Daka, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1993

310 N.L.R.B. 201 (N.L.R.B. 1993)

201
310 NLRB No. 30
DAKA, INC.
1 284 NLRB at 1497. See also Cerro CATV Devices, 237 NLRB
1153, 1157 (1978), in which the respondent was ordered to offer the
discriminatee reinstatement to a position in its New Jersey facility
(displacing another employee, if necessary), after the Alabama facil-
ity in which the discriminatee had worked was shut down. The Re-
spondent’s reliance on Eltec Corp., 286 NLRB 890, 897 (1987), in
which the backpay period for 24 laid-off employees was tolled as
of the date the respondent ceased operations, is misplaced, because
in that case there was no finding of discriminatory discharge or re-
fusal to hire, as here.
2 See Dean General Contractors, 285 NLRB 573 (1987).
Daka, Inc. and International Union, United Auto-
mobile, Aerospace, and Agricultural Implement
Workers of America, Local 376, UAW, AFL–
CIO. Case 34–CA–5424
January 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 14, 1992, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel filed exceptions and a brief in support and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to hire 11
employees of the predecessor employer because they
had been represented by the Union, and by discharging
5 other employees because they engaged in an unfair
labor practice strike. He further found that the Re-
spondent violated Section 8(a)(5) and (1) by refusing
to recognize and bargain with the Union. Finally, he
found that the Respondent violated Section 8(a)(1) by
telling employees that it was aware of their planned
strike activities and by threatening them with discharge
if they went out on strike. No exceptions were taken
to these findings.
In his recommended remedy, the judge found that
because the Respondent had ceased doing business at
the East Lyme Public Schools, it would be meaning-
less to require it to bargain with the Union over a col-
lective-bargaining agreement. No exceptions were filed
to that part of the recommended remedy, and we adopt
it. He also recommended that reinstatement for the 16
discriminatees not be ordered unless the Respondent
resumed the same or substantially the same operations
(i.e., food service operations) at the East Lyme Public
Schools. He further recommended that backpay for
these individuals continue only until the date that the
Respondent ceased its operations at the East Lyme
Public Schools.
The General Counsel asserts that the judge departed
from the traditional remedy for 8(a)(3) violations as
are present here, which would generally require that
the Respondent offer immediate reinstatement to the
discriminatees, and that backpay continue to run until
the time that the Respondent has made proper offers
of reinstatement. The General Counsel notes evidence
that the Respondent has other food operations and con-
tends that any reasons for not requiring the
discriminatees’ reinstatement to those operations would
be appropriately addressed at a backpay hearing during
the compliance stage. We agree with the General
Counsel and we shall modify the remedy insofar as it,
at present, limits the Respondent’s reinstatement and
backpay liability.
In Williams Motor Transfer, 284 NLRB 1496
(1987), the Board considered a similar situation. The
respondent ceased part of its operations after having
terminated employee LaRose in violation of Section
8(a)(3) of the Act. There, the General Counsel con-
tended that the judge erred in failing to provide for
LaRose’s reinstatement, because the respondent had
other operations that continued to function, to which it
might be appropriate to order his reinstatement. The
Board agreed and ordered reinstatement and backpay
for LaRose, leaving to the compliance stage those un-
resolved matters that would affect his reinstatement
rights or the appropriate scope of the backpay period.1
The same principles are applicable here. The record
before us strongly suggests that the Respondent has
other food service operations in the region and beyond.
Further, the General Counsel notes that the employ-
ment fate of the employees still working for the Re-
spondent when it ceased its operations at the East
Lyme Public Schools may have a bearing on the Re-
spondent’s backpay and reinstatement liability to the
discriminatees. We find that the General Counsel
should be afforded an opportunity to explore all these
matters at compliance. To hold otherwise would allow
the Respondent to benefit from its unlawful conduct
and also deprive the discriminatees of their full remedy
under the Act. Accordingly, we will order that the
discriminatees be offered immediate reinstatement and
backpay, leaving to the compliance proceedings all un-
resolved matters that may affect their reinstatement
rights and the scope of the backpay period.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Daka,
Inc., Wakefield, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer immediate and full reinstatement to Syl-
via Concetta Austin, Arlene M. Banks, Doris C. Dow-
ney, Anne E. Finnegan, Antoinette M. Kohl, Mary
Francis Levanti, Ethel Long, Dianna L. Risch, Jeanne
M. Stadnicki, Eleanor M. Yuhas, Louise A. Hall, and
also to Gail Bohn, Annette Parke, Helen Provost,
JoAnn Provost, and Bernice Sullivan, to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings and
other benefits they may have suffered as a result of the
discrimination against them. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), and interest shall be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).’’
2. Delete paragraph 2(b) and reletter the remaining
paragraphs.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain col-
lectively with International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of
America, Local 376, UAW, AFL–CIO, as the exclu-
sive collective-bargaining representative of employees
in the following appropriate unit:
All full-time and regular part-time cooks and caf-
eteria workers employed by us at East Lyme High
School, East Lyme Junior High School, Lillie B.
Haynes School and Flanders Elementary School,
East Lyme, Connecticut, and at the Niantic Center
School, Niantic, Connecticut; but excluding all
other employees, office secretaries and clerical
employees, confidential employees, casual em-
ployees, student helpers and all guards, profes-
sional employees, and supervisors as defined in
the Act.
WE WILL NOT make changes unilaterally in the
terms and conditions of employment of our employees
without notice to and bargaining with the Union.
WE WILL NOT refuse to hire employees for our East
Lyme Public School operation because they were rep-
resented by International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of
America, Local 376, UAW, AFL–CIO, or in order to
avoid a bargaining obligation with that Union.
WE WILL NOT discharge employees because they en-
gaged in an unfair labor practice strike.
WE WILL NOT tell employees that we were aware of
their planned strike activities.
WE WILL NOT tell employees that if they engaged in
a strike they would no longer have jobs.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL offer to the following individuals imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits they may have suffered as a result of the
discrimination against them, less any net interim earn-
ings, plus interest:
Jeanne M. Stadnicki Sylvia Concetta Austin
Arlene M. Banks Eleanor M. Yuhas
Doris C. Downey Louise A. Hall
Anne E. Finnegan Gail Bohn
Antoinette M. Kohl Annette Parke
Helen Provost Mary Francis Levanti
Ethel Long JoAnn Provost
Dianna L. Risch Bernice Sullivan
WE WILL notify each of the above employees that
we have removed from our files any reference to their
refusal to be hired, or their discharge, and that the re-
fusal to hire, and the discharge will not be used against
them in any way.
WE WILL, on the resumption of our operations at the
East Lyme Public Schools, recognize and bargain col-
lectively with International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of
America, Local 376, UAW, AFL–CIO, as the exclu-
sive collective–bargaining representative of our em-
ployees in the appropriate unit set forth above.
DAKA, INC.
Craig L. Cohen, Esq., for the General Counsel.
John Coyne, Esq. (Coyne & Gottlieb, Esqs.), of Boston,
Massachusetts, for the Respondent.
Thomas W. Meiklejohn, Esq. (Gould, Livingston, Adler &
Pulda, Esqs.), of Hartford, Connecticut, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge and a first amended charge filed on September 26 and
October 30. 1991, respectively, by International Union,
United Automobile, Aerospace, and Agricultural Implement
203DAKA, INC.
Workers of America, Local 376, UAW, AFL–CIO (Union),
a complaint, amended at the hearing, was issued on Novem-
ber 7, 1991, by Region 34 of the National Labor Relations
Board against Daka, Inc. (Respondent).
General Counsel’s theory is essentially that upon taking
over the operation of a school lunch program in the East
Lyme, Connecticut Public Schools, Respondent would have
become a successor to Marriott Corporation, which had pre-
viously operated that program, but for Respondent’s unlawful
failure to hire a majority of the former Marriott employees.
According to General Counsel’s argument, Respondent
sought to avoid a successor’s bargaining obligation with the
Union which had represented the Marriott employees. Gen-
eral Counsel argues that, but for its failure to hire a majority
of the Marriott employees, Respondent would have been ob-
ligated to bargain with the Union, and assuming such a find-
ing is made, that Respondent unilaterally established terms
and conditions of employment without consulting the Union.
The complaint also alleges that Respondent discharged 5
former Marriott employees which it did hire, and alter-
natively argues that if those employees were not, in fact dis-
charged, they engaged in a strike in protest of the Respond-
ent’s failure to hire the 11 former employees of Marriott.
Finally, the complaint alleges that Respondent (a) created
an impression of surveillance, (b) threatened employees with
termination if they engaged in union and protected concerted
activities, and (c) interrogated employees concerning their
union and protected concerted activities.
Respondent’s answer to the complaint denied the material
allegations thereof, and on April 6 and 7, 1992, a hearing
was held before me in Hartford, Connecticut.
Prior to the opening of the hearing, a hearing was held in
U.S. district court on the Regional Director’s request for a
10(j) injunction. General Counsel advises in his brief that
Judge Dorsey denied the requested relief on the ground that
Respondent had ceased operations at the East Lyme Public
Schools.
Upon the evidence presented in this proceeding, and my
observation of the demeanor of the witnesses and after con-
sideration of the briefs filed by General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Massachusetts corporation. having an office
and place of business in Wakefield, Massachusetts, and with
places of business located at various schools in Connecticut,
has been engaged in the business of customers. Annually,
Respondent provided services valued in excess of $50,000
for various enterprises located in states other than Massachu-
setts. Respondent admits, and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. Respondent also admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
A. Background
The East Lyme Connecticut Public Schools maintains five
cafeterias in its school system. Prior to 1984, the East Lyme
Public Schools (ELPS) operated the cafeterias by employing
employees to work therein. In 1984, the LPS contracted with
Service Systems, a private company, to operate the cafe-
terias. Service Systems was succeeded in 1985 by Marriott
Educational and Health Services, Inc. (Marriott), which oper-
ated the cafeterias until about August 1990 .
In October 1988, during Marriott’s operation of the cafe-
terias, the Union was certified by the Board. It was stipulated
that the appropriate collective-bargaining unit involved herein
is as follows:
All full-time and regular part-time cooks and cafeteria
workers employed by the Respondent at East Lyme
High School, East Lyme Junior High School, Lillie B.
Haynes School and Flanders Elementary School, East
Lyme, Connecticut, and at the Niantic Center School,
Niantic, Connecticut but excluding all other employees,
office secretaries and clerical employees, confidential
employees, casual employees, student helpers and all
guards, professional employees, and supervisors as de-
fined in the Act.
Following its certification, the Union and Marriott bar-
gained for an initial collective-bargaining agreement. Having
been unable to reach an agreement by the summer of 1990.
Marriott Was informed by ELPS that unless a signed con-
tract between Marriott and the Union was entered into by the
start of the September 1990 school year, Marriott would not
be permitted to operate the cafeterias that year.
The parties were unable to reach agreement upon the terms
of a new contract and, accordingly, no food service con-
tractor operated the cafeterias that school year, and Marriott’s
employees were informed that they were not to report to
work.
In October 1990, the employees who were formerly em-
ployed by Marriott commenced picketing at the schools and
at the ELPS office with pickets signs which read ‘‘Bring
Back Hot Lunch.’’
Thereafter, an unfair labor practice charge was filed
against Marriott, and in partial settlement of the charge, in
January 1991, a collective-bargaining agreement was exe-
cuted between Marriott and the Union. That agreement had
no effect on the operation of the cafeterias, since there was
no food service contractor operating the cafeterias during that
school year which ran front September 1990 to June 1991.
Accordingly, the former Marriott employees continued to
picket with the same signs.
B. Respondent Becomes the Contractor
In late June 1991, unit employee and shop steward Anne
Finnegan read a newspaper article which stated that Re-
spondent had been awarded a contract by the ELPS to oper-
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Helen Provost told Sottile that she would remain on the job if
she received medical insurance.
ate the cafeterias, beginning in September 1991. As a result,
on July 2, 18 unit employees traveled to Respondent’s Wake-
field, Massachusetts headquarters to file applications for em-
ployment.
The employees were met by Margaret Benard, the director
of human resources for Daka International. She was told that
the visitors were the former employees who were employed
at the East Lyme Public Schools, who wished to fill out ap-
plications. Benard told them that applications are not nor-
mally received at headquarters, but nevertheless gave them
applications, which they completed. Benard also told them
that the person who would be doing the hiring was the Re-
spondent’s director who would be appointed to service the
East Lyme contract, and that normally Respondent hires the
same employees who had been employed at the contracted
location before. However, Benard noted that no director had
been appointed as of that time.
While they completed the applications, Finnegan told
Benard that the employees were represented by a union.
Benard responded that that fact did not matter because Re-
spondent had other union accounts. Benard also assured them
that she would forward the applications to the appropriate
persons, and that they would contact the applicants.
On August 11, an advertisement appeared in a local news-
paper, which stated that Respondent was hiring cafeteria em-
ployees for the ELPS.
The following day, August 12, 18 unit employees ap-
peared at the East Lyme High School, where they met Wil-
liam Burnette, an official of Respondent. Finnegan told
Burnette that they were the employees who were formerly
employed at ELPS, and that they had completed applications
at Wakefield. At first, Burnette denied having the applica-
tions, but then located them. He read the names of the em-
ployees, all of whose applications he had. Burnette told the
workers that he was there simply to take applications, not to
interview anyone, and that a director would be hired, who
would contact them.
Later that day, two other employees, Gail Bohn and Lou-
ise Hall, visited the high school and completed applications.
They did not go to Wakefield in July.
Also, on August 12, the Union requested Respondent to
recognize it and bargain collectively as the representative of
the unit employees. Respondent has refused to do so.
During the summer, the picketing continued at the ELPS
headquarters.
On August 26, 1991, George Sottile was hired by Re-
spondent as its food service director for the ELPS. Sottile
was faced with the need to hire unit employees and have
them in place in 2 days. He was given about 50 applications,
including those completed by 20 who were former Marriott
employees. He interviewed 30 to 35 applicants. Sottile
called, interviewed, and hired 9 former Marriott employees,
but did not contact the other 11 former Marriott employees.
It was stipulated that those 11 former Marriott employees
were, during this period of time, ready, willing, and able to
accept employment by Respondent if it was offered. How-
ever, they were not contacted by Respondent.
The new school year began on September 3, 1991. Of the
24 employees of Daka, 9 comprised former Marriott employ-
ees. The picketing continued to take place, being conducted
by the 11 former Marriott employees who were not hired. On
September 23, all 20 former Marriott employees met at an
employee’s house, and heard from the 9 of their number who
were employed by Daka that they were being overworked,
that substitutes were not being hired when a worker was ab-
sent, and were asked to do jobs, in addition to their regular
work, that the new workers, those who had not been em-
ployed by Marriott, were unable to do. They were also gen-
erally unhappy with their work situation. All nine then voted
to strike on September 25, and join the picket line in support
of their coemployees who were not hired. They also agreed
not to tell anyone of their plan to strike, in order to maxi-
mize the impact of their walking out, so as to induce Re-
spondent to settle the matter quickly by rehiring their co-
employees.
The following day, September 24, Sottile spoke separately
and privately to each of the nine unit employees at the cafe-
terias where they worked. The conversations with Helen Pro-
vost, JoAnne Provost, and Annette Parke, were similar.1
Sottile told them that he knew what was ‘‘going on’’ regard-
ing the employees’ planned ‘‘walk-out’’ the next day. Sottile
told them that anyone who did not work the following day
would not have a job, adding that if they came to work they
would still have a job. Sottile asked each of them what they
intended to do. They all said they would have to think about
it. Sottile’s conversation with Gail Bohn was essentially the
same as with the other three workers, however, Sottile did
not tell her that if she did not come in the next day she
would not have a job. Only JoAnne Provost testified that
Sottile told her the source of his knowledge. She stated that
Sottile told her that the Union advised him of the walkout.
However, Provost was later told that the Union denied telling
Respondent about the walkout. All were surprised that Sottile
knew of the impending walkout.
Sottile essentially testified to the conversations set forth
above, but stated that he did not think that he told the em-
ployees that if they engaged in the walkout they would not
have a position. However, he testified that that was ‘‘under-
stood.’’ Sottile stated that he was told of the walkout by a
principal of a school.
On September 25, only five of the nine employees who
had voted to strike, actually did so. The other four remained
at work. The five, Bohn, Parke, Helen Provost, JoAnne Pro-
vost, and Denise Sullivan spoke with Sottile before the start
of the schoolday. JoAnne Provost, acting as spokesperson,
told him that they would not return to work until all the
former Marriott employees were hired and recognized as a
unit. Provost added that this issue was a ‘‘battle’’ for those
inside as well as those outside on the picket line, and was
a matter of ‘‘conscience.’’ The five workers then left and
began to picket. JoAnne Provost stated that she walked out
that day in protest of the failure to rehire her 11 former co-
workers, and in support of them.
Sottile testified that he concluded that the five employees
who refused to come to work on September 25 had quit, and
that following their quit he terminated them by noting in
their personnel files that they were terminated. Thereafter,
following 3 days of absence, during which time he saw them
picketing. Respondent’s manager, Kenneth Breeman, marked
their files as being ineligible for reinstatement because they
were absent for 3 days.
205DAKA, INC.
On September 26, the instant original charge was filed,
and the picket signs were changed to read that the picketing
was being conducted in support of the Union in behalf of
those not rehired. The picketing has continued to date.
The contract between the ELPS and Daka had not been re-
newed for the school year which began in September 1991.
Respondent’s Decision-Making Process
Regarding Hiring
As set forth above, George Sottile was hired as the food
service director for the ELPS on August 26, 1991. He had
sole authority to hire employees, and he needed to hire 24
workers within 2 days for a banquet to be held at the high
school. He was given about 50 applications, which included
all the former Marriott employees who had been employed
at the ELPS. He was given no instructions or directions as
to numbers of former Marriott employees to hire, or who,
specifically to hire or not hire. Sottile interviewed 30 to 35
applicants.
Prior to his review of the applications, Sottile was aware
that the ELP had a problem with the Union, which included
picketing. and which problem, was ‘‘ongoing.’’
Sottile conceded that given the time restraints imposed
upon him to hire, that it would have been easier to consider
the 11 former Marriott employees, but that Respondent had
‘‘other plans’’ for the operation.
In its request for proposal for a new food service con-
tractor, the ELPS made no reference at all to the hire of the
former marriott employees, unlike certain other school dis-
tricts which require or request that the new contractor hire
the employees who were formerly employed there. Accord-
ingly, Sottile believed that Respondent had a ‘‘free hand’’ in
hiring employees to begin a new program at the ELPS.
Of the nine former Marriott employees hired, Sottile hired
four of the five head cooks who had been employed by Mar-
riott. He stated that he needed to retain those key employees,
since they had experience in the ELPS, were familiar with
the kitchens, and he needed their skills, and also because of
the recommendations received in their behalf. As to the
other, nonhead-cook positions, Sottile sought people having
retail experience. Nevertheless, five former Marriott employ-
ees were hired for those positions. Those positions comprised
four food preparation employees and cashiers, and one assist-
ant cook-baker.
Sottile testified that, in making decisions concerning hir-
ing, he considered the fact that there had been no school
lunch program in the ELPS for 1 year, and that Respondent
was looking for a new program, one which should include
‘‘new blood,’’ much work regarding new products, changes,
and a lot of excitement, to induce the students back into the
school lunch program, after having been ‘‘brown-bagging’’
for 1 year.
Respondent sought to hire employees with retail experi-
ence; workers who could relate well to customers. Sottile de-
fined ‘‘retail experience’’ as those employees who had expe-
rience providing a product or service to customers in ex-
change for money.
Sottile screened all the applications by looking at the prior
experience of the applicants with a view toward hiring the
‘‘type’’ of people Respondent was looking for. He sought
employees who could market themselves and who could be
trained in Respondent’s marketing skills. For example, em-
ployees would have to participate in the Respondent’s pro-
grams by having contact with the students: reminding them
that there were stickers on the back of their trays, and to put
their names on raffle tickets; and the cashiers or servers
would have to make sure that the children take the proper
items to ensure that the ELPS receives credit for a reimburs-
able lunch.
In this regard, Sottile did not know anything about Mar-
riott’s prior food service program. Nor did he know the cus-
tomer service involvement, if any, of the 11 former Marriott
employees who he excluded from consideration. Rather,
Sottile explained that Respondent sought to put in place a
new program with new employees who were excited about
what they were doing. He had no reason to believe that the
11 did not possess the qualifications he sought, nor did he
have any reason to believe that they did possess those quali-
fications since he had not received any recommendations for
them.
Sottile’s decisions to hire were based on job experience
and past work history of the applicant, and on his own obser-
vations, feelings, and findings obtained when he spoke to the
applicants who he interviewed, and after checking their ref-
erences.
In making hiring decisions, Sottile looked at the overall
picture of the employee, with a view toward how they would
relate to customers; how they dressed; how they came across
in an interview; how they spoke with him; their communica-
tion skills; whether he believed they could be trained. His
bottom line was whether he believed that they would relate
well to customers. He based his evaluation on whether they
were good with people on their interview and the results of
the reference calls he made, to see how they related to cus-
tomers in their prior positions. Sottile conceded that he could
have asked the school principals for their opinions as to the
11 employees not hired, but did not do so, explaining that
the startup period was very busy.
Sottile stated that the 11 former Marriott employees were
never in the pool of applicants within his consideration for
employment because he never spoke to them. He stated that
the other employees he hired, who were not former Marriott
employees, were more qualified. He further stated that it was
not necessarily true that the 11 had all the experience and
qualifications he sought.
Sottile explained his reason in not interviewing some of
the 11 former Marriott employees. He stated that he believed
that there was a need for ‘‘new blood’’ in the school lunch
program, with a new program, with new, exciting ideas in
order to persuade the students to return to, and participate in
the school lunch program after its 1-year absence. with this
new program, Respondent intended to institute promotions
such as half price day; sticker days; raffles; giveaways, etc.
Sottile further explained that he decided that the 11 former
Marriott employees who he did not interview did not have
the type of customer experience sought, or that their experi-
ence was not sufficient to qualify for an interview, because
the ELPS contract was sold as a new program, that there
were many problems in the past year relating to the labor
union difficulty, which problems were extant. Respondent’s
plan was to change the program by bringing new life and
new blood into it. It intended to do new things and it needed
new people.
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sottile also testified that it was not necessarily true that the appli-
cation of the 11 employees not considered had all the experience and
qualifications he sought.
Sottile first testified that in the 3 days in which he was
conducting interviews in the school, he received positive un-
solicited recommendations for all nine former Marriott em-
ployees he hired. However, he contradicted this testimony by
later testifying that he received recommendations for only
seven of the nine former Marriott employees he hired: the
four head cooks. Helen and JoAnne Provost and Paullette
Izzo. Sottile further stated that he did not receive rec-
ommendations for two former Marriott employees who he
hired. However, he decided that they were qualified, as op-
posed to any of the 11 he did not choose, based on his ob-
servations of the way they conducted themselves during the
interview. It should be recalled, that the other 11 were not
called for interviews.
Sottile did not receive any recommendations for the 11 he
did not hire, either positive or negative, nor did he ask the
ELPS for its opinion of any of them.
Sottile stated that the fact that he received no positive rec-
ommendation for any of the 11 played a part in his decision-
making process. He explained this by saying that he did not
consider for employment the former Marriott employees who
were not recommended. He believed that if the principals
and administrators had taken the time to make recommenda-
tions concerning some of the employees, they should have
recommended others if they believed that they warranted
such recommendations.
In order to consider whether proper and equal consider-
ation was given to the 11 former Marriott employees, it is
important to look at the qualifications of the employees Re-
spondent hired in their stead. In assessing their qualifications,
one must keep in mind the experience sought by Respondent.
Gloria Bagley—was interviewed and hired on September
3, the first day of school. Sottile testified that notwithstand-
ing that the applications of the 11 former Marriott employees
had been pending since July 2, representing people who had
done the same type of work that he sought to employ work-
ers for, Sottile sought Bagley, who had never worked at
ELPS. Bagley had been a substitute in a school lunch pro-
gram, and she conducted herself very well in the interview.
Paula Baxter—hired as a food server, worked from 1980
to 1982 as a prep cook and salad maker. Since then, she had
reception and sales experience. In his testimony in the 10(j)
proceeding, Sottile conceded that Baxter’s experience after
982 bore no relationship with the kind of work she would
perform for Respondent.
Gail Bialowns—hired as a cashier, did typing and secre-
tarial work at Electric Boat Co., and worked as a bank teller;
which Sottile regarded as important experience to her posi-
tion as a cashier. Sottile stated that there is much student
contact as a cashier, inasmuch as the employee must remind
students to select all the proper components of a reimburs-
able meal
Tammy Collette—hired as a cashier. She also set up food
for 25 percent of her time. Collette worked for Dunkin’
Donuts, where she had cashier experience. Sottile stated that
he believed that her retail experience was more relevant for
Respondent than a long-term, former Marriott employee.
Catherine Devlin—hired as a server, did office work for
a newspaper. Although she had prior food experience, Sottile
did not know that when he read the applications and con-
tacted her for an interview. He testified that he hired Devlin
instead of any of the 11 former Marriott employees who
knew exactly what to do and had the past experience to do
it.2
Mary Driscoll—hired as a cashier, had prior experience
operating and managing a tavern and restaurant. One-third of
her time was spent doing noncashiering work, and for that
amount of time, according to Sottile, she was doing the kind
of work the 11 former employees were qualified to do.
Sue Jones—hired as an assistant cook. Sottile testified that
Jones admitted that she never had any experience doing this
type of work, but she had some restaurant experience, al-
though none in a cafeteria setting, serving food to children.
She had prior experience for 2 years at Domino’s Pizza, and
jobs at a tavern where she worked as a cook and bartender
for about 1 year, where she prepared fast food at the bar,
consisting of some of the same items served in the ELPS,
such as burgers. She therefore had experience with the most
popular items served—pizza, burgers, and fries.
Cheryl Karg—hired as a server, had experience as an x-
ray technician. Sottile conceded that her application listed no
relevant experience for the position he sought to fill. He fur-
ther admitted that, nevertheless he chose to interview her
rather than any of the 11 whose applications were ‘‘clearly
on point’’ as having the exact experience he sought. In his
testimony in the 10(j) proceeding, when questioned by the
judge, Sottile agreed that it would be a fair inference to sug-
gest that he had some ‘‘ulterior motivation’’ in not talking
to experienced people who had paper qualifications superior
to the person he interviewed and hired, such as Karg.
Joyce Lentz—offered a position as a cook on September
26, following the walkout of the five employees the day be-
fore. She had extensive experience as a cook, and Sottile re-
ceived a positive recommendation from an employee of Re-
spondent.
Marcia Marchand—hired as a cashier, worked in a flower
store, supermarket, and as a deli clerk. She had cashier and
food handling experience.
Alberta Paradesis—hired as a server and cashier, worked
for Toys-R-Us, PIP Printing, and New England Telephone.
Dawn Pressman—hired as a server, had experience work-
ing for a newspaper, and also assembling tachometers. She
also worked, from 1981 to 1984 as an assistant to a phar-
macist. Sottile regarded her customer experience as impor-
tant. Sottile conceded that he was not certain as to why he
decided to interview Pressman, as opposed to someone who
had worked for ELPS for 18 years, but he believed that the
reason was that he needed new people and new faces for a
new program.
Dawn Shay—hired as a prep-cook person, worked as a
cocktail waitress in a bar, and for 8 months as a food wait-
ress. Although Sottile conceded that Shay had no qualifica-
tions or past experience for the type of work she was hired
to perform—serving food to children in a cafeteria setting—
nevertheless she had other restaurant experience, which he
deemed important. Thus, she had experience dealing with
customers. Respondent’s philosophy was that the school chil-
dren were to be treated as customers who had discretion as
to whether or not to buy Respondent’s product, and its em-
ployees were expected to ‘‘sell’’ the product.
207DAKA, INC.
Analysis and Discussion
A. The Alleged Violations of Section 8(a)(1) of the Act
The complaint alleges that Respondent violated Section
8(a)(1) in several respects by virtue of Sottile’s conversation
with employees on September 24, 1991.
On that day, Sottile spoke with nine former employees of
Marriott who were then employed by Respondent, concern-
ing his information that they intended to engage in a strike
the following day. According to the credited testimony of the
employees who testified regarding this conversation, Sottile
told them that he knew ‘‘what was going on,’’ referring to
their decision to strike. They had met the day before, with
all the unit employees, at which the nine workers voted to
strike. Sottile’s statement created the impression of surveil-
lance because he implied that he was aware of their meeting
and activities in behalf of the Union. Escada (USA), Inc.,
304 NLRB 845 (1991); Spring City Knitting Co., 285 NLRB
426, 427 fn. 4 (1987). The fact that Sottile may have become
aware of the walkout through a school principal, as argued
by Respondent, has no bearing on the impression he gave to
employees, that he was aware of their planned walkout.
During the same conversation, Sottile asked employees
whether they intended to participate in the planned strike.
Those who testified said they had to think about it. Respond-
ent argues that Sottile properly asked this question so that he
could take preparations to staff the cafeterias with replace-
ments in the event of a strike. Indeed, Sottile testified that
the principal who made him aware of this event expressed
concern about Respondent being able to continue operations.
The complaint alleges that this inquiry constituted the unlaw-
ful interrogation of employees. Under these circumstances,
particularly where the four cooks, who were the key employ-
ees of Respondent, could be expected to leave without no-
tice, I believe that Sottile had a legitimate purpose in ques-
tioning the nine employees as to whether they intended to
strike the following day. I accordingly will recommend dis-
missal of this allegation of the complaint.
In the same conversation, according to the credited testi-
mony of the employees, Sottile told them that if they did not
come in the following day, they would no longer have a job.
I find that this threat of discharge violated Section 8(a)(1) of
the Act. Hotel Roanoke, 293 NLRB 182, 189 (1989).
B. The Alleged Violations of Section 8(a)(3) of the Act
1. The failure to hire the 11 former Marriott employees
General Counsel argues that Respondent embarked on a
plan to refuse to hire, for its ELPS operation, a sufficient
number of the former employees of Marriott so that its work
force would not be comprised of a majority of such former
workers. General Counsel further argues that Respondent’s
motivation in not hiring the 11 former Marriott employees
was to evade an obligation to bargain with the Union, as a
successor to Marriott.
Respondent denies that it failed to hire the 11 employees
because of any improper motivation, and asserts that proper
business considerations resulted in the hire of other employ-
ees who were not formerly employed by Marriott at the
ELPS.
A new owner of an operation is not obligated to hire any
of its predecessor’s employees, but may not refuse to hire the
predecessor’s workers solely because they were represented
by a union or to avoid having to recognize a union. NLRB
v. Burns Security Services, 406 U.S. 272 (1972); Howard
Johnson’s v. Detroit Local Joint Executive Board, 417 U.S.
249 (1974).
The Board has held that the following factors are
among those that establish that a new owner has vio-
lated Section 8(a)(3) in refusing to hire employees of
the predecessor: substantial evidence of union ani-
mus;lack of a convincing rationale for refusal to hire
the predecessor’s employees; inconsistent hiring prac-
tices or overt acts or conduct evidencing a discrimina-
tory motive; and evidence supporting a reasonable in-
ference that the new owner conducted its staffing in a
manner precluding the predecessor’s employees from
being hired as a majority of the new owner’s overall
work force to avoid the Board’s successorship doctrine.
U.S. Marine Corp., 293 NLRB 669, 670 (1989).
Here, unlike the typical case, there is no evidence of overt
union animus. No statements were made to employees in
which Respondent made it known that it sought to avoid rec-
ognizing the Union by limiting the number of Marriott’s em-
ployees it would hire. Sottile testified that he was given no
quota of such employees to hire, and had no discussion with
his superiors concerning union avoidance through careful hir-
ing. In fact, employee witnesses testified that Respondent’s
official Benard told them, when they submitted their applica-
tions in Wakefield, that the fact that the were ‘‘union’’ had
no bearing since Respondent had union accounts. Sottile tes-
tified that although he was aware of the fact that there was
no food service operation at the ELPS because of a union
problem, such factors did not enter into his decision-making.
Although there may be no evidence of overt statements of
union animus, General Counsel argues that the hiring of em-
ployees for the ELPS, in practice, provides a showing of ani-
mus, and establishes the motivation which caused Respond-
ent to refuse to hire a majority of Marriott’s former five em-
ployees. Houston Distribution Service, 227 NLRB 960
(1977).
Respondent was not required to employ any of the former
Marriott employees, or hire a sufficient number of such em-
ployees so that its work force would be comprised of a ma-
jority of its predecessor’s employees, as long as it did not
act unlawfully.
[Respondent] was only required to consider and select
[the former Marriott] employees on the same lawful
basis utilized with respect to others it considered and
either selected or rejected. Daka, Inc., 286 NLRB 548,
559 (1987).
In other words, were ‘‘all applicants for employment . . .
judged by the same standard, with the failure to hire the al-
leged discriminatees reflecting no more than equal applica-
tion of this standard?’’ Houston Distribution, supra at 966.
Respondent had the applications of 18 of the former Mar-
riott employees in its possession since July 2. Advertisements
were placed in a local newspaper about 6 weeks later for po-
sitions to fill the ELPS cafeteria Jobs. Sottile read all of the
approximately 50 applications received—20 from the former
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In this connection, Sottile contradicted himself by testifying that
he received recommendations for all the former Marriott employees
he hired, and later testifying, as above, that he hired two such em-
ployees without receiving recommendations concerning them.
Marriott employees, and about 30 other applicants who ap-
plied pursuant to the advertisement.
Based on Sottile’s reading of all the applications, he made
a preliminary decision to exclude from consideration for po-
sitions, 11 of the former Marriott employees. Yet he decided
to include for consideration nine such employees. Four were
cooks, who he needed because they were familiar with the
operation and they occupied key positions. Nevertheless, he
did not consider the 11 employees, notwithstanding that they
too were familiar with the operation. Rather, he considered
only those who he interviewed, and he excluded the 11 from
interview.
Hiring decisions were made based on the applicant’s expe-
rience, particularly retail work, and their appearance and con-
duct during the interview. Sottile also expressed a need for
new faces since this was a new program. However, a review
of the qualifications of those he did hire establishes that their
qualifications did not fit those sought by Sottile. Thus, at the
time that he screened all the applications, and selected those
for interview, he chose for interview Catherine Devlin,
whose application listed only office work. Similarly, he inter-
viewed and hired Cheryl Karg as a server, whose sole work
experience was as an x-ray technician.
Sottile stated that his bottom line in deciding whether to
hire an individual was whether they were good with people.
He stated that he based his evaluation on whether they were
good with people on their interview, and his calls of their
references.
Other reasons for excluding the 11 from consideration
were that Sottile received favorable recommendations for
certain former Marriott employees he hired, but received no
recommendations, but no negative comment, about the oth-
ers. However, the record indicates that of the nine former
Marriott employees he hired, he received recommendations
for only seven of them. Nevertheless, he hired two others
without receiving recommendations. He decided that those
two were qualified based on his interviews with them.3 How-
ever, the other 11 were not contacted or given an opportunity
to impress him with their qualifications, upon interview. No
explanation was given as to why he hired only nine of the
former Marriott employees, and not more, given that two
were interviewed without recommendations received regard-
ing their past performance.
Sottile stated that he could have contacted ELPS authori-
ties for their comments about the 11 employees but chose not
to do so because the startup time was very hectic. However,
he conceded that it would have been ‘‘easier’’ to simply hire
all the former Marriott employees, yet he did not do so. This
is instructive, especially considering his testimony that the 11
applicants possessed the qualities he sought and had the ex-
perience to perform the jobs that he interviewed others for.
Emphasis must be placed on the qualifications of the per-
sons hired as compared to the 11 refused consideration.
Sottile sought a new face, a new person, with the ability to
relate to people, and as to those, he stated that they could
be trained in Respondent’s method of operation. However,
no consideration was given to the 11 former Marriott em-
ployees who had worked in the ELPS for as long as 13
years, in the case of Anne Finnegan, who also could have
been trained. Sottile regarded it as important that the cooks
be retained because they were familiar with the operation.
They, apparently, did not have to relate well to people be-
cause they were in the kitchen, cooking. Presumably, the
same emphasis on familiarity with the operation did not
apply to the servers or cashiers since their importance to Re-
spondent lay in their ability to relate well to the customer.
However, no consideration, by way of interview, was given
to the former Marriott employees. Sottile conceded that they
had the qualifications and knew what to do in their jobs. The
11 employees ‘‘provided a willing and available source of
manpower, which could serve Respondent’s immediate need
for qualified [employees] with little adjustment and train-
ing.’’ Houston Distribution Services, 227 NLRB 960, 966
(1977). See El Mundo Corp., 301 NLRB 351 (1991). ‘‘De-
spite the presence of a pool of experienced workers, respond-
ent went to considerable length to replace the union employ-
ees with entirely new workers—most of whom had no pre-
vious experience on pipeline operations.’’ NLRB v. Foodway
of El Paso, 496 F.2d 117 (5th Cir. 1974).
Thus, rather than interview and consider the 11 former
Marriott employees, which concededly would have been easi-
er in view of the time constraints, Respondent refused to
consider them for interview, while at the same time, placing
an advertisement in the local newspaper, and considering the
applications of those responding to the advertisement, as to
whom it could not be certain it would obtain people who
possessed the qualifications and trainability it sought. Hous-
ton Distribution, supra at 966–967.
The evidence establishes that Respondent embarked on a
plan to hire only a sufficient number of the former Marriott
employees to constitute a minority of its employees in order
to avoid an obligation to bargain with the Union.
When viewed against the criterion required to be observed
in making hiring decisions—to consider and select the
former Marriott employees on the same lawful basis utilized
with respect to others it considered and either selected or re-
jected—I must find that Respondent did not satisfy that
standard. Nor do I find that Respondent equally applied its
hiring standards. Thus, the 11 former Marriott employees
who concededly had the paper qualifications to perform the
jobs interviewed for, were not sought for interview. They
were not given the opportunity to compete with the other ap-
plicants for interview, where the interview was very impor-
tant in the hiring decision. Rather, others who had no job ex-
perience in retail service, or specifically with school children,
were hired.
Accordingly, I find that the General Counsel has made a
prima facie showing sufficient to support the inference that
motivating factor for Respondent’s failure to interview and
hire the 11 former Marriott employees was its determination
not to become obligated to bargain with the Union. Wright
Line, 251 NLRB 1083 (1980).
I also find that Respondent has failed to carry its burden
of proving that any of the 11 employees would not have
been hired in the absence of their union activities. In this
connection I note that its defenses, that it sought new people,
especially with retail experience, is not established by the
evidence. It selected for interview an employee whose appli-
cation listed her experience as being an x-ray technician. In
209DAKA, INC.
4 Of course, an offer to return to work by discharged strikers is
unnecessary. Abilities & Goodwill, 241 NLRB 27 (1979).
addition, Respondent’s defense was based on the fact that
recommendations were received for the Marriott employees
it did employ. However, two such employees were hired
without recommendations being received.
2. The discharges of the strikers
Inasmuch as I have found that Respondent’s failure to hire
the 11 former Marriott employees violated Section 8(a)(3)
and (1) of the Act, it therefore follows that the five employ-
ees’ strike in protest of Respondent’s failure to hire the 11
was an unfair labor practice strike. I find, based on the cred-
ited testimony of the employees, that the reason the 5 em-
ployees’ struck on September 25 was to protest Respondent’s
refusal to hire the 11 employees unlawfully refused hire. I
note that the employees also testified that they struck in
order to protest their working conditions. However, even if
part of their motivation in striking was to protest the unfair
labor practices, the strike is an unfair labor practice strike.
Accordingly, I find that the September 25 strike was an un-
fair labor practice strike from its inception. Harvard Indus-
tries, 294 NLRB 1102, 1110 (1989), enfd. 921 F.2d 1275
(D.C. Cir. 1990).
I reject Respondent’s argument that because the strike was
allegedly designed to cripple Respondent’s operations, it was
thereby unprotected. The fact that the strikers told no one
about ther plans to strike in order to maximize its impact and
force the reinstatement of their colleagues does not, thereby,
render the strike unlawful.
The fact that the employees delayed going on strike
until it would be most likely to have an adverse eco-
nomic impact on Respondent is scarcely indicative that
the unfair labor practices of Respondent were not the
cause behind the decision to strike. [Stephenson-Yost
Steel, 294 NLRB 395, 405 (1989).]
Respondent determined that the five employees who struck
had quit, and that following their quit Respondent terminated
them by noting in their personnel files that they were termi-
nated. Thereafter, following 3 days of absence, Respondent’s
manager Kenneth Breeman marked their files as being ineli-
gible for reinstatement because they were were absent for 3
days.
The five employees were not told that they were consid-
ered as quits who had been terminated due to their absence
from work for 3 days. The question here is not what they
knew at the time concerning their status, but rather what the
intention and actions of Respondent was.
The employees made the purpose of their action
plain to Respondent and Respondent was not free to
treat the walkoff as a ‘‘quit.’’ I find that the eight em-
ployees engaged in a strike . . . [r]espondent treated
the strike as a quit and in so doing terminated the em-
ployees. As I have found that the employees did not
themselves ‘‘quit,’’ such a termination was in fact a
discharge by Respondent. Though Respondent did not
notify the employees of the discharges until . . . the
following day, the discharges had been in effect since
[the prior day]. [ABC Prestress & Concrete, 201 NLRB
820, 825 (1973)].
Here, too, the five employees engaged in an unfair labor
practice strike to protest the refusal of Respondent to hire
their 11 coworkers. They did not quit their employment. Al-
though they were not told that they were discharged, and did
nothing to attempt to obtain their reemployment, nevertheless
had they offered to return to work, such offers would have
been refused on the ground that their personnel files were
marked that they were terminated and ineligible for reinstate-
ment. Accordingly, it would have been futile for them to
offer to return to work.4
The term ‘‘discharge’’ means that ‘‘any offer to re-
turn to work [by the striking employees] . . . [would
be] futile for purposes of achieving the full reinstate-
ment to their former status to which they, as unfair
labor practice strikers, were entitled.’’ [Matlock Truck
Body, 217 NLRB 346, 349 (1975).]
I accordingly find and conclude that Respondent’s dis-
charge of the five unfair labor practice strikers violated the
Act. Harvard Industries, supra. They were deemed ineligible
for reinstatement 3 days after they struck. Accordingly, I find
that they were discharged as of September 25, the day they
were treated as quits.
C. The Alleged Violation of Section 8(a)(5) and (1)
of the Act
The complaint alleges, and Respondent denies, that Re-
spondent is a successor to Marriott at the ELPS.
A successor employer is obligated to bargain with the
labor organization which represented the predecessor’s em-
ployees. NLRB v. Burns Security Services, 406 U.S. 272
(1972). In determining this question, the Board seeks to de-
termine whether there is substantial continuity in the employ-
ing enterprise. A number of factors are examined, including
whether the new company conducts essentially the same
business as the predecessor.
Here, the physical plants remained the same when Marriott
operated the food service operation at the ELPS, and when
Respondent began its operation as the food service con-
tractor.
Respondent’s employees while employed at ELPS worked
in the same kitchens, using the same trays, pots, pans, uten-
sils, aprons, cash boxes, and cash registers as were used
when the employees were employed by Marriott. There were
some minor variations concerning the menu—Respondent
provided two hot lunches, Marriott offered only one. There
were also differences as to the receipts. Respondent required
its cashiers to count the money they received. Marriott re-
quired its head cooks to count the money.
The four head cooks previously employed by Marriott
were hired by Respondent in order to provide ‘‘continuity’’
because they were familiar with the operation.
Respondent argues that its task was to initiate a new pro-
gram with vitality in order to win back customers who had
no catered lunch service for the prior year. In keeping with
that goal, Respondent’s plan was to provide innovative pro-
grams and promotions in order to encourage the students to
buy lunch from it. Respondent concedes that it was not
aware of Marriott’s programs while that company was the
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ELPS contractor. Respondent further argues that the business
philosophy of the two companies was different, in that Re-
spondent is more concerned with treating the customer as a
guest, and encouraging him to buy more products. I doubt
that either the goals, as set forth above, or Respondent’s
business policy, differed that much from Marriott’s goals or
philosophy.
At bottom, Marriott and Respondent were food service
companies, engaged in servicing a student population in the
ELPS at the same locations with the same cooking devices,
providing a similar menu with approximately the same num-
ber of employees.
In addition. Respondent argues that the 1-year hiatus in
operations between Marriott’s operation of the facilities and
its taking over constitutes a substantial change sufficient to
defeat a finding of successorship. I do not agree. There does
not appear to have been any other substantial changes in op-
erations. Great Lakes Chemical Corp., 298 NLRB 615
(1990). It should be noted that the entire Marriott work force
applied for positions with Respondent.
Where the other required elements for finding
successorship are present, as they are here, ‘‘a new owner’s
failure to hire its predecessor’s employees will not defeat a
claim of successorship if such failure is shown to have been
motivated by the former employees’ union affiliation.’’
American Cleaning Co., 291 NLRB 399, 406 (1988).
Applying these principles to the facts here, I find that Re-
spondent is the successor employer to Marriott. I further find
that, but for Respondent’s unlawful refusal to hire possibly
all, and certainly a majority of the employees of the prede-
cessor, a majority of Respondent’s employees would have
been comprised of the former Marriott employees. I accord-
ingly find and conclude that Respondent, as a successor em-
ployer, violated Section 8(a)(5) and (1) of the Act by refus-
ing to bargain with the Union.
Although the Union demanded recognition and bargaining
on August 12, 1991, Respondent’s obligation tn bargain did
not commence until September 1, 1991. when it refused to
hire the former Marriott employees.
Where a successor owner has illegally refused to hire the
predecessor’s employees, the new owner would be presumed
to have retained substantially all of those employees and
therefore would not be entitled to set initial terms of employ-
ment without first consulting the Union. State Distributing
Co., 282 NLRB 1048 (1987); Harvard Industries, supra at
1111.
According, inasmuch as I have found that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discriminatorily
refusing to hire the bargaining unit employees employed by
Marriott, I must therefore conclude that Respondent was not
free to establish the initial terms and conditions of employ-
ment, but was obligated to first bargain with the Union about
such changes. Since Respondent has not done so, it has vio-
lated Section 8(a)(5) and (1) of the Act. Harvard Industries,
supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to hire the following employees for its East
Lyme Public Schools operation on September 3, 1991, be-
cause they were represented by the union, and in order to
avoid an obligation to bargain with the Union, the Respond-
ent has violated Section 8(a)(3) and (1) of the Act: Sylvia
Concetta Austin, Arlene M. Banks, Doris C. Downey, Anne
E. Finnegan, Antoinette M. Kohl, Mary Francis Levanti,
Ethel Long, Dianna L. Risch, Jeanne M. Stadnicki, Eleanor
M. Yuhas, and Louise A. Hall.
4. By refusing to recognize and bargain with the Union on
September 3, 1991, as the collective-bargaining representa-
tive of the employees in the unit described below, the Re-
spondent has violated Section 8(a)(5) and () of the Act.
5. The strike which commenced on September 25, 1991,
was an unfair labor practice strike caused by the unfair labor
practices described above in paragraph 3.
6. By discharging the following employees on September
25, 1991, because they engaged in an unfair labor practice
strike, Respondent violated Section 8(a)(3) and (1) of the
Act: Gail Bohn, Annette Parke, Helen Provost, JoAnne Pro-
vost, and Bernice Sullivan.
7. By telling employees that it was aware of their planned
strike activities, Respondent violated Section 8(a)(1) of the
Act.
8. By telling employees that if they engaged in a strike
they would no longer have jobs, Respondent violated Section
8(a)(1) of the Act.
9. By asking employees if they intended to strike, Re-
spondent did not violate the Act.
10. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
11. The appropriate collective-bargaining unit consists of:
All full-time and regular part-time cooks and cafeteria
workers employed by the Respondent at East Lyme
High School, East Lyme Junior High School, Lillie B.
Haynes School and Flanders Elementary School, East
Lyme, Connecticut, and at the Niantic Center School,
Niantic, Connecticut; but excluding all other employees,
office secretaries and clerical employees, confidential
employees, casual employees, student helpers and all
guards, professional employees, and supervisors as de-
fined in the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it is recommended that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the Act.
Inasmuch as Respondent has ceased doing business at the
East Lyme Public Schools as of the end of the school year
in June 1992, it would be meaningless to require it to bar-
gain with the Union concerning an initial collective-bar-
gaining agreement for employees who are not employed at
that location. Eltec Corp., 286 NLRB 890, 897 (1987).
For the same reason, I will not order that immediate rein-
statement be offered tn any of the employees set forth above.
Those employees will not be entitled tn reinstatement unless
Respondent resumes the same or substantially the same oper-
ations at the East Lyme Public Schools. Williams Motor
Transfer, 284 NLRB 1496, 1497 (1987).
211DAKA, INC.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall. as provided in Sec. 102.46 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
However, Respondent shall be ordered to make the em-
ployees whole for any loss of earnings and other benefits
they may have suffered as a result of the discrimination
against them. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and in-
terest thereon shall be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Backpay for the 11 employees set forth above, shall be com-
puted based on the start of Respondent’s operations at ELPS
on September 3, 1991, and shall continue until the cessation
of Respondent’s business at ELPS, less interim earnings.
Backpay for the employees discharged on September 25,
1991, shall be computed from the date of their discharge and
shall continue until the cessation of Respondent’s business at
ELPS, less interim earnings. The evidence received at the
hearing concerning Bernice Sullivan’s availability to work at
the time of her discharge should be considered during the
compliance stage of this proceeding.
Inasmuch as Respondent no longer maintains its operations
at the last Lyme Public Schools, I shall recommend that it
mail a copy of the notice which it is required to post, to each
employee in the unit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Daka, Inc., Wakefield, Massachusetts, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
International Union, United Automobile, Aerospace, and Ag-
ricultural Implement Workers of America, Local 376, UAW,
AFL–CIO, as the exclusive collective-bargaining representa-
tive of its employees in the following appropriate unit:
All full-time and regular part-time cooks and cafeteria
workers employed by the Respondent at East Lyme
High School, East Lyme Junior High School, Lillie B.
Haynes School and Flanders Elementary School, East
Lyme, Connecticut, and at the Niantic Center School,
Niantic, Connecticut; but excluding all other employees,
office secretaries and clerical employees, confidential
employees, casual employees, student helpers and all
guards, professional employees, and supervisors as de-
fined in the Act.
(b) Making changes unilaterally in the terms and condi-
tions of employment of the employees in the above unit
without notice to and bargaining with the above union.
(c) Refusing to hire employees for its East Lyme Public
Schools operation because they were represented by Inter-
national Union, United Automobile, Aerospace, and Agricul-
tural Implement Workers of America, Local 376, UAW,
AFL–CIO, or in order to avoid a bargaining obligation with
that Union.
(d) Discharging employees because they engaged in an un-
fair labor practice strike.
(e) Telling employees that it was aware of their planned
strike activities.
(f) Telling employees that if they engaged in a strike they
would no longer have jobs.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On the resumption of Respondent’s operations at the
East Lyme Public Schools, offer reinstatement to Sylvia
Concetta Austin, Arlene M. Banks, Doris C. Downey, Anne
E. Finnegan, Antoinette M. Kohl, Mary Francis Levanti,
Ethel Long, Dianna L. Risch, Jeanne M. Stadnicki, Eleanor
M. Yuhas, Louise A. Hall, and also to Gail Bohn, Annette
Parke, Helen Provost, JoAnne Provost, and Bernice Sullivan.
(b) Make whole the employees set forth in subparagraph
(a) above, for any loss of earnings they may have suffered,
in the manner described in the remedy section of this deci-
sion.
(c) On the resumption of Respondent’s operations at the
East Lyme Public Schools, recognize and bargain collectively
with International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America, Local 376,
UAW, AFL–CIO, as the exclusive collective-bargaining rep-
resentative of its employees in the appropriate unit set forth
above.
(d) Remove from its files any reference to the unlawful re-
fusal to hire employees, and the unlawful discharge of em-
ployees, and notify the employees in writing that this has
been done and that the refusals to hire and the discharges
will not be used against them in any way.
(e) Preserve and, on 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 Order.
(f) Post at its office in Wakefield, Massachusetts, copies
of the attached notice marked ‘‘Appendix’’6 and mail copies
to all employees of the Respondent in the East Lyme Public
Schools unit. Copies of the notice on forms provided by the
Regional Director for Region 34, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in writing within 20 days
from the Date of this Order, what steps have been taken to
comply.