NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,401, GOEMON AMERICA, INC. and LEE-ANN FARRELL., (July 22, 1994), National Labor Relations Board, (Jul 22, 1994)

GOEMON AMERICA, INC. and LEE-ANN FARRELL.

314 NLRB No. 87.Case No. 1-CA-30076. July 22, 1994 Lowell M. Goerlich, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Gerald Wolper, for General Counsel. Joel Shames, Boston, Massachusetts, for Respondent. Lee-Ann Farrell, Littleton, Massachusetts, in propria persona.

Discharges--Timing--Concerted, Protected Activity.--By discharging an employee immediately after she indicated that she would go to the Labor Board with her complaints, an employer discriminated against her. Although the employer alleged that the employee quit her job, she was told that she was being terminated and the statement of a supervision plainly conveyed to the employee that she was being discharged. Section 8(a)(4).

Back reference: ¶4100.104.

No-Solicitation and No-Distribution--Fact Finding--Application to Nonwork Time.--On the facts, by maintaining an overly-broad no-solicitation rule that employees might interpret as a prohibition of union solicitation during nonworking time, an employer interfered with its employees’ right to select a bargaining representative. Section 8(a)(1).

From Text of Board’s Decision

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, [1] and conclusions, except as clarified below, and to adopt the recommended Order as modified. [2]

In adopting the judge’s decision, we find that the credited evidence set forth below clearly establishes that the Respondent, through Restaurant Manager Jenny Hernandez, discharged Lee-Ann Farrell on December 22, 1992. [3] Therefore we find no merit to the Respondent’s argument in its exceptions that Farrell quit.

The credited evidence shows that, following a confrontation between Farrell and Vice President Eleanor Arpino around noon on December 22, Hernandez, Farrell’s immediate supervisor, met with Farrell several times on that same afternoon. At their first meeting, which occurred in a back room only a few minutes after the Arpino-Farrell confrontation, Hernandez counseled Farrell to stay out of Arpino’s way, and also announced that General Manager Scott Hosker wanted to have a meeting with her at 4 o’clock, when her shift ended. Hernandez next spoke with Farrell in the ladies room, and again cautioned Farrell to stay away from Arpino. Farrell replied, “Well, if I’m going to be fired, then they should fire me now instead of making me work out the rest of the day because I’m going right to the Labor Board.”

The third meeting occurred about 5 minutes later, when Hernandez took Farrell into her office and said, according to the credited testimony:

I’m so sorry Lee-Ann, I know we’re friends, but I don’t even know if I should say that, but I had to tell Eleanor what you told me, because if she knew that I knew what you said to me in the bathroom, then, about going to the Labor Board, then I would have been fired too. [Emphasis added.]

Farrell then asked,

Well, am I fired: Am I fired? And she [Hernandez] kept telling me how sorry she was, and I said, “Well, if I’m fired, I want my checks, I want my checks. I want a copy of the warning I was given yesterday and to cancel my tables or something.” [4]

Hernandez replied, “Well, let’s go talk to Eleanor.” Farrell declined to talk to Arpino because “I was very upset. I was crying and I didn’t want to let her [Eleanor] see me that way.” Farrell then went into the bathroom to wipe her face, and “Jenny came into the bathroom and she was telling me how sorry she was, how sorry she was, and she said, Why don’t we go talk to Eleanor?, and I said, I can’t talk to Eleanor. I can’t even talk to you right now, I’m too hurt.”

Farrell then went near the cashier’s desk to wait for her checks and a copy of the warning. Hernandez came by soon thereafter and pulled Farrell into the employee coat room, handed her the warning and one of her paychecks, and said, “You’re not being fired for this warning, you’re being fired for the way you spoke to Eleanor.”

We find that Hernandez’ statements, quoted above, plainly conveyed to Farrell that she was being discharged, and that Farrell’s demand for her paychecks was predicated on her understanding that she was fired. Accordingly, we find no merit in the Respondent’s contentions that Farrell was not discharged, but merely quit her employment.

¹	The Respondent has excepted to some of the judge’s credibility findings, and contends that they are a result of bias. 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). After a careful examination of the record, we find no merit in the allegation of bias, and we further find no basis for reversing the credibility findings. However, in affirming the judge’s credibility findings, we do not rely on his characterization of the court’s holding in Turnbull Cone Baking Co. v. NLRB, [103 LC ¶11,726] 778 F.2d 292, 297 (6th Cir. 1985), cert. denied [104 LC ¶11,814] 476 U.S. 1159 (1986).
²	The judge found, inter alia, that the Respondent violated Sec. 8(a)(1) of the Act by maintaining an overly broad no-solicitation rule in its Policies and Procedures Handbook. The General Counsel excepted to the judge’s omission of this violation from his conclusions of law, and to his failure to order the Respondent to rescind the rule because maintaining it serves to inhibit employees form engaging in otherwise protected organizational activity. J. C. Penney Co., [1983-84 CCH NLRB ¶15,775] 266 NLRB 1223, 1224-1225 (1983); Kinder-Care Learning Centers, [1989-90 CCH NLRB ¶16,278] 299 NLRB 1171, 1176 (1990). We find merit in these exceptions and shall modify the Order and notice accordingly.
³	Indeed, Hernandez testified that she had authority to discharge restaurant employees and had done so on previous occasions.
⁴	Farrell removed her apron at this point, according to the testimony of Hernandez.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,401, GOEMON AMERICA, INC. and LEE-ANN FARRELL., (July 22, 1994), National Labor Relations Board, (Jul 22, 1994)

GOEMON AMERICA, INC. and LEE-ANN FARRELL.

314 NLRB No. 87.Case No. 1-CA-30076. July 22, 1994 Lowell M. Goerlich, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Gerald Wolper, for General Counsel. Joel Shames, Boston, Massachusetts, for Respondent. Lee-Ann Farrell, Littleton, Massachusetts, in propria persona.

Back reference: ¶4100.104.

From Text of Board’s Decision

The third meeting occurred about 5 minutes later, when Hernandez took Farrell into her office and said, according to the credited testimony:

Farrell then asked,

¹	The Respondent has excepted to some of the judge’s credibility findings, and contends that they are a result of bias. 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). After a careful examination of the record, we find no merit in the allegation of bias, and we further find no basis for reversing the credibility findings. However, in affirming the judge’s credibility findings, we do not rely on his characterization of the court’s holding in Turnbull Cone Baking Co. v. NLRB, [103 LC ¶11,726] 778 F.2d 292, 297 (6th Cir. 1985), cert. denied [104 LC ¶11,814] 476 U.S. 1159 (1986).
²	The judge found, inter alia, that the Respondent violated Sec. 8(a)(1) of the Act by maintaining an overly broad no-solicitation rule in its Policies and Procedures Handbook. The General Counsel excepted to the judge’s omission of this violation from his conclusions of law, and to his failure to order the Respondent to rescind the rule because maintaining it serves to inhibit employees form engaging in otherwise protected organizational activity. J. C. Penney Co., [1983-84 CCH NLRB ¶15,775] 266 NLRB 1223, 1224-1225 (1983); Kinder-Care Learning Centers, [1989-90 CCH NLRB ¶16,278] 299 NLRB 1171, 1176 (1990). We find merit in these exceptions and shall modify the Order and notice accordingly.
³	Indeed, Hernandez testified that she had authority to discharge restaurant employees and had done so on previous occasions.
⁴	Farrell removed her apron at this point, according to the testimony of Hernandez.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,401, GOEMON AMERICA, INC. and LEE-ANN FARRELL., (July 22, 1994), National Labor Relations Board, (Jul 22, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,401, GOEMON AMERICA, INC. and LEE-ANN FARRELL., (July 22, 1994), National Labor Relations Board, (Jul 22, 1994)

From Text of Board’s Decision

Footnotes