Clock Restaurant No. Seventeen

National Labor Relations Board - Board Decisions

Jul 15, 1974

212 N.L.R.B. 423 (N.L.R.B. 1974)

CLOCK RESTAURANT NO. SEVENTEEN 423
Sam and Margaret Foods, Inc., d /b/a Clock Restau-
rant No . Seventeen and Local 705, Hotel, Motel and
Restaurant Employees Union , AFL-CIO. Cases 7-
CA-10641 (1-2)
July 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Act.2 At the close of the hearing the General Counsel
amended the complaint to allege certain independent viola-
tions of Section 8(a)(1) which he maintained had been es-
tablished by the evidence.
Pursuant to due notice , a hearing on the complaint was
held before me in Detroit , Michigan , on January 3, 4, and
10, 1974. All parties were afforded full opportunity to be
heard , to present oral and written evidence , and to examine
and cross -examine witnesses. The parties waived oral argu-
ment and Respondent filed a brief.
Upon the entire record , observation of the witnesses and
consideration of the brief , I make the following:
On March 21, 1974, Administrative Law Judge Jo-
sephine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Sam and Margaret Foods,
Inc., d/b/a Clock Restaurant No. Seventeen, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge- Upon
charges filed against Sam and Margaret Foods, Inc., d/b/a
Clock Restaurant No. Seventeen (Respondent), by Local
705, Hotel, Motel and Restaurant Employees Union, AFL-
CIO (the Union), on October 1 and 3, 1973,1 a complaint
was issued on November 15 alleging that on September 27
two employees (Mary Ballew and Judi Pranion) were dis-
charged because of their union activities and that on Sep-
tember 30 and October 1 Respondent refused to reinstate
four employees (Kathy Braun, Joy Brown, Barbara A. Har-
dy, and M. Kay Williams) who had engaged in a strike to
protest the Ballew and Pranion discharges. This conduct
was alleged to have violated Section 8(a)(1) and (3) of the
1 Except where otherwise indicated, all dates herein are in 1973
FINDINGS OF FACT
I PRELIMINARY FINDINGS
The complaint alleges, the answer admits, and I find that:
A. Respondent, a Michigan corporation, is engaged in
the retail sale of food and beverages for on-premise con-
sumption at three locations in the Detroit metropolitan
area . During the fiscal year ending October 31, 1973, Re-
spondent derived gross revenues in excess of $500,000 at its
three locations. During the same period Respondent pur-
chased goods valued at approximately $5,000 from a Michi-
gan supplier who received these commodities directly from
outside the State of Michigan. Respondent is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Union is and has been at all times material herein
a labor organization within the meaning of Section 2(5) of
the Act.
11 THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Respondent operates three Clock Restaurants, under
franchise from Joseph Everson. The only restaurant in-
volved in this case is that located in 13240 Gratiot, Detroit,
Michigan.
The restaurant is open 24 hours a day, 7 days a week, with
three 8-hour shifts. On each shift there are approximately
eight employees: two cooks, one busboy, one dishwasher,
one cashier (and/or one hostess), and three waitresses. In
addition, at least during the day shift (8 a.m. to 4 p.m.), there
apparently is additional help during the luncheon rush.
Peter Monteleone is Respondent's president and appar-
ently sole stockholder. He normally spends several hours a
day at the Gratiot Street restaurant Although his hours
vary, he generally is at the restaurant from around 8 or 9
a.m. until after lunch. Primary responsibility for the day-to-
day operation of the restaurant rests on Charles J. Williams,
the manager, who spends long hours at the restaurant and,
among his many duties, serves as a cook.
Around the beginning of 1972 the Union conducted an
organizing campaign at the restaurant. It filed a representa-
2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29
U S C Sec 151. et seq )
212 NLRB No. 64
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion petition in January 1972. A hearing was held and on
April 2, 1972, an election was held pursuant to the Regional
Director's decision. The Union lost the election and the
results thereof were certified on June 20, 1972 (Case 7-
RC-10983). During the 1972 campaign, Pranion was an
ardent union supporter and testified at the hearing on be-
half of the Union.
According to employee testimony in the present hearing,
during the 1972 campaign, just before the hearing, manage-
ment convened an employee meeting, conducted primarily
by Joseph Everson, the restaurant's franchisor, and his son,
Thomas. At that time, the employees apparently understood
that if they rejected the Union they would receive wage
increases and some form of insurance or health benefits
Some months later wage increases were provided. Each em-
ployee was to receive an increase of 10 cents per hour for
each anniversary of his original hire. No insurance or health
benefits were granted.
Being dissatisfied, some of the employees continued to
discuss unionization among themselves but took no direct
action, simply "biding their time," until September 1973. So
far as the record discloses, Ballew, Pranion, Hardy, and Kay
Williams, four of the six subjects of this proceeding, were
the only persons employed by Respondent both during the
1972 union campaign and in September 1973.
Around September 10 Ballew, with Kathy Braun present,
asked Kathy's brother, Michael, a former employee and
current frequent patron of Respondent's restaurant, to tele-
phone the Union about again trying to organize the employ-
ees. Michael telephoned from one of two telephones at the
restaurant. Shortly thereafter Kathy, on her own initiative,
went to the office and told Manager Charles Williams of
Michael's having telephoned the Union at Ballew's request.
Kathy's motivation in taking this step was apparently to
"protect" her brother from undue influence by Ballew,
whom, over Kathy's disapproval, Michael was then "dat-
ing."
After receiving Kathy's information, Williams had Bal-
lew report to the office. When asked who had had Michael
call the Union, Ballew disclaimed any knowledge of what
Williams was talking about. Ballew left the office and Kathy
Braun was called back. Concerning her conversation with
Williams, Ballew testified: "He used the tone of voice-he
was mad-I want to know who had Michael tell the union.
I was scared. I knew right away if I said I did, I would be
fired." Kathy Braun testified that Williams told her that
Ballew said Braun had asked Michael to call the Union and
that Williams said he would "have to do something because
they tried this once before and it didn't go through."
Williams testified that when Kathy told him about the
call to the Union, he paid little attention and told Kathy to
give it no further thought. He said, further, that he consid-
ered the matter to be of little importance and a "personal"
matter between Ballew and Braun. Thus, Williams main-
tained, he never passed this information on to Monteleone.
For reasons set forth below, I discredit Williams' testimony.
No communication from the Union resulted from
Michael's telephone call. Accordingly, around September
20, Margaret Kay Williams (hereafter called Kay, as she is
generally known), a waitress at the restaurant and Manager
Williams' wife, telephoned the Union from the restaurant.
When, after the conversation had gone on for some time, the
union representative asked for Kay's address so that he
could send her material, she turned the telephone over to
Judi Pranion, who was with her at the time. Pranion gave
the Union her address but not her name. She asked that the
union material be sent to the "Occupant" at her address.
There was no evidence that either Monteleone or Wil-
liams was present when the telephone calls were made to the
Union from the restaurant. However, there was credited
evidence that on or about September 21 Monteleone asked
Pranion her address. Pranion testified that Kathy Braun
had reported seeing Monteleone unsuccessfully searching
his card file for Ballew's and Pranion's addresses. Montel-
eone testified that he had asked Pranion her address to assist
him in visualizing another address in relationship to the
restaurant.
On September 25 Ballew, in the company of Pramon and
Braun, again telephoned the Union from a restaurant tele-
phone. Arrangements were made for a union meeting at a
nearby restaurant at the conclusion of Respondent's first
shift the next day. That union meeting was attended by
about 10 employees, all of whom signed union authorization
cards. Pranion and Braun took additional blank cards and
Braun then returned to the restaurant to solicit signatures
from employees on the afternoon (4 p.m to midnight) shift.
She obtained five cards, while three employees refused to
sign.3
The next day, September 27, Monteleone arrived at the
restaurant apparently sometime around 9 a.m. Williams,
having worked the midnight shift (midnight to 8 a.m.), left
apparently around 8:30 a.m., but returned sometime around
I I to 11:30 a.m for the luncheon rush period. William E.
Bufalino, II, Esquire, Respondent's counsel, came to the
restaurant apparently around noontime. Bufalino and
Monteleone sat together in the restaurant's lounge. Wil-
liams joined them for awhile. According to Monteleone,
Williams asked to speak to Monteleone privately, so the two
men went off to the office. According to Monteleone, Wil-
liams first asked if it was all right for him to discharge
Ballew Monteleone's testimony in this connection is dis-
cussed in more detail below It is sufficient at this point to
note that he testified that he said to Williams: "When she
is through work, if you want to fire her go ahead." In
Monteleone's words, Williams then asked "if he could carry
it a little bit further" and discharge Pranion as well. Again,
according to his testimony, Monteleone told Williams to use
his own judgment. According to Monteleone, Williams, as
manager, had full and final authority to hire and fire as he
saw fit. In his testimony, Williams made no reference to his
having gone to the office or having discussed the discharges
with Monteleone.
According to Monteleone, after talking with Williams in
the office, he rejoined Bufalino in the lounge. Monteleone
testified that Bufalino visited the restaurant on an average
of from one to three times a week The employees testified
to having seen Bufalino at the restaurant less frequently,
placing the visits at from once every 3 months to possibly
once a month. According to Monteleone, Bufalino had vis-
3 One employee executed a card but then destroyed it after telephonically
consulting his father
CLOCK RESTAURANT NO. SEVENTEEN
ited the restaurant on September 27 merely to pass time
before an appointment he had scheduled elsewhere. About
2 or 2:30 p.m., Bufalino left the restaurant, followed shortly
by Monteleone. Monteleone testified that he did not during
that visit mention to Bufalino the proposed discharges.
Monteleone first testified that he did not tell Bufalmo about
them until the next day. However, he later said that he
informed Bufalino about them at dinner on Thursday.
Monteleone was then asked, on cross-examination, how he
could tell Bufalino about the discharges on Thursday eve-
ning if, as he had testified, he had not been in communica-
tion with Williams after leaving the restaurant. Monteleone
replied that Williams had said "he was going to fire them
at four o'clock "
Williams left the restaurant after the lunch period, arriv-
ing home around 2 p.m. As it was her day off, Kay was at
home. She testified that around 2:30 or 3 p.m. her husband
received a telephone call from Bufalino. Kay could not
recall Bufalino's having telephoned her home any time since
the 1972 union campaign. Kay testified that her husband
said to her: "i saved you again." Also, he said something
about "those girls." He did not elaborate on either remark.
Williams testified that Bufalino's call came about 5 or
5:30 p.m. Although Bufalmo, representing Respondent at
the hearing, did not take the witness stand, his cross-exami-
nation of Kay was apparently directed toward supporting
Williams' view that the call was made after 5 p.m. Bufalino's
attempt, however, was based on a version of the evidence
inconsistent with Monteleone's and Williams' testimony.
The following is an excerpt from the cross-examination of
Kay:
Q. (By Mr. Bufalino) I believe you heard testimony
that Mr. Williams, your husband, Mr. Monteleone and
myself were in a meeting on Thursday afternoon at the
restaurant?
A. Yes.
Q. Okay. Now, there has been some testimony that
the meetings lasted until three o'clock or three thirty.
Now, let's try to pin point the time when I called. I was
in the meeting with your husband at those times. I
couldn't have been calling at home and talking to him
.. Could it have been after five o'clock?
A. No.
As noted before, Monteleone testified that both he and
Bufalino had left the restaurant around 2 or 2:30. Williams
later testified that he had left around 2. Further, Montel-
cone and Williams both clearly indicated that there had
been no "meeting" or "meetings" of the three men. Williams
indicated only that he had drunk a cup of coffee with them.
Monteleone did not even mention Williams' having stayed
that long. Monteleone testified: "Mr. Williams asked me if
he could talk to me. He was going to go home. . . . So I
excused myself and I went into the office and talked to Mr.
Williams." Monteleone then returned to the lounge where
he rejoined Bufalmo. Bufalino left about 10 or 15 minutes
later.
Williams and Monteleone testified that Bufalino had
425
called in an attempt to reach Monteleone to see whether Mr.
and Mrs. Monteleone were going to keep a previously made
appointment to dine out with Mr. and Mrs. Bufalino. Bufal-
mo requested and Williams provided Monteleone's home
telephone number. No explanation was volunteered for
Bufalino's doubt so soon after the two men had spent con-
siderable time together in allegedly social conversation. Nor
does the testimony suggest any reason for Bufalino's having
readier access to Williams' home telephone number than to
Monteleone's. On all the evidence, I find that Bufalmo tele-
phoned Williams at his home between 2:30 and 3 p.m.
Williams returned to the restaurant about 3:45 p.m. for
the sole purpose of discharging Ballew and Pranion. Stating
that it was difficult for him to do so, he told Ballew that he
was discharging her for having "defied" him by serving a
patron who had been barred from service at the restaurant.
William testified that he also told her there were other rea-
sons but he did not specify any. Williams then told Pranion
that she was being discharged for "too many telephone
calls." When Pranion expressed some skepticism as to the
real reason for the discharge, Williams insisted that there
was no other reason Williams informed the discharged em-
ployees that they would not be welcome as patrons in the
future because "there was bound to be hard feelings by the
other employees." (The evidence concerning the discharges
and the reason therefor is discussed in detail below.)
Pramon and Ballew informed the Union of their dis-
charges and arranged to go to the union hall the next morn-
ing. Also, on September 27, after the discharges, some of the
other employees talked among themselves of walking out to
protest the two discharges.
On the morning of Friday, September 28, Ballew and
Pranion visited the umon hall and then, accompanied by
Business Representative Daniel M. Reedy and Nove Tocco,
they went to the Board office to file a charge. The group
then went to the restaurant. According to the employees
and the union representative, as they entered, Monteleone
greeted them by saying something to the effect that he was
the person they wanted to see and that he had been expect-
ing them. Despite Monteleone's denial, I credit this testimo-
ny. The business representatives identified themselves and
Monteleone led the group to the lounge.
The business representatives accused Monteleone of hav-
ing discharged the two employees for union activities and
demanded that they be reinstated. Monteleone said that in
1972 he had not fired these employees for their union activi-
ties and he similarly had not done so now. He flatly refused
to consider reinstating them. When the business representa-
tives asked why the girls had been discharged, Monteleone
refused to state any reasons, maintaining, in effect, that it
was none of the union representatives' business. He did,
however, say something to the effect that the two employees
were not good for his business. When Monteleone then
indicated that it was not he, but Williams, who had dis-
charged the employees, the representatives asked to speak
to Williams, who was then summoned. Like Monteleone,
Williams maintained that he was not required to give any
information to the union representatives and refused to
state any reasons for the discharges. The group then left the
restaurant.
Ballew and Pranion had previously told Reedy and Tocco
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that some of the other employees had talked about walking
out in protest and wanted to know if the Union would
support them Reedy and Tocco said they could not commit
the Union but would consult Myra Wolfgang, the Union's
chief executive officer. Upon leaving the restaurant, the
business representatives attempted, unsuccessfully, to reach
Wolfgang by telephone. They thereupon left to go to the
union hall. At Just about this time, employees Kay Williams,
Barbara Hardy, and Kathy Braun walked out. The girls
went to a nearby restaurant and there decided to set up a
picket line. After making picket signs, they began picketing
Respondent's restaurant about 3:30 p.m. Meanwhile,
Reedy and Tocco had spoken to Wolfgang, who authorized
the Union to support the strike. The picketing employees
were joined by the union representatives and some other
employees, including Joy Brown, who worked on the af-
ternoon shift, and, around 10 p.m., by three male employees
working on the midnight shift. The picketing that began
Friday afternoon continued until about 2 or 2:30 a.m. Sat-
urday. The three midnight-shift employees, however, left
the picket line and returned to work, apparently sometime
during that same shift.
Picketing was resumed about 8:30 or 9 a.m. Saturday and
continued until 6:30 p.m., and then again from 8 a.m. to
about 6 p.m. on Sunday. The six employees involved in the
present case and the two union representatives were the
only persons who picketed virtually all this time. They were
joined, apparently for relatively short periods, by another
employee or two and a few nonemployees. During all the
picketing sessions Monteleone, Bufalino, and Thomas Ever-
son were present observing the pickets and, apparently,
making sure that they "kept moving."
On Saturday night, Bufalino and Wolfgang met to discuss
a possible strike settlement. About 6 p.m. on Sunday, Wolf-
gang drove up to the restaurant and Bufalino came out and
conferred with Wolfgang in her car. Wolfgang presented to
Bufalino a letter from the Union reading:
The Union and the striking employees hereby offer
to end their strike and unconditionally return to work
immediately.
Bufalino wrote an acknowledgment of receipt on the letter
and returned it to Wolfgang. The tentative "settlement"
consisted of having the protest strikers return to work and
leaving the Ballew and Pranion discharges to adjudication
by the Board. Bufalino said that he could not bind his
"principals" but could only make recommendations. He
said he would talk to them and then communicate with
Wolfgang.
Wolfgang then called the picketing employees to her car
and informed them of the "settlement." She assured them
that she would find interim employment for Ballew and
Pranion. Although the strikers expressed reluctance to re-
turn to work without Ballew and Pranion, they agreed to
accept Wolfgang's advice and instructions that they discon-
tinue picketing and report to work the next day.
About 10 or 10:30 p m. Sunday, Bufalino telephonically
advised Wolfgang that he had been unable to persuade his
principals to reinstate the strikers. Wolfgang's testimony on
cross-examination by Bufalino was, in part:
Q. In the conversation that I had with you Sunday
evening, approximately ten or ten thirty on the 30th of
September, could we go a little further into that conver-
sation? Do you recall my suggestion to you that the
people do report to work?
A. No, I don't recall that at all. As a matter of fact
I believe the thrust of your conversation was you were
unable to prevail upon Mr. Monteleone and the others
there to have these people returned to work. In fact, I
recall pointing out to you that none of the girls had
been replaced and there was an obligation in my opin-
ion under the law for them to be reinstated. I think with
a feeling of frustration you said I have been unable to
convince my client to buy that.
Respondent's workweek begins on Monday, with payday
on Wednesday. The employees' work schedules vary from
week to week. The usual practice is for Williams each Sun-
day to post the schedules for the ensuing week. Although
employees apparently ordinarily work the same shift, they
cannot know their particular schedules, i.e., their days off,
for any week unless they go to or telephone the restaurant,
or are called, after the list is prepared on Sunday. Because
of the strike in progress, when Williams posted the schedule
on Sunday, September 30, he left the day-shift blank.
Kathy Braun was regularly employed as a cashier on the
day shift but occasionally worked as a waitress, mainly on
the midnight shift It appears that for a day or two just
before the strike she may have worked as a waitress. Joy
Brown was a hostess-cashier on the afternoon shift. About
8:30 a.m. on Monday, October 1, Braun and Brown went
to the restaurant. When they entered the kitchen area, they
were met by Thomas Everson, who had them wait while he
summoned Bufalino. Braun's uncontradicted testimony,
which was later substantially corroborated by Brown, was:
A. . . . Mr. Bufalino came into 'the kitchen and
asked what we wanted.
Q. Did either of you girls say anything?
A I did. I said we were told to report to work in the
morning.
Q. Did he answer your question?
A. He told us no, that we had quit.
Q. Then what happened?
A. We said thanks and left.
Braun and Brown, accompanied by Reedy, then went to the
Board office , where a charge was filed concerning
Respondent 's failure to reinstate these two employees .4 The
other employees rapidly learned what had happened to
Through inadvertence of a Board representative, the original charge,
covering the Ballew and Pranion discharges, was not properly filed on Fro-
day, September 28, when it was prepared Accordingly, on Monday, October
1. the Braun and Brown situation was added and one charge was filed
referring to all four employees
CLOCK RESTAURANT NO. SEVENTEEN 427
Brown and Braun.
That afternoon, Barbara Hardy, a waitress on the day
shift, went to the union hall. Reedy instructed her to report
back to work. About 10 a.m. on Tuesday, October 2, Hardy,
accompanied by Braun and Brown, went to the restaurant.
She saw Tom Everson and told him she was there to see if
she had a job. Everson shook his head negatively and she
left, followed by Braun and Brown.
That afternoon, Kay Williams, on the advice and urging
of her husband, and Pranion went to the restaurant, accom-
panied by Pranion and Hardy. She spoke to Monteleone. As
Monteleone described the interview, Kay `just says `I guess
this is just a formality and I take it that I am fired' and I
says, `no, you quit and you didn't show up for work.' " Kay
corroborated this version of the interview, testifying that, in
view of what had befallen the others, she did not expect to
work when she reported on Tuesday. She was not wearing
her waitress' uniform. She also testified that she usually
works on Mondays, but had not reported to work on Octo-
ber 1.
manner, the same as she always had done prior to this;
but as far as any action taken against her, no.
Kay Williams testified that when she told her husband
about two job interviews she had scheduled with unionized
restaurants, he said she "would not work in a union house."
Kay's testimony continued:
He said that if I took a job in a non-union house, how
long do you think it would be before they found out I
would organize.
Pranion testified that on the evening of October 1 she
visited the Williams' home. It was at this time that Pranion
and Williams persuaded Kay to go through the "formality"
of applying for her job back. Pranion testified as follows
concerning part of the conversation during this visit:
B. The Discharges of Ballew and Pranion
1. Union animus
Respondent apparently contends that the record fails to
establish any union animus on its part. To negative the
existence of animus, Respondent emphasizes the fact that
nobody was discharged because of union activities in con-
nection with the 1972 campaign. The record, however, does
contain evidence indicating strong antiunion feelings on the
part of both Monteleone and Williams.
At the outset of his direct examination, Monteleone was
asked to tell about the Union's organizational drive in 1972.
His reply was:
Well, they tried to organize the restaurant and there
was a lot of chaos. Some of the waitresses refused to
wait on customers, harassed customers, just plain har-
assment.
Williams similarly associated union sympathies or activi-
ties with improper employee performance. When asked how
he knew that Pranion had been active on behalf of the
Union in 1972, Williams replied:
Judi came right out and told us she was , and her
actions while at work were many times against compa-
ny policy. She deliberately abused the situation, and at
times wouldn't even wait on customers. I guess in her
own mind she just felt that she was protected.
Williams was then asked if Pranion had been disciplined at
that time and he replied:
At the time of the actual-during working hours,
yes. She was asked to conduct herself in a business-like
[Williams] said to me . . . you know Judi . . . I was
going to fire you the last time because of the union and
I said what do you mean. . . . He says because I really
thought you were, you know, gung ho and I says well
I wasn't that-really that bad about it like I was this
time and he says well, Pete [Monteleone] talked me out
of it. He didn't think you were that involved and I went
oh, you know, it shocked me you know, finding some-
thing like that out after you were fired.
Although Williams testified that during Pranion's visit he
read his newspaper and engaged in virtually no conversa-
tion with the two women, I credit Pranion's testimony .5
2. Respondent's knowledge
At the hearing Monteleone testified that he had no
knowledge of any union activities at the restaurant in 1973
until the day after Ballew and Pranion were discharged. In
a pretrial affidavit he had said: "I have known that Judi
Pranion and Mary Ballew were active supporters of the
union since the election of 1972." It is clear that Pranion was
a leading union activist during the 1972 campaign. Howev-
er, Ballew credibly testified that in the 1972 campaign she
had not been active and she had not even signed a union
authorization card. Thus Monteleone's professed "knowl-
edge" of Ballew's activities must have been derived from
subsequent events.
As previously set forth, around September 10 Kathy
Braun informed Williams that her brother had called the
Union at Ballew's instigation. In view of Monteleone's opin-
ion (as quoted above) that the earlier campaign had caused
the employees to "harass" customers, it is most improbable
5 Pranion agreed that Williams had not been excessively communicative
She testified- "[S]o then we tried to get Chuck to tell us a few things but he
wouldn't say any more than he had to so finally he said to us, he says one
of these days when all of this thing is all over with, he, says, I will take and
I will tell you everything"
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Williams would not have immediately alerted Montel-
eone of the incipient resurgence of union activities in Sep-
tember 1973. This is particularly true in light of Williams'
testimony that his job as manager required that he observe
the employees' conduct, including their union activities.
Neither Williams nor Monteleone explained why Montel-
eone was consulted about these discharges despite Williams'
complete authority to hire and fire. In view of Pranion's and
Ballew's known union activities, and the previous unsuc-
cessful union campaign, it is inconceivable that, having de-
cided to consult Monteleone, Williams would fail to
mention the current resurgence of organizational activity.
One in Williams' position might reasonably fear possible
accusations of discrimination if he simultaneously dis-
charged the two known ardent union activists. Caution
would thus dictate the advisability of consulting Montel-
eone even if the discharges were totally nondiscriminatory.
The same conditions would probably dictate consulting Bu-
falino, who had originally become Respondent's attorney in
connection with the 1972 union campaign. Whether by de-
sign or, as Respondent maintains, by accident, Bufalino was
present when, according to Monteleone, Williams consulted
Monteleone "privately." 6 When Pranion and Ballew visited
the next morning, Monteleone expressed no surprise that
they were accompanied by union representatives. When
Williams was called in to join the meeting and was asked
why the employees had been discharged, he did not defer
to Monteleone but rather refused to reply. Under the cir-
cumstances, the similarity of their statements clearly suggest
prior consultation between Monteleone and Williams. Ac-
cordingly, on all the evidence, I find that on September 27,
the day Pranion and Ballew were discharged, Monteleone
was aware of union activities among the employees.
There is no direct evidence that either Williams or Mon-
teleone knew specifically about the Union meeting on Sep-
tember 26, at which several union authorization cards were
signed. Nor is there any direct evidence that either Williams
or Monteleone knew of Kathy Braun's solicitation of addi-
tional cards at the restaurant on the evening of September
26. However, arrangements for the Union meeting had been
made from a telephone in the restaurant. And Kay Williams
credibly testified that her husband claimed to know "every
move [the employees] were making." 7
In any event, it is undisputed that Williams knew that
Ballew had initiated contact with the Union in September
1973. And it is equally undisputed that Williams was fully
aware of Pranion's outspoken sympathy for the Union.
Since Respondent maintained at the hearing that Williams,
an admitted supervisor, was responsible for the discharges,8
Respondent's knowledge of the Union activities is clear.
6 Note may also be taken of Bufalino's suggestion at the hearing that he
had been in "meetings" with Williams and Monteleone on the day in ques-
tion.
7-On cross-examination she testified
Q You mentioned that Mr Williams seemed to know everything that
was going on What did you mean by that'
A. Just seemed to know every move we made Well, I mean like
casual conversation when we were discussing the union or we would-it
always-it would always get back It would somehow get back to him
She conceded that she had no "concrete" basis for believing that he had
learned of employee conversations during the period before September 27
3. The specific discharges
a. Mary Ballew
As stated above, Williams told Ballew she was being dis-
charged for having served a customer who had been barred
from the restaurant. The "barred customer" incident has its
amusing aspects. A man known to the employees only as
John,9 was a regular patron of the restaurant and habitually
ordered "medium" or "soft" boiled eggs. On Tuesday, Sep-
tember 25, Pranion placed an order for "medium" boiled
eggs. Williams, who was then cooking, asked if the eggs were
to be cooked "medium-soft" or "medium-hard." Pranion
said she did not know, since the customer, whom Williams
identified as John, had simply asked for "medium" boiled
eggs. Though apparently somewhat irritated, Williams
boiled two eggs and then, as usual, broke them into a bowl.
When Pranion delivered the food, John remonstrated be-
cause the eggs were hard boiled. Pranion took them back to
the kitchen. Obviously peeved, Williams boiled two more
eggs and placed them, unbroken, on a plate. John, in turn,
was irate at having the eggs served to him in that fashion.
He thereupon went to the waitress' area, where he confront-
ed Williams. According to Williams, "John came back with
his eggs in the dish and said he was going to dump them on
my head or something. . and I told the man at that time
that he was barred from the restaurant, and we would not
serve him again." Williams testified that during his verbal
exchange with John, Pranton and Ballew were present,
standing between the two men.
Pranion, however, testified that when John confronted
Williams, Pranton left, returning to the restaurant section,
because she "just wanted to stay out of it [and] didn't want
to be involved any more." John reemerged from the service
area, exchanged some brief words with Pranion, finished
drinking his coffee, picked up his check and left without
paying. Then Pranion went back into the kitchen, where she
asked Williams whether John was barred from further ser-
vice. Pranton's testimony continued: "[A]s far as I can re-
call, Chuck says I don't know, I don't kilow , just leave me
alone." Pranion said that, as she recalls, Kay Williams and
Ballew were "around" at the time, but she did not specifical-
ly place them in the service area during the exchange be-
tween John and Williams.
Kay Williams testified that she served John, without inci-
dent on Wednesday, September 28. She had .not been in-
formed that John had been barred from the restaurant.
When she later told her husband about having served John
on Wednesday, he said she would not be fired because he,
Williams, had not seen her do so.
On Thursday John returned and again ordered boiled
eggs. This time Ballew was the waitress. When she presented
the order in the kitchen, Williams asked if John was the
ordering customer. When Ballew answered in the affirma-
8 Although Monteleone testified that Williams decided that the employees
be discharged, in pretrial affidavit Monteleone had said that they "were
discharged by Chuck Williams on instructions from me"
9 In his pretrial affidavit, Monteleone identified the gentleman as Mr
Locricchio, whose first name was unknown to Monteleone In testifying,
Monteleone knew the first name but said he did not know the customer's last
name
CLOCK RESTAURANT NO. SEVENTEEN 429
tive, Williams went out into the restaurant and ordered
John to leave. According to Ballew, Williams then informed
her that John had been barred from the restaurant, which
fact she maintained she had not known before. Williams, on
the other hand, testified that he asked her why she had
served John, knowing he was persona non grata and she
replied that John had not done anything to her.
On all the evidence, together with careful observation of
the witnesses, I credit Ballew's testimony that when she took
John's order she did not know that he had been barred from
the restaurant, and she did not learn that fact until Williams
told her after he had ordered John to leave. Sometime later
that day, John returned to the restaurant and ordered a cup
of coffee. Ballew told him that because he had been barred
she was not permitted to serve him. John thereupon appar-
ently went to the cashier's desk and asked to see Williams.
Williams then went to the cashier's desk. John apologized
for his past action and the two men shook hands. John
thereupon resumed his seat at the counter and Ballew
served him. John drank his coffee, paid his check and left.'°
Kay Williams testified that on Friday, September 28,
"Mr. Monteleone come up and says as of now he is barred
ladies, do you hear me, as of now I am barring him." Al-
though Monteleone did not use any name, it was under-
stood that he was referring to John. Kay's testimony was
uncontradicted. Monteleone never offered any explanation
for his having "barred" John on Friday, after the reconcilia-
tion between Williams and John. It is most significant, how-
ever, that at the hearing Monteleone testified that John had
"threatened" Williams and in his pretrial affidavit Montel-
eone had said that John had "threatened to kill" Williams.' 1
As noted above, Williams testified only that John said only
that "he was going to dump [the eggs] on [Williams'] head
or something."
Respondent maintains that Ballew's serving John after he
was barred was simply "the last straw" in a long line of
complaints against her. Monteleone testified that he had
frequently spoken to Ballew and told her that if she did not
"straighten up" she would be fired. He was unable to pro-
vide much specific information but placed his most recent
complaint about 2 or 3 weeks before the discharge. When
asked to repeat the conversation, he said: "Well, it just
seemed that Mary would just do as she pleased and she just
wouldn't take care of her customers." In his pretrial affida-
vit he had said: "Ballew also failed to take proper care of
her customers. I wouldn't know the names of the customers.
Maybe Williams can give more specific instances." Wil-
liams, however, gave no specific instances. As a matter of
fact, in testifying Williams made no reference to Ballew's
relationship to customers. There was no evidence of any
customer complaints.
Monteleone testified that a week or two before the dis-
charge he had reprimanded Ballew for serving jelly on
plates about 6 inches in diameter instead of on smaller, 2 or
3 inch jelly trays. According to Monteleone, he told her that
such action was wasteful; she replied that whatever the
customers did not use would be returned to the original
containers; and Monteleone said, in effect, that her state-
ment was unrealistic, since the busboys would simply dis-
card the excess jelly left on the plates. So far as appears, that
was the end of the jelly matter; no discliphne was threatened
or meted out.
The evidence did establish that other employees had com-
plained about Ballew's failure to do her fair share of the
work and they had requested her discharge, most recently
about 2 weeks before the discharge. At that time Williams
had apparently indicated (though not promised) that Ballew
would be discharged at some time in the future when a
replacement had been secured. However, there was no
claim or evidence that any steps had been taken to secure
a replacement by the time of the discharge.
b. Judi Pranion
Williams gave "excessive telephone calls" as the reason
for Pranion's discharge. The evidence establishes that it was
a long-standing custom that in order to make or receive a
telephone call an employee had to give Williams a package
of cigarettes, purchased from the restaurant's vending ma-
chine. The testimony, including Williams', was unanimous
that he had always been liberal in permitting telephone
calls. Monteleone confirmed that no employee had ever
previously been discharged for making or receiving calls.
The cigarette payments were deemed adequate deterrent to
abuse of telephone privileges.
Williams testified that on Tuesday, September 25, Pran-
ion asked for and received permission to telephone a doctor
to make an appointment for one of her children. Williams
testified that he then watched her on two trips to the tele-
phone, where she made five calls, consuming 20 minutes. He
then spoke to her about the matter and she explained that
she had to call the doctor and a druggist and had got a busy
signal. She so testified at the hearing. Williams testified that
he did not believe her explanation because he had seen her
actually talking on the phone, which negatived her busy-
signal claim. However, Williams also testified that he did
not collect his full quota of cigarettes because she told him
she had got the busy signal. This indulgence would suggest
belief.12
Williams further testified that on Thursday, September
27, he received at least five incoming callsfor Pranion dur-
ing the lunch period. He testified: "Calls 'during lunch we
do not give them when we are busy. We explain to the
person that calls that it is lunchtime, and if they want to
leave a message we will take a message." This practice was
confirmed by employee testimony. So far as appears, he did
not give her any messages on September 27, and did not
even tell her that any calls had come in before he summarily
10 The precise timing of these events does not appear . However, in the light
of Williams' arrivals and departures, it appears that John's first visit was
around noon and the second around 2 p.m.
11 "Ballew was discharged for serving on that day a customer who had
earlier threatened to kill Williams and was therefore barred from the restau-
rant . Mr. Williams can give all the details on this "
12 JUDGE KLEIN. Then you said you didn't think you had collected the
cigarettes on September 25th Why not?
THE Wimms Because Judi Pramon denied that she had made the calls.
She said it was a busy signal . I don't think we even discussed it I just
asked her why she had made all of the calls without permission, and she,
said it was a busy signal and she was trying to get the doctor
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged her for "excessive telephone calls" around 4
p.m., the end of her shift. He testified that the "excessive
calls" included the outgoing calls on September 25 as well
as those incoming on the 27th.
' On direct examination Monteleone testified:
Q. Concerning Judi Pranion , did Mr . Williams tell
you why he wanted to fire her?
A. Well, it was just general harassment that she went
through all the time . She was giving him this trouble
about noise in the place and he was j ust fed up with her
I guess.
In his pretrial affidavit, Monteleone said:
Pranion was discharged because of giving bad ser-
vice to customers. I received general complaints about
her. I am unable to give any specific examples of this
at this time. Williams can give more information with
respect to this.
However, as previously noted, at the time of the discharge
Williams told Pranion that the only reason was her "exces-
sive telephone calls." No evidence was ever adduced of
customer complaints about Pranton.
Pranton had been employed by Respondent since July
1969. She had been discharged twice before, once in 1969
or 1970 for being unable to get along with other employees
and once in 1970 or 1971 for falling asleep during her break.
She was out for a few months each time and then was
rehired when she asked for herjob back. Abour 2-1/2 years
ago she was warned of possible discharge for tardiness. And
in May or June 1973 she was told to clock out because she
had failed to charge a plainclothes policeman for either the
milk or the coffee he had with a meal. That discharge,
however, was immediately rescinded before it became effec-
tive.
Respondent adduced evidence that on a Saturday, a few
weeks before the discharge, Pranion had come to the restau-
rant as a patron with a group of people. As she admitted in
testifying, she had been drinking. Her voice was so loud that
Williams, who was cooking in the kitchen, sent a waitress
to tell Pranion to leave the premises. At that point Pranion
went back to the kitchen and apologized, telling Williams
that she had not realized she had been making so much
noise . She then returned to her table and consumed the food
that she had previously ordered. With Williams' knowledge
and without any further objection, Pranion remained in the
restaurant for about 45 minutes to an hour longer. Williams
never spoke to Pranion about that incident again . He testi-
fied that Pramon's conduct on the night in question was
most unusual for her and not at all representative of her
customary demeanor.
Despite the multiple complaints against Pranion ad-
vanced by Respondent, the evidence establishes that her
discharge on September 27 was sudden. Pranion frequently
visited the restaurant when she was off duty and assisted in
the cooking, on a volunteer basis. She often did soon Thurs-
day evenings, after her regular weekly bowling. On the
morning of September 27 Williams jokingly referred to the
fact that, since it was Thursday, undoubtedly Pranion
would show up that night to cook. Although Williams testi-
fied that he could not specifically recall that bit of banter,
he conceded that it might have occurred. Similarly, al-
though Monteleone referred to complaints and criticisms
concerning Pranion, about a week or two before the dis-
charge he lent her money, as he had on previous occasions,
expecting that she would repay it over a period of time.13
C. Failure to Reinstate the Strikers
As set forth above, on the evening of Sunday, September
30, Wolfgang delivered to Bufalino an unconditional re-
quest for reinstatement of the strikers. Bufalino later in-
formed Wolfgang that Respondent would not grant the
request.
At the hearing, however, Monteleone testified that on
Sunday he had decided that "if they was going to go back
to work and do their job properly . . . [he] would accept
them back." Pressed a bit further, he said he had made a
firm decision to reinstate the strikers if they reported to
work the next day and then to observe their work. Montel-
eone was then shown his pretrial affidavit, in which he had
said'
On Sunday, September 30, 1973, Myra Wolfgang
delivered a letter to my Attorney William Bufalino, II,
stating that the employees would return to work imme-
diately. If they had returned to work when they were
scheduled to return I might have considered taking
them back, but not one of them reported on time... .
Offered an opportunity to explain the discrepancy between
his testimony and the affidavit , Monteleone said : "The way
I would like to explain is, I meant I would take them back.
I' might almost means that I would."
Monteleone maintained , in his affidavit and in his testi-
mony, that he considered the strikers as having voluntarily
"quit" by failing to report for work at the scheduled time.14
In the first place , it may be observed that, according to
undisputed evidence , work schedules varied from week to
13 Monteleone's pretrial affidavit says, "As recently as about two weeks
before Pranton was discharged I loaned her $150 00 to get her car fixed. This
made a total of $190 00 she owes me We did not make any schedule of
payments She borrowed money before and paid it back so I felt sorry for
her and expected her to pay it back
14 This position is repeated in Respondent's brief, as follows.
As for the four (4) other employees involved in the complaint, this
employer considers them as voluntarily quitting These employees
walked off their shift during a busy Friday lunch period and left the
employer searching for rescue They walked off in sympathy of the
discharged employees who gained recognition by taking shelter under
the wing of the Charging Party These employees were instructed to
return to their regular shift by the union's president The record is clear
in showing that the employees never really desired to return nor did they
do so They balked at the idea of returning to work and never did
actually report. Kathy Braun reported one-half hour late and not even
in proper uniform She testified that she had never been late before Joy
Brown reported with Ms Braun and she was seven-and-one-half hours
early Kay Williams and Barbara Hardy reported some thirty hours late
Their action indicated no intention of returning to work
CLOCK RESTAURANT NO. SEVENTEEN 431
week and no schedule for the day shift for the ensuing week
was prepared or posted on Sunday, September 30. Addi-
tionally, each of the four striking employees did visit the
restaurant and each was informed that she no longer had a
job. Respondent did not even go through the pretense of
purporting to "discharge" the employees for reporting to
work " late."15 It may also be noted that in connection with
Pranion's reemployment after she had been discharged in
1969 and 1970, Williams testified: "We have a record of
taking back employees."
But the basic fact is that on Sunday the employees' un-
conditional offer to return to work was rejected. At least
from that point on the burden rested on Respondent to take
the initiative to offer reinstatement.
D. Discussion and Conclusions
The evidence establishes that both Monteleone and Wil-
liams associated employees' union activities with "harass-
ment" or other unsatisfactory work performance.
Respondent's hostility to unionization is further shown by
Williams' and Monteleone's refusal to discuss with the
union representatives the reasons for Ballew's and Pranion's
dismissal. While the Union had not achieved status as the
employees' exclusive bargaining representative, it was the
chosen representative of the discharged employees. The
union representatives could not reasonably be deemed in-
terlopers when they accompanied the employees in an at-
tempt to discuss the discharges with management. Finally,
as part of the entire picture, Respondent's refusal to rein-
state the protest strikers reflects a rigid and obviously deep-
seated antipathy to concerted activities.
Williams' knowledge of Ballew's current union activities
and of Pranion's outspoken support of the union was admit-
ted. Particularly in, view of Respondent's contention (at
least in part of its evidence) that Williams was solely respon-
sible for the discharges, it is perhaps unnecessary for the
present decision to find knowledge on Monteleone's part. 16
In any event, Monteleone's knowledge of the current union
activities has been found above.
Discriminatory motivation may, indeed generally must,
be inferred from circumstantial evidence, such as the timing
of the discharges. N.L.R.B. v. Melrose Processing Co., 351
F.2d 693, 698 (C.A. 8, 1965); N.L.R.B. v. Superior Sales,
Inc., 366 F.2d 229, 233-234 (C.A. 8, 1966). As had been said,
"the abruptness, of a discharge and its timing are persuasive
as to motivation." N.L.R.B. v. Montgomery Ward &t Co., Inc.
242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829
(1957); N.L.R.B. v. Dorn's Transportation Company, Inc.,
405 F.2d 706, 713 (C.A. 2, 1969); N. L. R B. v. Elias Bros. Big
Boy, Inc., 325 F.2d 360, 366 (C.A. 6, 1963). Here the two
leading union activists were summarily discharged the day
15 Or "early," which, according to Respondent's brief, was Joy Brown's
apparent dereliction In its brief Respondent also criticizes Kathy Braun for
reporting late "and not even in proper uniform." The fact is that Braun's
regular job was that of cashier, for which no uniform is required
6 This would also be true even if, as the record indicates, Monteleone
played a major role in the discharges See, e.g., Texas Aluminum Co, Inc v
NLRB., 435 F.2d 917, 919 (C.A. 5, 1970), N L R.B v Buddy Schoellkopf
Products, Inc., 410 F 2d 82,86 (C.A. 5, 1969), Furr's Inc v. N L R B. 381 F 2d
562 (C.A. 10, 1967), cert denied 389 U.S 840 (1967)
after a union organizing meeting arranged by them. Such
discharges manifestly would be an'effective means for dis-
couraging union membership and defeating the incipient
organizing campaign. N. L.R.B. v. Edward P. Tepper, d/b/a
Shoenberg Farms, 297 F.2d 280, 282-284 (C.A. 10, 1961);
N.L.R.B. v. Sitton Tank Company, 467 F.2d 1371, 1372 (C.A.
8, 1972); N. L. R. B. v. Tak Tralc Inc., 293 F.2d 270, 271(C.A.
9, 1961).
It is, of course, true that engaging in union activities does
not insulate employees from discharge. On the other hand,
the existence of grounds for discharge does not in itself
negative discriminatory motivation. Justifiable grounds for
discharge are frequently seized upon as mere pretexts for
discharging employees where the actual moving cause of the
discharges is their union activities. Singer Company v. N.L.
R.B., 429 F.2d 172, 179 (C.A. 8, 1970); N.L.R.B. v. Solo Cup
Company, 237 F.2d 521, 524-525 (C.A. 8, 1956); A.P. Green
Fire Brick Company v. N.L.RB., 326 F.2d 910, 916 (C.A. 8,
1964).
The present record does contain evidence indicating that
Ballew and Pranion may not have been flawless employees,
although they were both relatively senior in length of ser-
vice. But the record also leaves no doubt that as of the
morning of September 27 Respondent did not intend or
plan to discharge them.
It is possible that Williams was angered by Ballew's serv-
ing John after he had been barred. But the discharge actual-
ly came after the reconciliation between Williams and John.
One cannot help wondering why Williams was less charita-
bly forgiving of Ballew. Monteleone's subsequent reimposi-
tion of John's banishment can be explained only as a post
facto fabrication to vindicate the apparently arbitrary dis-
charge.
Pranion's situation raises similar doubts. The "excessive"
telephone calls she allegedly made on September 25 had
apparently been "forgiven," as evidenced by Williams' fore-
going his cigarettes. He did not talk to Pranion about, or
give her any chance to explain, the alleged five incoming
calls on September 27. There is no reason, to believe that
Pranion had invited the calls (if any) or could have done
anything to prevent them. There is no suggestion that Pran-
ion had ever abused the privilege of receiving calls. One
might naturally expect Williams to talk to her about it and
warn against a recurrence rather than summarily discharge
her. Significantly, Monteleone testified that nobody had
ever before been fired because of telephone calls.
The specific grounds advanced by Williams for the dis-
charges in themselves raise considerable doubt as to the true
motivation. And this doubt is substantially increased by
Respondent's subsequent vacillation and multiplication of
explanations. Perhaps most noteworthy is the fact that, ac-
cording to Monteleone's testimony, Williams did not even
mention the telephone call matter when he consulted Mon-
teleone about the discharges on September 27. And a month
later, in his pretrial affidavit, Monteleone failed to mention
the supposedly excessive telephone calls; he ascribed
Pranion's discharge to "bad service to customers" and "gen-
eral complaints" that Monteleone had received. Vacillating
explanations of the discharges compel the inference, which
is here drawn, that Respondent was searching for some
plausible explanation for the discharges, which in reality
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were prompted by the employees' union activities. Needless
to say, Williams' and Monteleone's denials of discriminato-
ry motivation are not conclusive. N.L.R.B. v. Walton Manu-
facturing Company R Loganville Pants Co., 369 U.S. 404,
406-407 (1962); Bon Hennings Logging Co v. N. L. R. B, 308
F.2d 548, 554 (C.A. 9, 1962).
Respondent's subsequent conduct serves to reinforce the
inference that the discharges were discriminatorily motivat-
ed Angwell Curtain Company, Inc. v. N L.R B., 192 F.2d
899, 903 (C.A. 7); Joy Silk Mills v. N L.R.B., 185 F.2d 732,
741-742 (C.A.D.C.), cert. denied 341 U.S. 914 (1950); N.L.
R.B. v. Nemec Combustion Engineers, 207 F 2d 655, 658
(C.A. 9), cert. denied 347 U.S. 917. The Union had request-
ed reinstatement of the strikers, with the propiety of the two
discharges being left to orderly adjudication by the Board.
If Respondent's sole concern was to rid itself of two unsatis-
factory employees, presumably it would have readily acced-
ed to the Union's request. Further, had Respondent not
been interested primarily in resisting the Union, it would
not have refused to discuss the reasons for the discharges
with the Union representatives who visited the restaurant
with the dischargees.
On all the evidence, it is found that Ballew and Pranion
were discharged for their union activities, with alleged em-
ployment deficiencies merely seized upon as pretexts to cov-
er the true motivation
There is no question that Respondent refused to reinstate
the four protest strikers either in response to the Union's
request on their behalf or in response to each striker's indi-
vidual inquiry. There is not a scintilla of evidence to support
Respondent's contention that any of the strikers quit her
job.
There remains only the General Counsel's request at the
close of the hearing that findings be made as to independent
violations of Section 8(a)(1) although the complaint con-
tained no such specific allegations. The General Counsel
specified three specific incidents involving Williams, one in
relation to Kathy Braun and the other two in conversations
with his wife, Kay.
Neither the charges nor the complaints in the present case
alleged independent violations of Section 8(a)(1). The
"catch all" language the Board's printed charge form is not
sufficient to embrace any and all possible unfair labor prac-
tices within the 6 months preceding the filing of the charge.
Nor is an allegation of derivative violations of Section
8(a)(1) sufficient to put Respondent on notice that he may
be held guilty of independent Section 8(a)(I) violations.
The evidence in support of the General Counsel's Section
8(a)(1) contentions was received without objection. Howev-
er, it was relevant to and thus admissible in connection with
the Section 8(a)(3) allegations of the charges and complaint.
Thus, since Respondent was not put on notice that it might
also be held for direct violation of Section 8(a)(1), it cannot
be said that the matters were fully litigated. Accordingly,
although at the hearing I granted the General Counsel's
motion that "the pleading be conformed to the proof in
three particular fashions," on reconsideration I have con-
cluded that no finding of independent Section 8(a)(l) viola-
tions may be made. (It may be noted, however, that this
present ruling may have little practical effect in view of my
recommendation, discussed below, that a broad cease-and-
desist order be entered.)
CONCLUSIONS OF LAW
1. By discharging Mary Ballew and Judi Pranion on Sep-
tember 27, 1973, and failing and refusing to reinstate them
thereafter, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
2. By failing and refusing to reinstate Barbara A. Hardy,
Margaret Kay Williams, Kathy Braun and Joy Brown to
their former positions pursuant to their unconditional re-
quest for reinstatement on September 30, 1973, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
4. The strike commencing on September 28, 1973, was an
unfair labor practice strike.
THE REMEDY
Having found that Ballew and Pranion were discrimina-
torily discharged, I shall recommend the customary rein-
statement and backpay remedy. Similarly, having found
that the strike was an unfair labor practice strike, and that
four strikers were wrongfully denied reinstatement upon
their unconditional request therefor, I shall recommend an
appropriate reinstatement and backpay remedy. Backpay is
to be computed in accordance with F. W. Woolworth Com-
pany, 90 NLRB 289, and shall carry 6 percent per annum
interest in accordance with Isis Plumbing & Heating Co., 138
NLRB 716.
By discharging Ballew and Pranion, the aggressive ring-
leaders of the union campaign, Respondent took the most
effective means of nipping the campaign in the bud. And
then, by refusing to reinstate the employees who exercised
their statutory right concertedly to protest their colleagues'
maltreatment, Respondent sought to inflict the coup de
grace. Although the record indicates that some other em-
ployees executed union authorization cards, the six employ-
ees here involved appear to constitute the entire
complement of committed activists. Thus, by its conduct,
Respondent has sought to eliminate completely the threat
of unionization. And at least as to the four strikers, Respon-
dent has not even offered a colorably valid explanation or
excuse. It would be difficult to conceive of any conduct
more clearly designed to teach-other employees the tremen-
dous cost of exercising their statutory rights. The nature of
the violations is such as to call for a broad cease-and-desist
order, which I shall recommend.
In addition, the customary notice-posting and record-
keeping requirements will be included.
Upon the basis of the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
CLOCK RESTAURANT NO SEVENTEEN 1 433
ORDER I'
Respondent, Sam and Margaret Foods, Inc., d/b/a Clock
Restaurant No Seventeen, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 705, Hotel, Motel
and Restaurant Employees Union, AFL-CIO, or any other
labor organization, by discriminatorily discharging any em-
ployee or by discriminating in any other manner in regard
to hire and tenure of employment, or any term or condition
of employment,
(b) Discouraging membership in the above-named
Union, or any other labor organization, or interfering with,
restraining or coercing employees in the exercise of their
rights under Section 7 of the Act, by refusing to reinstate
any of its employees or otherwise discriminating in regard
to their hire or tenure of employment, or any term or condi-
tion of employment;
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2 Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Mary Ballew and Judi Pranion immediate and
full reinstatement to their former jobs or, if those positions
are no longer in existence, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them, in the manner set forth in "The Remedy"
section of this Decision;
(b) Offer to reinstate Barbara A. Hardy, Margaret Kay
Williams, Kathy Braun , and Joy Brown to their former
positions or, if such positions are no longer in existence, to
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if neces-
sary, any employees hired after September 30, 1973, for
such positions; and make each of said employees whole in
the manner prescribed in "The Remedy" section of this
Decision for any loss of earnings between October I, 1973,
and the date on which each employee is offered reinstate-
ment in accordance herewith;
(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, person-
nel records and reports, as well as all other records neces-
sary to analyze and compute the amount of backpay due
under the terms of this Order,
(d) Post at its restaurant at 13240 Gratiot, Detroit, Michi-
gan, copies of the attached notice marked "Appendix." 18
i7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 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
18 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 "
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations of the Act not
specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the law and we have been ordered to post this notice about
what we are committed to do.
We assure our employees that:
The National Labor Relations Act gives all employees
these rights:
To form, join or help unions;
To bargain as a group through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection;
To refuse to do any of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL immediately offer to reinstate Judi Pranion,
Mary Ballew, Barbara A. Hardy, M. Kay Williams,
Kathy Braun and Joy Brown to their former jobs, with-
out prejudice to their seniority and other privileges;
and will pay to them any money lost as a result of their
discharge and/or our refusal to reinstate them, with
interest at 6 percent per annum.
WE WILL NOT discourage membership in Local 705,
Hotel, Motel and Restaurant Employees Union, AFL-
CIO, or any other union, by discharging or otherwise
discriminating against any employees because of their
union and/or concerted activities.
WE WILL NOT in any other manner interfere with, re-
strain or coerce our employees in the exercise of their
rights to engage in, or to refrain from engaging in, any
or all of the activities specified in Section 7 of the Act,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a)(3) of the Act , as modified by the Labor - This is an official notice and must not be defaced by
Management Reporting and Disclosure Act of 1959 . anyone.
Dated By
This notice must remain posted for 60 consecutive days
SAM AND MARGARET Fooos,
from the date of posting and must not be altered , defaced,
INC d/b/a CLOCK RESTAURANT
or covered by any other material. Any questions concerning
No SEVENTEEN
this notice or compliance with its provisions may be direct-
(Employer)
ed to the Board 's Office , 500 Book Building , 1249 Washing-
ton Boulevard , Detroit , Michigan 48226, Telephone
313-226-3200.
(Representative ) (Title)