Gold Coast Restaurant Corp. v. N.L.R.B.
| Decision Date | 11 June 1993 |
| Docket Number | No. 91-1533,91-1533 |
| Citation | 995 F.2d 257 |
| Parties | 143 L.R.R.M. (BNA) 2505, 301 U.S.App.D.C. 357, 125 Lab.Cas. P 10,733 GOLD COAST RESTAURANT CORPORATION D/B/A Bryant & Cooper Steakhouse, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor Relations Board (304 NLRB No. 96).
Martin Gringer, Garden City, NY, argued the cause, for the petitioner.
Vincent J. Falvo, Atty., N.L.R.B., argued the cause for the appellee. On brief were Jerry M. Hunter, Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Peter Winkler, Atty., N.L.R.B., Washington, DC.
Before RUTH BADER GINSBURG, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
The employer petitions for review of the findings of the National Labor Relations Board (NLRB or Board) that it engaged in unfair labor practices in response to a unionization drive among its employees. We deny the petition in all respects except two: we remand to the Board to amend, consistently with this opinion, its order regarding the employer's written disciplinary system and we do not reach the NLRB's decision to order a second union election.
In September 1985, James, Gillis and Dean Poll (Polls), the sole shareholders and directors of Gold Coast Restaurant Corporation, purchased a restaurant called Manero's in Roslyn, New York. At the time, the Hotel Employees and Restaurant Employees Union Local 100 (Union) represented Manero's workers. Several months later, however, the employees voted to leave the Union. In July 1987 the Polls closed the restaurant for extensive remodelling. They redecorated the restaurant's interior, upgraded the bar and the menu and renamed it Bryant and Cooper's Steakhouse (B & C). Upon re-opening, the Polls offered jobs to all of their old employees.
Several months after B & C opened, some of its employees attempted to reunionize the restaurant. A few employees, including Stephen Engelhardt, a waiter, distributed union authorization cards and urged waiters, busboys and kitchen workers to sign the cards. As a result of their effort, on November 20, 1987, the employees petitioned B & C for an election. Trouble began two days later. First, the Polls instituted a formal, written system of discipline at the restaurant. Before then, they had kept no employee disciplinary records. Second, the Polls made changes in employees' work schedules. Engelhardt and his partner, 1 Gallo Ramirez, both full time waiters, routinely worked Friday and Saturday nights. Those nights, the busiest of the week, produced the best tips. On November 22, the Polls posted a new work schedule which removed Engelhardt and Ramirez from the Friday and Saturday night shifts. The schedule also changed Engelhardt's day off from Monday to Wednesday. When Engelhardt and Ramirez complained to the Polls about the changes, the Polls gave the two their old shifts in time for them to work the upcoming weekend and changed Engelhardt's day off to Monday. The Polls claimed they had simply made an error in the schedule. Nonetheless, Engelhardt saw the schedule change as retaliation for his role in petitioning for a union election.
Subsequently, the Polls questioned Ramirez about his involvement in union activities. Gillis Poll asked Ramirez about the amount of union sympathy among the employees. Another time, James Poll called Ramirez into his office, where all three Polls were waiting, and tried to discover whether Ramirez supported the Union and whether Ramirez knew of other employees who supported it.
On December 4, Dean Poll sent an open letter to all employees, urging them not to vote for unionization in the upcoming election. The letter noted the changes at the restaurant since the employees were last unionized. The letter concluded:
We firmly believe that a union is not necessary nor desirable here. The restaurant business is a gamble. We have hit upon a formula that will get us to the top and keep us there. This would be good for everyone. A successful business is the only job security in the restaurant business. I can tell you about hundreds of restaurants in New York which were unionized that have gone out of business. The union was unable to do anything to save the jobs of the employees in these restaurants. In our opinion, the union may have even contributed to some of these closings. Service tends to get lazy and tired at these places. When people come to these places, they don't have a good time and they don't come back. When that happens, a closing is inevitable.
We don't want that to happen here. You have an opportunity to prevent it.
Joint Appendix (J.A.) at 86-87.
Eight days later, the Union lost the election by a vote of 18 to 16 but the result did not bring peace to the steakhouse. On December 14, the Polls once again split up the team of Engelhardt and Ramirez and switched Engelhardt's day off to Wednesday. They said they made the change because Engelhardt repeatedly showed up late to work Wednesday lunches. On that date, James Poll also approached Ramirez and stated, "You got all my people from the kitchen."
At the same time, Engelhardt began to antagonize the B & C management. After the election, Engelhardt refused to follow the customary practice of tipping the bartenders because he suspected they had voted against the Union. Although Engelhardt claimed that other waiters followed suit, B & C, operating under its new written disciplinary system, issued a warning to Engelhardt only. It issued another warning to Engelhardt for reporting to work late on December 17. Engelhardt claimed that other waiters frequently came to work late and did not receive formal warnings.
Two days later, Engelhardt received another written warning--this time as the result of an incident the Polls viewed as serious insubordination. Judy Roberts, B & C's bookkeeper, told Engelhardt she was expecting a guest at the restaurant and asked Engelhardt if he knew who would be serving him. Engelhardt remarked that if he were waiting on the guest, he would probably "spit in his food." When Roberts told Gillis Poll of the incident, Poll confronted Engelhardt who claimed that the remark was a joke. Poll then issued Engelhardt a formal warning.
On December 29, B & C issued two more warnings to Engelhardt and then suspended him from work for five days. The first warning resulted from a conversation Engelhardt had with Gillis Poll. Due to a back injury, Engelhardt had missed work on Christmas Eve. When he returned on the 29th, Gillis Poll asked him if his back was better. Engelhardt answered, "Why, do you want it to be?" Poll then issued a formal warning. The second warning involved Engelhardt's failure to report his tips for income tax purposes. B & C maintained that Engelhardt reported less than five percent of his check total as tips while company policy required waiters to report at least eight percent. Because he believed B & C knew that many waiters at the restaurant were underreporting tip income, Engelhardt viewed this warning as discriminatory disciplinary action.
Toward the end of his shift on December 29, Engelhardt left the floor of the dining area and went to a back room to tally his checks and smoke some cigarettes. Other employees were also smoking in the room. B & C prohibited smoking in the restaurant but employees sometimes smoked in the back room with management's knowledge. That night, Gillis Poll approached Engelhardt and asked him what he was doing. Engelhardt replied that he was tallying his checks. Poll said nothing else until later that night when he told Engelhardt that he was suspended for five days. B & C did not take disciplinary action against any other personnel for smoking in the back room that night.
On January 9, Engelhardt returned to work. He and Ramirez were working in the same area of the dining room but not on the same team. After watching Ramirez help Engelhardt serve some wine, Gillis Poll ordered Ramirez into the kitchen and suspended him for five days for working with Engelhardt. Later, he also suspended Engelhardt, telling him that he was costing the Polls more money than he was worth. B & C claimed that Ramirez and Engelhardt had "pooled their stations" for the evening in violation of company policy. Engelhardt and Ramirez maintained that they were merely following the company policy of helping each other whenever possible.
Finally, on January 21, Engelhardt quit his job at B & C. He filed an unfair labor practice complaint with the NLRB and the NLRB General Counsel issued a complaint alleging inter alia that, beginning in mid-December, Gillis Poll systematically reduced Engelhardt's tips by preferentially seating customers in sections assigned to other waiters. Engelhardt testified that his tips fell from approximately $500 per week to $300 per week, making it impossible for him to continue working at the restaurant.
Rense Schalen began working at B & C several months after the events involving Engelhardt and Ramirez. In September 1988 Schalen, along with several other waiters, agreed to work a private party at B & C before the normal shift. They expected to be paid $106 each but, at the end of the party, each waiter received only $70. The waiters discussed the matter among themselves during their normal shift and decided to talk to Gillis Poll about it after the restaurant closed. Before his shift ended, however, Schalen called his girlfriend from a pay phone near the bar and told her what had happened, indicating that he intended to file a formal complaint with the NLRB. Dean and Gillis Poll were seated at the bar a few feet away. When Schalen hung up, Dean Poll asked him if he objected to the $70 payment....
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