returned to Celski's table. She said she attempted to sip from Celski's drink but that Baja removed the drink from her hand, and again ordered the two women to leave. Drean said she and Celski then left, unescorted.

Baja's narrative, which was supported by that of Brown and bartender Gary Wood (Wood), completely contradicted Drean's version. Baja stated that immediately after Celski and Drean were seated, Drean approached him while he was at the bar with Brown. Baja testified that Drean initiated a conversation on the same issues which had been raised during their December 3 confrontation. Neither Brown nor Wood testified as to the substance of the Baja-Drean conversation. However, they both testified that Drean appeared slightly intoxicated. Waitress Ross testified that she didn't understand why Baja had refused to serve Drean.

Baja testified that after...