###

The National Labor Relations Board has ordered Arcata Theatre Lounge to offer a bartender her job back, plus back wages and interest, for violating federal labor law by firing her for complaining about the company’s tipping policy.

According to the decision, which was enforced by the Ninth Circuit Court of Appeals earlier this month, former ATL employee Rebecca Maynard was engaged in legally protected activity when she complained to her coworkers and bosses about the company’s “tightly controlled tipping policy.”

From her very first day on the job, in late August 2021, Maynard objected to the fact that bartenders’ cash tips got pulled out of a communal tip jar at the end of each shift to be tallied up and distributed later via employee paychecks. She talked to her coworkers and bosses and eventually consulted with an attorney about the practice, and when word got back to her bosses they promptly terminated her.

A section of the company handbook addressing the tipping policy says, “All employees have the right to be present when tips are counted.”

By firing her for “insubordination,” the business committed an unfair labor practice, interfering with Maynard’s right to unionize/organize with coworkers, the Labor Board’s ruling says.

The case was tried this past November before an administrative law judge, who interviewed Maynard and others, including Arcata Theatre Lounge owner Timothy Overturf and several of his employees.

According to the testimony given at this hearing, Maynard was roommates with another ATL employee, a security guard who was promoted to a supervisory position shortly before Maynard was fired. This roommate testified that he overheard Maynard talking to an attorney about the ATL’s tipping policy and reported that fact to his bosses.

When Overturf fired Maynard on October 7, 2021, he told her it was for insubordination.

“He also told Maynard that her talking about wages brought down morale and that amounted to insubordination,” the Labor Board ruling says, citing Maynard’s own “uncontradicted testimony.”

Later that night, Maynard texted General Manager Monica Munoz:

I guess I really feel bummed that I was terminated for questioning the tip pooling policy. I don’t think I was being cruel or malicious. I was just trying to figure it all out as the tip pooling at Arcata Theatre Lounge didn’t make sense … to me. That’s all. Best to you. Anyhow, I can accept your decision.

Four days later, Munoz texted Maynard back, telling her that she was actually fired for other reasons, such as “saying inappropriate things in the workplace,” repeatedly calling coworkers “explicit names,” painting while on the clock and often showing up late for shifts.

However, Munoz then offered a defense of the company’s “voluntary tip pools” and told Maynard, “You had every chance to come to me and talk to me about any questions you had about pay or tips and did not make any effort for clarification yet went to multiple workers to complain.”

During the administrative law hearing, Overturf and several of his employees testified that Maynard was fired for reasons beyond the tipping policy complaints, but Judge Gerald Etchingham didn’t buy it. 

“Some of the allegations were vague and others lacked substance,” he ruled. Nothing in the record supported the allegation that Maynard showed up late for shifts. Etchingham found the testimony of the ATL’s head of security “unreliable” and described him as “quite flippant” and “not serious about providing reliable testimony.”

In the end, Etchingham concluded that these other “supposed improprieties” were mere pretexts for firing Maynard.

“The important thing about all of these alleged improprieties is this: Monica [Munoz] admitted that she, who was the General Manager … and the official in charge of issuing written warnings, never issued any written warnings to Maynard about these alleged improprieties,” the ruling says.

The evidence “overwhelmingly supports” the conclusions that Maynard was fired for complaining about the tipping policy, he adds.

“By discharging employee Rebecca Maynard on October 7, 2021, because of her protected concerted activities, [the Arcata Theatre Lounge] violated Section 8(a)(1) of the [National Labor Relations] Act and committed an unfair labor practice within the meaning of the Act,” the ruling concludes.

As a remedy, the ATL has been ordered to perform multiple tasks, including:

• offer Maynard her former job or a “substantially equivalent position,”
• make Maynard whole for any loss of earnings and other benefits she suffered as a result of being fired,
• compensate Maynard for any adverse tax consequences of receiving a “lump-sum backpay award,” and
• post a notice to employees informing them that the business violated Federal labor law, giving them the facts of the case and advising them of their own labor rights. 

The Outpost was unable to track down Maynard for comment, so we don’t know if she plans to take her old job back. We tried to reach Overturf but the number for the business listed on line was not functioning earlier today, and he did not immediately respond to an email and Facebook message.

###

DOCUMENTS:

• Administrative Law Judge’s Decision
• Circuit Court Judgement