Atlanta Big Boy, Inc. #3

National Labor Relations Board - Board Decisions

Nov 17, 1970

186 N.L.R.B. 591 (N.L.R.B. 1970)

ATLANTA BIG BOY, INC. 591
Atlanta Big Boy, Inc. # 3 and General Teamsters Local
Union No. 528 Case 10-CA-8196
November 17, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 17, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Atlanta Big Boy, Inc.
#3, Atlanta, Georgia, its officers, agents, successors,
and assigns , shall take the action set forth in the Trial
Examiner's Recommended Order.2
I The Respondent's exceptions are in part directed to credibility
findings made by the Trial Examiner. It is the Board's established policy
not to overrule a Trial Examiner's resolutions with respect to credibility
unless the clear preponderance of all the relevant evidence convinces us
that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find insufficient basis for
disturbing the Trial Examiner's credibility findings in this case.
2 The Notice to Employees in the Appendix is amended by adding the
following to the third indented paragraph:
WE WILL NOT interfere with, restrain, or coerce employees in the
exercise of their rights of self-organization, by threats of discharge or
other reprisals.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on May 13,
1970, at Atlanta, Georgia.
The charge and amended charge were filed on March 31
and April 14, 1970, respectively. The complaint in this
matter was issued on April 15, 1970. The issues are simple
and concern whether Respondent (1) violated Section
8(a)(1) by interrogation as to union activity and by threat of
discharge because of union activity, and (2) violated
Section 8(a)(3) by its discharge of Wells because of union
activity.
All parties were afforded full opportunity to participate
in the proceeding, and briefs filed by the General Counsel
and the Respondent have been considered.'
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER2
Atlanta Big Boy Inc. #3, the Respondent, is, and has
been at all times material herein, a Georgia corporation,
with its principal office and place of business located at
Atlanta, Georgia, where it is engaged in food preparation
and service.
Respondent is a wholly owned subsidiary of Atlanta Big
Boy Management, Inc., which operates and supplies several
restaurants in the Atlanta metropolitan area . The annual
gross revenue of Atlanta Big Boy Management, Inc.,
exceeds $500,000, and it annually purchases restaurant
supplies that are shipped directly to it from outside the
State of Georgia valued in excess of $50,000.
Based upon the foregoing, it is concluded and found that
the Respondent is, and has been at all times material
herein, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
I The Respondent , in his brief , requests reconsideration of a trial ruling
concerning the evidentiary rejection of an affidavit of J. B . Bach. The
Respondent contends that such affidavit should be received into evidence
on the basis of a "necessity exception" to the hearsay rule. The Respondent
cites a number of cases related to "necessity exception" and makes
argument thereon . Suffice it to say that neither the testimonial evidence
nor statements of counsel , separately or in composite effect , meet the
criteria set forth in such cases relating to the "necessity exception."
Hamberger, the witness, testified in a general manner to the effect that he
last saw Bach on April 7, 1970. that he had tried several times to reach
Bach , and that he last tried to reach Bach on the evening of May 12 and
the morning of May 13, 1970. In answer to a leading question , Hamberger
testified to the effect that the effort to contact Bach had been continuous
since April 7, 1970. Hamberger' s testimony did not go into detail otherwise
as to the efforts to locate Bach . As indicated , I do not find the testimony of
Hamberger nor the statements of counsel (relating to the reason for not
subpenaing Bach or noncompliance with regulations as to related
procedural requests for the presentation of the affidavit) to reveal due and
diligent effort to secure Bach as a witness. Furthermore , the circumstances
do not reveal that the affidavit of Bach meets the guarantee of
trustworthiness included in the criteria of the "necessity exception"
referred to by the cases cited by counsel. Thus, Bach was an agent of the
Respondent and gave the affidavit during the investigatory stage of the
unfair labor practice charges. The circumstances are not of such a nature
as to minimize the importance of the cross-examination aspects concerned
in the normal application of the "hearsay rule." Accordingly , I reject
Respondent's request for a change in my ruling concerning the rejection of
Bach's affidavit as evidence.
2 The facts are based upon the pleadings and admissions therein.
186 NLRB No. 67
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED3 interview of employee Stewart is revealed by the following
credited excerpts of Stewart's testimony.
A. Yes. One Sunday night I was working and Mr.
Bach and Mr. Early were both there and they called me
back into the back dining room and they talked to me
and they wanted to know why the waitresses were
quitting and why they couldn't-why they had had so
many to quit.
Q. Do you remember when that was?
A. It was the Sunday before Lynn was fired.
Q. Sunday before the Monday. Is that what you are
saying?
A. Yes, sir.
Q. Who was doing the talking, Mr. Bach or Mr.
Early?
A. Mr. Bach.
Q. How did the conversation begin? What was the
subject?
A. He asked me why people were quitting and why
they hadn't been able to keep waitresses because most
of the waitresses were there anyway-
Q. Did you answer him?
A. I said that it was the supervision.
Q. Is that what you said just generally or did you
specifically say that?
A. No. I said the supervision, in those words.
Q. Now, did he mention or did he not mention the
subject of union and how did he if he did?
A. Yes. He did. We talked for a little while about
who had quit-
MR. HARRISON: I am sorry. I can't hear the witness.
THE WITNESS: We talked about who had been
quitting and he asked me if I knew anything about
anyone trying to organize a union and I didn't say
anything and he kept on asking me and then he said
well, we know someone is trying to organize a union
and so you might as well tell us because we know who
she is and I still didn't say anything and he said it is
Lynn Wells, isn't it? I said yes.
Q. And then what happened after that when Lynn
Well's name was brought up?
testimony to such effect , it is discredited . The resolution of Early's
credibility in such regard is set forth later herein in section B, pertaining to
the issues concerning Bach 's interview of employee Stewart. Further,
Phillips, Respondent's dining room supervisor, testified that she knew
nothing of Wells' activity on behalf of "International Woman 's Day," and
that she and Bach had a discussion about Wells just prior to the discharge
of Wells. Under such circumstances it clearly is not reasonable to believe
that Respondent had knowledge of Wells' activity on behalf of
"International Woman's Day" at the time of Wells' discharge on March 2,
1970.
r The facts are based upon the credited testimony of Donna Stewart.
There were two presented as witnesses to the events involved herein.
Stewart testified in a fully frank , forthright, and truthful manner. The
Respondent elicited from Stewart the fact that she had met Wells about 9
months before May 13, 1970 . From this the Respondent argues a
conjecture of bias on the basis of friendship or kindred aims in the
"International Woman 's Day ." This conjecture , however, is not supported
by the evidence . Early testified in a conclusionary manner that "Unionism"
was not involved , that "Woman's Day" was involved. Despite this, when
asked to relate in substance the conversation between Bach and Stewart,
Early made no mention of either "Unionism" or "Woman 's Day." In sum,
I found Stewart to be more fully frank , forthright , and truthful than Early.
I credit Stewart 's version of the facts and discredit Early's testimony
inconsistent with the facts found.
General Teamsters Local Union No. 528, the Union, is,
and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES4
A. The Setting
The Respondent opened a new restaurant in Atlanta,
Georgia, on Monday, February 16, 1970. During the
preceding days the Respondent interviewed and hired
employees and prepared for the opening of the restaurant
on Monday. In such preparation the Respondent conduct-
ed a "dry run" with the waitresses to see how they would
perform. The Respondent also held a general meeting on
Sunday, February 15, 1970, wherein the employees were
introduced to management, were made acquainted with
their supervisors, and were shown how the operations
would go.
Lynn Wells was interviewed and hired by the Respon-
dent to report to work on Monday, February 16, 1970.
Several days after Wells started to work on February 16,
1970, Wells contacted Cook, district representative, Gener-
al Teamsters Local Union No. 528.5 Thereafter, during the
period of time from that date until around March 2, 1970,
Wells spoke to fellow employees, male and female, about
whether there was a need or interest in a union. During the
same period of time, Wells spoke to a number of female
employees about "International Woman's Day," about
literature pertaining thereto, about a proposed march on
March 8, 1970, pertaining thereto, and gave out to
employees some pins (buttons) about "International
Woman's Day."6
B. Interrogation and Threats, March 1, 19707
On Sunday night, March 1, 1970, Bach conducted
interviews of a number of employees. With Bach at the time
of the interviews, or at least for the most part, was
Supervisor Early. What transpired with respect to the
3 The facts are based upon the pleadings and admissions therein.
4 The facts relating to the unfair labor practices are based upon a
composite of the credited aspects of the testimony of Cook, Wells, Stewart,
Phillips, Early, Haney , Todd, and Brown , and the exhibits in the record.
5 The question of Wells' union activity was fully litigated. Testimony of
Cook, Wells, and Stewart clearly was to the effect that Wells engaged in
union activity. Thus, Wells clearly stated the names of some of the
employees contacted by her. Respondent presented Lewis, Haney, Todd,
and Brown as witnesses to dispute the fact of Wells' union activity. Lewis,
Haney, Todd, and Brown presented the testimonial appearances of
witnesses who wanted to persuade that they had not been engaged in union
activity or remotely touched by the question of union activity. Cross-
examination of Brown, however , clearly revealed that Wells had in fact
contacted her about the idea of joining a union . I found Cook , Wells, and
Stewart to present the testimonial appearances of witnesses who were
frank , forthright , and truthful witnesses on the point involved and credit
their testimony. I found Lewis, Haney, Todd, and Brown not to be
completely frank and forthright in their testimony inconsistent with the
facts found herein , and discredit their testimony inconsistent with the facts
found and set forth herein.
6 The facts are undisputed that Wells engaged in activity on behalf of
"International Woman's Day." With the exception of Early's testimony,
there is no testimony or evidence otherwise to reveal that the Respondent
had knowledge of Wells' activity on behalf of "International Woman's
Day" at the time of her discharge on March 2 , 1970. As to Early's
ATLANTA BIG BOY , INC. 593
A. Well, he started telling me all the reasons that we
didn't need a union and He said that we could take any
problems to the management. We didn't-a union
wasn't needed for waitress work.
Q. Tell us whether or not he asked you anything
specifically about Lynn Wells during your talk about
the union.
A. He asked me if Lynn had been talking to some
of the waitresses who had dust quit and I said I thought
she probably had.
Q. Did he mention any waitresses by name?
A. Yes. He asked me if she had dust talked to
Shannon who had just quit and I said yes. I knew she
had talked to Shannon and that Shannon was already
thinking about quitting before Lynn had talked to her.
Q. Did he mention any other waitresses by name?
A. I don't think so.
Q. How did the conversation end about the subject
of the union?
A. Well, after he had told me the reasons for not
having the union he said if anyone is trying to organize
a union we need to get rid of her and then I went back
to work.
Considering all of the foregoing, I conclude and find that
the Respondent, by Bach, on March 1, 1970, (1)
interrogated an employee about union activities of its
employees and (2) threatened that employees would be
discharged if they engaged in union activities. Such conduct
is violative of Section 8(a)(1) of the Act. I so conclude and
find.
C. The Discharge of Wells, March 2, 1970
Lynn Wells was interviewed and hired by the Respon-
dent on February 12, 1970, and reported to work on
February 16, 1970. Wells worked thereafter until March 2,
1970 On March 2, 1970, the Respondent discharged Wells.
The issue is the reason for Wells' discharge. The only
evidence relating to conversations between Manager Bach
and Wells on March 1 and 2, 1970, consists of the testimony
of Wells. The Respondent extensively cross-examined
Wells about material issues and about other issues related
to arguments concerning Wells' credibility. Such facts
8 As to most of Wells' testimony, I found her to appear to be a fully
frank, forthright, and truthful witness As to much of Early's testimony, I
found him not to appear to be a frank, forthright, and truthful witness As
to this particular incident, there is little insight that can be gained from
their specific testimony Considering the nature of the question as to
"arrests" on the application form and the probabilities from all of the
circumstances, I am persuaded that Wells did not ask Early about "arrests"
and that her testimony is false thereto
9 There was much testimony relating to the conversations as to why
Wells could not be at the February 15, 1970, meeting , and as to the date of
Wells' marriage Thus, Supervisors Phillips and Early testified to the effect
that Wells was excused from the February 15, 1970, meeting because she
was getting married that weekend Todd testified to "hearsay" of a
conversation by Wells to similar effect Wells testified to the effect that she
told Early and others that she was in the process of getting married that
week Taking due note of the multiplicity and confusion of the questions
and answers and the logical consistency of facts, the facts reveal, as
recognized by Respondent's counsel in his brief, that Wells' marriage date
was February 22, 1970 Considering this, and the logical consistency of all
the facts, I find Wells' testimony as to the fact that she told Early and
others that she was in the process of getting married that week to be more
reliable than the different but almost similar versions of other witnesses I
note further that the notation on Wells' application for employment --will
related to the material facts and to credibility questions
may be summarized as follows.
1. Wells was interviewed and hired by the Respondent
on February 12, 1970, with reporting date to be Monday,
February 16, 1970.
2. Wells falsely answered a question on her application
form in that she indicated that she had never been arrested.
Wells attempted to explain by stating that she had asked
Supervisor Early whether " arrest" meant "arrested" or
"convicted." Wells testified that Early had said "just put
convictions." Wells credibly testified to the effect that she
had been arrested but had no final convictions. Early
credibly testified to the effect that he and Wells had not
discussed the question of "arrests" at the time of her
hiring.8
3. Wells told Early and others that she (Wells) could not
be at a proposed company meeting on Sunday, February
15, 1970, that she was in the process of getting married that
week, and that she would report to work on Monday,
February 16, 1970 9
4. Wells reported to work on Monday, February 16,
1970, and worked thereafter until March 2, 1970.
5. On February 19, 1970, Wells secured blood tests for
her marriage on the weekend. Wells was late for work,
reporting at 11:05 a.m. instead of 1 I a.m. Wells was late on
this occasion but with permission to do so in order to get
her blood tests.io
6. Wells was married on February 22, 1970.11
7. Wells contacted the Union around February 18,
1970, and thereafter spoke to employees, male and female,
preceding and after work and during lunchbreaks about the
need for a union and about having a union.i2
8. During the time of her employment, and during
nonwork hours, Wells spoke to some of the female
employees about "International Woman's Day" and a
march for such purpose on March 8, 1970. Wells also gave
some of the employees literature and pins concerning
"International Woman's Day." i3
9. Wells was reprimanded on only one occasion during
her employment. This reprimand was by Supervisor Phillips
on February 27, 1970, and was caused by Wells' reporting
to work wearing a blouse that needed to be ironed.i4
be married in a week"-and the lack of change in notations when Wells
returned the form on February 16, 1970, are consistent with the findings
herein
10 The facts are based upon Wells' credited testimony
11 The facts are based upon Wells' credited testimony.
12 As indicated in section A, I credit the facts as set forth there and
here
13 The facts, as indicated in section A. are based upon the credited
aspects of Wells' testimony Haney testified to the effect that on one
occasion she saw Wells sell and give "International Woman 's Day" pins to
two customers Wells credibly testified that two organizers of the
movement were customers one day and spoke to her about the movement
Wells credibly testified that she neither sold nor gave the women "pins,"
that she told them she could not talk about the movement while working
As a witness, Wells impressed me with an overall appearance as a fully
frank, forthright, and truthful witness I was not impressed by Haney to the
same extent Rather, Haney impressed me as a witness not telling the truth
as to whether Wells had talked to her about union activity, and as a
witness desirous of impressing others with her opposition to Wells and the
Union I credit Wells' version of the facts and discredit Haney's version of
the facts inconsistent with the facts found
i4 The facts are based upon Wells' credited testimony . Phillips'
testimony to some extent was to the effect that Wells was warned about the
(Continued)
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. The Respondent contends that Wells was late for
work on the morning of February 27, 1970, starting to work
at 11:09 instead of 11 a.m., and was late that
afternoon-starting to work at 5:05 p.m. instead of 5 p.m.
The Respondent contends that Supervisor Phillips warned
Wells about these two incidents as to being late. Wells
testified that on one occasion, other than the lateness on
February 19, 1970, that she recalled failing to punch the
timeclock and being told by Phillips that this was all
right-to just punch in.
Phillips testified to what was shown on certain timecards
of Wells. Phillips appeared in most instances to be reading
from the timecards and not to be testifying as of personal
recollection. Wells, at one point in her testimony, testified
to the effect that on one occasion during the week ending
February 28, 1970, she worked from 11 a.m. one day until
3:30 the next morning.
A careful review of the cards indicates that the 1 I a.m. to
3:30 a.m. testimonial incident occurred on February 27,
1970. Phillips testified in effect that on the afternoon of
February 27, 1970, she spoke to Wells about being late. I
note that the timecard record for Wells' work on February
27, 1970, as computed for pay purposes, presents inconsis-
tencies . Thus, the timecard reveals a clocking in at 11:09
a.m. and out at 11:10 aim. The record reveals no
explanation unless the clocking out occurred when Wells
was sent off the floor to change her blouse. The timecard
record indicated payment to Wells on the basis that she
worked continuously from 3:21 p.m. February 27, 1970, to
2:46 a.m. on February 28, 1970. The timecard record
indicates that Wells was not paid for the time of work
between 11:20 a.m. on February 27, 1970, to 3:21 p.m.
Considering all of the foregoing and Wells' appearance as
a witness, I credit her testimony to the effect that she was
not warned about being late. I further find that she was at
work at or about 11 a.m. on February 27, 1970, neglected to
clock in on time, and that Phillips told her to punch in, that
this was all right. I discredit Phillips' testimony inconsistent
with the facts found. I found Phillips, as indicated, not to
appear to be an objective witness.
11. The Respondent contends that Phillips warned
Wells about being late on February 28, 1970. Phillips
testified to the effect that Wells was supposed to be at work
at 5 p.m., that Wells showed up about 5:40 p.m., and that
she could not remember what excuse Wells had. The
timecard records reveal that Wells clocked in at 4:50 p.m.
As indicated, Wells' testimony was to the effect that she
remembered one lateness for the blood test (February 19,
1970), and one failure to properly clock in. As indicated
also, I found Phillips to appear to be an unobjective
blouse, was spoken to about her shoes, and was warned about being late.
Phillips did not appear to be a completely objective witness and appeared
to want to go further than just testify as to facts . Phillips' testimony
revealed in effect that for the first 3 weeks she was being somewhat lenient.
I do not doubt that Wells was spoken to about her shoes. I am convinced,
however, that it was not in the tone of a reprimand . As indicated elsewhere
herein, I am convinced that Wells was not reprimanded about being late. I
credit Wells' testimony because of her overall good appearance as a frank,
forthright , and truthful witness and the ring of truth in her testimony. I
discredit all testimony inconsistent with the facts found herein.
15 Phillips' testimony was to the effect that if a change were made, it
was made with prior approval by Wells . Phillips' testimony revealed that
she did not make the change . Thus Phillips' testimony is not reliable to
witness. I am not impressed that her testimony reflected her
own recollection. Rather, I am convinced that Phillips'
testimony consisted of a rationalized attempt to show that
Wells was late. I discredit Phillips' testimony to the effect
that Wells was late on February 28, 1970, or to the effect
that she warned Wells about being late on February 28,
1970.
12. On Saturday night, February 28, 1970, the Respon-
dent had changed the schedule of work so as to have Wells
working on March 1, 1970, from 11 a.m. to 2 p.m. and from
5 p.m. to close. What transpired with respect to this change
is revealed by the following credited excerpts from Wells'
testimony.15
A. Well, all during the week before on the time
schedule which they post a week ahead of time, I had
been scheduled to work from 11:00 to 2:00. That night
they changed the schedule to have me working also
from 5:00 to close. And it was a Sunday and I had
already arranged to go visit with someone out of town
and so I told this to Mr. Bach the night before and he
said that if I couldn't rearrange it to tell him in the
morning. So I tried to rearrange it but couldn't and I
called him at 8:30 or 9:00 o'clock Saturday morning
and told him that I could still work from 11:00 to 2:00
which I had been scheduled to work but I couldn't come
in for the later hours and he said that he didn't need me
from 11:00 to 2:00 so I might as well not come in.
13. On the night of March 1, 1970, as previously
indicated, Bach interviewed some of the employees,
including Stewart. Bach interrogated Stewart about union
activities of employees, about union activities of Wells, and
threatened to discharge employees who engaged in union
activities.16
14. On March 2, 1970, Bach apparently told Supervisor
Phillips that Wells had not worked on Sunday, and had not
called in. Bach and Phillips had a conversation about Wells.
The details are not in the record except to reveal that in
effect nothing was discussed about Wells in connection
with the "International Woman's Day." Bach indicated
that it was time for him to take over as is revealed by the
following credited excerpt from Phillips' testimony:
A. I know that we had talked about it and he said
that it was out of my hands that he would see to it
because I was new in supervision and she had been
told-that he would see when it was time for him to take
over.
What occurred thereafter is revealed by the following
credited excerpts from Wells' testimony: 17
A. I reported for work that morning and immedi-
ately after I reported for work Mrs. Phillips, my
establish whether a change was made or not. In this and other respects,
Phillips revealed herself as an unobjective witness. To the extent that her
testimony is to the effect that a change was not made, it is discredited.
16 The findings and details of this event are set out more fully in section
C above.
17 The facts are based upon the credited testimony of Wells. Wells as a
witness appeared to be a fully frank, forthright, and truthful witness. I have
considered the fact of her false statement about "arrests" on her
application for employment and her testimony in this proceeding
pertaining thereto . Her demeanor as a witness, her testimony otherwise,
and the logical consistency of all the facts compel and persuade me that
her testimony is true and credible as indicated herein . I credit her
testimony concerning the events of her discharge.
ATLANTA BIG BOY, INC. 595
supervisor , said that Mr. Bach wanted to talk to me in
the back room . So I went to the back dining room and
Mr. Bach sat me down and said that he wanted to talk
to me.
At that time he said we didn ' t need you. We don't
need union in the restaurant business , that it 's different
in organizing in a factory or something of that nature
and that waitresses got good wages and good tips and
especially at Atlanta Big Boy we receive particularly
good wages compared to the restaurants in town.
He went on to say that they couldn't have people
organizing unions in the restaurant business and at
Shoney's and he would have to get rid of the problem
and let me go.
Q. Tell us whether or not there was any mention of
the International Woman 's Day in this conversation?
A. No.
Contentions
Conclusions
The General Counsel contends that Wells was discharged
because of her union activity. The Respondent contends
that Wells was discharged because she did not work on
Sunday, did not call in about being late on Sunday, and was
insolent concerning remarks in her conversation with Bach
about activities on behalf of "International Woman's
Day." 78 The facts overwhelmingly reveal Wells' union
activity, Respondent's knowledge thereof and related
threats of discharge for such activity, and that Wells was
discharged for her union activity. Such conduct of
Respondent is violative of Section 8(a)(1) and (3) of the
Act. I so conclude and find.
within the meaning and in accord with the Board's
decisions in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716, excepting as
specifically modified by the wording of such Recommend-
ed Order.
Because of the character of the unfair labor practices
herein found, the Recommended Order will provide that
the Respondent cease and desist from the specific unfair
labor practices found , and that it cease and desist from in
any other manner interfering with , restraining, and
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Atlanta Big Boy Inc. #3, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. General Teamsters Local Union No. 528, the Union,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Lynn Wells on March 2, 1970, the
Respondent has discouraged union membership by dis-
criminating in regard to tenure of employment, thereby
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. By interfering with , restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(I) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Lynn Wells on March 2, 1970, in violation of
Section 8(a)(3) and (1) of the Act, the Recommended Order
will provide that Respondent make offer of reinstatement
to Wells,19 and make Wells whole for loss of earnings
is I find no evidence to reveal that Respondent had knowledge of Wells'
"international Woman's Day" activity at the time of her discharge
19 Despite Wells' marriage , she appears to still use her maiden name
The remedial order and notice will use the name "Wells" with the
understanding that it is applicable to her within the context of her married
name as well
RECOMMENDED ORDER20
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, it is
recommended that the Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in
the exercise of their rights of self-organization, by threats of
discharge or other reprisals.
(b) Coercively interrogating any of its employees as to
their or other employees' union activities or desires.
(c) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, in order to
discourage membership in any labor organization.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Lynn Wells immediate and full reinstatement to
2O In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her former position or, if such position is no longer
available, to a substantially equivalent position, without
prejudice to her seniority or other rights previously enjoyed,
and make her whole for any loss of pay suffered by reason
of the discrimination against her, in the manner described
in the Remedy section of the Trial Examiner's Decision.
(b) Notify Lynn Wells if presently serving in the Armed
Forces of the United States of her right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(d) Post at its plant at Atlanta, Georgia, copies of the
attached notice marked "Appendix." 21 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.22
IT IS FURTHER ORDERED that the allegations of the
complaint not specifically found herein to constitute
violations of the Act be dismissed.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board"
22 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 3, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Lynn Wells immediate and full
reinstatement to her former position or, if such position
is no longer available, to a substantially equivalent
position, without prejudice to her seniority or other
rights previously enjoyed, and make her whole for any
loss of pay suffered by reason of the discrimination
against her.
WE WILL notify Lynn Wells if presently serving in the
Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
WE WILL NOT coercively interrogate any of our
employees as to their or other employees' union
activities or desires.
WE WILL NOT discharge, layoff, or otherwise
discriminate against employees in regard to hire or
tenure of employment, or any term or condition of
employment, in order to encourage or discourage
membership in any labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of General
Teamsters Local Union No. 528, or any other labor
organization.
Dated By
ATLANTA BIG BOY INC. #3
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308, Telephone 404-526-5760.