T. A. O'donnell, Doing Business As O'donnell's Sea Grill And United Cafeteria & Restaurant Workers Local 471, United Federal Workers Of America, C. I. O., 828 (1944)

Docket Number:5-C-1622
Party Name:844
 
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In the Matter of T. A. O'DONNELL, DOING BUSINESS AS O'DONNELL'S SEA GRILL and UNITED CAFETERIA & RESTAURANT WORKERS LOCAL 471, UNITED FEDERAL WORKERS OF AMERICA, C. I. O.

Case No. 5-C-1622.-Decided March 30, 1944 DECISION AND ORDER On November 13, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto. Thereater, the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. Pursuant to notice duly served upon all parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on January 27, 1944. The respondent was represented by counsel and participated in the oral argument. The Union did not appear.

The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as hereinafter modified.

  1. The Trial Examiner in his Intermediate Report found that Alexander was discriminatorily discharged and recommended that the respondent be directed to reinstate Alexander with back pay. We concur in the finding that Alexander was discriminatorily discharged.

    While we find that Alexander's discharge was an unfair labor practice, his record of absenteeism combined with his lack of candor on the witness stand, was such that, upon the entire record, we do not believe that his reinstatement would effectuate the policies of the Act. We shall, therefore, not order the respondent to reinstate Alexander or to pay him back pay.

  2. The Trial Examiner recommended that the respondent pay to Jones and Washington, bus girls, an amount equal to the average tips 828 829 received by each from waiters in the employ of the respondent, in addition to the amount they received as compensation from the respondent. There is some evidence here that the respondent expects his waiters to give bus girls a minimum of 15 cents a day. There was no showing that such custom was universally followed. Consequently, what tips Jones and Washington might have received from such sources would be negligible in the determination of the bus girls' wages. Accordingly, we shall therefore direct the respondent to pay to Jones and Washington only the amount of the actual compensation that the respondent would have paid them but for the discrimination.

    ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, T. A. O'Donnell, doing business as O'Donnell's Sea Grill, Washington, D. C., and his agents, successors, and assigns shall:

  3. Cease and desist from:

    (a) Discouraging membership in United Cafeteria & Restaurant Workers, Local 471, United Federal Workers of America, C. I. O., or any other labor organization of his employees, by discharging or refusing to reinstate any of his employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of their employment;

    (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act.

  4. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

    (a) Offer to Alberta, Elizabeth Washington immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges;

    (b) Make whole Alberta Elizabeth Washington and Lizzie Jones for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages: (1) in the case of Alberta Elizabeth Washington, from the date of her discharge to the date the respondent's offer of reinstatement, less her net earnings during such period, and (2) in the case of Lizzie Jones, from the date upon which she was discharged to the date upon which she was reinstated, less her net earnings during said period;

    (c) Post immediately in conspicuous places throughout his Sea Grill, 1221 E Street, N. W., Washington, D. C., and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating: (1) that the respondent will not engage in the conduct from which it is ordered that he cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of United Cafeteria & Restaurant Workers, Local 471, United Federal Workers of America, C. I., and that the respondent will not discriminate against any of his employees because of membership in or activity on behalf of that organization;

    and (c) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.

    INTERMEDIATE REPORT Mr. Robert T. Drake, for the Board.

    Messrs. Joseph F. Castiello, Charles E. Ford, and Austin F. Canfield, of Washington, D. C., for the respondent.

    Mrs. Jewell Mazique and Mr. James E. Harris, of Washington, D. C., for the Union.

    STATEMENT OF THE CASE Upon an amended charge duly filed on September 14, 1943, by United Cafteria & Restaurant Workers, Local 471, United Federal Workers of America, C. L O., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifth Region (Baltimore, Maryland) issued its complaint, dated September 14, 1943, against T. A. O'Donnell, doing business as O'Donnell's Sea Grill, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union.

    With respect to the unfair labor practices, the complaint alleged in substance that the respondent personally and by his agents: (1) on or about March 28, 1943, discharged William Alexander,' and, on or about April 2, 1943, discharged Alberta Washington and Lizzie Jones because each of said employees joined and assisted the Union, and thereafter refused to reinstate said William Alexander and Alberta Washington to their former or substantially equivalent positions; and (2) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act by: (a) statements and speeches expressing displeasure to employees concerning their union activities, (b) urging, 1 Referred to in the record as William Alexander, Jr.

    2 Referred to in the record as Alberta Elizabeth Washington.

    persuading, and warning employees to refrain from becoming or remaining members of the Union, and (c) interrogating and inquiring of employees as to membership or activities in behalf of the Union. The respondent did not file an answer.

    Pursuant to notice, a hearing was held at Washington, D. C., on September 29 and 30 and October 1, 2, and 4, 1943, before David Karasick, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were each represented by counsel and the Union by its representatives; all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.

    At the commencement of the hearing, counsel for the respondent moved to exclude witnesses from the hearing room. The motion was granted over objection by counsel for the Board. At the close of the Board's case and again at the conclusion of the respondent's case, the respondent moved to dismiss (1) the entire complaint, and (2) the allegations of the complaint that T. A.

    O'Donnell personally had committed any of the unfair labor practices charged.

    The undersigned denied these motions when presented at the conclusion of the Board's case, and reserved ruling thereon when presented at the close of the respondent's case. The motions are hereby denied. At the close of the hearing, motion of counsel for the Board to conform the complaint to the proof, insofar as formal matters were concerned, was granted without objection. Neither counsel for the Board nor counsel for the respondent availed themselves of the opportunity afforded to present oral argument before the undersigned, or to file briefs.

    On October 21, 1943, counsel for the respondent filed with the undersigned a stipulation to correct certain errors in the transcript of testimony, which had been entered into between counsel for the Board and the respondent and a representative of the Union. On November 2, 1943, the undersigned issued an order directing that the corrections be made pursuant to the foregoing stipulation.

    Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following:

    FINDINGS OF FACT I. THE...

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